Related Stories By Felix Njini Published: 20120410
Getting the Mines to Pay

Case one. A South African lawyer has signed up more than 6 000 plaintiffs from South Africa and Lesotho in preparation for a class-action lawsuit against gold miners whose negligence allegedly resulted in workers contracting silicosis, a debilitating lung disease.

Attorney Richard Spoor, whose legal battle against a South African asbestos mining company led to a US$100-million settlement in 2003, said recently he would file class action papers at the South Gauteng High Court in Johannesburg “within the next few months”.

Case two. Former workers of Anglo American Plc have launched court proceedings against the global resources giant, alleging they have succumbed to lung diseases while digging for gold.

Law firm Leigh Day & Co started the litigation by 450 South African black workers against Anglo American South Africa (AASA), a subsidiary of the global giant in the London High Court on Wednesday.

Case three. A group of non-governmental organisations recently lodged an appeal with the Supreme Court of Canada to hold mining companies liable for human rights abuses in the DRC.

The Canadian Association Against Impunity (CAAI)’s pursuit of justice on behalf of hundreds of Congolese families had already suffered a blow when the Quebec Court of Appeal threw out a human rights case against Anvil Mining Limited in January this year.

CAAI has so far singled out Anvil Mining, which was acquired by Chinese firm, Minmetals Resources Ltd, for US$1.3 billion in March this year, for culpability in the death of more than 100 civilians in Kilwa, Katanga Province.

These are just three examples of the abuses that Africans have suffered at the hands of mining companies over the decades.

Oddly, though, the cases do not get much media attention, and most references to them are within the context of how such lawsuits harm foreign investment in the continent.

Evidently, profits are being placed above human lives and human rights.

The biggest fear, in the case of apartheid era mine abuses, is that the total bill could reach more than US$100 billion.

That is the bottom line that business is looking at. It is also the same line that African governments appear to be considering when they shy away from assisting their citizens from claiming compensation for the wrongs done to them in the name of FDI (foreign direct investment).

And all this is against the overwhelming evidence of abuse that is there for all to see.

In the latest case, that of Anvil Mining in the DRC, the company disclaims liability for the deaths of more than 100 people in an October 2004 massacre despite admitting to providing logistical support to units of the army, FARDC.

An investigation by the UN Mission in the DRC found that Anvil availed vehicles, company drivers, flights, food and money to soldiers, who allegedly tortured, raped and killed the civilians.

Kilwa is about 55km from Anvil’s Dikulushi copper, cobalt and silver mine.

The DRC army moved into Kilwa to restore order and regain control of the town after a rebel uprising.

The rebels wanted independence from provincial government in Katanga.  

A 2007 military trial acquitted nine soldiers and three Anvil former managers.

Two soldiers were found guilty of murder but got reduced sentences and were redrafted into the army.

A 2010 UN report said that trial had failed to set “an important precedent in terms of corporate accountability” and “failed to meet international standards of fairness”.

“The Kilwa case demonstrated the difficulty in proving the legal responsibility of private companies in the perpetration of human rights abuses and violations of international humanitarian law,” the UN report said.

Earlier this year, the Quebec Court of Appeal overturned an earlier decision by the Quebec Superior Court that Quebec had jurisdiction to hear the case, and that victims would fail to get justice elsewhere ‑ either in the DRC or Australia, where Anvil was previously headquartered.

If the Canadian Supreme Court rules that the case should be heard, it will have major implications on whether Canadian mining companies can be held accountable for their involvement in human rights violations committed outside Canada, reports say.

In the South Africa and Lesotho gold miners case, lawyer Richard Spoor has said AngloGold Ashanti, Gold Fields, Harmony Gold and DRDGold are responsible for illnesses suffered by thousands of workers.

Spoor said he had 6 876 plaintiffs from South Africa and Lesotho.

His planned suit has little precedent in South African law but is premised on a landmark ruling by the Constitutional Court in 2010 that allows ill mine workers to sue employers for damages.

The plaintiff in that case, Thembekile Mankayi, sought R2.6m in damages, loss of earnings, medical bills, and pain and suffering caused by silicosis and tuberculosis allegedly contracted while working for AngloGold from 1979 to 1995.

Mankayi died days before the ruling.

In a separate case, law firm Leigh Day & Co has brought together medical reports of thousands of former Anglo workers who are now suffering from silicosis and silico-tuberculosis.

The diseases were allegedly contracted from exposure to dangerous levels of dust in Anglo’s gold mines.

Silicosis is an occupational disease caused by prolonged or intensive inhalation of crystalline silica dust.

There is no treatment for silicosis, a known hazard of gold mining.

People with silicosis have an increased risk of contracting TB.

Leigh Day & Co has filed a representative claim on behalf of unnamed claimants, saying it could be worth hundreds of millions of US dollars. “Legal proceedings have now been issued in the UK High Court by London firm Leigh Day & Co against AASA.

“These proceedings name over 450 individual claimants and also include a claim for a representative class of unnamed underground back miners who are alleged to have contracted silicosis or silico as a result of excessive dust levels on AASA mines up to 1998.”

Naturally, Anglo denies liability.

The South Africa Legal Resources Centre has a pending case against Anglo, in which 18 former workers lodged a case in Gauteng High Court in 2004. A 1997 study showed that prevalence of silicosis reached 31 percent among Batswana men in South Africa’s apartheid mines.

Another one in 1998 found infection rates of up to 36 percent in ex-gold miners in Eastern Cape.

In 2008, the American Journal of Industrial Medicine confirmed very high rates of silicosis (25 percent) and TB in gold miners.

At their peak in the 1980s, South Africa’s gold mines employed 500 000 people.

Medical research suggests as many as a third of gold miners have silicosis.

A 2009 paper by researchers from the University of the Witwatersrand and University College (London) estimated there were 288 000 cases of compensable silicosis in South Africa alone. It also assessed the industry’s unpaid compensation liability at R10b at 1998 values.

Today, that is worth some R27b.