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Keywords:

  • compensation;
  • mining;
  • silicosis;
  • tuberculosis;
  • South Africa

Abstract

  1. Top of page
  2. Abstract
  3. INTRODUCTION
  4. HISTORY
  5. CONCLUSIONS
  6. Acknowledgements
  7. REFERENCES

The year 2011 marked the centenary of compensation legislation for miners' lung disease in South Africa. This commentary aims to demonstrate that the current compensation system does not serve its intended beneficiaries, particularly the large population of former gold miners affected by high rates of silicosis and tuberculosis. The system has a complex legislative history, reflecting contending political, and economic forces, and characterized by racial discrimination. The financial basis of the system is currently in crisis owing to historical underfunding and failure to take into account the mounting burden of disease among black former miners. The real value of compensation awards fell sharply between 1973 and 1993, only partly recovering in recent years. Barriers to claiming benefits, particularly by black former miners who know little about the process, have been extensively documented. Integration of miners' compensation into general workers' compensation has been mooted since the 1980s but has stalled, owing to the high cost of closing the gap between the mostly inferior financial benefits under the mining legislation and those available under workers' compensation legislation. A recent constitutional court decision has opened the way for unprecedented civil litigation against the gold mining industry for silicosis, adding to the pressure for reform. A number of changes are called for: harmonization of financial benefits with retention of certain of the special arrangements for miner claims, a regional cross-border system of medical examination points for former miners, education of miners about the system, and some degree of privatization of claims processing. Am. J. Ind. Med. 55:560–569, 2012. © 2012 Wiley Periodicals, Inc.


INTRODUCTION

  1. Top of page
  2. Abstract
  3. INTRODUCTION
  4. HISTORY
  5. CONCLUSIONS
  6. Acknowledgements
  7. REFERENCES

The year 2011 marked the centenary of the first South African legislation directed at compensating miners with occupational lung disease, the Miner's Phthisis Allowance Act, No. 34 of 1911 [Donsky, 1993]. This Act provided for temporary relief, with permanent compensation for silicosis being legislated in 1912. The legislation was promulgated in the wake of an epidemic of lethal lung disease in the rapidly growing South African gold mining industry following the discovery of gold on the Witwatersrand in 1886 [Katz, 1994]. Miners' compensation was conceived of as a form of compulsory no fault insurance to reduce the burden of loss of earnings capacity consequent on physical impairment, and/or exclusion from the industry [Budlender, 1979; Donsky, 1993].

One hundred years later, the gold mining industry is struggling with a resurgent wave of silicosis and tuberculosis, mainly in black miners1 [Ehrlich, 2007; Rees et al., 2009; Nelson et al., 2010], with tuberculosis fuelled further by the HIV epidemic [Corbett et al., 2000; Park et al., 2009]. The industry's recent history is one of decline, with employment peaking in 1988 at 480,000 and falling to 160,000 by 2006 [Harington et al., 2004]. Approximately half of those employed in 2007 were from neighboring countries, principally Mozambique and Lesotho [Rees et al., 2009]. Active miners are thus now outnumbered by former gold miners, among whom the prevalence of silicosis has been found in a recent cohort to be as high as 27% and the incidence of tuberculosis of the order of 3,000 per 100,000 [Park et al., 2009]. The question of whether this 100-year-old compensation system is serving miners affected by these diseases is thus a pressing one.

The purpose of this commentary is to describe the current system of miners' compensation for lung disease in South Africa, its history, important recent legal developments and impediments to reform. It aims to demonstrate that the system is failing its beneficiaries; most of whom as indicated above are now former gold miners of rural origin, many from neighboring countries. Although the legislation covers all mining commodities, including asbestos, the emphasis here is on gold mining.

HISTORY

  1. Top of page
  2. Abstract
  3. INTRODUCTION
  4. HISTORY
  5. CONCLUSIONS
  6. Acknowledgements
  7. REFERENCES

The first Act was succeeded by 18 further Acts, the latest being the Occupational Diseases in Mines and Works Act, No. 78 of 1973 (ODMWA) [Republic of South Africa, 1973a]. Racial differentiation in rights and benefits was a feature of this legislative history [McCulloch, 2009]. Although overtly racial clauses were removed in an Amendment Act of 1993, the legacy of inequity persists in the functioning of the system [Republic of South Africa, 1993a; Abdullah et al., 1994; Supreme Court of Appeal of South Africa, 2010].

