While the certification is merely the first step towards setting a precedent should the court find in favour of the miners, it nonetheless represents an important development to which other players in the industry should be paying attention.  Importantly, the case is about two seemingly conflicting concepts; business and human rights. However, it is a mere perception that the terms are irreconcilable. An appropriate balance struck between recognising the Bill of Rights on the one hand, and business on the other, will ensure South Africa’s growth and development.

The case lends greater understanding to the obligations that may arise out of certain employment relationships. This follows hot on the heels of Anglo American and AngloGold’s agreement in March 2016, to a compensation scheme for former employees who developed silicosis and silico-tuberculosis, which they claim were contracted from working in unsafe conditions in the mines.

The case is also an indication of the extent to which businesses have an impact on the not just the welfare of its employees but communities at large. In the South African context, business are generally alive to the moral imperative to abide by the Bill of Rights, however what is less clear is how the respect for human rights can be a further tool through which businesses can improve their performance. Hence it is important for businesses to comply with both local and international laws containing human rights principles.

The Constitution serves as a guide to businesses on how to ensure that human rights are respected, and furthermore ensures systems of accountability. To this end, the South African Human Rights Commission (SAHRC) first published a report into human rights abuses in the local business sector in 2015. The SAHRC has further undertaken to henceforth include business and human rights as one of its strategic focus areas. The Companies Act of 2008 also establishes social and ethics committees in specified companies whose role is to ensure that the company complies with human rights standards. These standards include the United Nations Guiding Principles on Business and Human Rights.

It was only in 2011 that the  United  Nations  Human  Rights  Council  unanimously  endorsed  the  United Nations Guiding Principles  on  Business  and  Human Rights – by which South Africa is bound. The nation is obliged to draw up a National Action Plan (NAP) to promote the implementation of the principles to govern business and human rights. Nonetheless the South African government has not yet committed to developing the NAP on business and human rights despite efforts to kick start the process by civil society.

South Africa has a complex history of business and human rights, much of it characterised by exploitation and violence, with possibly the Marikana killings being the most jarring example in South Africa’s constitutional era. While the Constitution has a Bill of Rights, it is however not a self-executing document. It requires further efforts on the part of the State, business and individuals to enjoy the rights and freedoms in the Constitution to the fullest extent.

It is vital that South African business adhere to core labour standards, such as non-discrimination, freedom of association and the right to fair labour practices. Ideally, businesses should support and respect the protection of human rights within their sphere of influence in addition to ensuring that their own corporations are not complicit in human rights abuses. At the same time, all this is happening at a time when the South African mining industry is reeling from years of low commodity prices; ruinous strikes and a very uncertain investment climate. Last year mining production fell by 18%. A requirement that the industry should now pay compensation to the thousands of miners who have suffered from silicosis and tuberculosis over the years might have a serious impact on the industry’s future viability.

It will be the task of the courts to find an appropriate balance. On the one hand, they will have to weigh the legally and morally justifiable claims of the miners.  On the other hand, they will have to consider the future viability of the mining industry. An industry that is perfectly compliant with every possible human and workers’ right – but that has gone out of business – will not be in the long term interest of the miners, the mining companies or the country. In the final analysis the courts might find that the proper observance of the Bill of Rights complements business practices by creating a safer working environment and therefore, a more productive workforce, which ultimately has a positive influence on the business’s bottom line. Business and human rights can complement each other. A stable, rule based society is key to the smooth functioning of business.

By Phephelaphi Dube: Director, Centre for Constitutional Rights