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So. Africa: New blog series on use of class action lawsuits to hold mining companies accountable over health-related issues of miners

De Kaap Gold Fields, South Africa 1888, WellCome Images

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Article
25 October 2019

"There is no monster under the bed?"

Author: Legal Design

Transitional justice entails processes following a period of conflict and is associated with a society’s attempts to come to terms with a legacy of large-scale past human rights abuse. It involves four processes: obtaining truth regarding the violations, remediating the violations, achieving justice, and putting in place measures to guarantee non-repetition...

Towards the end of the apartheid regime, South Africa’s Constitution was negotiated and drafted in two stages...The question of whether and to what extent constitutional rights should apply to corporations was one of the most contentious debates during the Multi-Party Negotiation Process (MPNP). Seeking to constitutionally redress past and deter future corporate violations, debates were had over direct or indirect application of constitutional rights to corporations in a new democratic South Africa. 

Direct application means the use by private  persons of rights contained in the Bill of Rights in private litigation against other private or juristic persons - for our purpose corporations.  In contrast, indirect application refers to the infusion of constitutional values as secondary guiding principles in the interpretation of private law...

Decided in 1995, Du Plessis is an important foundational case for corporate accountability in South Africa. It was the first time the Constitutional Court wrestled with the question of direct and indirect application...

The majority judgment is heavily criticized for its failure to engage the important political and jurisprudential concerns which drove the MPNP’s debates. The dissenting minority “bogeyman” fear argument stressed that the majority’s conservatism was predicated on a fear... The unwillingness towards direct application was seen as immunizing from direct constitutional scrutiny a whole range of private racist relationships created and sustained at common law by previous apartheid regimes, which would continue to manifest in the form of social and economic inequality in the “new South Africa.”

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Article
23 September 2019

Gold Mining: South Africa's Public and Private Violence Part I

Author: Tladi Marumo, Legal Design

In 2011, South Africa’s Constitutional Court in an unprecedented step classified the gold mining industry’s historical and ongoing systemic exposure of mineworkers to occupational lung disease as acts of public and private violence. ...

Gold mining began in South Africa in 1886. It was powered by a racially discriminatory cheap migrant labor system, with mineworkers recruited from the rural areas of South Africa, Lesotho, Swaziland, Zimbabwe, Mozambique, Botswana, Zambia, Tanzania and Malawi. The large transnational gold mining companies united by the Chamber of Mines, jointly influenced foreign exchange and contributed significantly to state revenue... in 1929 there were 193,221 black and 21,949 white mineworkers... As early as 1902, gold mineworkers were facing a major health crisis in which occupational lung diseases, silicosis and TB limited mineworkers’ working lives from four to seven years. 

Responding to the health crisis, the gold mining industry and government initiated several interventions starting in 1902, including more than 20 commissions and select committees of inquiry...

The commissions and select committees of inquiry, some finding in favor of and others against the gold mining industry, noted the separate and unequal treatment of white and black mineworkers. White silicotic mineworkers and those with TB were treated at a sanatorium, given surface jobs, pensions and retraining. In contrast, few black mineworkers were treated at the mines by mine medical officers, and the many with silicosis and TB who became unfit to work were sent back to their originating rural labor-sending areas. Their return caused their communities to be infected with TB. Leaving the mines without medical certification, and returning to rural areas with very minimal to mostly nonexistent medical facilities, many died without receiving compensation. The unequal compensation system is evident from the fact that despite an average of ten black mineworkers for every one white mineworker, the total compensation paid to white mineworkers was thirty times greater. Remedial recommendations included: the introduction of dust control and elimination measures; initial, periodic and exit medical examinations be conducted; and the creation of a uniform system of compensation. 

 

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