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AN INITIAL HISTORY

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Foreword

by

Richard Spoor

The first laws dealing with compensation for mineworkers who had contracted lung diseases caused

by occupational exposure to dust (pneumoconiosis) was enacted in 1911.

The legislation was motivated by considerations relating to the social welfare grounds to deal with the

problems arising from the large numbers of miners who were disabled by these diseases and the

widow and orphans left destitute when they died.

The 1911 Act was designed to alleviate the burden imposed on the State to care for sick miners and

their families by requiring mine owners to contribute to a fund that would be used to compensate

them. There was no consideration of “fault” and pneumoconiosis was considered to be an invariable

consequence of mining.

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The compensation then, even by today’s standards was generous. It included pensions for sick

miners and their widows, educational bursaries for their children and even assistance for sick to

establish alternative livelihoods.

The genesis of what we now think of as “workman’s compensation” was quite different.

At common law, workmen were always entitled to recover the loss and harm they suffered as a result

of an occupational injury or diseases arising from the negligence of an employer. With the dawning of

the industrial era this led to a proliferation of litigation by workmen against their employers.

As part of an historic compromise between employers and employees, legislation was enacted that

guaranteed that injured workmen would receive guaranteed compensation, paid out of a statutory

compensation fund funded by employers contributions, without the necessity of proving fault in a court

of law, but in return, the compensation to which they would be entitled was limited to that prescribed

in the act.

The determination of levels of compensation for miner’s lung disease and occupational injuries and

diseases was thus regulated by statute. It was no longer an issue for the courts but a function of

parliament, which would regulate the amounts awarded and the processes involved to the best

advantage of society as a whole.

Thanks however to the nature and structure of the apartheid state, in which employers enjoyed

inordinate influence over parliament, organized labour - and in particular black labour - had very little

influence at all. The consequences for sick and injured workers, both white and black but more so the

latter, were felt in the declining value of compensation from about 1948 when the Nationalist Party

took power.

By 1994, when the laws were deracialised, the maximum compensation payable to a mine worker

who was severely incapacitated or who died of pneumoconiosis was about R90 000. There was no

contribution to medical costs and no pension payable. The limit was increased by 30% only in

December 2009. The real value of the benefits payable had reduced by over 85% during this time.

Even today mine workers who contract pneumoconiosis or the related are dammed to lives of

hardship and suffering.

What has improved significantly over the past 50 years is our understanding of the nature of

occupational injury and diseases and therefore who must bear responsibility.

Increasingly it has been appreciated that the workplace is only as safe as the employer chooses to

make it. While industrial injuries and diseases might be statistically inevitable, the incidence of

occupational injuries and diseases is fully under the control of the employer who invests as much in

their prevention as he will.

In short the incidence of occupational injuries and disease is directly related to the investment in

training, methods of work and engineering and environmental controls. Fault or negligence on the part

of the wilful workman is not a significant contributor. Workers do not choose to be killed and maimed.

An employer will invest as much capital and resources in health and safety as is required to mitigate

the impact of the costs of such injuries and diseases to his bottom line and it is in this regard that our

compensation laws have had an unintended consequence.

By insulating employers from accountability for the harm that they do, they have directly contributed to

the unsafe and unsatisfactory conditions in South African workplaces. An employer pays a fixed

contribution to the compensation fund. In return he is immunised against claims for damages it is of

little consequence to him if he kills or maims one worker or a hundred.

The only consequence for an employer may be a criminal prosecution, but in that regard the system

has also failed. In the last fifty years, and despite that the fact that tens of thousands of workers

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contracted occupational lung diseases as a result of exposure to harmful quantities of dust, not a

single employer has ever been prosecuted. Despite thousands of deaths not a single inquest has

been held to determine liability for any one of these deaths, nor has a single case of occupational lung

diseases ever been the subject of a statutory (and compulsory) health and safety enquiry. The system

has failed

In a system where the cost to the employer of occupational injuries and diseases is mitigated by a

statutory compensation system that ensures that workers receive only a fraction of the cost or losses

incurred, health and safety standards are sure to decline. And so they did.

I first became aware of this in the mid to late 1980’s when I acted for trade unions involved in the coal

mining and metal smelting industries and was called upon to represent them and their members who

had been killed or injured in major disasters. Speaking to crippled workers and widows, I was

appalled at the low levels of compensation paid to them. The paltry compensation condemned them

to lives of hardship and misery, notwithstanding their innocence in any wrongdoing.

I had been sensitised to the issue of asbestos and asbestos related disease by my interactions with a

British journalist, Laurie Flynn, who had produced a number of documentaries for the BBC Panorama

program on apartheid and asbestos in the 1980s. Laurie also introduced me to the work of Dr

Christopher Wagner, a South African pathologist who, in 1960, first identified the epidemic of

mesothelioma that raged through the Northern Cape and established its association with asbestos.

He also introduced me to Dr Neil White who had done extraordinary work in the 1980s among

asbestos communities in the same area, and also to Dr Marianne Felix who did the same in what is

now the Limpopo Province. It is worth noting that when these brave doctors did their work it was

highly politicised and they did so at great risk to themselves.

As a lawyer, I was interested in finding legal remedies for those affected. The 1996 Constitution

created the space I needed. In about 1997 I formulated a legal theory, based in part on the new

Constitution, in terms of which it might be possible to hold the owners of mines and works

responsible, in civil law, for the harm that they did to employees who contracted occupational lung

diseases, covered by the Occupational Diseases in Mines and Works Act.

My first client chosen to test this theory was a steel worker at the Highveld Steel and Vanadium Plant

in Witbank. I lost the case badly.

In about 1998, I was asked to assist a British law firm, Leigh Day and Company, with a group action

against one of the largest British asbestos companies, Cape PLC, which had made a fortune out of

asbestos mining near Koegas and Prieska in the Northern Cape.

Leigh Day was suing in London on behalf of South African asbestos victims. Cape objected to the

English Forum on the basis that the matter should properly be tried in South Africa. Leigh Day’s

defence was that in South Africa, mine workers with asbestos related diseases had no right to sue.

This was true, the jurisdiction of the courts had been ousted by the legislation that I have alluded to

above.

I agreed to help but in so doing I met many South African victims who had no links with Cape PLC

and therefore could derive no benefit from the English litigation. While I had a theory as to how the

South African courts might assist these victims, I could not test it for fear of harming Leigh Day’s case

against Cape PLC in the UK.

In about 2004, Gencor, the other big asbestos mining company in South Africa announced that it

intended liquidating itself and distributing its assets, largely comprising shares in Impala Platinum, to

shareholders. If that happened my growing number of clients suffering from asbestos related diseases

would lose all prospect of ever obtaining redress. At this time Leigh Day had settled with Cape PLC

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pursuant to an English Court of Appeals judgement in their favour. The problem was that Cape PLC

was not honouring the settlement.

I was not prepared to hold off any longer, I broke my ties with Leigh Day and issued proceedings

against Gencor and their subsidiaries on behalf of numerous individuals in the South African High

Court. In essence I asked the Court to require Gencor not to distribute its assets to shareholders until

such time as it had made provision for the civil claims that South Africans had against it.

The case went to a hearing before Gencor agreed to enter into settlement negotiations. The Judge

(Goldblatt) was requested to withhold judgement to allow the parties time to find agreement.

In the course of the litigation against Gencor I met Brian Gibson, an advisor to Everite, a South

African asbestos cement manufacturer that had its own legacy of asbestos related disease. Everite

had introduced the first extra-legal compensation system for employees who had contracted asbestos

related diseases. In essence Everite acknowledged that the statutory compensation system was

unjust and unfair. A scheme was introduced to top up the compensation and to ensure that all of

those who were eligible for compensation received it. The scheme was way ahead of its time.

To no small extent the progressive scheme introduced by Everite was influenced by the philanthropic

outlook of the heir to its parent company, Eternit, Mr Stephan Schmidheiny. The Schmidheiny family

had built their colossal wealth on the rebuilding of post-war Europe using asbestos cement. A fraction

of the asbestos Eternit used, but regrettably the most toxic portion, was blue asbestos (crocidolite)

that came from their South African mines at Danielskuil and Kuruman.

There is little doubt in my mind, based on my experience with blue, brown and white asbestos, that

South African blue asbestos is the single major contributor to the world wide epidemic of

mesothelioma that has taken tens of thousands of lives.

Mr Stephan Schmidheiny was the heir to an industrial disaster of titanic proportions and as a humane

and philanthropic man, it troubled him.

Quite unbeknown to me Brian was keeping him informed of the work I was doing with Gencor. Becon,

his holding company, saw this as an opportunity to further Mr Schmidheiny’s philanthropic ambitions

to help address the tragic asbestos legacy created, in part, by his father and grandfather before him.

The Gencor case was settled on favourable terms. An amount of some R490 million would be set

aside, in trust, to compensate asbestos victims and the Asbestos Relief Trust was born.

I had, flush with success, already contacted members of the remnants of the Swiss anti-apartheid

movement with a view to exploring possible legal remedies against Becon, the successor to Eternit,

but this proved unnecessary.

Becon, through Brian, approached me, with a view to establishing a similar compensation scheme for

mine workers and persons living close to their Northern Cape operations who had contracted

asbestos related diseases.

There followed some long and difficult negotiations in Zurich and in South Africa that culminated in the

establishment of the Kgalagadi Relief Trust. I had proposed that it be called the Neil White Trust but

this honour was respectfully declined by his family, Neil having died a short while earlier.

