The sheer scale of it is mind-boggling. If it succeeds, this will be the biggest class action suit in South African history.
Thousands of former mineworkers from gold mines want damages from about 32 mining companies for the silicosis and tuberculosis (TB) they have contracted, allegedly as the result of negligence on the behalf of the mining companies. This happened because of prolonged exposure to “excessive” levels of silica dust.
Among the respondents are mining giants like Harmony Gold, AngloGold, and Goldfields. All are looking at massive damages claims if they lose and all have opposed the application, brought on Monday, to have this suit declared a class action suit.
The rich, the famous and the poor
The first five rows of benches in the high court in Johannesburg are filled with at least sixty lawyers. A star-studded ensemble of the biggest, most famous, most successful senior counsel in legal fraternity and their entourages of juniors.
Behind them in the public gallery, ageing mineworkers, grey-haired and lean, unionists, activists from civil society, more lawyers, and, at one time, the original human rights lawyer, George Bizos.
Among those represented are some of the biggest gold mining companies in the country, perhaps even the world. And hundreds of thousands of sick, dying, or dead underground gold miners, and in some cases, their dependents.
The mineworkers say, in court papers, that the companies are guilty because “they consistently and systematically failed for generations to employ proper measures to protect mineworkers against excessive levels of dust and the concomitant risks of silicosis and tuberculosis”.
The miners want to take on their former employers in a class action suit, but before they can do this, a court has to agree to hear it in this format. To have their action certified as a class action is what is now before the high court in Johannesburg. Arguments began on Monday and will continue for the next two weeks.
The case is the result of years of activism and litigation by Richard Spoor, of Richard Spoor Attorneys, who took on the gold miners’ case.
On Monday, advocate Wim Trengove SC, opened up arguments on behalf of the mineworkers.
In court papers, it was suggested that about 196 000 gold mineworkers in South Africa and 84 000 more migrant workers from neighbouring countries have silicosis. And there are an estimated 50 0000 more cases of occupational lung disease.
In South Africa, the prevalence of silicosis and TB among gold mineworkers are some of the highest in the world, and “of epidemic proportions”, the court heard.
The court also heard that exposure to harmful amounts of silica dust is the only cause of silicosis, which is found in gold mines in the Witswatersrand and in the free State.
The disease is irreversible and incurable and symptoms can sometimes occur years after exposure.
‘Powerful commercial incentive’
In court on Monday, Trengove said the applicants submitted that the mining companies had failed to protect their workers because statutory compensation was cheaper than the costs of implementing the safety measures.
Trengove said the mines had a “powerful commercial incentive” not to take proper safety precautions.
It is estimated that hundreds of thousands of workers would join the class action suit. Trengove said the question was how best to bring justice to them. A “typical” claimant would be 70-years-old, having worked at a mine since 1965 until about 2005.
These workers had a right to the judicial determination of their claims, Trengove said.
And so the court had to decide the best way to give effect to this right.
“The question is not whether they should sue, but how they should sue,” Trengove said.
Trengove argued that the mineworkers had a Constitutional right to access to the courts, which none of the mining houses had denied. And the only way to give effect to this right was through a class action suit.
“It is the only practical way. Certainly, it is the only appropriate way,” Trengove told the court.
The applicants argued on Monday that the only way forward was for a class action suit.
“There is no other realistic second horse in the race,” Trengrove said, referring to the various kinds of action the court could consider.
He said a class action suit was “the only practical way to bring justice”.
Trengove said the mining houses had opposed the class action suit to avoid liability entirely.
He said this was clear because none of them had come up with an alternative way of proceeding besides the class action option.
“None of the respondents engaged in that exercise,” he said.
The court had three possibilities before it: to either certify the class action, or to rule that there had to be individual complaints against each mine. A third way was to sub-divide the class actions into catagories, for example, by mine, by the period worked at each mine, or by the age groups of each worker.
But Trengove said that would still leave the court with up to 80 separate actions, with “thousands” of applicants in each action.
He also said that come claimants would straddle two or more catagories, having worked for more than one mine in their lifetimes.
There would also be a duplication of evidence across the various cases.
AngloGold had accused the miners of asking for a “blank cheque”, Trengove said.
“Not so,” he said. “We are asking for a process regulated by the court at every step of the way.”
At the heart of the case is whether there are sufficient commonalities between all the individual complainants to justify a class action suit. Trengove was asked by the court whether it would be sufficient if there were only two issues that were common.
He said that it would be, if these issues were material to the case.
Years of turmoil
Trengove said that all the complainants were mineworkers who had worked underground at one of the mines listed in the papers, at any point from 1965 onwards, and who had contracted silicosis or TB. The dependents of some of those who had died were also complainants. A condition was that themineworkers had to have worked at a mine for a minimum of two years.
Goldfields says that TB is too individualised a disease to be suitable for class action. Trengove said that while the direct link between silico dust and TB might be “controversial”, that was not an issue for this court to decide.
He said that would be decided by the trial court with the help of medical experts and other evidence.
But it was an issue that would arise in every individual case, he said, and so this was a common issue which only strengthened the case for the matter to be certified as a class action.
He said another commonality between the complainants was liability: that all mines had allegedly failed to control the levels of dust “as they should have done”.
Ultimately, Trengove said this court would not have to decide the merits of the mineworkers’ cases. It would only have to decide whether there was a prima facie case against the mining companies, and whether there was sufficient commonality among the applicants to justify a class action suit.
The case continues on Tuesday.