Underlying these racial provisions was the mining industry's labor process supported by the power of the white state. By the early decades of the 20th century, aided by racially exclusive industrial unions and statutory job reservation, white miners had moved into supervisory roles while migrant black labor made up the low wage workforce in the most strenuous or dusty jobs [Smith, 1993]. Disease patterns were also different, at least as captured by official statistics. For the first half of the 20th century white gold miners had higher recorded rates of silicosis than black miners, while black miners bore the brunt of tuberculosis as well as a high burden of pneumonia [Donsky, 1993; Packard, 1993].

Between 1911 and 1918, six acts were passed, a reflection of struggles between mine owners, white miners and their political representatives over the amount of benefits, the pattern of payments (lump sum vs. “pension”), and the original requirement that workers contribute to the compensation fund [Donsky, 1993]. With the passing of the Miner's Phthisis Principle Act No. 40 of 1919, the contribution by (white) workers to the compensation fund was removed. Racially specific provisions were entrenched in subsequent versions of the legislation [Supreme Court of Appeal of South Africa, 2010], including a ratio of award of white miners to black miners of 10:1 based on the historical wage gap [Budlender, 1979]. By 1973 the white:black compensation gap had risen to between 12:1 and 15:1 depending on grade of award. This ratio in compensation awards persisted until 1993 when the formula was switched to one based on wages, which narrowed the gap substantially [Republic of South Africa, 1993a].

There were other racial inequities. White claimants were entitled to pension payments once disease had reached a certain advanced stage, while black claimants were eligible only for lump sum payments irrespective of the degree of disease. Fitness criteria for return to dusty work were also regulated and/or applied differently by race. For example, while Regulations under the 1973 Act continued to exclude black workers with silicosis or tuberculosis from dusty work, this provision did not apply to white miners [Republic of South Africa, 1973b]. This bar on return of black workers with a compensable disease to dusty work was relaxed in the late 1970s and early 1980s by agreement between the mining industry and the statutory authority [Republic of South Africa, 1982; Cowie, 1983; Zatlokal, 1986]. Racial differentiation was dropped formally in the 1993 Amendment.

There were differences in how miners were examined for silicosis, a disparity, which became more significant as medical technology developed [Meikeljohn, 1950; Budlender, 1979]. White workers, whether in service or not, had access to clinical examinations at a central medical bureau in Johannesburg or to one of a number of sub-bureaux around the country. Medical examinations on employed black workers were performed by the mine medical services, where reliance on mass miniature radiography makes its likely that many cases were missed [Republic of South Africa, 1995; Corbett et al., 1999]. Arrangements for black ex-miners have always been limited and haphazard [Marks, 2004; Roberts, 2009]. In theory, such former miners could have pneumoconiosis diagnosed at points of recruitment when seeking re-entry into mine employment [Zatlokal, 1986]. Otherwise they were reliant on state medical facilities to assist them with the examination and claims process. Access to the central bureau in Johannesburg was deracialized in 1993. However, sub-bureaux in towns that were the sites of mainly white mining residential communities were closed by the mid-1990s, with no attempt to replace them with equivalents in the more remote areas where the vast majority of black miners lived.

A feature of this legislative history is that white miners used their political voice through their labor organizations and political representatives to influence legislation [Budlender, 1979; McCulloch, 2009], although an attempt by white miners to have compensation based on long dust service, in addition to specific diseases, failed [Republic of South Africa, 1981]. The voice of black miners has been largely absent in shaping compensation legislation.

The Current Act

The current legislation provides for lump sum awards to miners or former miners diagnosed with a compensable disease (Table I). The latest Act dropped pension awards, which had been restricted to white miners. Only two levels of award are now recognized: first degree, which covers scheduled non-malignant conditions, mainly pneumoconiosis and chronic obstructive pulmonary disease, and second degree, which is typically awarded for pneumoconiosis plus tuberculosis or for cancer. In 1989/1990, the last year for which racially differentiated statistics were reported, 865 new or upgraded certifications were recorded in living and deceased white and colored claimants (all mining types). Among black claimants, 4,231 certifications were recorded for compensable tuberculosis and 2,046 for other compensable diseases [Republic of South Africa, 1990].