I cannot deny that I take some pride in the tremendous work done by both the KRT and the ART since

their establishment. Since their inception, R 329 528 179 in compensation has been paid to 4880

beneficiaries. Many thousands of persons exposed to asbestos have been medically screened.

Some hundreds of victims of mesothelioma have received palliative care to ease their dying,

radiographers have been trained, equipment has been furnished to public hospitals and levels of

awareness of the dangers of asbestos, in the most affected areas has increased enormously.

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Of course there is a lot still to be done. Government, through its indifference or through simple lack of

capacity and competence, has not contributed as it should, large numbers of people continue to be

exposed to potentially harmful quantities of asbestos fibre across the country, rehabilitated mines and

dumps are not adequately maintained, the compensation legislation remains unreformed and large

numbers of victims remain ineligible to be compensated under the rules of the ART and KRT trust.

Mesothelioma is by a long way the worst of the asbestos related diseases. It is invariably fatal and the

dying is slow and extremely painful. Working in this field I have been astounded and inspired by the

courage and dignity displayed by those affected and their families.

Mesothelioma can be caused by the inhalation of trivial amounts of asbestos fibre, the biggest risk

factor is period of residency of the asbestos fibres in the lungs. This means that young people, who

are exposed, are most at risk. It is absolutely disgraceful that decades after the risks became known

that thousands of children in the Northern Cape and elsewhere are still exposed to this deadly fibre.

There is little doubt that asbestos mining, which was once South Africa’s the third most valuable

mineral export, after gold and coal, has caused more harm than good. There must be a special place

in hell reserved for those who mined and processed this mineral knowing that thousands of the men

who worked on the mines and thousands more of their family members who were exposed when their

husbands brought the dust home on their work-clothes, would die a painful death.

I like to believe that in some small way the litigation that brought about the establishment of the KRT

and the ART contributed to the decision of the South African government to ban the import and use of

materials containing asbestos fibre.

I never expected that I would achieve justice for the victims nor has justice been attained. I am

however quietly proud of the little that I, and all those others who contributed to bringing about the

establishment of the KRT and the ART, have achieved. Together, we have brought some relief where

there would otherwise have been none. For that I am truly grateful.

Richard Spoor White River 1 May 2013

Kgalagadi Relief Trust

An Initial History

The “Kgalagadi Relief Trust" (KRT) was established in March 2006 following lengthy

discussions between Richard Spoor, a South African attorney who represented

numerous asbestos victims and their dependants, and Becon AG, the daughter

company dealing with asbestos issues related to the former Swiss Eternit Group.

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Eternit had historically held an interest in two South African asbestos mines, in

Kuruman Cape Blue (KCBA) and Danielskuil Cape Blue (DCBA) asbestos mines

between 1952 and 1981.

Becon agreed to establish a fund to provide financial relief to former workers who

subsequently contracted an asbestos-related disease1 while employed at KCBA and

DCBA between 1952 and 1981. In certain circumstances, the benefits would extend

to community members who had been environmentally exposed to asbestos as a

result of the operations of the KCBA and DCBA mines during this period2.

The founders agreed that the KRT would provide financial relief over the next 20

years in strict accordance with a court-sanctioned Deed of Trust that regulated the

claims procedure and benefits payable. Although Becon did not specify what

funding would be made available, the trustees were provided with an assurance that

there would be sufficient funding – to be drawn down as and when required – for the

Trust to meet its obligations to claimants for a minimum of 20 years, namely to 2026.

The founders agreed to the appointment of the following trustees:

• Phiroshaw Camay, a former trade union activist, past chairman of Rand

Water and now Director of the Co-operative for Research and Education a

civil society advocacy organization.

• Brian Gibson, a specialist in the management of issues relating to asbestos

for more than 20 years.

• Dr Markus Heitz, a Swiss pulmonologist with extensive experience of

asbestos-related diseases.

To avoid unnecessary duplication of costs, the trustees agreed to appoint the

existing Asbestos Relief Trust (ART) to manage its affairs.

The ART had been established in 2003 following legal action by a group of ex-

mineworkers who had worked for various asbestos mines under the ownership of

Gencor Limited (Gencor), Gefco Limited (Gefco) and Msauli Asbes Beperk (Msauli).

They were assisted by Richard Spoor and a UK firm of attorneys, Thompsons. The

main thrust of the action was to prove negligence on the part of the companies. The

case proceeded to court but an out-of-court settlement was reached which saw the

creation of the Asbestos Relief Trust, funded by its South African founders in an

amount of R380 million.

1 The Trust Deed defines Compensable Asbestos Related Diseases as: ARD 1: Asbestos related pleural thickening and/or asbestosis with mild to moderate lung function impairment; ARD 2: Asbestos related pleural thickening and/or asbestosis, with severe lung function impairment; ARD 3: Asbestos related lung cancer; and ARD 4: Mesothelioma, a relatively rare cancer of the pleura or peritoneum caused almost exclusively by asbestos. 2 People that may claim are: Former employees of the mines operated by KCBA and/or DCBA between 1952 and 1981 that have been diagnosed with an asbestos-related disease with lung function impairment of more than 10%; Dependants and children of any former employee who died from mesothelioma or asbestos-related lung cancer, less than three years before the claim is lodged.; and people who have contracted an asbestos-related disease from having lived in the immediate vicinity of the above-mentioned mines.

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The funding model for the ART was somewhat different to that for the KRT and the

ART trustees were obliged to consult actuaries as to the level of compensation that

could be allowed if the trust was to meet its obligations to the estimated number of

claimants over the planned 25 year duration of the trust3.

The on-going object of the ART is to compensate qualifying individuals (i.e. who had

worked at mines owned by or associated with the founders and who are diagnosed

as suffering from an asbestos-related disease as fully and fairly as its means allow)

The functional structure and procedures of the ART made available at an agreed

cost to the KRT included office facilities, a network of approved claims handlers and

medical practitioners as well as administration resources and community support.

Offices already established by the ART in the major asbestos producing areas –

Kuruman, Danielskuil, Penge and Burgersfort were utilised. Recognising that

although the KRT would only compensate those who had worked or lived near the

KCBA and DCBA mines in the Northern Cape, many of these potential claimants

would have since relocated throughout South Africa and even into neighbouring

countries;

A network of claims handlers, mostly attorneys throughout the country and

neighbouring states who would process claims for an agreed fee. In an effort to

reach as many potential claimants as possible the Trustees agreed that claims

handlers would locate and assist potential claimants to lodge applications with the

Trust.

There services were regulated by a Service Level Agreement (SLA) which, more

importantly, also regulated the fees that claims handlers could charge for their work.

The Trust paid these fees in order to ensure that the claimant did not have to pay for

services from the compensation that they received.

Claims handlers were trained by the Trusts and provided an essential service to

potential claimants who did not live close enough to Trust offices in Kuruman and

Danielskuil.

The criteria for appointment of claims handlers were:

1. Be an existing legal entity registered in the country of origin

2. Be open to scrutiny from a professional body

3. Be open to independent audit.

3 In this regard, it is important to note that there was some dispute as to the actual numbers of former employees who would qualify for a benefit from the trust; and considerable scientific debate about the likely incidence of disease among former workers and environmentally exposed communities. This assessment was confounded by the long latency period for ARDs (about 10 years for asbestos, 20-30 years for asbestos-induced lung cancer and 25-45 years for mesothelioma). Actuarial consultants therefore had to project incidence rates from limited (and sometime poor) historical South African data, overlaid by the experience of international cohorts reported in the literature.

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4. Have no conflict of interest between the Trusts, the applicant body or its staff,

or between an accredited claims handler and the applicant body

5. Have a functioning office, including use of a computer and e-mail and internet

facilities, in the relevant and defined geographical area

6. Undertake to provide training on the Trust Deeds

7. Ensure quality control in terms of the agreed standards

8. Relate positively and in a non-conflictual manner with the Trusts and other

service providers

In 2010 the Trust cancelled the SLAs after a sharp in decline in new cases being

lodged. The Trust does however still pay claims handling set fees so that claimants

do not have to pay for these services

A network of approved medical practitioners with the necessary expertise in the

field of occupational diseases, particularly asbestos-related diseases to conduct the

initial clinical, radiographic examinations and spirometry tests, were contracted, at

the cost of the trust. In addition, a Specialist Occupational Medical Panel (SOMP)

consisting of the late Dr Neil White, Professor Hillel Goodman, Professor Rodney

Ehrlich, Dr (now Professor) Mohamed Jeebhay, Dr George Pillay, Dr Shuaib Manjra

and Dr Jim teWaterNaude would ensure the most accurate diagnosis for each case.

The ART and KRT Trust Deeds require that for a claimant to be certified as having an asbestos related disease, they will need proof of exposure, a clinical examination, a lung function test (LFT) and a chest X-ray (CXR). In order to properly assess these tests, the trustees appointed a group of medical specialists who would become known as SOMP, the Specialist Occupational Medical Panel. SOMP is made up of radiologists and specialists trained in occupational medicine, who together would read and interpret the tests submitted. The decision for an adjudication panel to comprise one radiologist and one occupational medicine specialist was taken at a later stage when roles had settled and it was realised that we needed the radiologists’ expertise where non-dust abnormalities occurred on the CXR, and that the occupational medicine specialists were most expert at interpreting the LFT and clinical data. Apart from their usual panel responsibilities, the SOMP has held regular meetings to update their knowledge and also special sittings where difficult cases were discussed in order to reach final decisions fairly and timeously, as many such cases were very sick.

