8.1 - Introduction
8.2 - Findings
8.2.1 - Local Issues
8.2.2. - Barriers to Developing Claimants
8.2.2.1 - Medical Obstacles
8.2.2.2 - The Effects of Corruption
8.2.2.3 - Touting and Statutes of Limitation
8.2.2.4 - Geographic Isolation
8.2.3 - Needed Infrastructure for a Large-Scale Suit Against Industry
8.2.3.1 - Presence of Strong Activists
8.2.3.2 - Record-Keeping
8.2.3.3 - Transportation
8.2.4 - Grounds to Sue Under South Africa Law
8.2.4.1 - Ex-Miners
8.2.4.2 - Exposure to the Industrially Contaminated Environment
8.2.4.3 - Women and Children Workers
8.2.4.4 - Time Restraints on Bringing a Claim
8.3 - Conclusion
8.0 -COMMISSION 3: THE REGULATORY FRAMEWORK
"Is there any hope?" - Widow of Ex-miner Living in Batlharos
8.1 Introduction
Beyond the needs for health care, rehabilitation, and education lies the possibility
to litigate against companies who compromised the health and well-being of workers,
their families, and villages contaminated by asbestos. Litigation constitutes
a crucial dimension through which to approach compensation for those affected
by ARDs. While asbestos litigation is a frequently discussed topic in South
Africa, few groups other than the English firm Leigh Day & Co., which is
involved in the lawsuit against Cape Plc., have actually undertaken legal action
against an asbestos mining company. The Cape Plc. Case remains primarily a UK
endeavour, involving a British legal group seeking damages in Britain against
a British company that had South African subsidiaries. Legal action against
a South African parent company within South Africa has not yet been undertaken
in any systematic fashion.
8.2 Findings
The seeds of a legal suit on South African soil, however, are germinating in
the town of Kuruman, where several attorneys are exploring possibilities for
litigation against the former asbestos mining company, Gefco. To assist in examining
options for legal action, two post-graduate students worked in collaboration
with a South African attorney from Nelspruit to work with plaintiffs for a legal
test case. In this section, we examine local issues, the obstacles and infrastructure
needed to develop claimants in Kuruman and the surrounding areas, and outline
the grounds to sue under South African law.
8.2.1 Local
issues
Our initial contact was with Kuruman Asbestos Sufferers (KAS), an organisation
created by a local businessman suffering from mesothelioma. KAS aimed to track
the incidence and prevalence of the disease in the region, create a database,
and advocate for the fulfilment of compensation claims. Recently, the group
recruited an office manager from the CPAA who was very knowledgeable about the
MBOD and the Compensation Commission. This consolidation has the potential to
provide more structure and expertise for KAS, a desperately needed local headquarters
for CPAA, and some protection against corruption. Although fragile, the merger
appears to be having some success.
Our interviews with potential claimants were conducted in the KAS/CPAA office in Kuruman. KAS/CPAA contacted people with mesothelioma as well as the widows of ex-miners with the disease who had recently died. Advertisements were placed in the local paper, asking people suffering from, or affected by, mesothelioma to speak with us. The law prohibits any more in-depth recruiting of potential claimants. Our interviews emphasised work history, exposure to dust, knowledge about the dangers of asbestos, earnings and compensation, and history of illness.
We interviewed potential claimants twice a week for a period of three weeks, speaking with approximately twenty people suffering from, or affected by, mesothelioma; the majority of people with whom we spoke were widows of ex-miners. However, as word of our presence in the office spread throughout the region, an increasing number of men and women who had been exposed through the contamination of their environment by asbestos asked to speak with us.
8.2.2 Barriers to Developing Claimants
Histological diagnosis
One of the first barriers to litigation is that many sufferers of mesothelioma
do not get a histological diagnosis. (See Section 7.1.2.1) As mentioned earlier
in this report, this is due to an overall lack of understanding on the part
of doctors, ARD sufferers and their families, and those involved in the compensation
process about the importance of proper diagnoses. Thus many doctors only characterise
their patients clinically, failing to refer them to hospitals, such as Kimberley,
Klerksdorp, and/or Tshepong, where histological diagnoses can be made. One doctor
we spoke with saw herself as helping make the patient as comfortable as possible
and thus did not encourage a long and often expensive trip for her weaker patients.
Even when doctors did make referrals, the actual trip to Kimberley, Klerskdorp,
or Tshepong was unlikely for reasons explained previously. Of key importance
is that few doctors communicate (or know) the importance of completing such
a trip and thus their patients, with few resources, often do not go, without
realising what they might be forfeiting with such a decision.
