A COURT case in London concerning South African miners will have major implications for compensation cases being brought by former Rössing workers, GREG DROPKIN writes.
The British company Cape PLC mined deadly blue and brown asbestos in South Africa’s Northern Cape and Northern Province for decades. Miners worked without masks, children trampled asbestos into packing bags and dust spewed over surrounding communities, spawning asbestosis and cancers.
Cape left the country in 1979. Now over 3000 former workers and local residents are pursuing them through the British courts, backed by the South African National Union of Mineworkers and government.
STRUGGLE FOR JUSTICE. . . Sick former workers from the Prieska asbestos mill, which was run by the British company Cape, demonstrate in South Africa last year. The miners’ plight is now before Britain’s Law Lords, who must decide if they have the right to bring their compensation cases in the UK. Photo: Hein du Plessis.
Click on image for Hein du Plessis “Cape Dust” exhibition.
This week the company and its South African victims are squaring off before the Law Lords, Britain’s highest legal authority. Although the arguments are focusing on the details of Cape, asbestos, and the South African legal system, the Lords’ verdict will have an effect on other companies and their victims.
Cape miners have also built on the ruling won by former Rössing Uranium engineer Eddie Connelly, whose throat cancer was allegedly caused by working without a face mask at Rio Tinto’s Namibian mine from 1977-82.
Twenty years later, Connelly won the right to proceed with his claim in London where he had obtained Legal Aid, because the case could not be funded in Namibia. The Law Lords dismissed Rio Tinto’s argument that the trial should move to Windhoek even if that meant it would not take place. In effect, the Lords ruled that the right to a fair trial took precedence over the interpretation of a phrase in the Legal Aid Act.
Now Cape is seeking to drive the asbestos miners’ claims out of London, where they also receive Legal Aid, and into South Africa where there are no funds for such a massive hearing. Last July when Appeal Court Judges realised the case involved thousands of claims, they backed Cape, reversing a previous ruling.
If the Law Lords uphold the second Appeal Court decision and block the miners’ claims in Britain, Rio Tinto will no doubt be happy. They share solicitors with Cape and have been making similar procedural arguments as to why their cases should not be heard in London.
A case brought by Mrs. Anne Carlson, whose husband died from cancer of the oesophagus after working alongside Connelly in Rössing’s Primary Crusher, may be affected by the decision as she lives in South Africa. Potential claims by other Rössing workers could be halted if Cape win. But if the Law Lords uphold the fundamental right to a fair trial, then the celebrations in South Africa will bring Rio Tinto back into the spotlight as well.
Tragic Toll
Hendrik Afrika worked as a sample boy at the Prieska mill in the Northern Cape. Now he has asbestosis. “I’ve made my peace with the fact that I am dying. I am unhappy with those people who took all those millions and led us to our death. My mother died because of the dust. Today, they deny us. I’ll never forgive them. They never warned us that it was dangerous work we were doing. They must give back what they took from the people.”
Around 3000 Prieska residents are thought to have died from asbestos-related diseases over the last 50 years. From 1976 to 1984,14 per cent of all deaths in the area were due to mesothelioma (a rare cancer caused by asbestos exposure), a staggering 200 times higher than the South African average.
Dr Andre Pickard, the Prieska physician who first noticed asbestosis cases in 1941 went on to diagnose over 900 mesotheliomas. His son died of the cancer. The asbestos mill was sited within the town, near a church and school.
Cape also mined brown asbestos at Penge (Northern Province) through a wholly owned subsidiary, Egnep. When a Government inspector Dr. Gerrit Schepers visited in 1965, he found “young children completely included within large shipping bags, trampling down fluffy amosite asbestos, which all day long came cascading down over their heads. They were kept stepping down lively by a burly supervisor with a hefty whip.”
As far back as the 1920s, the South African Department. of Labour ’Social and Industrial Review’ discussed the evils of asbestos. Yet in 1974, the Cape subsidiary told a Texas court “Egnep does not have any information. . . that would indicate that inhalation of raw asbestos fibres in large quantities is hazardous to health.”
