Alternative funding options for occupational diseases in South African mines

Abstract

Provision of compensation to victims of occupational disease in the mining industry has been a key policy area in South Africa for decades. Yet in all those years, the common law never featured as a practical option for providing compensation. Workers’ compensation has always been preferred and for good reason. Workers’ compensation internalizes the cost of compensation and converts into a cost of production. In the process, compensation is expeditiously paid and at low cost. In return, there is a general exclusion of common law actions against employers. Accordingly, there is no record of successful litigation against an employer for an occupational disease in South Africa. The unexpected lacuna came in 2011 when the Constitutional Court ruled that mineworkers could sue their employers at common law for occupational disease. Various sections of South African society hailed the decision as a victory for mineworkers. Since then, courts have certified class actions against mining companies paving the way for mass-litigation in local and foreign courts by thousands of former miners. Anyone familiar with occupational diseases in South Africa and compensation thereof would find these developments perplexing. This study assesses the common law as a compensation mechanism and concludes that it is virtually impossible to apply its key elements of causation, fault, harm and wrongfulness to long latency diseases. Application of the common law to long latency disease requires the development of a new branch of jurisprudence as some cases in the UK have confirmed. Furthermore, the common is also associated with a wide range of other practical problems that further cement its unsuitability to deal with compensation for diseases contrary to popular belief. An assessment of alternative options for compensating victims of disease is therefore not only important but also necessary. Among the available options, workers’ compensation is the most ideal for South Africa.