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Occupational Diseases in Mines

But most of the time, of course, we should prefer to forget that they were doing it. It is so with all types of manual work; it keeps us alive, and we are oblivious of its existence. More than anyone else, perhaps, the miner can stand as the type of manual worker, not only because his type of work is so exaggeratedly awful, but also because it is so vitally necessary and yet so remote from our experience, so invisible, as it were, that we are capable of forgetting it as we forget the blood in our veins. In a way it is even humiliating to watch coal-miners working. It raises in you a momentary doubt about your own status as an ‘intellectual’ and a superior person generally. For it is brought home to you, at least while you are watching, that it is only because miners sweat their guts out that superior persons can remain superior. You and I and the editor of the Times Lit. Supp., and the Nancy poets and the Archbishop of Canterbury and Comrade X, author of Marxism for Infants – all of us really owe the comparative decency of our lives to poor drudges underground, blackened to the eyes, with their throats full of coal dust, driving their shovels forward with arms and belly muscles of steel.

– George Orwell: ‘The Road to Wigan Pier’1 2

Although hundreds of millions of rands have been paid out to sufferers and their dependants from mine-related occupational disease, apparently there is a massive backlog of claims,3 and there are further pending class actions.4

The Occupational Diseases in Mines and Works Act 19735 relates to the payment of compensation in respect of certain diseases contracted by persons employed in mines and works.6 It falls under the authority of the Minister of Health, but for all intents and purposes is administered by the Compensation Commissioner of Occupational Diseases.7

A. Certificates of fitness

Certain (higher paid) ‘risk work’ on mines or works requires a certificate of fitness, to be issued following a medical examination.

  1. Any person who performs risk work without a valid certificate of fitness commits an offence.8

  2. Whenever the Director9 has reason to suspect:
    • that the health of the holder of a certificate of fitness has deteriorated substantially since his last medical examination;10 or
    • that the holder of a certificate of fitness is performing work which he is not in terms of that certificate permitted to perform;11 or
    • that the holder of a certificate of fitness is not complying with a restriction subject to which his certificate has been issued or renewed;12 or
    • that the health of the holder of a certificate of fitness is such that the performance by him of risk work likely to endanger his own health or safety, or the health or safety of other workers,13 then he shall, by notice in writing to the holder concerned, declare his certificate of fitness to be cancelled. The holder will be directed to surrender the certificate (to a person and at a time and place specified in such notice) and to report for medical examination. Any person who fails to comply with the requirements of such a notice commits an offence.14
  3. It is a crime, after having received such a notice, to perform risk work without being in possession of a valid certificate of fitness.15

  4. It is a criminal offence to perform work which a certificate of fitness does not authorise.16

  5. It is also a crime to perform work otherwise than in accordance and compliance with any restriction on the basis of which the certificate has been issued or renewed.17

  6. Any person who makes a false statement or misrepresentation, or conceals any fact of material importance in order to obtain for himself (or assist any other person to obtain) a certificate of fitness, or any other document or advantage under the Act is guilty of an offence.18

  7. Any person who forges, or alters with intent to deceive any certificate of fitness (or any other document for which provision is made in the Act) commits an offence.19

B. Claims

  1. Any person who charges a fee in exchange for assistance in claiming any benefit in terms of this Act, or claims remuneration from a person who is claiming a benefit in terms of the Act, which in either case is in excess of 0,5% of the benefit (or any amount stipulated by the Director-General) shall be guilty of an offence.20

C. Medical examinations

The Minister appoints a Director of the Medical Bureau for Occupational Diseases. He is a medical practitioner, and is responsible for the direction and control of all medical examinations required in terms of the Act. He has extensive powers of inspection and investigation, and gathering information, including by way of demanding sworn declarations.21

  1. Any person who, in any sworn declaration, or in answering any question under oath (or affirmation) makes a statement which he knows to be false, shall be guilty of an offence.22

  2. Any person who hinders or obstructs any person in the exercise of (the wide) powers conferred upon him, for the purposes of gathering information, commits an offence.23

  3. Any person who is in control of any place, or of any book, document, appliance, instrument, machine or X-ray photograph and who refuses or fails to afford the Director (or a person authorised by him) all reasonable facilities to enable him to exercise his powers of information gathering in its regard, is guilty of an offence.24

  4. The Director can call for books, documents, and the like; and he can also require any person to be interrogated. Any person who:

    • fails to comply with any such direction;25
    • refuses to answer, to the best of his knowledge and belief, any lawful question put to him;26
    • refuses to be sworn or to make affirmation;27 or
    • furnishes any information which is false, knowing it to be false,28 is guilty of an offence.

