Criminalising desperate mine workers

The regulations governing mining in South Africa are in desperate need of revision. This was brought to the fore again last week with the deaths and arrests of “Zama-zama” artisanal gold miners, a fact underlined by word that government is contemplating seriously a new compensation regime for mine workers.

Those who died and those who were arrested are generally referred to as “illegal miners”. What they were doing is against the current law, but in a strict sense, no crime was committed since their actions neither harmed anyone but themselves, nor did they steal from anyone,

What we have in fact, is a case of criminalising an act of entrepreneurship. Yet to be entrepreneurial is hailed almost across the board as a most desirable trait. And even the Chamber of Mines admits that the Zama-zamas are both ingenious and “extremely enterprising”.

By criminalising artisanal mining, these workers are driven into the hands of criminal syndicates, often fronted by “respectable” business. And they are paid a pittance for their back breaking and dangerous labour.

Many of them, with their homemade equipment, spend weeks or even months in fetid conditions underground. The syndicates supply food and water at grossly inflated prices to sustain them as they labour. This cost is deducted from the already minimal payments they receive for gold retrieved.

Invariably retrenched miners, often from neighbouring countries, they are usually driven by poverty to risk life and limb. They also form part of hundreds of thousands of workers who, at some stage laboured underground to bring out the coal, platinum and gold that have made fortunes for the mining moguls.

A high proportion of their number, perhaps as many as half, will at some stage succumb to one of the diseases endemic to mining such as silicosis and tuberculosis. And it is here that government is belatedly trying to improve matters.

While the motivation may be admirable, the suggested improvements, contained in several recent reports, appear extremely worrying. Because the intention now seems to be to have all miners currently at work covered by what is generally known as “workmen’s compensation”. This is administered by the Compensation Commission under the Compensation for Occupational Injuries and Diseases Act (Coida).

Unlike the present system covering miners — the Occupational Diseases in Mines and Works Act (Odimwa) — Coida provides for lifetime compensation for occupational injury or disease. This is certainly preferable to the Odimwa provisions, but, if current proposals are adopted, will not apply to the many thousands of miners who have already left the industry.

However, lung diseases such as silicosis can take up to ten years before they incapacitate the victims. Coida, which is funded by employer contributions, has no allowance for this.

In any event, the compensation commission is, as a leading labour lawyer notes, “wholly dysfunctional”. In fact, it is in much the same position it was in 12 years ago when this column recounted the story of Solomon Silinda.

His name came to mind because the Legal Resources Centre (LRC) in Pretoria took his case to court to demand that mechanisms be put in place to pay out thousands of claims for work-related injuries. Some of these had been delayed for up to 10 years.

Silinda was the most prominent name in a class action brought by the LRC. A bread deliveryman in the Winterveld, north of Pretoria, he became a pain-wracked paraplegic, a bullet lodged in his spine, after being shot during a robbery while doing his rounds in February, 2001.

On June 16, 2004, he died in agony on a bench in a corridor of the Ga Rankua hospital. He was destitute and the only compensation he and his family had received in more than three years was several loaves of bread and R50 from his employer as a “final payment”.

Months later, the LRC case was won and this column noted that Solomon Silinda had not died in vain. This was an example of misplaced optimism because, 12 years on, little seems to have changed.

Ironically, even a few employers have been caught up in the shambles that is the occupational compensation system. One employer, having overpaid his levy for several years, has reportedly been waiting since 2002 for a refund.

As a result, it would be a disaster in the making to bring tens of thousands of miners into this system as it stands. Especially without having done adequate costing and deciding who should pay.

According to the Coida legislation, employers are responsible for compensation payments. But many mine owners are no longer employers since they increasingly outsource the work of mining to contractors who are the employers of miners. At the same time, however, the owners have to provide ventilation, dust control and other safety measures.

Then there is the matter of the tens of thousands of former miners many of whom have contracted or will contract lung diseases because of their earlier occupation. Who are they? Where are they? And, if they are contactable, and dying premature and painful deaths, how much compensation will they receive and who will pay?