Although there is a "flying team" of specialists from Kimberley who travel to Kuruman to treat and diagnose mesothelioma cases, the irregularity of their visits is an additional problem. The experience of one man we interviewed is telling. Upon his arrival at the clinic, after months of waiting to see the specialists, he was told that the specialists would not be visiting that day and that he would have to wait another month.
Other diseases
The prevalence of TB in the Kuruman region also indirectly contributes to delays
in or failures to the proper diagnosis of mesothelioma necessary for successful
litigation. TB often obscures mesothelioma clinically. If a patient complains
of a cough or a tight chest, his sputum is immediately tested for TB. If that
patient tests positive, he is given antibiotics and there is no further investigation
of his symptoms until the course of antibiotics is completed. This could delay
the diagnosis and treatment of mesothelioma for up to six months. In addition,
practitioners view TB as a greater problem than ARDs in the communities they
serve. One doctor told us that TB and HIV/AIDS consumed all her energy. Although
she would like to learn more, she has neither the resources nor the time to
become more educated about ARDs. Finally, many doctors do not encourage post-mortems
for labourers of "risk work", even though the MBOD specifically directs
them to do so. One doctor admitted unofficially that post-mortems are not performed
on ex-miners in her hospital. Even when doctors do ask about post-mortems, few
families consent.
8.2.2.2
The Effects of Corruption
As mentioned previously, corruption is a serious problem in communities burdened
by ARDs. This has justifiably bred profound mistrust of outsiders involved in
asbestos compensation, research, or litigation. Corruption exists at virtually
every level of the compensation system. Informal compensation brokers, referred
to as "sharks," require between 30-50% of a compensation payment for
their facilitation of quick results. While some do facilitate the process, others
do not. One official from a local hospital that we interviewed lamented that
many people pay sharks to fill out their forms, even though there is a centre
dedicated to helping ARD sufferers complete forms free of charge at each stage
of the process.
Other sharks trick people into thinking that they have applied for compensation by filling out a few bogus forms and photocopying them. Soon after our arrival in Kuruman, a person was arrested and charged with fraud after months of promising people that they would be compensated within two weeks, for a fee of R75-85. Weeks later, people informed us that yet another individual was continuing to charge people to complete forms.
In response to such blatant exploitation of ex-miners and their families, community activists advised residents of one village not to speak with unannounced outsiders about the asbestos problem. Even those who are not told to remain quiet are sceptical about unfamiliar people interested in the issue of asbestos. This creates serious problems when trying to recruit potential claimants for a legal case. Many people worry about fees and charges and prefer not to become wrapped up in another ill-defined business transaction around their illness. Although it is difficult to prove in a definitive way, we are strongly inclined to believe that scepticism and misunderstandings about compensation, largely due to corruption, affected our ability to interview a wide-range of mesothelioma sufferers. (See Section 7.2.2.1)
8.2.2.3
Touting and Statutes of Limitation
In addition to medical barriers and corruption, several legal requirements had
a significant impact on our ability to recruit potential claimants. First, South
African ethical guidelines against touting prevented us from actively seeking
out people with mesothelioma. Standards opposed to "ambulance chasing"
mandate that ethically one cannot directly approach a potential claimant and
offer legal representation. These codes are designed to protect the professional
character and good repute of the legal profession. Furthermore, statutes of
limitation, as located in the Prescription Act, set out periods of prescription
of various rights. The statute of limitations for personal injury claims is
three years. Thus anyone diagnosed with mesothelioma prior to 1998 is not eligible
to be included in a legal case. Since most victims of mesothelioma die within
18 months, recruiting live or recently deceased clients constituted an enormous
challenge.
8.2.2.4
Geographic Isolation
Finally, the geographic isolation of many areas affected by mesothelioma severely
affected our ability to find potential claimants. Difficulties travelling on
unpaved roads as well as limited and costly transportation prevents many in
outlying areas from journeying into Kuruman regularly and thus from obtaining
information about asbestos, ARDs, compensation, and litigation. Many of those
with ARDs continue to be unaware not only of their rights to compensation but
of the causes of their illness and the possibilities for litigation as well.
8.2.3 Needed Infrastructure for a Large-Scale Suit Against Industry
8.2.3.1
Presence of Strong Community Activists
Community advocacy is desperately needed for successful litigation. Established
groups such as CPAA have been long-time supporters of ex-miners and their families
and work to educate ARD sufferers on the necessities of proper diagnoses and
their entitlements to compensation. They also track current claims at the MBOD
and the Compensation Commission. Community groups are also important in advocating
for speedier responses to compensation requests and to push for better medical
services, which cater to the specific needs of ex-miners, their families, and
those environmentally exposed to asbestos.
If well established at the grassroots level, such local groups can also help to defuse potentially explosive and debilitating community politics by uniting stakeholders into a single movement. Community advocates can combat corruption and fraud, rendering such violations ineffective. Through education and advocacy, such groups may also battle the harmful effects of geographic isolation by advocating for tarred roads.
