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Wednesday, April 13, 2011

Case profile: AngloGold Ashanti silicosis lawsuit (So. Africa)

In October 2006, a South African gold miner named Thembekile Mankayi sued AngloGold Ashanti, his former employer, stating that he developed the lung disease silicosis while working in Vaal Reefs mine. The lawsuit, filed in the Witwatersrand Local Division of the High Court of South Africa, sought R2.6 million in compensatory damages. Mankayi alleges that AngloGold Ashanti failed to meet its responsibility to provide its employees with a safe and healthy work environment under both South African laws and an employer’s common law duty of care to its employees. AngloGold Ashanti responded that Mankayi is precluded by law from making the claims he set forth in his lawsuit. Under South Africa’s Compensation for Occupational Injuries and Diseases Act (COIDA), workers or their families may not sue an employer for injury or death incurred at the workplace. Instead, the compensation commission considers these claims. But Mankayi’s claims of AngloGold’s negligence can only be heard in a court of general jurisdiction, not by the compensation commission.

In addition, mineworkers’ lung diseases are covered under the Occupational Diseases in Mines and Works Act (ODMWA), which limits a mineworker’s compensation for illness due to working conditions to just a fraction of that awarded under COIDA (plaintiff’s counsel estimates that the payout is about a tenth of what it would be under COIDA). The size of Mankayi’s claim challenges the limitations on compensation under ODMWA. The South African Parliament is currently considering revisions to the law to address the disparity between the remedies available to workers under COIDA and ODMWA.

On 26 June 2009, the High Court of South Africa, Witwatersrand Local Division, issued a decision in this case. The court ruled in AngloGold Ashanti’s favour, holding that Mankayi was statutorily barred from making his claim. In March 2010, the Supreme Court of Appeal in Bloemfontein heard Mankayi's appeal of the lower court's ruling. On 31 March, the Supreme Court of Appeal upheld the High Court's ruling. The plaintiff's appeal to the Constitutional Court of South Africa, and this court reversed the lower court's ruling and ruled in favour of Mankayi on 3 March 2011. Mr Mankayi died of lung disease on 25 February 2011.

Article found on Business & Human Rights Resource Centre website.

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