Table I. Occupational Diseases in Miners Compensatable under the Occupational Diseases in Mines and Works Act, 1973 (South Africa)
  1. Source: Dr. L. Dzingwa, Medical Bureau for Occupational Diseases, 2011.

1. Tuberculosis of cardio-respiratory organs in a miner who performed risk work for more than 200 risk shifts (equivalent to 9 months) and/or diagnosed within 12 months of exiting mining service
2. Pneumoconioses:
 (a) Silicosis (and alveolar proteinosis post-mortem)
 (b) Coal workers' pneumoconiosis
 (c) Asbestosis, interstitial and pleural
 (d) Any combination of pneumoconiosis with tuberculosis
3. Obstructive airway diseases; also in combination with tuberculosis
4. Progressive system sclerosis or scleroderma in miners exposed to silica dust
5. Malignant mesothelioma and asbestos related cancer in asbestos miners or designated asbestos occupations

It is an important historical feature of the system that tuberculosis of the “cardio-respiratory organs,” even in the absence of pneumoconiosis, was recognized as a compensable disease from 1916 [Donsky, 1993]. Tuberculosis has remained such despite arguments from time to time by industry commentators that miners were at no greater risk of the disease than their home communities [Martiny, 1979–1980; Donsky, 1993]. The greatly increased risk of pulmonary tuberculosis in silicotics is a long established association, confirmed repeatedly in modern studies [Cowie, 1994; Hnizdo and Murray, 1998]. What is not as well appreciated is that such studies have demonstrated an increased risk of tuberculosis with increasing silica exposure, controlling for age, even in the absence of radiological silicosis [Hnizdo and Murray, 1998; teWaterNaude et al., 2006]. Given the high frequency of sub-radiological silicosis [Hnizdo et al., 1993a] and the retention of silica dust in the lungs of former miners, it is likely that the occupationally derived increase in risk of tuberculosis among former silica exposed miners is life-long [Hnizdo and Murray, 1998]. This persisting risk is not reflected in the legislation, in terms of which tuberculosis in the absence of silicosis is compensable only among active miners or within 12 months of leaving mine service.

A unique feature of the Act is the statutory requirement for partial autopsy—specifically a requirement that the heart and lungs of a deceased miner or ex-miner be removed and examined by state pathologists [Hessel et al., 1987]. Compensation is payable to qualifying beneficiaries if there is evidence of significant compensable disease irrespective of whether it contributed to death. Unlike the families of black miners dying in service, those of black former miners have infrequently benefited from this autopsy provision—for reasons which include reluctance by next-of-kin to consent, lack of knowledge of the system on the part of both miners and health care professionals, and a shortage of facilities for removal of the organs in rural areas [Roberts, 2009; Nelson et al., 2010].

Compensation for miners' lung disease has developed separately from general workers' compensation for occupational disease, first provided for by the Workmen's Compensation Act of 1917 and most recently by the Compensation for Occupational Injuries and Diseases Act of 1993 (COIDA) [Republic of South Africa, 1993b]. This separation has parallels in industrial countries —examples are the Pneumoconiosis, etc. (Workers' Compensation) Act in the UK and the Black Lung Benefits Act for coalminers in the USA, each with its own rules and administration. In South Africa this separation has created an anomalous situation of differential benefits for the same occupational lung disease, such as silicosis, depending on whether it was acquired through mining work or industrial work.

White [2004], in a detailed side-by-side analysis of benefits under the two Acts, demonstrated that the diseases listed and the means of certification were broadly similar and that mineworkers had the advantage, at least de iure, of free post-employment examinations, although not a choice of medical practitioner. Relevant features of the two Acts are summarized in Table II. With respect to financial benefits received, however, mineworkers are generally worse off. A notable difference is the allowance for monthly pension benefits for non-mining claimants once clinical impairment crosses a set threshold of severity. In an illustrative example provided by White, a non-miner with 40% permanent impairment for silicosis would, after 20 years, have received an (undiscounted) benefit four to five times the lump sum received by a miner awarded first-degree compensation.

Table II. A Comparison of Features of the Occupational Diseases and Mines and Works Act, 1973, and the Compensation for Occupational Injuries and Diseases Act, 2003 (South Africa)*
FeatureOccupational Diseases in Mines and Works Act, 1973Compensation for Occupational Injuries and Diseases Act, 2003
  • ILO: International Labour Office 1980].

