Listening this week to the lawyers of the defendants – 32 mining companies – a casual observer might be forgiven for thinking these were the “little guys” in the court case in Johannesburg. Words and phrases like “prejudicial” and “oppressive to the defendants” abounded, along with assertions that a case such this is “a subtle threat to settle”.
The other side: a class of at least 100 000 silicosis sufferers, and another 200 000 with tuberculosis, who have worked on the gold mines since 1965.
Last week the applicants – the former gold mineworkers – asked the high court to certify an application to have the case tried as a class action suit against the mining houses – that they collectively be held responsible for the suffering of the mineworkers.
This week, the mining houses’ lawyers acknowledged there was no doubt that these former gold mineworkers were indeed suffering, and were possibly even deserving of compensation. But the nature of the case they were trying to bring against the mining industry was simply impossible to answer. The case is “unmanageable”, “unworkable” and “unfair”, the court heard this week.
It wasn’t until Wednesday that the issue of liability arose. Thus far, mining companies arguing before the high court in Johannesburg have tiptoed carefully around the charge that they are responsible for the silicosis suffered by hundreds of thousands of former gold mineworkers.
It was not that a case like this would be impossible to try, lawyers argued in court this week. But the case simply could not be prosecuted in the way the applicants have asked, which is to try all the mining companies as one class of defendant.
The case was brought by three legal teams, led by lawyers Richard Spoor and Charles Abrahams, and the Legal Resources Centre (LRC), respectively.
They have asked the court to certify the case on the grounds that a class action is the only way to try a case of this magnitude, and that it is in the interests of justice to do so.
But lawyers for the mining companies say the case is unmanageable.
As advocate Chris Loxton SC, the counsel for Harmony Gold, put it, a class action like this could go on for 10 years, and then the youngest member of the Bench would hear it.
The applicants have argued that the class should be split in two: one for victims of silicosis and silico-tuberculosis, and another for tuberculosis sufferers. The applicants have suggested that there should be two phases to the trial: one for the common cause and one for individual issues. Phase one would involve an “opt-out” option for the miners, and phase two an “opt-in” option.
In other words, there will be an unlimited number of claimants in phase one, and any mineworker who does not want to sue can opt out. The inverse will be true for phase two.
Mining houses said this was unfair, because they would not know how many claimants they would be dealing with in phase one.
The counsel for Anglo American, Michael van der Nest SC, echoed the other mining houses when he told the court this week that the inclusion of the tuberculosis class was a problem. He said there were seven other factors besides the inhalation of dust that could lead to the contraction of tuberculosis. These included HIV, age and smoking.
The applicants want the class to consist of former mineworkers who have either disease and who worked underground for at least two years, at any time from 1965.
Van der Nest said there was no evidence that exposure to silica dust, which causes silicosis, increases the risk of contracting tuberculosis.
Then there was the problem of “averaging”, as Michael Kuper SC, also representing Anglo American, put it. This argument is linked to the allegation that the mining industry as a whole was negligent in failing to protect workers from high levels of silica dust.
He said there was no way to try all 32 mines as one class because systemic negligence could not be proved, unless it could be proved that each mine was individually negligent.
“It’s the age-old problem of guilt by association,” Kuper said.
Although the applicants don’t have to prove the guilt of the mines at this stage of the process, they are required to make out a prima facie case against the mines, which the trial court will hear.
Kuper said this could not be done.
The applicants argued that international best practice on reducing silica dust levels underground was well known, but the mines each failed to reduce the dust levels, making thousands of miners sick.
Advocate Wim Trengove SC, for the applicants, had previously argued that this was not just out of negligence – the mines did this because the cost of paying out potential statutory damages claims was less expensive than installing proper safety measures.
But Kuper said the issue was far more technical than just international best practice. Guidelines on reducing silica dust had existed, but these were only legislated in 2002.This made the problem of certifying an entire class of claimants, from 1965 onwards, impossible, he said.
Data sets of silica dust levels in the mines over the years could not be admissible in court, as they did not say which individual mines were tested.
Various sampling and testing measures had been used over the years, making reliable data on silica levels difficult to find, he said.
Advocate Jeremy Gauntlett SC, for Gold Fields, said the “unmanageability” of the proposed class action was made worse by the period of time involved. He added that the law was “far less demanding” in the 1960s.
“Even the geology has changed,” he said. The trial court would have problems going back and forth between mines during arguments, “like, ‘hang on, which mine are we talking about?’ ”.
Although “societally one looks for sweeping all-embracing solutions to human misery,” collective guilt was a concept rejected in law, Gauntlett said.
“We do not advocate for a long queue of claimants all the way to Maseru, each wanting to make individual claims,” he said, but argued this case could not be certified in the way the applicants wanted it to be.