Recognizing the Full Costs of Care? Compensation for Families in South Africa’s Silicosis Class Action
| Author | Beth Goldblatt,Shirin M Rai |
| Date | 01 December 2018 |
| Published date | 01 December 2018 |
| DOI | 10.1177/0964663917739455 |
| Subject Matter | Articles |
Article
Recognizing the
Full Costs of Care?
Compensation for
Families in South Africa’s
Silicosis Class Action
Beth Goldblatt
University of Technology Sydney; University of New South Wales, Australia;
University of the Witwatersrand, South Africa
Shirin M Rai
University of Warwick, UK
Abstract
This article concerns recognition and compensation of the intimate, gendered work of
caring by family members for workers who became ill with lung diseases as a result of
poor labour conditions in the mines in South Africa. It focuses on a recent decision by a
court in South Africa (Nkala and Others v. Harmony Gold Mining Company Limited and
Others, 2016) that took the unusual step of acknowledging this care work and attempting
to compensate it indirectly. The article combines insights from political economy and law
within a feminist frame to develop an argument about compensation for social repro-
ductive work to address the harm experienced by the carers of mineworkers. Using the
theory of depletion through social reproduction, it suggests ways of understanding the
costs of care in order to fully compensate the harms suffered by the carers. This is done
with reference to a photographic essay by Thom Pierce called ‘The Price of Gold’ taken
in the mineworkers’ homes after their discharge from work due to illness. The article
argues that ideas of depletion should inform any consideration of compensation of
people engaged in caring in a range of reparatory contexts.
Corresponding author:
Beth Goldblatt, Associate Professor, Faculty of Law, University of Technology Sydney, PO Box 123 Broadway,
Sydney, 2007, Australia; Visiting Associate Professor, School of Law, University of the Witwatersrand,
Braamfontein, Johannesburg, 2000, South Africa; Visiting Fellow, Australian Human Rights Centre, Faculty of
Law, University of New South Wales, Sydney New South Wales 2052, Australia.
Email: Beth.Goldblatt@uts.edu.au
Social & Legal Studies
2018, Vol. 27(6) 671–694
ªThe Author(s) 2017
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/0964663917739455
journals.sagepub.com/home/sls
Keywords
Care, compensation, depletion, illness, social reproduction, South Africa
Introduction
This article concerns recognition and compensation of the intimate, gendered and unre-
munerated work of caring, in this case for relatives of mineworkers who became ill as a
result of silicosis and tuberculosis (TB) in South African gold mines. In its decision in
Nkala and Others v. Harmony Gold Mining Company Limited and Others, 2016, a court
took the unusual step of acknowledging this care work and attempting to compensate it
partially, albeit via the legal ‘backdoor’. The article combines insights from political
economy and law within a feminist frame to develop an argument about compensation
for social reproductive work to address the harm experienced by the carers of mine-
workers. Using the theory of depletion through social reproduction (Rai et al., 2014), the
article examines how we understand the costs of care in order to fully compensate the
harms suffered by the carers. We do this by examining a series of photographs and
accompanying descriptions by Thom Pierce called The Price of Gold takeninthe
mineworkers’ homes after their discharge from work due to illness.
1
In so doing, we
tease out some of the complexities of the calculation of loss for economic and legal
measurement that should inform any consideration of compensation of people engaged
in caring for those who are injured or ill in a range of reparatory contexts. We link this
discussion to feminist critiques of the law of damages that expose the way in which
traditional legal categories ignore and exclude women’s unpaid work. By using a fem-
inist approach that unpacks and acknowledges care in its many dimensions, we challenge
the structural devaluation of intimate labour.
In May 2016, the South African High Court (Gauteng Local Division) granted an
order in the case of Nkala and Others v. Harmony Gold Mining Company Limited and
Others, 2016, certifying a consolidated class action against 32 mining companies by
mineworkers and their dependents who contracted silicosis and TB. The litigation that
led to this decision began in 2012 with efforts dating back to 2009 by some of the lawyers
involved in the case (Chisholm and Le´piz, 2017; Ledwaba and Sadiki, 2016). The case
concerns the contraction, since 1965, of silicosis, b y miners breathing in silica dust
generated during mining. The disease can take many years to manifest, is incurable,
debilitating and often fatal. The mineworkers argued that exposure to silica dust also
increases the risk of TB, a lung disease cau sed by bacterial infection. Once mine rs
became too ill to work, they returned to their families who became tasked with their
care. The Nkala decision, a landmark judgment in the development of class action law in
South Africa, authorizes the commencement of the largest class action litigation ever to
occur in the country, with almost half a million possible claimants (Chisholm and Le´ piz,
2017).
2
The article focuses on the aspect of the decision that concerns the access of
dependents of the miners to parts of the compensatory damages potentially arising from
this claim. It then discusses the issue of unpaid care work by the families of the miners
using the theory of depletion through social reproduction. It goes on to apply this
theoretical frame in analysing some of the photographs taken by Thom Pierce to consider
672 Social & Legal Studies 27(6)
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