As lawyers consolidate the biggest silicosis class action suit Africa has seen, pioneering work by women’s rights activists investigates how to change policy and law for caregivers of sick or dying miners. Historically the wives and daughters of miners affected by silicosis have had no recourse in terms of compensation for the care and support work they do, but rights workers want to change this. By MANDY DE WAAL.

Miner Thembekile Mankayi died too soon – the AngloGold Ashanti worker took his last breath in March 2011, a week before the Constitutional Court unanimously ruled in his favour, in his case against the mining giant he had worked underground for from 1979 to 1995. The ruling was ground-breaking; it opened the door to miners to seek compensation for occupational injuries.

“Prior to the Constitutional Court decision on Mankayi vs. AngloGold Ashanti, it was a given that an employee could not sue his employer for any occupational injury or disease. Now the court has said that this isn’t correct and that employees are entitled to instruct civil proceedings against their employers, which is why the silicosis class action has arisen,” explains Richard Spoor, who was Mankayi’s lawyer, and who is working with Cape Town’s Abrahams Kiewitz Attorneys and the Legal Resource Centre to consolidate tens of thousands of silicosis claims into what will be the country’s biggest class action suit.

Spoor says that there were three class actions, but states that the matters are being consolidated into one. “An application of the consolidation will happen in the next week or two, so we’re talking about a single class action,” he says.

In terms of the class action suit, Spoor’s firm holds instructions for over 20,000 mineworkers and widows, while Abrahams Kiewitz Attorneys and the Legal Resource Centre have a smaller, but significant, number of instructions that brings the class to about 26,000 direct instructions. “A class action is on behalf of everyone, of course, and here the class itself would constitute between 100,000 and 200,000 mineworkers. That’s about as narrow as I can make it,” says Spoor, in a telephonic interview with Daily Maverick.

Silicosis is a fibrotic-type lung disease that is caused by the breathing in of crystalline silica dust. An occupational sickness that is caused by workplace environments where exposure to silica is high and constant, silicosis causes scarring and lesions in the lungs and puts sufferers at greater risk of developing active tuberculosis.

The lung disease can be debilitating, and at times deadly. It is incurable. Mail & Guardian has done a series of profiles on miners with silicosis – in one, Mtobeli Elson Vapi describes how the most activity he can now manage is “treading lightly”.

When it comes to workers’ compensation, South Africa has two sets of laws – one for mineworkers and then another set for everyone else. This has made it extremely difficult for miners to get compensation for occupational diseases, never mind trying to get damages claims for the women who care for these sick workers in rural areas after they are sent back home by the big mining companies.

“The position of the wives of men with occupational diseases is difficult,” says Spoor, who sets about explaining the legal situation. The Compensation for Occupational Injuries and Diseases Act (Coida) – which is colloquially known as the ‘workmen’s compensation act’ has a provision for a carer’s allowance, but miners aren’t covered by this law.

“Under the legislation that governs mineworkers (the Occupational Diseases in Mines and Works Act) there is no such compensation,” Spoor says, adding: “The compensation for these mineworkers is completely unjust – it is unfair and unreasonable. Something needs to be done about it and it must be fixed. There was a Cabinet decision dating back to 1998 that says that the discrimination against mineworkers in terms of this separate legislation is unjustifiable, and they need to get at least the same benefits that other industrial workers get, but nothing has ever happened about this,” Spoor adds, explaining this is largely because government and mines haven’t been able to see eye-to-eye about who’d pick up the bill.

What this means is that while miners are locked out of getting compensation, so too are the women who care for these miners when the ailing men are sent home. “The legal issues regarding women are very complex because our common law is poorly developed and it is pretty damn difficult to make these kinds of arguments,” says Spoor.

“We haven’t made special provision for a novel or original point around women because the case is difficult enough as it is, so we haven’t filed a claim for the wives of living miners who are looking after their husbands. However, as part of the damages of these miners who can’t look after themselves it would be possible to claim an amount of money for someone to care for them when they can’t care for themselves,” Spoor states.