The SOMP’s consistent approach has been to adjudicate cases to exacting and high standards and to be as consistent as possible between the different SOMP panels, as well as over time. This means that a person presenting in 2006 is treated the same as someone presenting some years later. The core team has been remarkably loyal and invested in the process of providing the Trusts with excellent service on the medical front.

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The constant search for quicker and more effective mesothelioma diagnosis.

The diagnosis of malignant mesothelioma is based on three main sources:

Clinical Information: A complete work history, including questions on domestic/familial and environmental

exposure, is mandatory. The first clinical symptoms of a typical pleural mesothelioma may be thoracic pain,

shortness of breath and weight loss in an elderly patient, which may occur 20-40 years after asbestos exposure

because of the extremely long latency period. These symptoms however are not exclusive to mesothelioma.

Diagnostic Imaging: The conventional chest-X-Ray may show pleural effusions and sometimes changes in the

chest wall suggesting mesothelioma. But they are not specific and a differential diagnosis including TB and other

malignancies must be made. CT- scans may demonstrate changes in the thoracic wall better than conventional

X-rays.

Histology: A histological tissue examination is the core of the diagnosis of mesothelioma. When mesothelioma

was first identified as a primary malignant tumour (around 1960) the diagnosis was generally made on autopsy.

Today, we can obtain biopsies from CT-guided needle biopsies.

The gold standard, however, is thoracoscopy - a direct inspection of the thoracic cavity with video cameras with

minimally invasive instruments under general anesthesia. This allows large biopsies of suspicious areas.

There are three histological subtypes of mesothelioma: epithelioid, sarcomatous, and mixed types. The most

frequent is the epithelioid type, which occurs in about 60% of the cases. The histological diagnosis can be very

difficult in particular in the epithelioid subtype the differential diagnosis includes adenocarcinoma or benign

mesothelial proliferation. In the sarcomatous subtype the diagnosis may be very difficult.

In recent years a variety of immunohistological markers have been developed which greatly facilitate the

diagnosis in particular of epithelioid mesothelioma. A combination of two negative markers (reactions which do

not stain mesothelioma cells but do stain carcinoma cells) and two to three positive markers (which stain

mesothelioma but not carcinoma cells), are standard in the histological workup.

Laboratory Tests: It should also be noted that although general laboratory tests are not conclusive, they may

serve as a prognostic indicator.

Over the past 10 years several serological markers have been developed. Two examples are Mesothelin and

Osteopontin, which are two proteins found in serum or pleural fluid of patients with mesothelioma. Unfortunately

their sensitivity and specificity is not high enough to either be fully reliable for diagnosis or to identify people who

are at risk of developing the disease. Mesothelin is useful for follow up in patients treated with surgery or

chemotherapy, but it is only produced in the epithelioid subtype and not in the sarcomatous type (see above).

New markers are developed nearly every month. Recently some interesting studies in the field of genetics have

identified people with a high risk of developing mesothelioma. Currently, however, it is still too early to implement

this technology “from bench to bedside”.

Over the years the Trusts have established a considerable network of general

practitioners, public hospitals and medical specialists who are appointed to

conduct medical examinations. The Trusts set the standards using examples of

good practice, and have also trained doctors in order to assist them in their

submissions. Regular feedback and communication have been the hallmarks of

our liaison with our medical service providers. They submit good quality,

dependable and consistent information in support of their patients’ medical

claims.

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Mostly located in rural areas, the practitioners are represented in all nine

provinces of South Africa, as listed below:

Eastern Cape: Sterkspruit, Mthatha

Free State: Bloemfontein

Gauteng: Johannesburg, Pretoria, Vereeneging

KwaZulu-Natal: Durban, Newcastle

Limpopo: Burgersfort, Phalaborwa, Polokwane, Steelpoort, Tzaneen

Mpumalanga: Barberton, Carolina, Elukwatini, Ermelo, Lydenberg,

Nelspruit, Steelpoort, Witbank

Northern Cape: Kimberley, Kuruman, Postmasburg

North West: Klerksdorp, Mafikeng, Potchefstroom, Rustenburg

Western Cape: Cape Town, George, Vredenberg

In the neighbouring countries practitioners are contracted in:

Botswana: Gaborone

Lesotho: Maseru, Quthing

Swaziland: Mbabane

In addition, we have once-off submissions from many other GPs and specialists

situated in other small towns and cities throughout South Africa.

Apart from the tests they do, doctors are at the “stope face” of patient

management, where they are required to provide to the claimant the outcome of

the adjudication by the Trusts’ Specialist Occupational Medicine Panel (SOMP).

They either have had to break bad news in cases of cancer or investigate the

causes of shortness of breath in cases where there is no asbestos disease, often

successfully treating non-malignant causes of pleural effusion like TB.

Sometimes they deal with patients who do not want to hear the good news that

they were free of asbestos disease because claimants have high hopes of

receiving compensation.

Access to the administrative skills of the Maitland Trust, a well-established firm

of trust administrators, was also available initially. This was later replaced in

2008 by suitably qualified employees of the ART. The task of the administrators

was to check claims against the thousands of work records for each of the

qualifying mines, determine the correct medical and employment data for

determination of the benefit payable; and to ensure that the money was paid into

the account of the beneficiary as quickly as possible.

Civil Society support was also available. The Trust also had access to two

community groups: the Asbestos Coordinating Committee of the Kgalagadi

(ACCK) and the Asbestos Interest Group (AIG). Both were actively educating

communities in the greater Kgalagadi area and, in some cases, registering

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claims. These groups were initially funded by the ART and the KRT then agreed

to contribute 50% of the costs4 from its social responsibility budget5.

Other benefits of the close collaboration with the ART included:

Access to the claims records of more than 14,000 registered ART claimants,

many of whom had dual exposure at the mines covered by the KRT;

Access to the actuarial data of the Fifth Quadrant consultancy, was also made

available to the KRT. Fifth Quadrant had developed some expertise in the

challenging area of projecting incidence rates for the different ARDs.

In the event – and given that the trusts would frequently share of the cost of

benefits awarded for dual claimants, the KRT trustees agreed to adopt the scale

of benefits that had already been developed by the ART.

The scale of benefits is a complex matrix taking into account the severity of the

disease, the age of the claimant, the nature of his or her work on the mine6. A

similar matrix was developed for environmental claims but the trustees of both

trusts wrestled with the criteria for awarding environmental benefits for some

years before the first claims were paid out7.

4 The issue of community representation was highly contested and rival organisations claiming to represent claimant groups would spring up from time to time. 5 The KRT Trust Deed allowed the trustees to allocate up to 10% of the interest earned on funds deposited by the founder on community projects that would benefit the affected communities. 6 In due course, the KRT adopted its own benefits schedule which is significantly different from that of the ART. In 2010, the trustees decided that qualifying claimants would be paid according to an amended grant schedule regardless of age, skills level or type of exposure. This decision ensures that previous race or employment distinction play no role in the compensation paid. In addition, the pension paid by the statutory compensation scheme by the Workers’ Compensation Commissioner in terms of the Occupational Disease in Mines and Works Act (ODIMWA) is no longer deducted from the KRT compensation. 7 The first environmental claim was paid on 20 July 2006. This was a clear cut case but the trustees of both trusts then had to agree a set of qualifying criteria that would help to identify the most deserving environmental claims without bankrupting the trusts.

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Asbestos Interest Group

The first meeting with Richard Spoor was in March 2002 at Gamopedi where the community presented its

concerns about asbestos victims, both occupational and environment. Spoor said it would be very expensive

to mount a legal campaign against the responsible companies. He said he would go overseas and get money

from Richard companies, which the community accepted. The second meeting eas in June 2002 where Spoor

was accompanies by Mr Marc Berry from the Thomson’s Solicitors legal aid fund. He explained the terms and

conditions of their support. The final agreement was that all claimants who qualified medically would plough

back to Thompson’s 15% of their compensation. An office space was provided at the Moffat Missions by the

director, Richard Aitken.

Richard Spoor employed eight of the members of the Asbestos Interest Group (AIG) full time. Some were

working out in the communities for litigation registration. Some were in the office under the supervision of Mr

James Sutherland and later Ferous Williams, both legal professionals.

I was elected head of the AIG and we are also doing awareness work in the local communities who welcomed

developments.

The first court hearing was in November 2002. At this point Gencor denied responsibility but offered R460

million. Spoor consulted with the AIG and we in turn consulted with the communities and the community

mandated us to sign the offer. In April 2003 Spoor called a meeting at the Moffat Missions. There were about

1000 people present. The Mayor was present. I interpreted the outcome as explained by Spoor. He told us he

had tried to get Gencor to change some of the clauses but they had refused. He and his colleagues had to

accept the offer Gencor presented. The workers responded very positively to his report that more then,

especially 10% lung function damage would qualify for compensation. We explained the non-qualifying

operations and the medical surveillance procedure which was suggested to be included in the agreement.

In 2004 the trustees of the Asbestos Relief Trust who had been appointed by that time, were asked to attend a

meeting of the community at Bathlaros. This meeting was also attended by Mr Modise of the National Union of

Mineworkers. The communities were angry regarding the conditions of the compensation being suggested.