  • *

    For detailed benefits comparison, see White [2004].

  • a

    Miners and building industry employees are covered by two private companies, Rand Mutual Assurance Co. Ltd. and Federated Mutual Assurance Co. Ltd., respectively. These companies receive premiums and administer claims payment in terms of the Act, but do not set benefits nor perform claims adjudication, which remain the prerogative of the COIDA Commissioner.

CoverageListed occupational lung diseases in minersInjuries in all sectors including mining, and occupational diseases other than those covered by ODMWA
FundingLevies on employers—risk rated by “air quality index” based on air measurementLevies on employers–risk rated on claims record by class of industry
AdministrationDepartment of HealthDepartment of Labor (see footnote for two partial exceptions)a
Adjudication of claimsMedical certification committeeMedical advisors in COIDA administration
Appeals bodyReviewing CommitteeFormal hearing convened by Commissioner
Provision for autopsyMandated and performed by state pathology serviceNone
Post-mortem compensationPayable to beneficiaries even if disease did not contribute to deathPayable only if disease contributed to death
Examinations for compensation purposesEmployer's responsibility for active miners. Authorized medical facilities or practitioners for ex-miners (minimum 2-yearly)No specific provision
Payment for medical careEmployer's responsibility if disease diagnosed while miner still employed (relevant mainly to tuberculosis)Covered by Compensation Fund for up to 2 years
Temporary incapacity benefit75% of earnings for temporary incapacity while on treatment for tuberculosis75% of earnings for any total temporary incapacity up to 2 years
Permanent incapacity benefitTwo grades onlyMay be graded at any percentage— depending on impairment assessment
Threshold for first benefit“10–40% impairment”: for example ILO 2/2 for silicosis without spirometric loss, or ILO 1/1 plus lung function <65% predicted“20% permanent disablement”: for example ILO 1/0 for silicosis with or without spirometric loss
Pension provisionNoneLifetime monthly payment if permanent disablement assessed as >30%

Mining claimants also require a higher clinical threshold for payment of benefits. For example, for a miner to qualify for first-degree compensation, ODMWA requires an International Labour Organisation (ILO) Classification [1980] profusion of at least 2/2 in the absence of evidence of lung function loss, or a profusion of at least 1/1 plus spirometric impairment below 65% of predicted [Republic of South Africa, 1998]. In contrast, the COIDA threshold for benefits is ILO profusion 1/0 with or without spirometric impairment. White argued that these anomalies were in conflict with the South African constitution, in particular with provisions directed at “equal treatment before the law, dignity and the right to… a fair and equitable administrative process.”

Workers' compensation law generally removes the right of workers covered by the law to pursue civil action against their employers for occupational disease or injury. While this proscription is explicit in COIDA, it does not appear in ODMWA. The right of mineworkers to sue their employers under the latter Act has been argued in two recent court cases, with opposite results. An earlier judgment by the Supreme Court of Appeal found that COIDA had to be read as the more general in application and that the legislator's intention to proscribe civil action had to be understood as applying to the mining Act as well [Supreme Court of Appeal of South Africa, 2010]. The most recent and definitive judgment by the Constitutional Court found otherwise [Constitutional Court of South Africa, 2011]. The current situation is thus that miners covered by ODMWA may pursue civil action for occupational lung disease through the courts, although it is too early to determine the impact of such suits on the legislative framework.

Funding and Compensation Payments

Compensation payments have been funded by levies on mining companies covered by the Act (“controlled mines”) since 1919 when contributions by mineworkers ceased. These levies are not directly related to a particular mine's occupational lung disease claims record since, at least historically, attribution was difficult given the mobility of miners between mines and the long latency between exposure and the appearance of the disease. Instead, levies are calculated via a formula based on airborne dust concentrations measured at each mine and number of “risk” (dusty) shifts. In the case of silica exposure, this calculation yields an “air quality index” expressed as a percentage of the occupational exposure limit for respirable silica [Republic of South Africa, 2002]. Where multiple airborne hazards are present, each contributes weight to the final air quality index.

