14th January 2021
Sello Motseta
Ditshwanelo-BOTSWANA Centre for Human Rights is assuming centre stage in efforts by documented and undocumented migrant mineworkers to access compensation settlements which total a mouth watering ZAR 5 billion for exposure to silicosis in gold mines in the Gauteng area.
Silicosis is a form of occupational lung disease caused by inhalation of crystalline silica dust. It is marked by inflammation and scarring in the form of nodular lesions in the upper lobes of the lungs. It is a type of pneumoconiosis and often later develops to TB although individuals are known to die from it.
“There are a lot of people in Botswana who have worked for mines in South Africa and we are aware that Gold Fields mines have made verbal commitments about making payments but no one is being paid their benefits yet. Gold mines are saying they will only pay social security benefits to those exposed to silicosis. There are also people who have suffered physical injuries during work, long service provident fund beneficiaries and those entitled to enjoy tax rebates,” said Moses Opaketse Mmokele, a 62 year old mineworker who left Goldfield Mines in Carltonville in March 2020 after working for them for 21 years.
He said, “It is not clear when the beneficiaries will receive their money. We had sent Phiri Botswana Labour Migrants Association(BOLAMA) to handle the negotiations on our behalf.
Mmokele complains that he is not working and his family is dependent on him.
“I have 6 kids of school going age 3 of my kids want to further their education but I do not have money and am unable to claim my benefits. I worked for Goldfields and developed TB caused by my exposure to silicosis. There is nobody helping me secure funds for my medication,” said Mmokele.
He said, “The SDA clinic in Kanye determined that I had TB in September 2012 after tests I conducted because I was feeling a continuous pain in my chest and even now I had to ask for tablets to ease the pain over festive period.”
This follows the judgement in the case of BONGANI NKALA and 67 OTHERS in July 2019 in the High Court of South Africa Gauteng Local Division, Johannesburg where a settlement agreement was reached with the class representatives and the Settling Companies and signed on 3 May 2018.
The settlement agreement provided for the payment of benefits to mineworkers and the dependants of deceased mineworkers, who contracted silicosis or pulmonary tuberculosis as a result of their employment by the Settling Companies, through the Tshiamiso Trust (“the Trust”).
The Trust is funded by six Settling Companies namely African Rainbow Minerals Limited, Anglo American South Africa Limited, AngloGold Ashanti Limited, Gold Fields Limited, Harmony Gold Mining Company Limited and Sibanye Gold Limited, who are also the founders of the Trust (“the Founders”).
The Trust is obliged to identify and locate eligible mineworkers and dependants for a period of 12 years from the date the Trust becoming effective. But mineworkers in Botswana who are both documented and undocumented migrants are growing increasingly impatient over delays in rolling out the exercise and ensuring they are adequately compensated for damages incurred.
“We started working with ex-miners towards the end of 2012 when we were registering them to be able to make claims for injuries or illnesses incurred during the course of their work. We were focused on the gold mines in the Gauteng area,” said Florah Kedibonye, Programme Officer for Ditshwanelo – The Botswana Centre for Human Rights.
She said, “We registered more than 3,000 Batswana who worked in SA mines and the lawyers Richard Spoor provided funding for the registration exercise. They were negotiating with mines about providing compensation for miners failing which they were taking matter to court as a test case.”
The exercise was focused on mineworkers from labour receiving countries in the region like Swaziland, Lesotho, Botswana, Mozambique, Zimbabwe and Zambia. It targets mineworkers and will use mine ID’s as an identification document because many mineworkers involved were undocumented migrants.
“Our job was to identify those affected by exposure to silicosis whilst working in mines in SA. It starts as TB and progresses to Silicosis,” said Kedibonye.
She said, “Many local mineworkers had dust in their lungs and some died before disease graduated to Silicosis. When we were doing our recording in Botswana we moved around several villages like Kweneng, Ngwaketse, Borolong, Palapye and Mochudi.”
After registering both documented and undocumented migrants, the Disthwanelo-Botswana Centre for Human Rights sent them to SA for further assessment because the country does not have the capacity to conduct the tests required. The situation was compounded by the fact that a lot of mineworkers left their medical cards in South Africa after their work contracts were terminated.
A number of other issues also emerged during the registration exercise like miners who suffered other injuries during work like those without arms, fingers, feet as well as damaged eyes and ears.
Before the historic court judgement, a regional widow’s forum was established for the mining sector to enable families of mineworkers to access their social security benefits via the Southern Africa Trust and Southern Africa Miners Association (SAMA) with a coordinating team in place from Botswana, Lesotho, Malawi, Mozambique, Swaziland and South Africa but progress on ensuring that affected migrants miners families are compensated remains a painfully slow and tedious process.