They demanded that everybody whether they were sick or not should be compensated.

The community then formed a committee Bathlaro Mmogo Re Ka Dira (“standing together as the Bathlaro

community we can do it”), under the leadership of Mr J Pholopholo. Later this committee became known as

Kgatelopele.

The main claim of this group was that all those who put their name down for the original legal action against

Gencor were entitled to some form of compensation. The trustees advised that they can only compensate

people with asbestos diseases who meet the qualifying criteria in terms of there they worked or lived.

It was a difficult time for all because the communities were confused by the different messages put out by the

competing organisations.

The Kgalagadi District Municipality and the Trust then tried to put together a new committee where all

stakeholders would be represented. This was called the Asbestos Coordinating Committee (ACC). The trust

offered the ACC some funds to support their activities. There were three elections of office bearers, but the

ACC never achieved its original objectives. The local government was then called in to intervene, but was not

successful.

In the meantime the ART and KRT continue to meet their obligations in terms of the Trust Deeds, supported

by the AIG in the field. The trusts contribute financially to the running of the AIG in terms of a clause in the

trust deed that allows for community projects.

The AIG is working continuously to help claimants register new claims by filling in the forms required by the

trusts. Our major challenge is to keep contact with the claimants to track down missing information or

documents.

M S Kotoloane, Asbestos Interest Group

14

A TRIBUTE TO RONNIE MORRIS

Ronnie Morris was a legend of his time in media circles in Cape Town and a strong campaigner on behalf of

asbestos victims.

He started his journalism career as a cadet sponsored by the United States South Africa, Leadership Programme

(USSALEP) which also sponsored the Nieman Fellows. Each cadet was allowed to choose a newspaper of their

choice to further their experience. Ronnie Morris chose Die Vaderland. This opened opportunities for learning

and developing a craft which stood Ronnie in good stead for the rest of his career.

Within years, Ronnie Morris had developed a formidable reputation as the foremost court reporter in the Western

Cape. He had acquired an understanding of judicial matters beyond just a passing knowledge. He wrote

incisively and was able to distil matters such that local readers clearly understood the issues at stake. He was

enthusiastic, a stickler for facts and the truth.

He was a tireless organiser for the South African Society of Journalists and yet straddled the political divides of

the Media Workers Association of South Africa and the Association of Democratic Journalists in the mid-1980s.

During this time he was able to represent his colleagues in all manner of matters, without fear of being boxed into

a political corner.

But Ronnie Morris also had a deep sense of justice and walked firmly on the side of the poor and downtrodden

workers on the farms and mines of South Africa.

His passion for justice often saw him travel at his own expense to the remotest parts of the Northern Cape,

engaging with individuals and communities ravaged by the destruction wrought by the mining of asbestos in the

region. He wrote continuously and passionately with a deep sense of outrage, building an awareness of the

curse which had befallen the communities.

St. Georges Cathedral was filled with mourners when Judge Siraj Desai rose to speak. Every member of the

provincial judiciary was present, united in grief and the need to pay tribute to a journalist they had grown to know

and respect. There is no living recollection of the judges of a High Court in South Africa ever coming together to

pay tribute and provide a eulogy to a law reporter. Judge Desai said:

Ronnie Morris emerged as a young court reporter in the turbulent 1980s. Many of us got to know him then, his

reporting on court trials was of a high calibre. He displayed a good understanding of legal issues, took the

necessary steps to ensure that his reports were accurate and he did his work courageously and with great

integrity, often under difficult circumstances. Ronnie’s work was underpinned by a strong sense of social justice.

This led to his more recent involvement in the court actions with regard to those suffering from asbestosis. It was

a privilege to know him, both as a journalist and a friend. It was always a pleasure to encounter him in St.

George’s Mall and one could anticipate a lively conversation. He was unfailingly courteous and harboured a

profound respect for lawyers, judges and the legal system. His professionalism and friendship are a loss to all of

us.

South African journalism lost one of its finest sons in April 2008.

15

One of the first tasks of the trustees was to initiate an education and information

campaign to alert prospective claimants that the trust would be operational by 1 June

2006.

During the course of 2006 the trustees developed various strategies to attract

potential KRT claimants who live in the main mining areas of the Northern Cape and

elsewhere:

• Information leaflets to inform potential claimants and interested parties about

the creation of the KRT. These leaflets provided detailed information on

the background to the creation of the trust, the trustees, the relationship

with the ART, the criteria that needed to be met in order to lodge a

successful claim and the claims process.

• A pamphlet titled “How to Claim” described the claims process and the steps

that each potential claimant should take when lodging a claim (see Box).

• A website (www.asbestostrust.co.za) aimed to inform and educate potential

claimants, stakeholders and interested parties about the KRT, its activities

and more generally about the dangers of asbestos.

• A document titled “Frequently Asked Questions” (FAQ) highlighted the main

points/information that any potential claimant needed in order to

successfully lodge a claim with the KRT.

• Collaboration with a radio training and production house to turn the FAQ into a

series of Public Service Announcements and Mini Dramas that would be

launched in 2007. These were translated into the predominant local

languages and broadcast in the Northern Cape, North West and Free

State provinces, where the majority of potential claimants lived.

The claims process was described as follows:

• The potential claimant approaches the ART or KRT via a claims handler or a

local office; provides proof of employment at a qualifying operation

(ART/KRT will assist to obtain proof); and is issued with a medical letter

and sent for a medical at the trusts’ expense.

• The medical file is checked by a Specialist Occupational Medical Panel, an

independent panel of experts consisting of radiologists and occupational

health specialists, to determine if there is a compensable asbestos related

disease (ARD).

• The potential claimant receives his/her medical results from the doctor who

conducted the initial examination.

• If there is a compensable ARD the ART/KRT processes the claim form and

calculates the award.

• A consultation about the award calculation takes place and the claimant signs

a Release and Discharge form to confirm that he/she will not make any

further claims against the trusts or the respective founders.

16

• The ART/KRT pays the claimant sometimes sharing the costs proportionately

to the degree of exposure at the respective qualifying mines (delays can

occur due to contradictory information or lack of supporting documents).

• The claimant receives a one off lump sum payment (except that if the degree

of disability increases, a further claim may be lodged).

Community reaction to the launch of the KRT was somewhat muted. This was due

mainly to perceptions among some community leaders that funds allocated to the

ART should have been distributed to all community members who had lent their

names to the legal action against Gencor/Msauli 8.

This bone of contention has continued to plague the relationship between the trusts

and the asbestos mining communities. Repeated attempts to explain the constraints

of the trust deeds have resulted in more strident demands for the deeds to be altered

to allow for the distribution of so-called “sorry-money” to those who lent their names

to the legal action; or even to the hundreds of thousands of people who live in the

former mining areas –this on the basis of the slogan: “An injury to one is an injury to

all”.

The Asbestos Coordinating Committee of (ACC) was founded in 2004. It

comprised representatives from civil society, community groups, and the Trust.

The objective was to create a forum for all stakeholders and interested parties

affected by the legacy of asbestos mining to come together to debate issues

affecting the communities in and around Kuruman.

Meetings were convened every quarter in Kuruman. The Trust would use these

meetings to provide feedback on operations. Due to a lack of participation by

relevant groups and the failure to tackle issues facing the community, meetings soon

became a forum where personal agendas were pursued. The Trust became a target

for attacks by individuals who did not qualify to receive compensation in terms of the

criteria in the Trust Deed. The ART withdrew from the ACC and the organisation

collapsed soon after.

At many community meetings, individual and collective claims were being discussed.

The “promises” made in the run up to the establishment of the ART were also

continuously raised. Often individual organisations petitioned the local office or

politicians locally or nationally.

To ensure coherence and build partnerships, it was agreed by the Trustees to

support the establishment of a newly constituted Asbestos Co-ordinating Committee

of Kgalagadi. After several initial meetings, in 2006 a draft constitution was prepared

and submitted to a community meeting in Kuruman. This draft constitution allowed

for several categories of membership and provided for an observer capacity for local

and provincial government departments and for the ART. At a subsequent meeting

a committee was elected in 2007.The Trusts agreed to provide funding of some 8 The trust deed requires that only qualifying claimants with an asbestos related disease may be compensated

17

R120 000 for the ACCK. The ACCK also made representations to the MEC and

DMR.

Through the dedicated guidance of the executive committee in 2008 the ACCK put

together a submission to Parliament which contained detailed information of the

difficulties facing communities in the region because of the legacy of asbestos

mining.

Notwithstanding the commitment of many members the organisation once again

became a terrain for individual agendas. Members began to withdraw and the ACCK

once again collapsed once a key member passed away leaving in its place a

vacuum which has yet to be filled.

The ART and KRT trustees attended a meeting called by the Northern Cape MEC

for Tourism, Environment and Conservation, Mr P W Saaiman, MPL, in March 2006.

They briefed the minister on the objectives and limitations of the funds and asked for

closer collaboration between provincial and municipal officials to deal with a range of

issues affecting of the lives of the so-called “asbestos communities” in general and

claimants in particular. The minister, on the other hand, wanted the trusts to support

a number of initiatives aimed at fulfilling the ambitious social and economic

objectives of the province. Not much was to emerge from the on-going dialogue with

political structures.

