The South African Court ruled in favor of former and current underground mine workers employed by South African Gold Mining companies in an application which sought an order to proceed with the case as a class suit and further to declare the common law rule which states that general damages are not transmissible to the estate of mine workers upon death. The court was faced with a number of question, inter-alia; Whether legal convictions of the community justified the imposition of delictual liability upon mining companies for failing to take necessary steps to prevent the growth and spread of silicosis. Whether breaches of the relevant health and safety statutes constitute grounds for imposition of strict liability?
The court held in granting the certificate that common law (judge made law) was subject to development. It had to be consistent with ideas and changing circumstances of our modern society. It also had to pass the constitutional test. As such the court held that, the common law rule that general damages are not transmissible to the mine workers estate pre litis contestatio would not apply to the applicants to the class suit. Failure to grant or recognize their claims for general damages as having commenced from date of the certification application would produce an unfair and unjust result to the heirs. DITSHWANELO in conjunction with BoLAMA - Botswana Labour Migrants Association (ex-miners association) are elated at the news of this judgment. This is so because the former has been registering ex-miners in Botswana for possible compensation under this case. The latter, is an organized group of ex-miners and their dependants, which group was born out of the class suit under DITSHWANELO.
The failure by the mining companies to provide a safe working environment and the impunity under which they have been operating for over a century is a breach of their legal duty which they owe to mine-workers. This case has shed light into a number of issues incidental to the mining industry. Firstly the migratory system from which the spread of TB is facilitated, withheld social security benefits of ex-miners and the challenges faced by their dependants in accessing them due to the cross border nature attended to them, weak regional frameworks and collaboration on migration health. Lastly, slow response by both Governments (labour sending and receiving state) in addressing the plight of these miners.
These are some of the issues which DITSHWANELO and BoLAMA have been addressing, We believe it is high time that migrant mineworkers are involved in the decision making process which directly affects them. We are yet to hear the Government of Botswana's plans/intentions in respect of the 2012 SADC Declaration on TB in the Mining Sector. We, therefore, call upon all those who contracted Silicosis or TB to come to the DITSHWANELO office to inquire on how they can benefit from programme.
Kitso P Phiri
Access to Justice
DITSHWANELO: The Botswana Centre for Human Rights