D. Owners, managers and contractors

  1. A mine owner, or the person in control of the mine, or any contractor who permits any person to perform risk work otherwise than according to his certificate of fitness (including in compliance with any of its conditions) commits a criminal offence.29

  2. If the Minister is satisfied that special circumstances exist, he may exempt an owner, manager or contractor from the requirements concerning certificates of fitness. However, it is a criminal offence to fail to comply with any condition subject to which the exemption has been granted.30

  3. Every owner of a mine, and every contractor, must keep a register of employees, recording certain specified details.31 It is a criminal offence not to do so.32

  4. It is an offence to fail to afford the Director (or an authorised person appointed by him) all reasonable facilities and assistance to inspect any such register, or fails to make a copy thereof available at their request.33

  5. The notice cancelling a certificate of fitness of any given risk worker34 will also be sent to the owner of the mine.35 If, after having received the notice, the owner permits the performance of risk work by the person, before a fresh certificate has been issued to that person, he is guilty of an offence.36

E. Medical practitioner obligations

  1. Whenever a medical practitioner considers, or suspects that any person medically examined (or treated) by him, who he knows or believes has worked at a mine or works, is suffering from a compensatable disease, such practitioner shall forthwith communicate to the Director his findings at the examination.37 It is an offence to fail to do so.38

  2. It is also an offence to fail to furnish such further information in regard to the examination, or the health of such person, as the Director may require.39

  3. The Director may instruct the medical practitioner to perform (with the consent of the person concerned) a further medical examination. It is an offence to ignore this direction, or to fail to submit to the Director a detailed report on the result of the examination.40

  4. The Director may authorise, or instruct any medical practitioner in the Republic to perform a postmortem examination or other postmortem service.41 The medical practitioner commits an offence if he does not, forthwith, submit to the Director a detailed report on the result of the examination or service performed by him.42

  5. If a medical practitioner knows or has reason to believe that a deceased person, who he attended at the time of, or immediately before, his death (or whose body he opened) worked at a mine or works, he shall remove the cardiorespiratory organs (and any other prescribed organs or parts) and send them to the prescribed place or (if no place has been prescribed) to the bureau, or in accordance with such instructions as may be issued by the Director.43 It is an offence not to do so.44

  6. It is an offence to perform a postmortem examination on any deceased person, or to remove any organs or parts of his body, without the consent of his widow, or of an adult near relative of the deceased (if the widow or such a relative can readily be consulted).45

  7. The medical practitioner may also be directed by the chairman of the Certification Committee to report to him; and/or to appear before the committee.46 It is an offence to fail to comply with these directives, as it is a crime for the medical practitioner also there to refuse to answer questions, or refuse to be sworn, or to give false information.47

  1. This extract, from Orwell’s 1937 publication, is recited in the research thesis ‘The Hidden Epidemic Amongst Former Miners’, which is an in-depth study into silicosis and tuberculosis in the Eastern Cape – and their interrelationship with the statute we are now looking at, by Jaine Roberts, Director in the Research Office at Rhodes University, Grahamstown. It was published in June 2009. See www.hst.org.za/uploads/files/ODMWA.pdf. Wigan, by the way, is a town close to Manchester (UK) and was famous for its coal mining industry. 

  2. Younger readers may be interested to learn that George Orwell (whose real name was Eric Arthur Blair), writing 65 years ago, came up with terms used commonly today – ‘big brother’, ‘thought police’, ‘cold war’, amongst others. Although, that said, many should know this: 1984, by George Orwell, is a current school set-work and it is where he first used these expressions. 

  3. ‘Claims backlog blamed on compensation legislation’, by Sashee Moodley. See www.miningweekly.com/article/transformation-of-the-odmwa-needed-for-mineworkers

  4. In October 2013, for example, the South Gauteng High Court granted an order consolidating a host of class actions against 32 mining companies for silicosis compensation. See http://goldminersilicosis.co.za/

  5. As amended; the latest amendments are effected by Act 60 of 2002. 

  6. These are places where mining-related operations occur: ore crushing, mineral treatment, precious metal extraction, refining, tunnelling and the like. 

  7. The office of the Commissioner is at 209 Smit Street, Braamfontein, Johannesburg. 

  8. Section 15(1) read with section 124(3)(f). 

  9. See Section C below. 

  10. Section 26(1)(a). 

  11. Section 26(1)(b). 

  12. Section 26(1)(c). 

  13. Section 26(1)(d). 

  14. Section 26(1)(d)(i) and (ii) read with section 124(3)(g). 

  15. Section 124(3)(h). 

  16. Section 125(a). 

  17. Section 125(b). 

  18. Section 124(1)(a). 

  19. Section 124(1)(b). 

  20. Section 124(1)(c). 

  21. Note: The Chief Inspector of Mines (who is the Chairman of the ‘Risk Committee’), the Commissioner, and the Chairmen of the Certification Committee and the Renewing Authority all have the same powers, and these provisions apply in their regard as well. 

  22. Section 124(2). 

  23. Section 124(3)(a). 

  24. Section 124(3)(b). 

  25. Section 124(3)(c). 

  26. Section 124(3)(d). 

  27. Section 124(3)(d). 

  28. Section 124(3)(e). 

  29. Section 15(1) read with section 126(1)(a), section 126(2)(a) and section 126(2)(b). 

  30. Section 15(2) read with section 126(1)(b). 

  31. In accordance with the provisions of section 16 (1) of the Act. 

  32. Section 126(2)(c) read with section 16(1) and (2). 

  33. Section 126(2)(d) read with section 16(3). 

  34. See Section A.2 above. 

  35. Section 26(2), section 29(4) and section 30(4)(c). 

  36. Section 126(3)(a). 

  37. Section 33(1). 

  38. Section 127(1). 

  39. Section 127(1). 

  40. Section 33(2) read with section 127(1). 

  41. Section 34(1). 

  42. Section 127(1). 

  43. Section 34(2). 

  44. Section 127(1). 

  45. Section 34(3) read with section 127(1). 

  46. Section 42(2). 

  47. Section 127(2).