Enter the Women’s Legal Centre, which wants to set legal precedent by changing this. “The women who take care of miners are doing unpaid care work. At the moment we are developing a strategy around what would be the best way to litigate around this, but for now we are saying that unpaid care work should be recognised in the context of damages claims, but also in government planning and budgeting,” says Jennifer Williams, the director of the non-profit legal centre.

“There needs to be recognition that women contribute towards the economy in that they are working for free, which means that there is a saving,” she says. Williams believes that this saving should be given a monetary value and that women should receive compensation for this work. “In other words, where you had to hire a nurse to look after the sick person, you would have the wife or daughter doing this for free,” she says.

“In terms of this class action suit, what we are proposing is that part of the damages award is a trust that is set up that acknowledges the saving that the mining companies would have by virtue of the fact that these men’s partners and daughters are going to look after them. What is important to us is that the case doesn’t just talk to the men’s losses from the silicosis, but takes into account that these men are part of a larger family unit and that in many cases it is women who are going to spend their time – but who also give up other opportunities – to take care of the miners. This ‘price’ should not be paid by the family and women, but should be a part of the award made by the court when it looks at this,” says Williams and continued:

“Women seem to be performing caregiver roles, which means that girls that have to look after family members may have to miss out on educational work or employment opportunities in addition to doing that work unpaid. The court should take that into account when they look at the damages claim because the person doing the harm is actually benefiting from the woman’s unpaid care work.”

But a recent legal case showed that government was hardly sympathetic to this view. Hawker Queen Mpinga lost her leg when a small injury became septic because of incompetence at various hospitals administrated by the Gauteng Department of Health. MEC for health Hope Papo’s view (despite the amputation being caused by negligent state doctors) was that Mpinga had daughters, and that these daughters could care for the amputee because “girls are generally much better than boys at cleaning and cooking”.

Mpinga filed a R1.6 million claim for damages from Papo for medical negligence, after a state doctor failed to stitch a wound on Mpinga’s leg closed, causing it to become infected. Mpinga was given the go-ahead from the Johannesburg High Court to sue Papo for a prosthesis, loss of income and domestic help.

“Our feeling is that unpaid help and care contributes to the feminisation of poverty. Women are increasingly becoming the poor in the majority, as well as the poorest of the poor. As a result poverty is not gender neutral. By not recognising the unpaid care work, the unpaid care workers don’t get the opportunity to improve their circumstances and by not valuing the roles of women you are only further disempowering them,” says Williams, who believes that if the role and value of women care workers were considered during policy formation and planning, proper resources for women would be allocated and that women’s economic status in this country could be improved.

The legal work is just one aspect of this pioneering effort which seeks to impact political discourse and policy formation as well. “Women’s unpaid work is completely invisible in South Africa,” says women’s rights activist, Samantha Hargreaves.

“My hope is that we can draw this question of unpaid women’s work into rural women’s movements and peasant movements of women, and into women’s movements generally. It is an issue that has been terribly neglected, even in the eighties when the feminist movement started examining this question. In South Africa it hasn’t been put on the agenda, while globally it has completely dropped off,” says Hargreaves.

“We’re currently looking for funding to determine a strategy about how we take this case forward, and our thinking is that we should look at a separate legal claim that follows the silicosis class action suit, so that part of what this work does is to raise awareness of the issue of unpaid women’s work,” she adds.

“This is extremely significant because this issue isn’t on the political agenda, and if we can set a precedent around this – and if we are very clever about how we think about compensation – we could force policy and legal change in the mining sector,” says Hargreaves.

The legal and policy change would mean that mining companies would be forced to consider the unpaid labour needs of women who support miners. “Potentially the impact is quite radical because it could mean that corporations need to now start looking at subsidising or providing support for health services or for paid care givers,” she adds.

The women who have cared for ailing miners debilitated by silicosis have been mostly invisible to South Africa and the world. Hopefully the pioneering work done by Williams, Hargreaves and their teams will help them walk out of shadows. DM

Read more:

Photo: Pumzile Dayi, President of the Ex Mine Workers Association, addresses a meeting of former gold miners and mine widows in Bizana in South Africa’s impoverished Eastern Cape province in this March 7, 2012 file photo. In 2011, South Africa said gold miners with silicosis could sue for compensation. Now, thousands plan to do just that. REUTERS/Mike Hutchings