Affected widows were expected to be able to dialogue with the relevant authorities from Department of Health South Africa (DOH-SA)-Medical Bureau for Occupational Disease (MBOD) and Compensation Commission for Occupational Disease (CCOD) for TB and Silicosis related compensation.
“One of the areas of concern is the issue of portability of mineworkers social security benefits. If you are ill whilst working in mines in South Africa and you live in Botswana your terminal benefits should follow you. A lot of mineworkers have their terminal and social security benefits stuck in institutions like Old Mutual, Alexander Forbes and Momentum. They hold benefits in excess of billions,” said Kitso Phiri, Executive Secretary for Botswana Mineworkers Union.
He said, “The legal and administrative processes make it difficult for mineworkers to get access to their benefits. Widows and children of miners are not able to get access to money.”
Phiri revealed that the miners often do not have money to hire lawyers to represent them. Mineworkers who worked in 80’s and 90’s also have to contend with succession laws in South Africa and their host countries making it difficult for beneficiaries to access money.
“Some of the funds have been liquidated and fund owners make no effort to track migrant workers to provide them with their social security benefits,” said Phiri.
He said, “We are currently working with SADC to develop laws to develop laws amongst countries in region to allow affected individuals to claim their social security benefits.”
South Africa’s health department engaged with widow’s to discuss eligibility, guidelines and procedures for accessing compensation benefits on behalf of the miners. Widows also exchanged information ideas on existing projects from their countries for income generating activities shared among the widows.
An action plan for 2016-2017 was adopted which includes activities to be undertaken by the widows in the region to support them to combat TB and improve their livelihood.
It followed efforts in July 2015, by STOP TB partnership to support a consultative workshop organized by the Southern Africa Trust and Southern Africa Miners Association (SAMA) on Harmonizing a Regional Response to TB in the Mining Communities.
The objectives of consultative workshop was to understand the context and the burden of the morbidity infection amongst miners and families; review concept note and develop an alignment in key activities and identify key stakeholders and their role for the work going forward.
It also involved ensuring incorporation of gender issues through exploring the organization of women’s structure to address and respond to the needs identified in the concept note; To strengthen organized Civil Society capacity in the region to address human rights related issues; and Creating a network of organized labour and Ex-Miner Associations in the Southern Africa region.
These mineworkers have families and dependants left behind back at home including their spouses and children who are fully dependant on the mineworker salaries to meet basic needs such as food, clothes, education etc. If a mineworker contracts a disease such as Tuberculosis (TB)/HIV or AIDS or dies during the course of their work, it has a devastating impact on the widow and children.
This is reflected in the escalation in the poverty of extended families of mineworkers due to the death of the mineworker. The number of widows and dependents has continued to increase because of the death of mineworkers due to occupational disease, illness and injury.
Some of the deaths like the contraction of TB could have been avoided if health services were provided adequately in mining communities of the labour sending countries.
There is also a dire need for spouses of mineworkers to have adequate information on diseases such as TB and HIV/AIDS to find ways of protecting them due to non-disclosure of their HIV/TB status.
This is because the miner’s wife is typically a rural woman whose husband migrated to labour receiving countries like South Africa to look for jobs in mines and who in the absence of the breadwinner often struggles to provide the managerial expertise required to administer funds and is often health illiterate resulting in the failure to interpret or detect health issues at an early stage hampering efforts to secure compensation. There are also cultural barriers and communication challenges.
There are several reported cases of negligence and corruption by different institutions dealing with the issues of miners, which ultimately forces the widows to travel from the country of origin to RSA, in an attempt to claim their benefits from unknown institutions, ending up suffering sexual violations including a definitive loss of such benefits.
The response to these challenges and issues is the formation of the widow and miner’s wife Platform, which begins a step of reversing the socio-cultural vision of these women in the context of substituting their husbands’ responsibilities in the event of their death, from the management of the family economies, including the due compensation claiming processes.
This exercise by itself, cannot achieve its goals without being accompanied by a process of sensitization and education of women about their rights. The desired platform woman should not work in a vacuum but rather based on the Beijing Platform for Action adopted in 1995 on the rights of women as well as the Convention for the Elimination of all forms of Discrimination against Women (CEDAW).
The MBOD and Compensation Commissioner for Occupational Diseases (CCOD) is responsible in terms of the Occupational Diseases in Mines and Works Act (ODMWA) of 1973 for benefits accrued by Medical Examination to ex and active miners, including the Compensation of benefits to active and ex-miners who have been certified to be suffering from lung related disease as a result of their work.
The mines in South Africa are the only industries with legislation that is specifically aiming those affected by occupational lung diseases, in the form of the Occupational Diseases in Mines and Works Act No. 78 of 1973 (ODMWA). It however had shortcomings in the administration of payment of claims.