The KRT chairman reported at the first annual general meeting in 2007 that “Two

trips were made by the trustees to the Northern Cape where several meetings were

held with the community, community representatives and stakeholders to introduce

the work of the KRT. It must be said that effective communication has proven to be

one of the biggest challenges for the trustees. Given the extraordinary poverty in the

communities where most of the former KCBA/DCBA mines operated, some

stakeholders see the trust as the proxy representatives for the former mine owners.

The trustees have to work hard to establish trust and confidence. Our work has been

disrupted at times by certain interest groups who have tabled demands that fall

beyond the remit of the trustees and simply cannot be met. Third party agents of the

ART and KRT are the “public face” of the two organisations and this sometimes

causes further challenges in terms of communication and effectiveness.”

Notwithstanding these difficulties, by the end of the first reporting period (June 2006

to February 2007), the KRT was able to report on the first 8 months of claims

processing a total of R9,2 million had been paid to claimants with further R2,2

million in potential claims likely to be approved. Occupational claims in the

administration pipeline were likely to require payment a further R2,5 million in

benefits. Environmental claims awaiting diagnosis and administration were estimated

to carry costs of approximately R5,2 million. The total liability for claims made in

2007 was thus R18,9 million.

Operating expenses of R2,4 million were reported while a portion of the available

social investment funds (R1,0129,630) were allocated to the Neil White Bursary to

18

fund doctors/nurses from the area covered by the KRT to complete the Diploma in

Occupational Health (the first being awarded to Dr Sekwayo of Kuruman); provision

of Palliative Care to Sufferers of Asbestos Cancers in the Kuruman area, and

research into implementing a new method of diagnosing mesothelioma.

In July 2007 a concern was raised by Kuruman office staff that the service records of

former asbestos miners had once been kept on the asbestos mines and may now be

contaminated with asbestos.

These personnel files were handed to the ART by Gefco for safe keeping and to

confirm occupational exposure by claimants at qualifying mines. Trust staff would

comb through the records to confirm records of service.

The Trust retained the services of environmental specialists from the Health and

Occupational Hygiene Laboratory based at the National Institute of Occupational

Health in Johannesburg, to conduct a survey in the office and records room, to

determine whether the environment was safe to be and work in.

In the meantime the office was temporally closed and operations temporarily

relocated to the Moffat Mission outside Kuruman.

Testing indicated that whilst the records room were dusty, mainly due to the

disintegration of old files, asbestos fibre counts were well below legal limits and there

was no health risk posed to working in or visiting the office. A general clean-up of

the area was performed and improved housekeeping recommended.

A copy of the report was shared with the Department of Labour and the office

reopened in October 2007.

In March 2008 a follow up survey was conducted by environmental rehabilitation

experts, which confirmed the results of the initial survey that asbestos fibre counts

were below the set limits.

Eventually with a decline in claims the ART Trustees decided to close the office

permanently due to the high costs incurred.

19

RESEARCH ON CLAIMANTS SPENDING PATTERNS

The Asbestos Relief Trust commissioned the University of the Witwatersrand to research the extent to which claimants who

had received awards from the Trust had utilized the compensation. No similar research has been conducted by any other

agency making compensatory awards to beneficiaries has been conducted in South Africa. In the South African situation,

unemployment, lack of education and poverty have wrought irreparable conditions of poverty and exclusion in the most

deprived areas of the country. Nor have mining corporates or the government ever found out it necessary to ameliorate the

shock of sudden withdrawal from every mining area. This exodus without any compensatory planning or exit strategy has

exacerbated the conditions of poverty.

The findings9 provided a bleak picture:

With an average-sized household of seven and an income of R2000 a month, individuals in claimants’ families on average

survive off less than R300 per person per month - down to R185 in one area. Nearly 20% of claimants said their families

suffered food shortages on a daily basis. Not surprisingly therefore, spending on basic needs such as food featured as a main

item of household expense and provided immediate short-term relief for many claimants.

A third of claimants indicated the settling of debt as a priority. Spending on furniture, in particular a bed to sleep on and

household appliances was a key priority for a further third of claimants. Nearly a quarter of claimants listed transport as a main

item of spending, with small business prospects being cited next. Two-thirds of claimants had housing as a key priority,

reflecting both the local housing crisis and suggesting astute decisions made to ensure benefit in the long term from

compensation payments. Nearly 20% of claimants prioritised education with equal numbers investing in land or livestock, both

items intended to maximise the possibility of establishing sustainable livelihoods in the future.

Decision-making as to the allocation of compensation monies resided strongly within the family, with 60% of claimants having

consulted their immediate family members. Over a third of claimants took decisions alone, having neither sought, nor received

any advice as to how to spend compensation awards, Professional and other advice - solicited or provided - was negligible.

Sixty percent of claimants invested no portion of their awards. An average of 12% or R6,000 was formally invested per

claimant, albeit in fairly short-term banking products. These figures were remarkably consistent across socio-economic and

geographic divides. Perhaps more remarkable is that given illiteracy rates and that claimants were largely previously un-

banked, the first experience of formal financial institutions for many was the receipt of their compensation award via the Trust.

While over 80% of claimants still required medical treatment, very few had made provision for future medical costs, with two

thirds accessing public medical care and a surprising full quarter of claimants - at least temporarily - able to afford private

medical attention.

Over 40% of claimants either expected more money from the Trust or expressed the view that the compensation was

insufficient. Well over half were not satisfied with the compensation process as a whole. Over 90% either agreed or strongly

agreed that the Trust should pay them some ‘sorry-money’ by way of recompense for the suffering caused by asbestos mining.

Yet despite claimants living in often deplorable poverty, claimants were found largely to be astonishingly magnanimous overall.

Over 60% rising to 80% of claimants in Kuruman indicated that the Trust had been helpful and welcomed the assistance

received. 20% of claimants in the most economically depressed area did not agree with this assessment.

The benefits of compensation are consequently particularly significant in this context. Many claimants are proud of their publicly

visible achievements, especially of having built houses. Many believe their social standing in their communities to have

increased as a result of the receipt of ‘asbestos money’. As compensation awards constitute social recognition of past labours,

the receipt of compensation is of immense cultural significance. Compensation was also conversely reported to have had

some negative effects as a number of claimants tried to hide evidence of their awards from desperately poor, needy and

envious neighbours and relatives.

9 ‘Great Expectations ’: Expenditure patterns and assessment of Asbestos Relief Trust compensation awards.June 2007

20

In February 2008, the trust’s medical advisor, Dr Jim teWater Naude, and KRT

trustee, Dr Markus Heitz (a specialist pulmonologist) hosted a medical colloquium in

Kuruman in an attempt to improve the diagnostic skills of private and state medical

staff that were best placed to identify potential claimants for the trusts.

As at end-February 2008, 2069 claims had been lodged against the trust. Almost

60% of claimants were found to be clear of any compensable asbestos related

disease. Benefits of R24,6 million had been made or approved for 536 successful

claimants since the start of the trust, including R13,6million paid out in the 12

months to 29 February 2008.

KRT Compensation Payments to date

Fin. Year Claims Paid Amount 2007 168 R 6 264 861.50

2008 264 R 13 514 842.00

2009 285 R 19 964 350.00

2010 272 R 21 075 624.00

2011 154 R 8 069 154.50

2012 93 R 6 041 361.50

2013 47 R 4 463 596.00

TOTAL 1283 R 79 393 789.50

Breakdown of Claims Paid to end February 2013

ARD1 978 R 31 004 025.00

ARD2 128 R 8 425 177.00

ARD3 40 R 4 943 691.50

ARD4 137 R 35 020 896.00

1283 R 79 393 789.50

Regarding environmental exposure, the chairman reported at the AGM for the

2008 financial year that the trustees had agreed on a response to the requirement of

the Trust Deed that benefits would be payable to claimants who contracted ARDs as

a result of environmental exposure to asbestos “at or near qualifying operations

during the qualifying period”.

He said that only ARD1 (symptomatic pleural thickening) and ARD4 (mesothelioma)

could be accepted for living claimants; and ARD4 for deceased claimants, which

claim must have been submitted by dependents within three years of the claimant’s

death.

21

However, the Trust Deed allowed the trustees to interpret phrases that had a direct

bearing on the acceptance or rejection of an environmental claim, for example:

“Significant exposure … that was reasonably sufficient to have contributed to an

ARD … lived at or near a qualifying operation …

The trustees had consulted various legal, medical and environmental authorities

before agreeing a set of criteria that would ensure reasonable and fair compliance

with the trust deed and inform the assessment of environmental claims.

While the Trustees had absolute discretion over the acceptance of claims and award

of benefits, they were mindful of the fact that environmental claims were complex

and likely to resist attempts to apply formulaic approach. Claims would therefore be

considered on a case by case basis.

While bound by the conditions set out in the Trust Deed and restricted by the limited

funds available to the Trusts, the Trustees would seek to adjudicate where possible

in favour of claimants who had an ARD due to environmental exposure to asbestos.

Significantly this included acceptance of environmental claims where they arose from

family members being exposed to asbestos in the domestic environment i.e. as a

result of a family member having worked in a qualifying operation during the

qualifying period. Indeed, the first KRT environmental claim paid was a domestic

case where the claimant developed mesothelioma as a result of being exposed to

asbestos brought home by her father who worked for KCB.

Only urgent environmental claims amounting to R480,603 had been settled during

the year under review (2007 – R835 800) but more than 60 outstanding

environmental claims had been processed in the first three months of the new

financial year. This included awards to five claimants, three of which would be co-

funded with the ART due to dual exposure.