In addition to fostering a community informed about the various aspects of ARDs, community groups also serve another important function: to sustain those sick with mesothelioma while the lengthy process of litigation unfolds. As most legal action takes years, groups such as CPAA are essential to help people obtain compensation in the short-term and alleviate hardship while longer-term action is taken.
Finally, community activists can aid lawyers from other areas of the country in understanding past issues of concern and importance, current community dynamics, and much-needed cultural sensitivity. Since activists know many of those affected by ARDs, they can contact potential plaintiffs and help lawyers avoid touting. An office for such a group might also provide a base from which lawyers can work. It seems almost too obvious to state, but the resources for a legal case include, but are not limited to, phone cards, a photocopier, word processing, internet access, and a law library.
8.2.3.2
Record-Keeping
Written accounts of work and medical histories as well as personal identification
are essential in the development of a legal case. Although Gefco charges ex-workers
R25 for a copy of their work histories, more than most in the Kuruman area can
afford, work records are available for former employees and their families to
prove tenure of service (as the Mines and Works Act of 1956 stipulates that
records must be kept for 40 years). However, it is the responsibility of those
suffering from ARDs and their families to preserve the medical documents, characterising
illness for a legal case. It is the responsibility of family members of the
deceased to keep identification records for proof. To facilitate the preservation
of such documents, people need to be educated about the importance of medical
identification and work histories. In addition, since the cost of obtaining
work histories from Gefco is higher than most can afford, a legal case must
be equipped with resources to reimburse people the required R25.
8.2.3.3
Transportation
Transportation continues to be major obstacle for recruiting potential claimants.
Since many cannot travel to town centres such as Kuruman due to a lack of local
infrastructure, it is important for those developing plaintiffs to have vehicles
in which to travel to villages with trusted members of the community. Since
transportation costs can often be high, it is important to reimburse ARD sufferers
and their families for their transportation costs.
Although developing strong claimants is a challenging endeavour, the above-mentioned components comprise some of the most basic resources needed to launch a case against Gefco and other asbestos companies. The next section explores some of the legal components necessary to justify litigation against industry under existing legal frameworks.
8.2.4 Grounds
to Sue Under South African Law
The first question that must be answered before an individual decides to undertake
legal action against a mining company is: does the individual possess the right
to sue under the law? The individual's relationship to the mining company is
extremely important when considering this question because different groups
of people have different options for legal recourse. Once the individual's common
law right to litigate is established, other legal issues arise, such as whether
the mining company's alleged conduct can be considered wrongful under the law.
An examination of several possible categories of potential claimants follows.
It is important to note that this examination does not cover all the legal issues
involved, but merely seeks to outline some of the difficulties each category
might face in pursuing a legal claim.
8.2.4.1
Ex-Miners
One of the largest obstacles facing workers seeking legal recourse for ARDs
is the compensation legislation itself. The Compensation for Occupational Injuries
and Diseases Act of 1956 (COIDA), which covers most employees for injuries and
occupational diseases sustained during the course of employment, eliminates
an employee's common law right to sue his or her employer for these injuries,
even in cases where the employer is negligent(115).
The Act does permit an employee to recover increased compensation if the injury
is caused by the employer's negligence; however, this additional compensation
is prohibited if the employer can demonstrate that the employee's own negligence
contributed to his or her injury in any way.
Most individuals who worked on asbestos mines or in asbestos mills are entitled to compensation for their occupational diseases under the ODMWA. Unlike the COIDA and other workmen's compensation legislation, the ODMWA does not explicitly prohibit an employee from taking legal action against his or her employer for the development of occupational disease. But, due to a provision in the Act that maintains that if a worker can be compensated under the ODMWA, he or she cannot collect compensation under "any other law." An argument can made that the Act takes away a worker's common law right to sue(116). In at least one instance, attorneys argued against this interpretation, but to date, no South African court has rendered a conclusory decision(117). As a result, any ex-mine worker covered by the ODMWA who brings a suit against his or her employer for negligence will have to establish that he or she retains a common law right to sue. While there are compelling arguments that can be made on behalf of potential claimants, this additional hurdle provides another disincentive on the part of workers and attorneys to attempt asbestos litigation in South Africa.
If a court determined that an ex-mineworker did possess the right to sue, he or she would probably have little difficulty establishing that the asbestos mining company's conduct was wrongful, because an employer generally has a legal duty to take "reasonable" steps to protect its employees from harm. However, even if the court finds this duty, the claimant would still have to show that the mining company's conduct was negligent, and that this negligence resulted in harm to the claimant. A good way for the claimant to prove negligence would be to present evidence that the company failed to meet South African safety standards.
