South African Court Allows Damages to Be Paid to Widows of Sick Miners

A historic court ruling recognizes the burden borne by women who care for men who became sick working in South Africa’s gold mines, saying widows should have access to compensation if their husbands die.

Written by Rumbi Chakamba Published on Read time Approx. 5 minutes
Hundreds of thousands of South African gold miners suffer from the degenerative lung disease silicosis, some with illnesses dating back decades. And often it falls on wives to devote their lives to caring for their husbands, with no support. AFP/Marco Longari

Every day, Nokwakha Khethiwe is usually the first in her family to wake up, and she’s the last to go to bed. Her husband, Mhlawenkosi, used to work in the gold mines in South Africa’s Witwatersrand Basin, and now he suffers from silicosis, a degenerative, incurable lung disease he contracted on the job. Nokwakha has had to give up her job and now spends her days caring for him, sometimes pulling her daughter out of school to help tend to his needs.

With neither Nokwakha nor her husband able to work, they have given up on the dream of sending their daughter to university. Despite her husband having worked in the mines for nearly 30 years, they can’t even afford the basic resources and medications they need to keep him comfortable as he suffers through his disease. Mhlawenkosi recalls how they once walked to a clinic over 20 miles (35km) away because the previous night he had lain awake with severe chest pains. But when they arrived, they were told the medication they needed was out of stock. “I cried and I was worried about walking the distance back home without any relief,” Mhlawenkosi says. “On our way to the clinic, I had high hopes for the medication and could hide the pains from my wife.”

The Khethiwes’ story is repeated across South Africa, with the lives of thousands of wives and daughters being transformed as they take on the burden of caring for mine workers who have contracted silicosis. But a recent high court ruling could finally offer some respite to the families of men who have become ill serving South Africa’s gold mining industry. Up to 500,000 gold miners who have contracted silicosis may soon be able to sue around 30 companies for damages and, in a historic development, if a former miner dies before receiving the damages, the money could transfer to the widow who devoted her life to caring for him.

According to Sonke Gender Justice (Sonke), a gender equality organization that has documented the struggles of Nokwakha and many other South African women, from the time gold was first discovered in the country in 1880s, the mining houses colluded with colonial governments to put in place a range of taxes and legislation. To afford the newly imposed taxes, black men were forced to leave their smallholdings to work in the mines.

Black women and girls were required by law to stay behind in rural areas to carry out the work of the men who had left for the mines. These women were also responsible for caring for their men when they returned home, often desperately ill with pulmonary disease contracted in mining houses that had little or no interest in protecting the health of their workers.

Caused by inhaling silica dust that fills the air inside gold mines, silicosis causes the scarring and stiffening of the lungs, making it difficult to breathe while increasing vulnerability to infections like pulmonary tuberculosis. It’s easily prevented by controlling the spread of silica dust with ventilation and providing protective clothing for miners. According to the South African Mine Health and Safety Inspectorate, the approximately 120,000 people working in the country’s gold mining industry today are protected by health regulations put in place in 2008, which keep silica levels in the mines to safe limits.

“South Africa’s gold mining industry has always profited from the deadly toil of black mineworkers,” says Thabang Pooe, policy and advocacy fellow at Sonke. “It has also benefited from the unseen and undervalued parallel work of the women and children in labor-sending communities where mineworkers come from.”

Supporters of miners celebrated outside the high court in Johannesburg in May after a judge allowed silicosis sufferers to launch a multimillion-dollar class action lawsuit against mining companies. (AFP/Mujahid Safodien)
Supporters of miners celebrated outside the high court in Johannesburg in May after a judge allowed silicosis sufferers to launch a multimillion-dollar class action lawsuit against mining companies. (AFP/Mujahid Safodien)

The potential for sick miners to claim compensation was first introduced in 2011, when South Africa’s constitutional court issued a landmark ruling allowing former miner and silicosis sufferer Thembekile Mankayi to sue AngloGold Ashanti for full loss of wages, damages and medical expenses. The case set a critical precedent, allowing human rights lawyers to subsequently petition the courts to allow a class action against the gold mining industry as a whole.

In May this year, the high court in Johannesburg not only allowed the class action suit to go ahead, but also amended existing common law to allow general damages to be transmitted to the spouses and dependents of miners who die in the early stages of litigation. Prior to the ruling, if plaintiffs died before the case was concluded, their claims to compensation would simply become void.

Such was the fate of the original plaintiff, Mankanyi, who died of silicosis a week before the court’s ruling in 2011. Because there was no transmissibility of damages allowed at the time, his family and widow have been unable to successfully pursue his claim. They have joined the class action, in the hopes that it will finally allow them access to the money they are owed.

As the court was hearing the transfer of claims, Sonke provided evidence on the gendered impact of silicosis, particularly the financial, emotional and physical burden borne by women and girls who care for sick miners, often sacrificing their own income and education.

In an affidavit to the court, Sonke’s executive director Dean Peacock argued that “the mining industry has effectively displaced its responsibility for taking care of sick miners on to women living in poverty-stricken rural mine-sending areas, where there is often no access to running water, and limited transportation to get to healthcare services.”

Pooe says the high court’s ruling on transmissibility marks a crucial development of the common law, with the court making strong statements about the law’s obligation to respond to the needs of South Africa’s poor and vulnerable.

Since the high court ruling in May, the mining companies have successfully petitioned the Supreme Court of Appeal, and that case will be heard next year. If the appeal is successful, women and children will continue having to pay the financial and emotional price of caring for sick miners with no support, Pooe says.

But if the appeal is denied and the class action suit goes to court, Sonke says it could bring together potentially hundreds of thousands of affected miners to sue for as much as 40 billion rand ($2.8 billion). “This means that women and children could be indirectly compensated for their many years of struggling,” says Pooe.

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