UPDATES FROM THE TSHIAMISO TRUST AGM
Johannesburg, 28 August 2023: The Tshiamiso Trust, established in 2020 to give effect to the settlement agreement reached in the historic silicosis and TB class action, provided important updates on its operations, progress, financials and challenges at its third AGM held on 25 August 2023.
Reporting on the Financial year ending 28 February 2023, the Trust confirmed an increase of over 400% on the payments achieved in the previous financial year, taking the cumulative total to R1 billion in payments in just two years after claim lodgements began. During the year in review, the Trust paid out R808 million to 9,118 claimants. Of all claims paid up until 28 February 2023, 45% were Basotho claimants, 29% were from the Eastern Cape and 11.5% were from the Free State. 91% of the claimants paid are ex-mineworkers and 5% were claims for deceased mineworkers.
Tshiamiso Trust CEO, Dr Munyadziwa Kwinda, highlighted some of the other achievements: “By the end of the reporting period, the Trust had completed a total of 46,736 Benefit Medical Examinations (BMEs) through its network of 33 fixed and mobile BME sites to reach claimants as close to their homes as possible. Through one of its service providers, The Employment Bureau of Africa (TEBA), the Trust managed to search for archived service records in respect of 4,366 individual mineworkers who are potential claimants not yet on the database. Furthermore, the Trust’s collaboration with the Medical Bureau of Occupational Diseases (MBOD), TEBA and government departments such as Home Affairs and Health has reduced the number of incomplete claims by 60% over the reporting period, from 17,179 to 6,820 by assisting claimants with the sourcing of documents. The Trust also reported 100% compliance with all 559 applicable clauses in the Trust Deed on its claims management system.”
“There is, however, an unfortunate and painful flip side to these successes,” commented Tshiamiso Trust Chairperson, Dr May Hermanus. “With the high rate of claims being found ineligible because they do not meet the criteria for medical eligibility (around 70% of all claims certified to date), only a small proportion of claims meet the criteria set out in the Trust Deed which underpin the diagnosis of silicosis and/or work-related TB. As a result, many claimants remain frustrated and disappointed as the expectations of many miners or their families who expected to receive awards are dashed”.
Claims for deceased mineworkers
Significantly in the period under review, the processing and payment of claims to the dependents of deceased mineworkers commenced. The intricate criteria associated with this facility gave rise to a host of complexities that slowed progress almost immediately. These complexities include problems related to the completeness of records and data, while there are numerous practical difficulties that the Trust faces in rolling out the provisions of the Trust Deed.
In addition, many dependent claims for both silicosis and TB are being found ineligible because the criteria for TB claims for mineworkers who died before the effective date (10 December 2019) are incredibly stringent. The requirement is not only that there needs to be evidence of the compensable TB being the main cause of death, but that the mineworker must have died from the compensable TB within a year of the last qualifying risk work shift.
Dr Kwinda explained that the Trust Deed prescribes that the qualifying disease (silicosis or work-related TB) must be indicated as the primary cause of death on either an official death certificate or a post-mortem report. However, the abridged death certificates issued to families in most instances do not refer to the primary cause of death, rather indicating the manner of death, which is either Natural, Unnatural or Undetermined. For this reason, the Trust has had to start asking claimants to apply for supplementary documentation, such as the “Notice of Death” or “Form DHA 1663A” from the Department of Home Affairs (or the equivalent in other countries) as this may contain more information about the cause of death. The other acceptable document, a post-mortem examination report, has also presented challenges, resulting in the Trust being unable to progress claims that rely on post-mortem examination reports issued by the NIOH. Uncertainty regarding the fact that such reports do not state the primary cause of death needs to be resolved.
Another major challenge relates to obtaining Letters of Authority or Letters of Executorship required for deceased mineworkers who died after 10 December 2019. Courts are unwilling to issue these documents without evidence of the amount of money due to the claimant, and the Trust is not able to process these claims without these Letters. The Trust is working with the Master’s office at the Department of Justice and is facilitating necessary changes to allow these claims to progress.