The determination of the risk status of individual mines falls under the control of a Risk Committee appointed by the Minister of Health. Exposure linked levies should in theory provide a direct incentive to prevent occupational disease. However, this system of assigning compensation liability has been the subject of criticism, including the technological, statistical, and epidemiological basis of the formula [Gibbs et al., 1970]. Tellingly, it was argued by the President the Mine Ventilation Society of South Africa that having the same mining company officials who are accountable for control of dust concentrations measuring those concentrations for levy purposes created a perverse incentive towards underestimation [Du Toit, 1962]. White [1997] referred to the workings of the Risk Committee as “inscrutable” and concluded that the representation of the mining industry on the Committee had had the effect of keeping levies down to a level acceptable to the industry. This in turn produced a long term economic calculus under which there was little incentive for the mining industry to prevent silicosis [Benjamin and Greef, 1997].

Whatever the levy formula, the system never properly accounted for the large number of black former mineworkers with little or no access to benefit examinations for compensation purposes. Reliance on cases of silicosis detected during employment as the main form of surveillance fails to acknowledge the importance of latency, and therefore the appearance and progression of silica related disease and tuberculosis after mineworkers have left the industry [Hnizdo and Sluis-Cremer, 1993b; Hnizdo and Murray, 1998]. This has been a growing deficiency.

This population of former mineworkers was effectively hidden from view until two rural studies in the late 1990s, one in the Transkei region of South Africa and the other in Botswana, revealed the high prevalence of silicosis and associated tuberculosis in former mineworkers [Steen et al., 1997; Trapido et al., 1998a]. Based on these local prevalences, on the actual number of compensation awards for pneumoconiosis between 1973 and 1997, and on some educated guess work about the number of living mineworkers throughout Southern Africa, Trapido et al. [1998b] estimated a liability of unpaid silicosis compensation of R9.96 billion in 1998.2

The lack of proper actuarial funding of the ODMWA system has been exposed in recent years by severe shortfalls in the ODMWA Fund's ability to meet even current liabilities, that is, without taking into account qualifying former mineworkers who have never submitted claims. An audit of the Fund in 2004 concluded that the fund was “technically bankrupt” and that it would have to raise the levy by a 100-fold over 15 years [Morris, 2005].

A recent attempt by the ODMWA Commissioner to raise the levy rate to meet this shortfall was met with a court challenge by the Chamber of Mines, the organization representing the interests of established mining companies. The Chamber argued that mining companies currently operating should not have to bear the burden of the historical underfunding of the Compensation Fund and of the liabilities of other companies, many of which had ceased to exist. The Chamber proposed a 3-fold rise in the levy instead of the 15-fold recommended by the Commissioner, the implication being that the shortfall would have to be met from state coffers.

State and thereby taxpayer contributions to miners' compensation funding have been a notable feature of the system, beginning with an ad hoc payment of 100,000 pounds in 1912 [Donsky, 1993]. In 1956, the state accepted the responsibility of payment of increases in pensions owed to white miners under the legislation. Even after pension entitlements from new claims were removed from the legislation in 1973, increases in previously awarded miners' pensions cost taxpayers R95.5 million between 1973 and 1978 [Republic of South Africa, 1981].

In the above action, however, the High Court found against the Chamber, a ruling that will allow a 10-fold increase in the annual levy on the industry from the current R130 million to an estimated R1.3 billion by 2019 [High Court of South Africa, 2011; Van Rensburg, 2011].

Another adverse feature of the ODMWA system has been the failure of periodically legislated lump sum payments to keep up with inflation. Table IIIa adapted from Trapido [1999] reveals that between 1973 and 1990, there was a dramatic drop in the inflation-adjusted value of compensation values in relation to monetary wage levels. For example, first-degree awards (the more common grade) dropped from twice the annual wage to just over half the annual wage over this period. Since the fitness for work requirements of the 1973 Act required that black workers with silicosis or tuberculosis be barred from further dusty work, the economic implications for black workers of being diagnosed with these diseases became increasingly disadvantageous. It was in fact during this period that the industry sought and obtained relaxation of the re-entry requirements for miners with silicosis and treated tuberculosis to dusty work [Republic of South Africa, 1982; Cowie, 1983]. The 1993 ODMWA amendment introduced a wage-based formula effectively fixing the ratio of compensation to annual wages, although the wage used for this purpose is capped. This produced a considerable real average increase in compensation awards, with first degee awards covering about 90% of the average annual industry wage, although failing to reach 1973 real levels (Table IIIb).