As part of the on-going outreach programme, the trusts hosted an “Imbizo” in

Kimberly in May 2008, which was attended by representatives from local

communities, district councils, municipalities, provincial and central government.

The objective of the meeting was to describe the purpose of the trusts and also to

hear the comments and concerns of various stakeholders.

In response to the challenging circumstances in the former mining communities, the

KRT trustees agreed that while their primary responsibility was to fulfil the objective

of the Trust Deed, they could use their collective experience and skills to:

• Highlight the issues faced by asbestos sufferers and their families;

• Promote research into and action around the prevention of asbestos related

diseases and their cure and/or management; and

• Educate individuals who have been exposed to asbestos, and their families,

about the ARDs and compensation.

22

A booklet titled Asbestos and Asbestos Compensation Schemes in South Africa

was distributed to stakeholders by the trusts. This was supported by broadcasting

mini-dramas and public service announcements on community stations to recruit

more potential claimants.

The ART/KRT administrative and medical staffs were invited to present at various

occupational health workshops across South Africa organized by the Department of

Health’s Medical Bureau for Occupational Disease (MBOD) and the Compensation

Commissioner for Occupational Disease (CCOD).

The workshops were held with occupational health professionals in most of the nine

provinces of South Africa to educate them about the various occupational health

compensation systems in existence, both statutory and private. Through these

workshops the KRT was able to communicate about its existence, functioning and,

more importantly, increase its reach into traditionally non-mining provinces where

potential claimants may live.

The South African Department of Environmental Affairs and Tourism published

asbestos prohibition legislation on 28 March 2008, referred to as the “asbestos

regulations”. The KRT, in conjunction with the ART, held a workshop on 20 August

2008 with various interested parties to examine and discuss these regulations, and

to formulate a supportive response to government.

The KRT, in conjunction with the ART, held an environmental claims workshop in

Kimberley on 25 February 2009 to educate stakeholders about the KRT and ART’s

environmental claims processing procedures. Although poorly attended by local and

regional government departments, the workshop was otherwise a success.

As part of the on-going advocacy programme, the trusts convened the National

Asbestos Conference (NAC) in Johannesburg on 14-15 October 2008. The NAC was

attended by more than 200 local and international delegates and was made possible

by financial contributions from the KRT, the ART, Everite Building Products and a

donor who wished to remain anonymous.

23

National Asbestos Conference 2008

The goals of the National Asbestos Conference (NAC) in Johannesburg on 14-15 October 2008 were:

• To review South Africa’s compliance with the recommendations of the multi-stakeholder National

Asbestos Summit that had been convened under the auspices of the Department of Environmental

Affairs and Tourism in 1998.

• To conduct a fresh assessment of the current challenges associated with South Africa’s asbestos

legacy.

• To develop proposals for the revival and enhancement of South Africa’s response to its asbestos

legacy.

The conference themes included:

• Health: research, surveillance and care;

• Compensation: occupational and environmental, administrative processes and benefits payable,

voluntary trusts and civil claims;

• Environmental: pollution and rehabilitation (mines, schools, houses etc.);

• Legal and Regulatory: local and international developments; and

• Asbestos containing materials: asbestos substitution, removal and disposal.

Delegates expressed extreme concern about:

• The lack of progress made since the 1998 National Asbestos Summit (while recognising the publication

of the revised Asbestos Regulations 2002 and the Asbestos Prohibition Regulations 2008; and the

substitution of asbestos by the major manufacturers of fibre-cement building materials)

• Difficulties faced by former asbestos mine workers to secure proper compensation from the State;

• The absence of a State compensation scheme for thousands of community members who are sick

because of environmental asbestos pollution in former mining areas; and

• The slow progress in rehabilitating former asbestos mines and many villages and towns in the former

asbestos mining regions.

The main issues of concern included:

• The need to consolidated and equalise statutory compensation funds for miners and industrial workers;

• The need to offer statutory compensation for environmental exposure to asbestos;

• High levels of environmental exposure for mining communities (resulting in ARDs for generations to

come); and

• The urgent need for improved health services in affected communities.

The NAC recommendations were as follows:

• Establish a National Asbestos Commission to co-ordinate responses to historical, current and future

challenges associated with the mining and use of asbestos;

• Recommendations of the National Summit (1998) should be revisited and vigorously pursued;

• Recognise that communities still co-exist with lethal levels of environmental asbestos pollution;

• Make mesothelioma a reportable disease and gear up State health facilities to provide the necessary

diagnostic, treatment and hospice services;

• Create a national fund to rehabilitate affected communities including removal of contaminated soil,

construction of concrete slabs and aprons in houses and schools, installation of new services in

asbestos-free soils, plaster and paint buildings made of asbestos bricks and tailings, installation of

new asbestos-free ceilings and roofs and removal/replacement and roads made of asbestos

containing material.

• Introduce a National Asbestos Compensation Scheme in which statutory and private schemes can co-

exist and ensure that both occupational and environmentally exposed persons who have asbestos

related diseases are properly compensated as soon as they are diagnosed and certainly during

their lifetimes;

• Create a national database on asbestos tailings;

• Urgent need for standardisation in fibre counting of asbestos for air and soil;

• Education and training of all service providers, the public at large and unions;

• Synchronise existing asbestos legislation;

• Monitor effects of replacements products; and

• Concession allowing members of the Southern Africa Development Community (SADC) to transport

packaged asbestos through South Africa for export purposes should be for a specified time only.

The proceedings were published and distributed to a wide range of stakeholders.

24

In May 2009, the trustees advocated to the newly-appointed Ministers of Health,

Mining and Water and Environmental Affairs expressing their distress at the high

levels of environmental asbestos pollution that continued to threaten the health and

well-being of those who reside in the former asbestos mining areas.

They wrote: “It is common cause that the scale and potential cost of rehabilitation is

formidable. The Department of Health has been mobilizing health surveillance and

health care facilities in the affected areas but progress remains painfully slow. The

former Department of Minerals of Energy has made impressive progress over many

years on the rehabilitation of former asbestos mines but residential pollution remains

largely untouched. The former Department of Environmental Affairs and Tourism

has been engaged for some years in an assessment of the contamination within

towns and villages. The results confirm what has been known for decades: that

harmful levels of environmental asbestos threaten the lives of current and future

generations in the area. A number of primary schools have also been identified

which pose a hazard to future generations”.

The trustees offered their services to assist in confronting this “on-going national

disaster”. The letters were not acknowledged.

Due to the labour recruitment practices of South African mines, many individuals

from neighbouring states, including Lesotho, were recruited to work on the

asbestos mines.

The Mineworkers Development Agency (MDA) were appointed claims handlers

representing the Trusts in Lesotho and were chiefly responsible for the claimant

identification programme in the country.

Following several meetings with the Lesotho Ministry of Health, the trusts developed

a mobile medical assessment model in order to determine whether potential

claimants had a compensable asbestos related disease.

The model featured the use of a mobile Chest X-ray (CXR) Unit as well as a mobile

unit run by the trusts’ medical staff to conduct the medical examination and

spirometry. A mobile administration team helped complete claim forms after Lung

Function Tests (LFX) confirmed that the claimant had a compensable ARD

The Lesotho programme reached out to former asbestos miners in very rural areas

of Lesotho. Through the programme the Trust was also able to create awareness of

ODMWA and to get permission from the MBOD for the trusts to submit claims to

them on claimants’ behalf, as well as the services provided by the National Institute

for Occupational Health.

Similarly outreach programmes were also initiated in Swaziland and Botswana.

25

For the year ended February 2009, 715 new applications were received from

individuals claiming occupational or environmental exposure to asbestos dust from

the operations of KCBA and/or DCBA. Of these, 358 arose as a result of a focused

recruitment campaign in Lesotho. This campaign was a major logistical challenge, as

medical services in rural Lesotho are sorely lacking, and all the usual tests done by

the trust – chest radiography, spirometry and medical examination – had to be

provided by trust personnel.

During the year R19 964 351 was paid to a total of 284 claimants. Total cumulative

payments to 717 claimants had reached R39,7 million.

By February 2010 the total number of claims lodged with the KRT had increased to

2853 (compared to 2426 as at the end of the previous financial year). The KRT had

paid a total of R60,8 million to 965 claimants, while 85 claims totalling R4,37 million

had been approved for payment but not yet been paid to claimants due to lack of

banking details and/or non-completion of the Release and Discharge forms. A total

of 60 environmental claim enquiries had been received. Of these, 19 were still being

investigated, and 32 had met the environmental exposure criteria and qualified for

compensation. Thirteen were attributed to KRT-only exposure and 19 were due to

dual exposure, i.e. KRT and ART.

The Occupational Diseases in Mines and Works Act (ODMWA) provides for free

post mortem benefits for all current and ex-miners. Their hearts and lungs must be

prosected and sent to the National Institute for Occupational Health (NIOH)

laboratory in Johannesburg for examination and reporting.

Prosection involves sensitively removing the heart and lungs post-mortem and

placing them in formalin in containers supplied by the NIOH, and shipping them to

Johannesburg for examination. In 2006, the service in Kuruman was found to be in

limbo. With the NIOH, the Trusts motivated in vain for the local health services to do

the work. They then re-trained the lone prosector in the area, especially to improve

the administrative quality of his submissions. He had previously done the ODMWA

prosections at Kuruman Hospital and then for a GP. It later emerged that he had

been operating illegitimately, and had stockpiled more than 100 containers at a local

private funeral service, having been paid by the families for his services.