Claim lodgements and contactability
While the Trust has worked consistently at assisting with, and improving the quality of, lodgements, it continues to experience challenges here too. Dr Kwinda explained that of the claims lodged, it is rare for all the required documentation, as prescribed by the Trust Deed, to be submitted at the lodgement stage, resulting in a high number of incomplete claims.
“We are also faced with another challenge of approximately 30% of claimants being uncontactable post lodgement due to their contact numbers being incorrect or changing,” he added. “This means that the Trust cannot get hold of them to schedule Benefit Medical Examinations (BMEs), request documentation or finalise their claims. Claimants are reminded to ensure that they update their contact details with the Trust.”
Expansion into other countries
The 2022/2023 period marked substantial engagements with governments of other countries to unlock access to potential claimants and the ability to process claims for their citizens. “Setting up operations in other countries is a complex task, which takes time given the requirements of and the dependencies on government structures in relation to service provider requirements,” explained Dr Kwinda. “It is imperative that the Trust operates within the processes and protocols of each country to ensure that it is compliant and has the support of governments, health departments, service providers, ex-mineworkers’ representatives, and other stakeholders in these countries.”
The backlog of claimants who have lodged claims and are awaiting BMEs in neighbouring countries has continued to grow due to the unavailability of BME services. As of 28 February 2023, the Trust has 6,004 claimants in Mozambique, Botswana and Eswatini who are awaiting BMEs for their claims to progress.
Dr Kwinda added: “One of the difficulties that we are facing as we process claims from outside of South Africa is the availability and reliability of the required documentation. This includes birth certificates, marriage certificates and documents to indicate the cause of death. We are working with the various government departments in each country to resolve this matter.”
Chief Financial Officer of the Tshiamiso Trust, Edzani Muedi, reported on the Trust’s financials and confirmed that the Trust achieved a clean audit. She further explained a misconception from claimants that money allocated for compensation is being paid for administration expenses instead of to beneficiaries, or that the Trust is benefiting from interest earned:
“The budget for administration is paid quarterly by the Founders, based on agreed values for each annual period. The total of the Trust Administration Budget is capped at R845 million, for all the years that the Trust will be operational. This is completely separate to the uncapped amount of compensation to be paid to eligible claimants. The Benefit Contributions from the Founders is also paid over to the Trust in quarterly instalments, based on estimated claims to be paid out for each annual period. This is reconciled and any monies not spent, as well as any interest gained, are carried over to the next year.”
Dr Kwinda added that the administration budget must be managed responsibly and with great care. “Considering all the requirements that need to be funded by that budget, we do need to be incredibly efficient, conscientious and cautious with our spending,” he said.
While at times it may seem that there are more challenges than victories, we must keep perspective, said Dr Hermanus. “Those with an understanding of the requirements and intricacies involved in carrying out our mandate will appreciate the significant work that has been done to get to where we are. Our outcomes rest on the depth of the stakeholder relationships we have built, the quality of the infrastructure established, and the dedication of teams appointed by the Trust, who implement our mandate diligently. It also demonstrates management and our staff’s continued focus on the implementation of our plans and strategies. We remain grateful for and dependent on the insights and advice of a wide range of stakeholders that continue to help and practically enable the Trust to respond more appropriately and expeditiously than we would be able to on our own.
“It is however important to understand that the Tshiamiso Trust is a legacy Trust, established to process claims for a Settlement Agreement as per the Court Order that has very specific terms that are detailed in the Trust Deed that was set up even before the Trust came into existence. The Trust Deed provides very specific rules, processes and requirements that the Trust has to follow, and the Trust and its trustees do not have the legal right to alter, vary or amend them.
“That said, the meaning of Tshiamiso Trust is to make good and this, for me, is an important touchstone. It reminds me that in dealing with the nitty-gritty work of the Trust, the Trust serves people in communities that have been systematically marginalised in the past, and that this past continues to weigh very heavily on them. This is a reality that impacts everything that we do.”