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From gold dust, a billion dollar claim


SEMONGKONG — They came on horseback or by foot, trudging through Lesotho’s highlands and clutching tattered identity documents to back their claims that South Africa’s gold mining firms ruined their lungs.

On one day in January alone, around 40 former gold miners and widows crowded into a municipal office in Semongkong, 120 km east of Lesotho’s capital. They were there to add their thumbprints to the names of nearly 7 000 others who were threatening the biggest class action suit Africa had ever seen.

In South Africa, a country still grappling with the consequences of apartheid, the case touches on race, politics and history. The implications for its gold mining industry and for its relations with the government — already strained by past talk of nationalisation — are huge.

The men — some South African, others from neighbouring Lesotho — worked deep underground for many years, often with insufficient protection. They inhaled silica dust from gold-bearing rocks and later contracted silicosis. A disease which causes shortness of breath, a persistent cough and chest pains, it makes people highly susceptible to tuberculosis, which kills. It has no known cure.

The miners are led by Richard Spoor, a provincial lawyer who won a case last year that laid the legal ground for claims for compensation. He has help from South Carolina law firm Motley Rice, which made its name suing asbestos and tobacco companies and is one of the largest litigators in the United States. Neither firm will disclose commercial terms.

“We’re signing up 500 people a week at the moment,” Spoor said.

A successful suit could collectively cost mining companies such as AngloGold Ashanti, Gold Fields, Harmony and global giant AngloAmerican billions of dollars, according to legal and industry experts. The largest settlement to date by the mining industry in South Africa was $100 million in 2003 in a case brought by Spoor against an asbestos company.
“This case has damn serious implications,” said Peter Major, a mining industry analyst at Cadiz Corporate Solutions in Cape Town. “There are going to be payouts, without a doubt.”

The big four mining companies declined to comment in detail for this article, saying they had yet to see rguments, which Spoor is finalising for the possible court filing.

Graham Briggs, chief executive of Harmony, said the issue of silicosis was “a big topic”, but he did not think it “class action material”. Different conditions prevailed at different times in different mines, he said, and workers may have had more than one employer.

That doesn’t sway miners with silicosis. For the vast majority, and the widows of men who died as a result of it, life is little different today from the 1980s.

South Africa’s first free elections in 1994 may have brought political reform and economic change, but for the hundreds of thousands of men who helped build the biggest economy on the continent and then got sick, the harm caused in the gold mines has yet to be made good. They want compensation, better health care and recognition they have been treated badly.

“We had massive change in South Africa in 1994 and yet here we are, in 2012, and we still haven’t found a way to resolve the biggest legacy of apartheid-era mining,” said May Hermanus, a former chief mines inspector and now head of the Centre for Sustainability in Mining and Industry in Johannesburg.

The miner who opened the way to Spoor’s campaign never heard the outcome of his legal battle.

In 2006, Thembekile Mankayi, who came from South Africa’s impoverished Eastern Cape province, lodged a civil claim against AngloGold, Africa’s biggest gold producer. He sought R2,6 million ($319 000) in damages, loss of earnings, medical bills and pain and suffering caused by silicosis and related tuberculosis allegedly contracted while he was working underground at AngloGold’s Vaal Reefs mine, 150km southwest of Johannesburg, between 1979 and 1995.

The case, led by Spoor, reached the Constitutional Court, the highest in the country. But Mankayi died just days before it finished its deliberations in March 2011. The judges did not rule on his claim, but did say lung-diseased miners could, for the first time in South Africa, sue their employers for damages.

“As the history of this country painfully reminds us, mineworkers, African mineworkers in particular, have contributed enormously to this country’s economic wealth and prosperity, at great cost to themselves and to their health,” their ruling said.

Since the verdict, Spoor, a tall 52-year-old of Dutch descent, has searched for sick ex-miners in South Africa and Lesotho to build a class action suit. He says he has found 6 876 ex-miners and widows so far. Botswana, Swaziland, Mozambique, Zambia and Malawi — all of which shipped men in large numbers to South Africa’s gold mines — are next on his list.

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