The Trusts then re-approached the local Department of Health to provide the

service. They had previously prevaricated despite it being their statutory function,

and deferred the decision to the province. They were able to set up a high quality

and free service from 2009, which now happily operates under the professional

guidance one of the ART Trustees, Dr Lady Jood. The medical office of the Trusts

obtains the results of all post-mortems from the NIOH that reflect either an asbestos

related disease or exposure to asbestos. Where there is a compensable disease that

was not detected before, we are able to effect compensation for the family.

During 2010, the KRT sponsored former mayor of Kuruman, Sarah Meereothle to

travel to the USA to attend the Asbestos Disease Awareness Organisation (ADAO)

26

conference where she spoke about the experiences of asbestos sufferers in South

Africa. There she was able to renew acquaintance with the former Surgeon General,

Richard Lehman, who had attended the National Asbestos Conference in South

Africa on behalf of ADAO.

Asbestos Warrior

I was born and brought up from the heart where asbestos was mined, a village called Gamopedi. I have lost many of my family

and friends to the scourge of asbestos. I have therefore been a very concerned asbestos activist since 1975. I was working at

St. Michaels Hospital (now Tshwaragano Hospital) when I was requested to join the asbestos research institution set up by

NIOH (National Institute for Occupational Health).

The research demanded commitment and hard work. It was very expensive and frustrating because the targeted group was

former asbestos miners from 1956. You had to go to the mine to check if they still are still working then to the villages with the

addresses supplied by NIOH. It was a demanding and expensive exercise to drive around looking for the ex-mineworkers.

Some were already sick or had died already 2 or 3 years back. Those still alive were very ill many experiencing shortness of

breath. The study was carried on a cohort of workers but the findings were not made available to anyone except the selected

few who were conducting the study. The results were never meant for public scrutiny, even to the affected community leaders.

Workers were highly still exposed, sitting in the milling section and sorting stones with naked hands weighing sitting sewing

bags that they would start shacking first the level of asbestos inside before sewing. You look at his head, beards, inside noses,

clothes or some on overalls; all blue of asbestos. At lunch time they were all resting under the trees. When they travelled home,

they were still covered with the asbestos dust, getting home and interacting with small children still wearing those dusty

overalls.

I am aware that asbestos was mined for profit. Our grandmothers were cobbling and separating the fibre from stone by hand

into little buckets to sell the fibre. Even today some of those little dumps are still visible.

When I think of the future of the children, attending schools that are built with asbestos, their homes and yards where they play,

it is frustrating that so little remedial work is undertaken by government. We need doctors who can diagnose the asbestos

patient locally. Patients need immediate relief, knowing very well that he/she will not be healed but wish to die with the dignity

they deserve.

In our community sick people travel long distances to the clinics and hospitals. When they experience shortness of breath they

cannot climb onto a donkey cart or even into a taxi. It is highly strenuous to return home. This search for adequate medical

care is both really humiliating and undignified.

The government should play an important role in protecting these helplessly sick people by providing transport, arranging for

them to be kept in a sick bay after receiving a chemo before going home simply for them to die with dignity. The government

must budget for compensating asbestos sufferers; especially those not catered for by the Trusts. It is the government that

issued the licences and receive taxes from the companies and therefore it is the government which is responsible and

accountable to provide services.

In the absence of official action, concerned citizens in Kuruman work hard to assist the injured and raise awareness of the

asbestos hazard, people like those volunteering at the AIG (Asbestos Interest Group). We also had the ACCK but it was soon

politicised. The volunteers who were busy doing the good work decided to resign as they were committed to relieve the

suffering of the people and they were not interested in any political status.

I may sound emotional because I have lost my mother and brothers who died of mesothelioma. My mother was never near a

mine but daily in the clinic as a professional nurse. What amazes me is that the victims I was in charge of in 1975-1982 were

never treated with dignity.

I must thank Trusts for their existence because most of the information and help we get from them.

Today we should no longer be talking about asbestos exposure but only about how to care for the asbestos casualties. The

biggest frustration is the lack of rehabilitation of the dumps. If only the government can be of help to provide tenders to the

citizens of the area who have first-hand experience of what asbestos has done to their families. They will be more effective and

efficient and ensure that the work is properly done.

More research must also be done on asbestos as a matter of urgency to protect the future of our children. My views are

formed by my personal experience of and my role as an anti-asbestos activist, not by what I hear or read about.

Sarah B. Mereeotlhe, May 2013

27

The steady increase in claims payable in 2008 and 2009 caused both the founders

and the trustees to reflect on the funding model. At the end of 2009, the founders

asked the trustees to estimate the grant liability over the next three to six years.

Having conducted extensive assessment of the likely number of qualifying claimants

over the intended life of the trust, the trustees advised that the total liability to 2015

was estimated to be R115 million. However, the founder’s attorneys advised the

trustees that although the founders had already substantially increased the sum of

money originally set aside for grant funds, the likely liability for the intended life of the

trust (i.e. to 2026) would far exceed the amount provided for on the basis of the

current grant funding model.

The founder’s attorneys therefore recommended to the trustees that:

• Social responsibility funds be used in future for making grants rather than

supporting community projects;

• No inflation linked increases be made to the grant schedule;

• A cap be introduced for the payment of grants to mesothelioma patients; and

• A higher minimum impairment be set for the acceptance of ARD1 claimants.

The trustees duly agreed to implement these recommendations effective 1 March

2010. The key elements of a more conservative approach to match the founders

funding criteria and to ensure the intended life of the trust were:

• The diagnostic criteria for ARD2, ARD3 and ARD4 remained unchanged;

• Revised diagnostic criteria were introduced for ARD1 with a slightly more

conservative assessment of the spirometry results10:

o “Ten percent lung function impairment” (as per the trust Deed) would

be interpreted as FEV1 and FVC both below 72% of predicted; and

o The FEV1/FVC ratio would not be used.

• A new grant schedule was introduced where a standardised lump sum would

payable for the various disability categories regardless of circumstances11:

o ARD 1 - R28 000

o ARD2 - R70 000

o ARD3 - R210 000

o ARD4 (occupational and environmental) -R280 000; while

o Dependants of deceased claimant receive 50% of the set amount that

would have been payable to living claimant.

With the assistance of actuaries and based on the claims history of the trust, the

trustees calculated that the incidence of qualifying claimants being certified with

10 The anticipated effect of this change would be to reduce the number of ARD1s for the period to 2026 by 60%. 11 The Trustees decided that qualifying claimants would be paid a standard lump sum regardless of age, skills level or type of exposure. This decision ensures that previous race or employment distinction play no role in the compensation paid. In addition the national or ODIMWA payment due to the claimant is no longer deducted from the KRT compensation.

28

ARDs in terms of the revised criteria for the outstanding life of the trust would be as

follows12:

Year ARD1 ARD2 ARD3 ARD4

Occupational

ARD4

Environmental

2010 8 2 5 8 5

2011 8 2 5 5 5

2012 8 2 3 6 5

2013 8 2 3 6 5

2014 8 2 3 7 5

2015 2 1 2 7 5

2016 2 1 2 7 5

2017 2 1 2 7 5

2018 2 1 1 8 5

2019 2 1 1 8 4

2020 1 1 1 7 4

2021 1 1 1 6 4

2022 1 1 1 5 4

2023 1 1 1 4 4

2024 1 1 1 3 4

2025 1 1 1 2 4

2026 1 1 1 1 4

In response, the founders decided to make a final voluntary contribution of R58

million on 28 February 2011 to cover both the estimated future benefits payable to

claimants and operating expenses. This resulted in a total commitment that was

significantly higher than originally allowed for.

12 The ART and KRT Trustees and medical staff are working closely with the National Institute for Occupational Health to research mesothelioma incidence levels in South Africa, which would help to confirm the current future projections.

29

This meant that from the start of the 2011/2012 financial year, reserves stood at

R66.7 million.

Under the new funding model, both the beneficiary funds and the running of the trust

were now entirely the responsibility of the trustees. The capital was invested in an

appropriate investment vehicle.

The KRT trustees believe that these funds will be sufficient to pay benefits to future

claimants who are projected to contract mesothelioma and lung cancer as a result of

exposure to asbestos at the qualifying mines and in the surrounding communities.

It is still early days but the predicted incidence of claims is roughly plotting the

predictions made by the trustees and their advisors.

If there are more claims than anticipated, the benefit would have to reduce. If there

are fewer claims, surplus funds at the end of the life of the trust will be made

available for social projects in the area where the qualifying mines are located.

At the AGM held in September 2011, the chairman was able to report that for the

year ended 28 February 2011, a total of R68,9 million had been paid to 1143

occupational and environmental beneficiaries of the KRT, of which R8,1 million was

paid to 154 beneficiaries during the financial year under review. In addition, 93

claims amounting to R4,4 million, had approved for payment and were awaiting

payment documentation.

In September 2012, the KRT chairman was able to report that in response to the

declining claims profile at both the ART and KRT, operating costs had been

significantly reduced and further reductions were possible:

• 2009 - R3 923 856

• 2010 - R3 508 000

• 2011 - R2 451 159

• 2012 - R1 043 842

Since 2009, the ART administration and management fees charged to the KRT had

dropped from R1 164 711 to R548 452, a reduction of 47%.