Table III. Real Value of Lump Sum Compensation for Occupational Lung Disease in Miners Under South African Legislation, 1973–2011
YearDegree of awardWhite minersBlack minersWhite:black ratio
Lump sum (1995 rands)% Annual wageLump sum (1995 rands)% Annual wage
a: 1973–1990
 19731st179,50920414,95928512
2nd269,26330617, 95138315
 19901st46,627626,301457.4
2nd85,9661147,8635610.9
YearDegree of awardLump sum (1995 rands)a% Average annual industry wageb
  • Source: 1973 and 1990 figures: Trapido [1999].

  • a

    1995 used as base year for inflation adjustment to retain comparability with Trapido [1999]. Lump sum calculation based on maximum (capped) monthly wage of R 2,500 used for compensation purposes.

  • b

    R3,700 in June 2010 (Source: Personal communication—National Union of Mineworkers).

b: Current values (Racial differentiation dropped after 1993)
 20111st96,29889
2nd218,324201

Barriers to Accessing Compensation

While white mineworkers are generally familiar with the Act and its benefits, this has not been the case among black miners. Despite a century of legislation, a recent study of 200 rural former miners found that none had any familiarity with the system, a reflection of the failure to educate black workers about their rights [Roberts, 2009]. Even the existence of silicosis as a separate disease is not well appreciated—the term “phthisis” is used to cover both silicosis and tuberculosis and their co-occurrence. There are few facilities in rural areas to conduct the required examinations, while existing facilities face a multitude of problems in assisting miners, related to shortages of staff, equipment, space, and transport as well as claimant or agent fraud [Health Systems Trust, 2010].

The claims submission system, and even the existence of ODMWA, is poorly understood also by health professionals [Davies, 1994]. The claims process is complex, involving two separate agencies, one for medical certification and another for work history validation and payment. Deficient registration of documents by these agencies results in the frequent need to resend documents, compounded by difficulty in getting information on claims [Calver, 2008]. A number of commentaries and investigations have documented the poor functioning of claims processing [Murray et al., 2002; Public Protector of South Africa, 2007/2008; Morris, 2005; Maiphetlho and Ehrlich, 2010]. An industry linked medical officer noted in 1980 that “only one-third of the beneficiaries of awards for chest diseases received their compensation” [Martiny, 1979–1980]. Little has changed. For example, of the silicosis claims submitted by an occupational disease clinic over a period of 12 years, only 20% were confirmed as receiving compensation, with an average delay of 51 months [Maiphetlho and Ehrlich, 2010].

Some insight into the numerous barriers facing claimants comes from a survey of ex-miners in the Transkei region which implicated factors such as incorrect transcription of addresses, poor postal services in rural areas, low literacy among miners and their families, and limited banking services [Trapido, 1999]. A study of claims based on autopsy certification found that the majority of qualifying families did not respond to requests from the paying agency for further documentation, suggesting that the family did not receive the letter of certification, did not understand the procedure, or were unable to follow it [Murray et al., 2002].

Thus although the compensation system has been grossly underfunded, the South African state must bear a major share of the responsibility for its poor administrative functioning. In a recent parliamentary hearing, the Minister of Health conceded that there had been mismanagement by the Department of Health of the agency responsible for making payments and that its structure was “dysfunctional” [Parliamentary Monitoring Group, 2011].

It is inevitable that all of these systemic deficiencies would be greatly magnified for foreign miners once they cross the border into their home countries [Aids and Rights Alliance for Southern Africa, 2008].

CONCLUSIONS

  1. Top of page
  2. Abstract
  3. INTRODUCTION
  4. HISTORY
  5. CONCLUSIONS
  6. Acknowledgements
  7. REFERENCES

There is a wide consensus that reform of the ODMWA system is overdue [Walt, 2010]. Both industry and labor sources have acknowledged that the legislation is outdated [Anglogold Ashanti, 2006; Walt, 2010]. The recent Constitutional Court decision affirming the right of miners to civil law remedies referred to the “inferior compensation” under ODMWA [Constitutional Court of South Africa, 2011].

A recommendation to integrate the two systems using the Workmen's Compensation Act as the model was made by a government Commission as far back as 1981 [Republic of South Africa, 1981]. The White Paper that followed reversed the recommendation, to integration “on the principles of” the mining Act [Republic of South Africa, 1983], but nothing further was done. The new democratic government revived the intention to integrate the two systems on the basis of the Workmen's Compensation Act in a 1999 cabinet decision [Garzarelli et al., 2008] and in a draft National Occupational Health and Safety Policy document that followed [Republic of South Africa, 2003].

