The Rise in Class Action Lawsuits against Mining ‘Powerhouses’ in South Africa

Introduction

The discovery of gold in South Africa in the 19^th century contributed to the rapid growth of the country’s mining industry.[1] Due to the mining industry's insistent demands, South Africa, an underdeveloped and mostly pastoral or agricultural country, transformed into an economic hub with power, railways, roads, and improved water supply.[2] As the mining industry expanded over the years, ensuring an adequate supply of cheap labour became a significant challenge.[3] Resultantly, the South African mining industry relied heavily on black male workers who would migrate from their homelands to the mining towns so they could earn a living and support their families.[4]

Mines are inherently dangerous workplaces. The reality of sustaining Injuries due to accidents and contracting untreatable occupational diseases presents a great health hazard among mineworkers. During the apartheid dispensation, black men and women were deprived of education and skills development initiatives which would afford them safer and higher-paying jobs.[5] Further, black South Africans were excluded from accessing adequate healthcare services.[6] Therefore, mineworkers have been systematically exposed to these dangerous working environments. This blog highlights how mining companies continue to neglect the well-being and human rights of mineworkers, even years after the apartheid era. Mining corporations remain complacent in providing a safe workplace for mineworkers, even with extensive research on how health and safety risks can be mitigated.

What does the law say?

The Constitution of the Republic of South Africa, 1996 (Constitution) does not expressly provide for healthy and safe workplaces. However, section 10 provides that all people have the right to have their dignity protected and respected. Section 11 provides that all people have the right to life. The right to Human dignity and respect for human life are fundamental values that are the foundation of all rights in the Bill of Rights. These values also underpin both national and international laws.

Article 23 of the United Nations Universal Declaration of Human Rights (UDHR) states that every person has the right to work under just and favourable conditions. Locally, section 2(a)(i) of the Mine Health and Safety Act 29 of 1996 (MHSA) places a duty on every employer of a mine to ensure, as far as reasonably practicable, the mine has been designed, constructed, and equipped to ensure safe operations and a healthy work environment. The “just and favourable” and the “as far as reasonably practicable” conditions in the two legal provisions mean that an employer has the duty to do all that is reasonably able to be done to promote health and safety in the workplace.[7] This should be done with due regard to the knowledge available concerning the risk or hazard, the availability of the means to remove and mitigate the risk or hazard, and the costs and benefits of mitigating these risks and hazards.[8] Further, the “just and favourable” highlights the many injustices suffered by certain workers who work gruelling hours in dangerous and substandard conditions. This requirement ensures that employers are conscious that mineworkers are human beings before workers, and, therefore, their right to life must be honoured.

Have things changed?

Since the early 1900s, occupational diseases such as silicosis and pneumonia have been indicated as the leading cause of a vast number of fatalities amongst black mine workers.[9] The Weldon Commission’s report submitted in 1903 recommended more stringent regulations on mining processes to reduce silica production, such as wet drilling, mechanical ventilation and water sprays.[10] The International Labour Organisation sponsored the 1903 Silicosis Conference hosted in Johannesburg to encourage research on occupational diseases in industrial production and create a network of specialists to promote workplace reform.[11] Despite the research, the mining houses at the time resisted the inevitable production changes and costs that would come with implementing the suggestions made in the report.[12] Extensive research has since been conducted on mitigating mining-related occupational diseases, placing mining companies in a suitable position to meet the legal requirement to provide a healthy and safe workplace for mineworkers.[13] Further, the South African government has published regulations, guidelines, and mandatory Codes of Practice that assist employers in managing risks to health.[14] However, mining companies, who generate billions of rands in profits from the operation of the mines, fail to provide adequate protective equipment and healthcare services and implement the safety guidelines.

On the 15^th of August 2023, Richard Spoor Inc. Attorneys (RSI) filed a class action lawsuit against coal mining companies BHP Billiton, Seriti Power and South32. Further applications were brought against Exxaro, Glencore and Anglo American later for similar reasons. The law firm will represent thousands of coal mineworkers and relatives affected by coal mine dust lung disease (CMDLD). CMDLD are a group of occupational lung diseases attributed to long-term exposure and inhalation of coal mine dust.[15] Cumulative coal dust exposure adversely affects the lung function of [16] The applicants argue that the international mining companies made little to no effort  that would protect mineworkers against incurable lung morbidities. Further, the applicants argue that they were not educated about the disease and its symptoms and they often brushed off the discomfort in the respiratory tract as a recurring flu. This makes it difficult for them to seek medical attention for early intervention.to implement statutorily mandated measures that would protect mineworkers against incurable lung morbidities. Further, the applicants argue that they were not educated about the disease and its symptoms and they often brushed off the discomfort in the respiratory tract as a recurring flu. This makes it difficult for them to seek medical attention for early intervention.

Conclusion

The failure to honour the internationally recognized right to work in just and favourable conditions threatens the health and well-being of mineworkers. This further undermines their status as social equals, with all types and classes of employees or workers in South Africa. Mining companies must do all that is reasonably possible to protect and preserve the lives of all their employees. Legal remedies such as class action lawsuits should be mineworkers' last resort in asserting their rights. The South African government has the duty to ensure that adequate surveillance and transparency initiatives are designed and implemented well before irreparable damage is done to the livelihoods of mineworkers.