When the Appeal Court in London backed Cape last year, the Judges mentioned “public policy” considerations and cited an American court ruling which forced Bhopal victims (gassed to death after a chemical plant blew up) to abandon their claims against Union Carbide in the US in favour of a paltry settlement in India.
In deciding to shift thousands of Cape claims out of London, the Judges reversed an earlier Appeal Court ruling which upheld the right of five claimants to proceed in the British courts.
The U-turn left the impression that five victims apparently deserved a fair trial but 3000 did not, and touched off demonstrations in South Africa last November.
A memo to the Minister of Justice from the Prieska community and the National Union of Mineworkers declared “we don’t think that our case is being taken seriously by the English Courts (which) are ignoring the pain of African workers and communities.”
Calling for the case to be heard in London and pointing out that the victims “cannot get justice in South Africa”, Prieska residents and the NUM asked the Minister “to raise these issues with the South African High Commissioner in London and the British Government”.
The UK’s Labour Government had already heard from Cape’s friends. Six months before the Appeal Court hearing a pair of former advisors to Conservative Party Prime Ministers, Charles Lewington and Wilf Weeks advised Cape to whip up public anger about foreigners claiming legal aid.
The Independent (Feb 4 1999) revealed their plan to put pressure on the British Lord Chancellor to stymie the legal aid application by using a “right-wing newspaper to encourage public outrage over the cost to the taxpayer of 1900 claims made against Cape in the past week”.
SA Concern
The South African government has now joined the fray. On March 29 the Cabinet decided to write directly to the House of Lords. As Justice Minister Penuell Maduna told the press “The South African government strongly believes that this intervention will enable it to explain why it should be in the public interest for the case to be heard in the UK.”
The SA government regards the entire saga as the legacy of an English company operating under apartheid legislation. There is no South African public interest in requiring its courts to resolve such a dispute.
South Africa abolished its own Legal Aid scheme last year and cannot possibly fund the Cape trial while carrying a national debt of R300 billion built up under apartheid.
The government believes the real public interest is for the claimants to receive justice and therefore the Cape case must proceed in London or be settled out of court. Cape has reached out of court settlements with workers affected by asbestos in the UK, but no South Africans have ever been compensated.
Solicitor Richard Meeran, who acts for the Cape victims, calls it “a case of double standards, paying off their victims at home while denying justice to South Africans who breathed the same asbestos dust which killed workers in London”.
By coincidence, as reported in The Namibian on June 8 Rio Tinto has agreed to begin a compensation process for its former employees at the Capper Pass ore smelter near Hull, in Yorkshire. Capper handled waste ores including radioactive materials.
Solicitor David Russell who acts for the Capper victims and the union, told The Express (June 9) he expects around 1 000 people will eventually claim against Rio, either for their own ill health or that of relatives who have died, with each one seeking at least Pounds 20 000 (N$200 000).
Rio Tinto told The Express that the company’s offer to consider compensation claims from cancer sufferers “demonstrates its genuine concern to resolve matters as quickly as possible and represents a fair and reasonable way of doing so.”
By contrast, Rio Tinto neither admit liability for anything that may have gone wrong at Rössing, nor waive the time limits which, they argue, prevent Connelly from pursuing his claim.
Yet the company would no doubt vigorously deny that their British workers should enjoy preferential treatment. Indeed, as Rio Tinto’s statement of business practice ’The Way We Work’ declares: “We believe that our competitiveness and future success depend. . . on our record as good neighbours and partners around the world. Accordingly, we set ourselves high environmental and community standards. Our commitment to health, safety, and the enhancement of the skills and capabilities of our employees is second to none in mining”.
This week’s hearing in London will have a profound effect on both Cape and Rio Tinto.
If the Cape miners get justice from the Law Lords, they stand a very good chance of winning compensation and they will clear the way for victims of other British firms’ health, safety, and environmental failures around the world.
But whatever moves Rio Tinto are making at Capper Pass, don’t expect Rössing’s parent to simply and gracefully concede the responsibility to compensate Namibian uranium miners. Not just yet, anyway.
