Mesothelioma Litigation

Moral responsibility by multinational firms towards former mineworkers who are ill or dying because of exposure to asbestos dust and fibres appears to be an elusive dream.

One need look no further than the shameful actions of British firm Cape when 7 500 South Africans sued for damages in the London high court.

For years, the litigation see-sawed through the British courts, which had to determine if the damages action could be brought in the UK, where the claimants at least had legal aid, or whether South African courts should be used.

In the end, Cape agreed to settle out of court and pay £11 million in cash into the Hendrik Afrika Trust and an annual sum of £1 million for the next 10 years.

Despite several extensions, Cape reneged on its undertakings while people continued to die of asbestos-related diseases.

The company eventually paid £7.5 million, from which Leigh Day and Company, the London law firm for the claimants, paid out compensation claims.

Gencor, the now dormant investment holding company, did the honourable thing when confronted with litigation by 37 former mineworkers.

The miners lodged individual claims for damages and in November 2001 they brought an application in the Johannesburg high court to stop Gencor from disposing of its R18 billion stake in Impala Platinum until it had made adequate provision for present and future asbestos injury damages litigation.

While judgment was reserved, Gencor agreed to settle out of court and paid a final settlement of R460.5 million. The company denied any liability.

As part of the settlement, the Griqualand Exploration & Finance Company and Msauli Asbes Beperk, both asbestos mining companies in which Gencor had an interest, also made a contribution.

Last year Richard Spoor, a Nelspruit occupational health specialist attorney, turned his attention to Xstrata Coal, previously known as Duiker Exploration, which controlled and managed the asbestos mines and mills of Wandrag Asbestos Mining Company in the Kuruman area in the Northern Cape.

Before Xstrata took ownership these companies were owned and controlled by Lonrho, now Lonmin, the world's third-largest producer of the platinum group of metals.

Spoor said Xstrata had a legal and moral obligation to contribute to a fund to assist former miners who were either dying or who would become ill because of exposure to asbestos dust and fibres.

Spoor issued a litigation summons against Duiker for damages of R1.2 million on behalf of 39-year-old Isaac Manchonyane of Maruping Village in the North West Province.

Manchonyane was dying of mesothelioma, a cancer of the lining of the lungs caused exclusively by blue asbestos dust and fibres.

With bottled oxygen at his side, Manchonyane gave evidence before a senior magistrate at Mothibastad near Kuruman.

He died on November 2 but his evidence will form the basis of his claim against Duiker.

Manchonyane worked at the Wandrag asbestos mine for six months between 1982 and 1983.

The mine was previously owned and operated by Duiker Mining (then known as Duiker Exploration), which owned two blue asbestos mines in the Northern Cape - Wandrag and Emmarentia - employing about 300 workers.

Spoor said Xstrata was not willing to enter into settlement negotiations and a long legal battle would rage this year.

"I am appalled that a huge multinational company does not want to take responsibility for the actions of companies it owned. A significant number of people are ill as a result of exposure to asbestos dust and fibres."

Spoor said many claimants were coming forward and his firm was looking at processing individual claims in excess of R150 million.

He was also negotiating with Swiss multinational Eternit, now renamed Anova, and indications are that a settlement of about $40 million could be reached within months.

The Asbestos Relief Trust, set up with the Gencor settlement, had made interim payments to seven people who are suffering from mesothelioma.

An additional three claims were being processed by the trustees, Spoor said. His office had prepared and finalised 160 asbestos is claims.

But all is not gloom and doom as far as compensation for occupational lung diseases is concerned. In late November, Xstrata, which owns Vantech, a vanadium producing mine, concluded a landmark agreement with the National Union of Mineworkers to pay R2.2 million in compensation to 75 workers who became ill with chemical bronchitis.

The agreement followed an inquiry by the department of minerals and energy affairs in September 2001 to investigate the high number of workers who contracted pulmonary diseases after being exposed to high doses of vanadium pentoxide fumes.

By then, 160 workers had been dismissed without compensation after being found medically unfit to work at the company's vanadium processing plant.

The compensation would be paid to workers suffering from permanent asthma or bronchitis, as well as to the widow of one deceased worker and five others who became ill but have recovered.

But it costs money to litigate and many claimants are among the poorest of the poor. Spoor said he had support from British sources. Should the claimants lose the litigation, the lawyers would not get a cent, he said.

Many former mineworkers live in Malawi, Lesotho and the former Transkei and unless they can be identified and medically diagnosed, they will not be compensated for occupational lung diseases.


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