High Court of South Africa grants certification for largest class action mining case in history

The South Gauteng High Court in South Africa has granted approval for a class action brought by underground goldmine workers to proceed. The landmark ruling gives certification to the applicants to bring forward the action on behalf of all miners who have contracted either silicosis or tuberculosis (TB), following prolonged inhalation of silica dust from gold-bearing rocks in the mines.

Since the adoption of the Constitution of the Republic of South Africa as supreme law in 1993, class actions have formed an integral part of the legal system. This action however, will be the largest in South African history, in that the number of affected miners could be between 17,000 and 500,000 workers. Justice Mojapelo commented that its scale is “unprecedented”, and that the action “will entail and traverse novel and complex issues of fact and law”.

All but one of the respondent mining companies strenuously opposed certification, submitting that the action was “untenable and unmanageable”, particularly due to the large scale of persons involved. The court rejected these submissions, iterating that the scale of the action was not a bar to certification as the scope and definition of the class can be objectively and definitively ascertained. In order to be able to self-identify as included within the class, miners must satisfy that he or she worked for two years in one of the named mines in the action, during a defined time-period beginning from 1965, and have since been diagnosed with either silicosis or TB, both of which can be medically diagnosed with certainty.

A second objection of the defendants was that, unlike in other class actions where a number of plaintiffs take a case concerning similar claims against a single defendant, this action comprises of claims against several separate companies, regarding harm that occurred in different circumstances over a considerable length of time. However, the court chose to grant classification for action anyway as all of the mineworkers are claiming for harm attributable to the single cause of exposure to silica dust in one or more of the mines. Simultaneously, most of the defendants have indicated that they intend to raise the same defence in that the mineworkers voluntarily accepted associated risks, and common issues would thus be best dealt with in the context of a class action hearing to avoid duplication of work and to ensure consistency and avoiding any breach of judicial integrity caused by various courts reaching different outcomes having heard the same evidence.

Lastly, the court stipulated that a class action is the most appropriate and only realistic option for the mineworkers in this case to realise their constitutional right to justice. As the members of the class are not in a position to litigate individually, do not have access to legal representation, live in conditions of poverty and are battling continually “the effects of two extremely debilitating diseases”, a class action was held to be the only realistic route available to the workers to access the courts. Justice Mojapelo phrased it thus: “If the legal system is inaccessible to them then the constitutional gift of a right of access to court is illusory.”

Remarkably, in granting certification to this action, the court amended the existing common law position in order to extend the rewarding of damages to family members of deceased miners who lost their lives as result of either disease. The existing common law position held that the only exception to the rule of non-transmissibility arose where a plaintiff dies after the proceedings have reached the stage of litis contestation, where proceedings have closed and no new claims are being brought. The court held that in the interests of justice and upholding the values of the Constitution, the common law position must be amended. It was held that a huge injustice would be done if damages owed to a plaintiff were denied simply because that plaintiff died before the conclusion of the case, and for a company found guilty of negligence to benefit from the early death of a class member.

It was successfully argued that the common law rule against non-transmissibility produced a gender bias in that it particularly denied the widows of mineworkers the benefits they would receive if their family member had not deceased prior to the closure of proceedings. It was held that no logical or principled reason stood against the imperative to develop the common law to remedy this. The court further reasoned that damages awarded to family members of sufferers of silicosis and TB would go towards compensation for care work already carried out.

The class action will seek to prove that the defendant mining companies breached their duty of care toward the workers in their failure to implement proper ventilation and health and safety mechanisms into the mines. It is expected that the case may take up to fifteen years for resolution, and while the granting of certification for the action to proceed cannot be interpreted as a judicial view on the merits of the case, the development of the common law concerning damages marks an historic shift of the law. It is hoped that this decision will constitute the first step towards justice for thousands of mineworkers and their families.

For further commentary on the case click here

For a copy of the judgement click here

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