The Q(h)ubeka Trust is the product of the silicosis settlement reached by Leigh Day and Mbuyisa Neale in March 2016 on behalf of 4365 ex-gold miners (and relatives of deceased ex- miners) who sued Anglo American South Africa (‘AASA’) and AngloGold Ashanti (‘AGA’).
We are concerned to note several public misstatements speculating on the amounts to be paid to individual claimants by the Q(h)ubeka Trust. Such misinformation is unhelpful, especially to the victims concerned. It is also unhelpful to use this incorrect information as a reference point for assessing compensation that might be appropriate in the silicosis class action. We refer to the points below.
Distribution of compensation by the Trust
- The value of the total settlement amount to be paid into the Trust will be in the region of R500 million. In addition AASA and AGA will fund the operation of the Trust.
- The settlement amount will be divided, as outlined below, among those of the 4365 Claimants who are confirmed by the Trust to have/have had silicosis. However, it is incorrect to divide this total sum by the total number of claimants in the group in order to reach an average award of R115K. The reasons why this is incorrect are as follows.
- The vast majority of the Claimants are yet to be evaluated by the medical panel of the Trust. Based on a random sampling exercise performed prior to the settlement it is anticipated that up to 60% of the Claimant group will be found by the Trust to have silicosis. (NB the total amount of the settlement will be unaffected by how many Claimants are confirmed with silicosis).
- The medical panel will arrange to examine and test the Claimants in the localities where they live.
- The amount of compensation paid by the Trust to individual Claimants, out of the total settlement amount, will depend on the following: (a) The number of Claimants found to have silicosis/ silico-tuberculosis; (b) The breakdown of severity of silicosis/silico-tuberculosis among those Claimants who are found to have silicosis/ silico-tuberculosis;(c) The severity of silicosis/silico-tuberculosis and age of the individual in question.
- Therefore individual Claimants who are found to have silicosis will receive differing amounts, not an average figure. Each Claimant found to have silicosis will receive an initial payment from the Trust following the medical evaluation. However, for the reasons indicated in paragraph 5, the final amount due to each individual who has silicosis can only be determined after the whole group has been medically evaluated. Consequently, save to say that we anticipate that up to 60% of the group may be confirmed as having silicosis, we will not comment, publicly, on likely individual awards.
- Completion of the whole process is expected to take 3-4 years compensation
Assistance in obtaining ODMWA compensation
- In addition to payment by the Trust, the Trust will assist Claimants who are eligible for statutory ODMWA compensation in obtaining their compensation entitlements from the CCOD. Our understanding is that the ODMWA scheme presently pays R47,000 for Stage 1 and R105,000 for Stage 2.
- Such ODMWA compensation will be in addition to compensation by the Trust. In other settlements, the ODMWA entitlement has been deducted from the overall compensation award. This is not so with regard to the Qubeka settlement. (Note however that ODMWA compensation is only available when the level of permanent disability caused by the disease exceeds 10%. Our assessment is that approximately 20% of the Claimants who will be found to have silicosis may not meet this threshold. Such Claimants' compensation entitlements will be limited to compensation by the Trust as outlined above).
- AASA and AGA have promised to use their best efforts to facilitate the ODMWA payments to eligible Claimants. Given the present chaos and disarray within the ODMWA compensation system, this assistance by the Trust and the mining companies in securing ex-miners’ ODMWA entitlements is an important benefit.