Malignant mesothelioma is almost exclusively caused by asbestos exposure. In the

western industrialised countries of Europe and the USA significant amounts of

asbestos were used from 1930 to about 1990. In most western countries peak

asbestos consumption occurred around 1977-1980.

A unique aspect of the disease is the extreme long latency (i.e. time between

exposure and appearance of symptoms) of about 40 years. This means although

today there is no use of asbestos anymore, at least in the western industrialised

countries, the number of newly diagnosed mesothelioma will be high for many years.

30

Globally the number of mesotheliomas between 2000 and 2049 is estimated at 447

000. For the UK, 61 000 mesotheliomas are predicted from 2007 to 2050 with a peak

occurrence in 2016. In some countries such as Sweden where industrial asbestos

use was terminated earlier in the last century, the peak mesothelioma rate may have

been reached already. This is probably true for the USA as well. For countries like

Japan where asbestos consumption lasted longer the peak is expected in about

2027.

With regard to mesothelioma, crocidolite is the most dangerous type of the

commercially used amphibole type of asbestos. South Africa produced all four types

of asbestos (chrysotile, amosite, anthophyllite and crocidolite). Crocidolite was mined

in South Africa until the early nineties.

Some aspects of asbestos production in South Africa are very specific:

1. Occupational exposure occurred primarily in mining and less so for the

manufacturing of various products.

2. Due to the nature of labour force, exposure duration compared to other

industries was relatively short. It is therefore very questionable if prediction

equations from European countries can be applied to the South African

population.

There are currently no meaningful projections for the future number of

mesotheliomas in South Africa.

An accurate estimation of the number of future mesothelioma in ex-miners of the

South African mines (based on data of the work histories and work dates of ex-

miners together with the mortality / incidence of mesothelioma over the past years)

would therefore be of great value to the Trusts.

An accurate estimation would allow the Trusts to know the approximate amount of

funds necessary for compensation during balance of the trusts’ intended life span.

Gill Nelson, Ben Sartorious et al. have just completed the first part of such a study

using the mesothelioma cases diagnosed within the trust cohort between 2003 and

2012 as their database.

In this cohort the median latency was 33.9 years and peak exposure occurred in

1982. The authors tested several mathematical models. The main results are:

1. The peak incidence in this cohort probably occurred in 2010.

2. There will be approximately between 150 to 200 new cases of mesothelioma

due to occupational exposure for the trust to compensate.

The study is on-going and further refinements with inclusion of cumulated total

inhaled dust exposure will be investigated.

31

As the trusts also compensate mesotheliomas due to environmental exposure, a

prediction for this type of exposure would be equally important. Unfortunately this is

not possible with the trust data currently available.

The “wonder drugs”?

The sensitivity of malignant mesothelioma to chemotherapy has been poor and the

agents used rather toxic.

However, chemotherapy in malignant mesothelioma can be applied in a neoadjuvant

context within a surgical treatment program (extrapleural pneumonectomy,

pleurectomy and decortication) or in the context of a medical treatment where no

operative procedure or radiotherapy is indicated.

An antifolic agent, Pemetrex (Alimpta®), has shown a moderate effect as single

drug.

In 2003 Vogelzang et al. demonstrated in a Phase III randomised trial that a

combination of Cisplatin with Pemetrexed resulted in a significantly better effect than

Cisplatin alone. The double regimen achieved a significant improvement in terms of

overall survival (12.1 versus 9.3 months, p = 0.02), time to progression (5.7 versus

3.9 months, p = 0.001) and response rate (41.3% versus 16.7%, p < 0.0001)

compared to single agent chemotherapy. The side effects were greatly reduced and

tolerable when Vitamin B12 and folic acid were added.

Two years later in an further randomised trial, Van Meerbeeck et.al also

demonstrated a significant improvement with regard to survival, response rate and

progression free interval of a combination of Cisplatin with Ralitrexed (Tomudex®),

another antifolic agent.

In summary, while we do not have any medication that cures malignant

mesothelioma, the combination of a platinum analog (Cisplatin or Carboplatin) with

an antifolic agent - either Pemetrexed or Ralitrexed - is currently the first line

chemotherapy of choice for malignant mesothelioma and has shown improvement of

survival time and time to progression.

M.Heitz 2.3.13

References

Vogelzang NJ, Rusthoven JJ, Symanowski J, et al. Phase III study ofpemetrexed in

combination with cisplatin versus cisplatin alone in patients with malignant pleural

mesothelioma. J Clin Oncol 2003;21: 2636 – 44.

van Meerbeeck JP, Gaafar R, Manegold C et al. Randomized phase III study of cisplatin with or without raltitrexed in patients with malignant pleural mesothelioma: an intergroup study of the European Organisation for Research and Treatment of Cancer Lung Cancer Group and the National Cancer Institute of Canada. J Clin Oncol 2005; 23:6881–6889

32

The KRT Trustees continue to wrestle with the implications of the trust deed that

requires them identify legitimate environmental claimants who would have

experienced “significant” exposure “at or near” a qualifying mine.

Based on the guidance of medical specialists, environmental practitioners and

lawyers, the trustees decided that a qualifying claimant must have resided within 10

kilometres of a Qualifying Operation, beyond which environmental exposure can no

longer be attributed to a single source. Alternatively, the claimant must be able to

show that they were exposed at home, for example through a family member who

worked at a Qualifying Operation and brought asbestos pollution into the home.

The trustees continue to assess the situation and are taking into account the inputs

of commentators such as Dr Rob Jones who has conducted asbestos pollution

research in communities throughout the Northern Cape and North West Provinces13.

“Where there are multiple mine sites,” he wrote, “it would seem almost impossible to

define which mine (regardless of ownership) contributed to the contamination that

resulted in an applicant’s disease. While this fact could be used to cast doubt on any

one application, the practical application of this standard is that it perhaps sets an

unrealizable burden on the applicant. Conversely, if an applicant lives beyond the

10km distance and there are no other contributing mine sites then the nearest

source (regardless of distance) should be presumed to be the primary contributor

unless clear evidence to the contrary is presented.”

In a research report entitled “Compensation for environmental asbestos-related

diseases in South Africa: a neglected issue”, the authors14 argues that: “The findings

of this study support the argument that the Trusts should review their exposure

criteria. The mining operations that led to their creation contributed significantly to

contamination of the environment in many regions; for example, in the Kuruman area

the Trusts represent companies that generated over 85% of the tonnage of asbestos

mined in this area (Jim teWater Naude, personal communication, 10 October 2012).

13 In 2004-2006 Rob Jones from Rhodes University surveyed 34 communities within the Northern Cape and

North West Provinces to determine the extent and severity of environmental asbestos contamination. A detailed

survey in GaMopedi revealed 26.2% of the homes were contaminated with asbestos containing soil and/or

building material. A theoretical exposure assessment estimated 25-52.4 excess deaths per year from lung cancer

and mesothelioma due solely to environmental exposures to asbestos pollution within the study area population

of 126,130 individuals. 88% of the sites contained one or more sites ranked as severe. (RISK-BASED

ASSESSMENT OF ENVIRONMENTAL ASBESTOS CONTAMINATION IN THE NORTHERN CAPE AND

NORTH WEST PROVINCES OF SOUTH AFRICA, Robert R. Jones, A thesis submitted in fulfilment of the

requirements for the degree of DOCTORATE OF PHILOSOPHY, Department of Environmental Science, Faculty

of Science, RHODES UNIVERSITY, October 2010).

14 Ntombizodwa Ndlovu1,2*, Jim teWater Naude3,4 and Jill Murray1,2 (1 National Institute for Occupational Health, National Health Laboratory Service, Johannesburg, South Africa; 2 School of Public Health, Faculty of Health Sciences, University of the Witwatersrand, Johannesburg, South Africa; 3 Asbestos Relief Trust, Cape Town, South Africa; 4 School of Public Health, University of Cape Town, Cape Town, South Africa)

33

“At the time that the environmental compensation criteria were set out by the Trusts,

a radius of 10 km from the source of contamination was adopted in the light of

preliminary work done by Jones and subsequently published in his thesis on

environmental asbestos contamination in South Africa. In his discussion, however,

Jones makes the point that no clear linear correlation can be drawn between

distance from a source point and levels of disease.”

The trustees continue to regularly review the guideline in the light of new evidence

and experience.

Conclusion

The first five years of operations of the Kgalagadi Relief Trust have proved to be

enormously challenging. The Trustees have been fortunate that the Asbestos Relief

Trust as a precursor had established systems and procedures both medical and

administration which the KRT could replicate.

The reporting responsibility to the founder is one key difference. This oversight

responsibility has made the work of the Trustees both accountable and transparent.

It has caused the Trustees to carefully weigh the impact and consequences of

decisions being made. The establishment of the Trust was an exciting period

establishing relationships with key stakeholders and potential claimants. Building an

awareness of the Trust was also a key responsibility.

The KRT’s recalibration of the diagnosis and payment regime has so far stood the

test of time. In agreement to work jointly with the ART in so far as the social

responsibility projects are concerned has added considerable value to the

beneficiaries.

Much remains to be done: in searching for qualifying claimants, and providing

assistance to workers who manifest symptoms of asbestos, and investing funds to

pay future claimants. A key purpose is to provide on-going evidence that a privately

operated fund can effectively and efficiently compensate claimants and can become

a replicable module for both public and private compensation funds.