However, there is little to show for this consensus. The financing gap between the ODMWA and COIDA is likely to be huge as a result of the differential benefits described above and the historically low level of levies. For example, one mining company has estimated that a switch to the lower threshold for benefits under COIDA would increase the number of their employees eligible for compensation by 2- to 3-fold [Anglogold Ashanti, 2008]. A draft formula, tabled at a state compensation committee, for compensation of pneumoconiosis that could be applicable to both Acts failed to gain the support of industry nominees [White, 2004]. This process has not been revived and efforts at harmonization or integration have effectively stalled.

Harmonization of entitlements would not be without hazard for some miners' benefits hard won over many decades. For example, if all the special provisions of ODMWA fell away, ex-miners would lose their rights to regular and free statutory examinations, particularly important in the light of the rising prevalence of tuberculosis in this population. Families would also lose the benefit of statutory autopsies and post-mortem compensation irrespective of the cause of death.

Administrative integration of the two systems poses additional threats to miner benefits. It is highly unlikely that the current COIDA administration, poorly equipped to manage occupational disease claims [Ehrlich, 2012], would cope with the additional load of miners' compensation. It is also likely that institutional memory of the special circumstances of former miners in rural areas and neighboring countries, imperfect as it is, would be lost. There is thus an argument for reforming rather than dispensing with special administrative arrangements for compensation of miners' lung disease. To this end, privatization of claims processing under the private insurance company that currently performs the same function for COIDA mining injury claims (see Table II) needs to be seriously considered. It would restore the administrative and financial accountability which is currently sorely lacking.

Whatever the benefit system, it will remain a dead letter particularly for black former miners, unless employers and unions find the means to educate workers about these entitlements. On the side of the state, there is a strong argument for detection points staffed by health professionals with a specific understanding of occupational lung disease and the law [Maiphetlho and Ehrlich, 2010]. Given the high risk of tuberculosis among silicotic miners, such services in home countries could be linked to recent efforts to achieve cross-border cooperation on treatment of tuberculosis [Aids and Rights Alliance for Southern Africa, 2008].

Ultimately, a political process is needed to establish a just system of compensation, which takes into account the special history of miners, their regional dispersal, and their particular burden of occupational disease. This includes the difficult task of inter-governmental arrangements. It is an historical irony that despite the presence of a trade union federation in the ruling party alliance in South Africa, political pressures for reform of the compensation system for miners' lung disease have been so weak. In recent political debates within the ruling party over “nationalization” of the mining industry [De Lange, 2011], discussion of the historical liability and future costs of mining lung disease, as opposed to changing capital ownership, has been notable by its absence.

Pressure for reform is likely to come from concerns for solvency of the Fund, the rapid rise in levies now allowed and particularly from unprecedented litigation. The language of the Constitutional Court decision referred to above also invites a constitutional challenge on the grounds of inferior compensation implied by ODMWA.

In negotiations over reform, demands for redistributive justice will have to contend with a century old tradition—that of finding a solution that protects mining shareholders from bearing the full health cost of the industry's operations, transferring such costs to South African taxpayers, the governments of neighboring countries, and the miners themselves.

Acknowledgements

  1. Top of page
  2. Abstract
  3. INTRODUCTION
  4. HISTORY
  5. CONCLUSIONS
  6. Acknowledgements
  7. REFERENCES

Profs. David Rees and Jonny Myers provided helpful comment on an earlier draft.

  • 1

    Apartheid South Africa used a four group “racial” typology for statutory and policy purposes: “Asian” (mainly South Asian or Indian descent), “black” (mainly African continental descent), “Coloured” (heterogeneous group of mixed African, Asian, and European descent), and “white” (mainly European descent). These categories have political, economic, and social correlates, including in this context area of residence, occupation, earnings, historical labor struggles, and lifetime health experience. Racial discrimination affected all groups who were not white. This article covers only black and white miners who have comprised the large majority of gold miners.

  • 2

    Exchange rate, December, 2011: R1.00 (South African Rand) = $0.12.

REFERENCES

  1. Top of page
  2. Abstract
  3. INTRODUCTION
  4. HISTORY
  5. CONCLUSIONS
  6. Acknowledgements
  7. REFERENCES
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