Another relevant issue is whether South Africa's standards at the time of an individual's exposure were comparable to those of other countries. As it appears, South Africa had higher standards for acceptable fibre counts than the rest of the world(118). The result is that South African employees in the asbestos industry were potentially exposed to higher levels of dust. It is possible that a court could use the disparity between the safety regulations of other countries and those of South Africa to help determine whether the legally established safety precautions in South African mines and works were "reasonable" in and of themselves(119). However, whether a court would find such international comparisons persuasive remains to be seen.
8.2.4.2
Exposure to the Industrially Contaminated Environment
Individuals who develop ARDs due to industrial environmental exposure do not
find themselves potentially stripped of the right to sue because of the provisions
in compensation laws, but their ability to litigate successfully against the
asbestos mining companies is hindered by other obstacles. Perhaps the most crippling
of these is the claimant's burden of establishing that a particular mining company's
asbestos caused or at least substantially contributed to his or her ARD. While
this requirement does not prevent legal action, when combined with the insolvency
of many of the asbestos mining companies, the frequent change of ownership of
many of the asbestos mines, and the long latency period of ARDs, the case becomes
increasingly complicated. Trying to determine the origins of any particular
fibre is extremely difficult, and often impossible.
The claimant would also have to demonstrate that the defendant's conduct was wrongful; that the mining company owed the individual a legal duty that it subsequently breached. The existence of any regulations limiting the amount of dust an asbestos mine or mill could emit into the atmosphere might be sufficient for establishing this duty(120). In the absence of such regulations, the fact that the asbestos mining company was in control of hazardous property might in itself create a legal duty as to local inhabitants. However, claimants who have suffered from exposure to the contaminated environment may have a difficult time proving that the mining company acted negligently(121). Their success might depend on how effectively they can argue that the company knew or should have known that allowing asbestos fibres to escape into the atmosphere could cause harm to people living in the surrounding areas.
8.2.4.3
Women and Children Workers
Women and children workers pose different problems in regards to litigation.
While legislation prohibited women from working underground, and children under
the age of 16 from working at the mines altogether, women and children were
employed at the asbestos mines in large numbers. The South African government
facilitated the employment of both groups by granting exceptions for the employment
of women and minor children with parental permission. Usually, women and children
were employed to cob the asbestos by hand. This hand-cobbing was outlawed in
1973, but women continued in this and other occupations (at least in the Northern
Province) up until the last mines closed(122).
The asbestos mine companies often failed to keep records of their employment of women and children. As a result, women and children claimants bear the burden of proving that they actually worked for a particular mining company. If they can prove their employment, and the employment was legal, then women and children litigants would likely face the same legal obstacles as male ex-mineworkers (see above). If they cannot prove employment, then they may face the same legal obstacles as environmental cases.
A different legal scenario arises when a woman or child can prove that they worked for a particular mining company but that the occupation itself was illegal. In such a case, the employee may find him or herself freed from having to circumvent the potential barrier to a common law cause of action under the ODMWA. However, in all likelihood, the court will find that illegal workers constitute de facto employees for the purposes of compensation legislation and workplace safety regulations.
8.2.2.4
Time Restraints on Bringing a Claim
A critical issue for all potential claimants in any litigation against the asbestos
mining industry is whether or not their claim has been barred by the passage
of time. Under the Prescription Act 68 of 1969, an injured party has three years
from the time he or she could technically bring a civil suit against an alleged
injurer to take legal action. However, the Act does provide that the limitation
period will not begin to run until the injured party "has knowledge of
the identity of the [alleged injurer] and of the facts from which the [injury]
arises." This law also requires that the injured party make a reasonable
effort to obtain this information(123).
South African courts do not require that the injured party actually know that they possess the right to sue; rather, they require only that the injured party be aware of the material facts that would support legal action, whether they have knowledge of the law or not(124). However, the courts do tend to use a more subjective approach (rather than a strictly objective one) in determining whether or not the claimant's attempts to acquire information are reasonable(125). This may be extremely important to claimants seeking to sue asbestos mining companies because it indicates a willingness on the part of the courts to take into account the particular case of each claimant. Under this approach, the court would likely consider apartheid conditions and the difficulty of obtaining relevant health and labour information in determining what constitutes "reasonable" behaviour.
8.3 Conclusion
Litigation is an important mechanism to hold accountable the multinational companies
that abandoned their mining and milling operations without rehabilitating the
mines, decontaminating the environment, or compensating those whose health had
been compromised. As outlined in this section, there are many factors which
make litigation difficult, especially in rural areas. However, asbestos was
mined and milled in South Africa without protection for workers or the environment
long after the health hazards were documented and accepted world-wide. Thus,
the moral and legal right is on the side of those whose lives were so callously
disregarded for almost a century.