Over the past century, the gold mining industry employed up to half a million miners at any one time. A series of major studies on black South African gold miners have found an astronomical rate of silicosis of about 25% in former long-service gold miners. Experts estimate the number of silicosis victims to be in the tens of thousands.

The gold mining industry and black miners

Most gold miners were migrant labourers from Eastern Cape, Lesotho and neighbouring states. They were employed in dusty conditions without respiratory protection. Black miners undertook the dustiest jobs. Unlike white miners they did not have access to on-site showers or change rooms to remove the dust from their bodies. The pre-occupation of the industry was to maximize profit. Insufficient attention seems to have been given to preventing a disease like silicosis, which does not manifest for many years and which therefore had less impact on an affected miner's ability to work during its early stages.
Once miners retired and returned to their communities, the industry appears to have shown little interest in their well-being, even though it knew full well that miners' health would continue to be permanently compromised because of their excessive dust exposure on the mines.

The silicosis issue has parallels with the asbestos issue, from which thousands of South African miners were sacrificed for the commercial benefit of corporations: silicosis is a lung disease caused by intense and lengthy exposure of silica-containing dust. The disease may arise up to 30 years after dust exposure. Many miners only contract the disease years after they have left the mines and returned home. Silicosis sufferers have a significantly increased risk of TB and lung cancer. The degree of impairment in silicosis ranges from mild to severe. In conjunction with TB (silico-tuberculosis), the consequences may be serious (and fatal), especially if the TB is not treated swiftly and effectively. TB is endemic in South Africa and occupational health services outside urban areas are often rudimentary or non-existent. The combination of these factors leaves former miners especially vulnerable. All this was known by the industry for decades. To-date although it is dust exposure on the mines that has put miners' health at risk, the mines have made no provision for monitoring former miners for TB. The industry has apparently taken the view that once miners left employment they were no longer the responsibility of the industry.
In order to protect workers against silicosis and TB, dust prevention and protection is crucial. Yet according to the 1994 Leon Commission of enquiry, dust levels on the gold mines had not improved for 50 years.

Studies on black miners

In 1997 a study by Steen and co-workers found a very high rate of 26%-31% in former South African gold miners from Botswana.

A study by Trapido and co-workers in 1998 found similarly high rates of silicosis - between 22% and 36% - in ex gold miners living in Libode, Eastern Cape, most of whom had not previously been diagnosed or compensated.

A third study by Girdler-Brown in June 2008 (American Journal of Industrial Medicine) confirmed very high rates of silicosis (25%) and TB in gold miners, now living in Lesotho, formerly employed at Anglo's President Steyn Mine in the Free State. According to the authors: "These high rates of lung disease amongst former gold miners are of national concern...These findings and their consistency with previously published reports on the prevalence of respiratory disease in ex miners provide a compelling case for improved statutory surveillance and reporting of silicosis and TB among former gold miners not just for compensation purposes, but also to monitor the effectiveness of control measures aimed at reducing the risk.."

The litigation

The test case litigation is against Anglo American South Africa Ltd, the former Anglo parent company, which is now a subsidiary of London-based Anglo American Corporation PLC.

The plaintiffs are former miners who were employed on Anglo's President Steyn Mine in the Free State from the 1970s to 1998. (This very same mine that was the subject of the Girdler Brown Study). Their homes are in the Free State, the Eastern Cape and Lesotho. The plaintiffs contracted either silicosis or silico-tuberculosis. The claim against Anglo South Africa essentially alleges that this former parent company is liable because it negligently advised the mines in relation to dust protection of miners. The litigation has two objectives. First, to establish the legal principles on which the industry should compensate its silicosis victims. Secondly, the establishment of an effective TB/silicosis medical monitoring scheme for former miners.

The litigation was commenced in the Johannesburg High Court in August 2004 but was delayed for almost two years due to procedural objections raised by Anglo against the formulation of the claims. The litigation is now in the middle of the discovery process, with Anglo having disclosed hundreds of thousands of pages of documents. The trial is expected to take place in the later part of 2010.
The plaintiffs' attorneys are the Legal Resources Centre (Johannesburg) and Leigh Day (London), which previously represented the Cape PLC and Thor Chemicals victims in their successful UK compensation claims. Leigh Day acts as the LRC's consultant. The case is funded by the Legal Aid South Africa. Anglo is represented by Webber Wentzel.

Legal Aid South Africa

Legal Aid South Africa provides legal services and legal representation in the execution of its statutory mandate as set out in the Legal Aid Act 22 of 1969 and in terms of section 35 of the Constitution of the Republic of South Africa. These services are provided by salaried practitioners employed by the Justice Centres, by legal practitioners in private practice through the judicare system and through non-governmental organisations with whom Legal Aid South Africa has entered into a co - operation agreement. Legal Aid South Africa is well known for its representation of indigent accused in criminal matters and for assigning legal representation to the accused at state expense if substantial injustice would otherwise result. However not much is known of our intervention in class actions on behalf of the poor, vulnerable and marginalised members of society.

From time to time, matters arise in which the opportunity exists for Legal Aid South Africa to undertake or fund litigation or other legal work which has the potential to positively affect the lives of a large number of indigent persons such as the miners whose health has been compromised by exposure to mine dust.

The Silicosis case presents the opportunity either by class action or by the litigation of a small number of matters to bring about the settlement for a much larger group of similarly affected persons. Legal Aid South Africa is proud to be associated with our co operation partner, the LRC, and Leigh Day of London as it allows us to make a strategic intervention to materially improve the lives of a significant group of miners who suffer from Silicosis and their families. Through our Impact Litigation unit, we have provided considerable funding and support for the litigation of this important matter over the past 4 years. To date we have contributed funding in the amount of approximately 4 million rand towards the litigation of the Silicosis matter.