/ 14 October 2015

Silicosis class action: A question of manageability

Kholekile Rouben Mdaka is one of 3500 claimants bringing a class ­action against Anglo American South Africa.
Kholekile Rouben Mdaka is one of 3500 claimants bringing a class ­action against Anglo American South Africa.


A hundred thousand damages complaints. 

As one advocate put it on Tuesday, there is no denying that the case is extraordinarily large, and complicated. And so the question being grappled with this week was how to process the complaints of 100 000 sick and dying former mineworkers. 

Thousands of miners who suffer from silicosis or Tuberculosis (TB) had asked the high court in Johannesburg to certify a class action suit that would allow them to sue 32 gold mining companies for damages. Silicosis is caused by silica dust found in the gold mines of Witswatersrand and the Free State. It is an incurable and progressive disease. Many miners are also suffering from TB, which they allege they got while underground. 

In this case, the applicants are 59 ex-mineworkers. But they represent potentially 100 000 workers who could become part of the class action, if it is certified. The Mail & Guardian understands that there are potentially 300 000 ex-mineworkers suffering from silicosis, who could become part of the claim. But, realistically, lawyers say the number is likely to be closer to 100 000 workers who will become part of the case. In reality, this means that 100 000 damages claims will be filed against 32 mines. All the mines have opposed the application to have the case certified as a class action except for Rand Gold, which has said it will abide by the court’s decision. 

These mineworkers will argue that the mines violated their Constitutional rights by exposing them to “disease and death”, as stated in their heads of argument. 

They have already told the court that the mining companies failed in their duty to take steps to prevent silicosis. The court will hear that the mines had a legal obligation to protect them from harm under common, statutory and Constitutional law.  

Advocate Geoff Budlender said on Tuesday that there was “systemic negligence” across the gold mining industry and that “striking” similarities in the way each mining company had dealt with the problem of silica dust suggested the companies had exchanged information.

He said there were various ways to deal with the dust and that while the companies may have differed on what equipment to use, for example, they all agreed on how to reduce the risk of silicosis. This includes filtration of the silica dust underground through proper ventilation, adding water to the dusty rock, removing the miners from the explosion area quickly after blasting and diluting the dust in the air, also through proper ventilation. According to some miners, at times they were not given masks underground. Budlender said the dust control mechanisms were “universal, across the industry … There is a striking consistency in how all the respondents addressed this [question]. Not everyone used the same means, but everyone knew what was necessary.”

This is an important point, because if the court accepts it, it adds weight to the applicants’ argument that the case should be tried as a class action. The applicants need to show sufficient commonality. In other words, they need to show why each mining company should not be tried separately.

Establishing “systemic” issues that cut across the industry and were not unique to individual mines could go some way to demonstrating commonality. Advocate Steven Budlender, arguing for the applicants, told the court that there was no alternative to a class action suit. He was tasked with arguing about the issue of manageability on Tuesday.

Some of the mines have said in their papers that the class action is simply too enormous to be processed through the courts. They say the scale and cost of the suit makes the entire endeavour impractical. But the applicants say this is exactly the reason why the suit can only go forward as a class action.  

Advocate Wim Trengove, for the applicants, said on Monday that the sick mineworkers had a Constitutional right to have their case heard in court. He said the question to be asked at this stage of the proceedings was not if there should be litigation against the mining companies, but how that litigation should happen. 

On Tuesday, advocate Steven Budlender echoed this. He said that access to a judicial remedy was the mineworkers’ constitutional right. The applicants have proposed that the class action be divided into two stages: in the first stage, the issues that are common to all the complainants will be dealt with. In the second stage, the complainants’ individual issues will be dealt with. Budlender said that if the class action was not certified, “the common issues will have to be litigated 100 000 times”. 

Suing parent companies
Budlender said that the manageability issue was not a question that could be asked in a vacuum. Advocate Jason Brickhill, for the applicants, argued another critical leg of the class action: parent company liability. The applicants have sued the parent companies of some of the mines, but the parent companies will later argue that they were not responsible for what the mines did. 

Brickhill said this was not true. In the case of AngloGold Ashanti, whose parent company is Anglo American, Brickhill said the latter had “direct” involvement with the operations of the mines it owned for a period of time. Anglo American said its relationship with its 11 mines differed from mine to mine and had changed over time.  But Brickhill said the parent company had given its mines advice on medical issues, ventilation underground and risk management. Anglo American had also given advice to mines on dust control on an ad hoc basis, he said.

In 1973, he said Anglo American had advised its mines on how regularly workers should be screened for pulmonary illnesses. As the applicants want the case to include miners who had worked underground since 1965, this date matters a great deal. But the kicker was when Brickhill said Anglo American had devised a group policy on medical issues.  And AngloGold Ashanti said previously that it was “owned, controlled and administered” by Anglo American. 

“Anglo American doesn’t deny controlling AngloGold; it denies negligent control. It was deeply involved in the operation of its mines,” Brickhill said.  

The case continues.