The landmark silicosis class action settlement to compensate ex-gold miners with specific occupational lung diseases is a beacon of symbolic justice. And a magnet for those who would sow misinformation to prey on society’s most vulnerable.

The Tshiamiso Trust, formed to manage compensation for those settling companies’ gold miners suffering from silicosis or occupational TB, has unfortunately become entangled in a web of misinformation. This has resulted in misunderstandings that lead to exploitation, delays in compensation and undue frustration among the people it aims to help.

It holds important lessons as human rights lawyers now file a similar class action against global mining company South32 seeking legal remedies for sick coal miners and the families of workers who died due to coal mine dust lung disease (CMDLD) in the forms of pneumoconiosis and/or chronic obstructive pulmonary disease (COPD). The new class action contemplates a Special Master instead of another compensation trust.

This new application for certification of a class action by Richard Spoor Inc Attorneys seeks recourse for current and former coal miners, as well as dependents of deceased workers who contracted these illnesses and died as a consequence of them. 

We know that every breath can be a struggle in the life of a coal miner suffering from CMDLD.

Finding out if they qualify

It is important that coal miners, and their surviving dependants, are clear on whether they qualify for this new landmark class action against these coal mining diseases.

In the silicosis settlement, the opt-out notice is the starting point for who qualifies for that settlement. That notice states that having either silicosis or occupational TB is a prerequisite to receiving an award. Being a gold miner or being exposed to silica dust alone is not sufficient. The settlement requires certainty of diagnosis (or cause of death) to qualify.

However, if a miner develops TB within 12 months of their last exposure to silica dust at the mine, then the trust automatically accepts that this TB was occupational – and thus compensatable for its harm. On the other hand, under the Compensation for Occupational Injuries and Diseases Act, responsible for workmen’s compensation for TB in non-mining industries, the employer can still prove the TB was not from their workplace – by proving it came from somewhere else – and making it non-compensatable.

This means that a successful claim against the trust only requires credible evidence of a TB diagnosis and its permanent damage, the date of the TB diagnosis and the date of the worker’s last-risk work shift being within 12 months of the TB diagnosis. The trust compensates for the damage done to the lungs from this past occupational TB episode, and not the actual TB infection which is quite curable with antibiotics.

Read more in Daily Maverick: Tshiamiso Trust’s frustrating struggle for silicosis compensation for ex-mine workers and their families

Silicosis is different; it can aggravate TB episodes years after leaving the mines – called silico-tuberculosis. Occupational TB often follows silicosis, but silicosis is not always found in TB cases.

However, it is well understood that silicosis normally is related to mining, and it is not an ordinary public health disease. This is because there is normally not enough silica dust in public spaces to cause silicosis.

Generally, a diagnosis on x-ray with some evidence of gold mining history is regarded as sufficient to say it is “occupational” silicosis – regardless of how long after the last risk work date it is diagnosed. Indeed, it can be diagnosed upon autopsy decades later in terms of the Occupational Diseases in Mines and Works Act (ODMWA).

The same evidence is insufficient, however, for occupational TB. The TB must be diagnosed on the mine, or within 12 months of leaving it – otherwise it is regarded as non-occupational TB (which is one of the oldest diseases in recorded history, long before deep underground gold mining).

The false narrative that the opt-out notice makes any person who was simply exposed to silica dust eligible for an award is being circulated by touts trying to defraud people of their money for helping them. Silica dust is found in small amounts virtually everywhere.

This false narrative is leading to an influx of ineligible claimants, creating a bottleneck in the process, creating false hope for patently ineligible claimants, angering those that discover it is false in their award decision, and delaying compensation for genuine cases.

The classification of diseases like silicosis and TB is nuanced and cannot be oversimplified.

Adding to the confusion are misconceptions about the Medical Certification Panel (MCP) and its role. Not every claimant is seen by this medical panel – miners who have an approved ODMWA certificate can bypass the MCP process by electing to use their certificate. An approved ODMWA certificate could be any Medical Bureau of Occupational Diseases finding by its separate government panel of doctors of first- or second-degree silicosis, or first- or second-degree TB.

There are specific provisions regarding medical tests, diagnoses, the role of the Medical Reviewing Authority and even the R950 fee paid that applies only to specific scenarios. Ignorance of these details leads to misconceptions and mistrust among claimants, who may feel that they are being unfairly treated or that the system is rigged against them.

Prospective claimants should rather consult with their doctors, their community legal aid clinics, unionists and/or clergy if they remain distrustful of the Tshiamiso Trust.

For example, no mineworker from the settling companies with more than five years’ risk work is required to pay for their examination. However, those where it is highly improbable that they have silicosis (fewer than five years) are required to pay, but they are reimbursed if successfully diagnosed. Those found ineligible for an award (less-than-certain diagnosis) can submit a (one-off) second attempt and will also be reimbursed if successful.

Misinformation has real consequences: already ill miners might be further disadvantaged as confusion regarding the process leads to delays, creates distrust, and opens the door for fraudsters and scammers making all sorts of false promises. Those with legitimate and genuine trust processing issues often do not get heard against the backdrop of more numerous and louder complaints stemming from misinformation.

Compounded hardship

The challenges faced by the Tshiamiso Trust are emblematic of a larger issue that pervades our information-rich society. For the sake of the miners, their families and the broader public trust, we must ensure that miners have access to the right information in a timely manner.

Prospective claimants should rather consult with their doctors, their community legal aid clinics, unionists and/or clergy if they remain distrustful of the Tshiamiso Trust. The class legal representatives are joining forces with the occupational medicine community to provide additional support to these community professionals so that accurate information is available and accessible.

Read more in Daily Maverick: Silicosis and lessons from ‘enormous suffering’ – how a ‘measure of social justice’ was gained for mineworkers

The struggle for compensation for apartheid’s gold miners is already fraught with emotional, medical and legal complexities. Misinformation only exacerbates these difficulties, potentially causing further hardship for those who have suffered enough.

There are challenges with genuine claimants with the trust and its systems. However, every piece of misinformation circulated detracts attention from where it is really required for these genuine cases. Most often it is the widows who suffer because they require the greatest support in lodging a successful claim. 

As we seek further justice for coal miners and their surviving widows, who sacrificed their health in pursuit of coal profits, it is important to ensure they have access to the correct and accurate information they need. DM

George Kahn is a Director with Richard Spoor Inc Attorneys and has been practising within class action litigation and health & safety law for more than a decade since joining RSI. Kahn is the lead attorney on the silicosis class action for RSI, and is recognised by Best Lawyers international publication as one of the top Health and Safety lawyers in South Africa.