In 1999, the South African Cabinet therefore resolved to ensure that all the institutions and laws regulating the prevention of occupational accidents and disease, and worker’s compensation, must be integrated and consolidated under the direction of the Minister of Labour. This proposal was in line with policies in a number of jurisdictions, where a single institution is responsible for prevention, compensation and rehabilitation for occupational injuries and diseases.
This is the case in Britain, Canada, Australia, Namibia and Zimbabwe.
The process sought to integrate four pieces of legislation, i.e. those dealing with prevention and surveillance of occupational diseases (the Occupational Health and Safety Act No. 85 of 1993 (OHSA), and the Mine Health and Safety Act No. 29 of 1996 (MHSA)), and those dealing with compensation (the Compensation for Occupational Injuries and Diseases Act No. 130 of 1993 (COIDA), and the Occupational Diseases on Mines and Works Act No. 78 of 1973 (ODMWA)).
An interdepartmental team, including the Departments of Health (DOH), Labour (DOL) and the then Minerals and Energy (now Mineral Resources (DMR)), was established, and functioned until 2003 when it produced the National Occupational Health and Safety Policy.
The Act is administered by South Africa’s Department of Health and its aims is to provide for mandatory reporting of certain occupational lung diseases to the Medical Bureau for Occupational Diseases (MBOD) and to provide certain benefits to workers who develop certain occupational lung diseases.
The Amendment Act in 1994 brought about “deracialization” of the Act. Amendment Act of 2002 provided for medical benefit examinations to be done once every 24 months.
Challenges continue to remain with the record of service not clearly stating when person was recruited and when the person completed his service. There were also issues of bureaucracy, with delays in processing the certificate of compensation is sent to the mine.
There is also difficulty in tracking some of the miners to make available compensation claims like, for example in Lesotho which has no post boxes. Geographical location could have changed for some miners with some changing their addresses.
Often when medical examinations are done, these are not submitted to MBOD to be on record and only done once the person is suspected to suffer from lung diseases.
The Compensation Commissioner for Occupational Diseases (CCOD) is responsible for all claims related to Occupational Diseases in Mines and Works Act (ODMWA) Act 78 of 1973, including all payments of benefits to active and ex-miners who have been certified to be suffering from lung related diseases.
They are also governed by the Public Finance Management Act (PFMA) No1 of 1999 as they are a trading account within the Department of Health.
The problem is that there is often a very serious problem of missing or the non availability of documents when mines close down like asbestos mines as some have closed down. Slow turnaround times of CCOD when receiving the certificate and sending the application forms to beneficiaries.
By the time these application forms get dispatched, some of the miner’s home addresses have changed. Another issue is that widows often do not know the claims processes and procedures to be followed. It is a problem compounded by fact that some mineworkers work for various employers with different processes and different claim procedures.
The Retirement Fund Industry has 168 Administrators of 5,000 funds, with 13.4 million members and a total asset value of R1, 8 trillion. From the 5,000 Funds, there are approximately 1500 dormant Funds (unclaimed benefits) and 3,500 active Funds that members are still contributing to.
The fund described here are private Funds which Excludes Funds established in terms of other statutes, such as the Government Employees Pension Fund, the Telkom Pension Fund, the Post Office Retirement Fund and the three Transnet Funds. The types of benefits that Funds can pay-out and the rules for paying out are set out in the Pension Funds Act 24 of 1956.
These include retirement benefits, withdrawal/exit benefits, disability and death benefits (section 37C). It is important to note that the FSB does not hold any benefits or process any payments relating to benefits. The FSB simply regulates and supervises the Funds.
Death benefits according to Section 37 C of the Pension Funds Act 24 of 1956 are paid in terms of the Fund rules (separate from deceased’s estate). The Board of the Fund has the discretion to pay-out or not following the guidelines of the fund.
Within 12 months of death of the member, it is the funds responsibility to trace and pay dependants. In cases where the Fund cannot trace or is not aware of dependants to be paid out it has to ensure the benefit gets paid out to the nominee, estate or Guardian’s Fund/Unclaimed Benefit Fund.
Recourse for aggrieved dependants is made through the Pension Funds Adjudicator who is independent of the FSB, which dependants can approach within 24 months to challenge a benefit claim.
Official estimates reveal unclaimed benefits in 2014 were ZAR 20 billion owed to ZAR 3.5-million beneficiaries. There are 50 ‘Active’ meaning registered unclaimed benefit funds with an estimated R4, 6 billion in assets, from unclaimed benefits owing to 792,000 beneficiaries.
In the mining industry, it is estimated ZAR 5.2 billion in benefits is owed to over 200,000 beneficiaries and this is from information from funds under regulation. This figure is believed to be a very conservative figure and it is believed to have increased over the last 6 years.
