16 May 2016
On Friday, Judge Phineas Mojapelo handed down the court’s findings on the landmark silicosis judgment.
In the case of Bongani Nkala and 68 Others v Harmony Gold Mining Company Ltd and 31 Others, Mojapelo and two other judges addressed this question: can mineworkers and former mineworkers bring action for damages as a class, against gold mining companies for negligence as a result of which they were exposed to dust that caused silicosis and/or TB.
The litigation could run into billions of rands. All the big mining companies are affected, including Anglo American, Anglogold, Gold Fields, Harmony Gold, Randgold, DRDGold, and African Rainbow Minerals. Anglo American has described the case as “without precedent in South African law and indeed in any other jurisdiction in the world”.
According to Judge Mojapelo, the 69 applicants so far included in the proceedings do indeed represent up to 500,000 current and former gold mineworkers and their dependents in all the southern African countries from which people come to work on the South African gold mines. More than 45 of the applicants were silicosis patients, with or without TB, and more than 25 of them were TB-only cases. The applicants were represented by Richard Spoor Inc, Abrahams Kiewitz Attorneys and the Legal Resources Centre (LRC). The Treatment Action Campaign (TAC) and Sonke Gender Justice, represented by SECTION27, participated as friends of the court (amicus curiae). (You can read the first few pages of the judgment to see who all the applicants and defendants were.)
This issue has been extensively covered by Groundup over the past nine months, including the details of the ten days of court argument which resulted in this judgment.
The judgment was damning for the mining companies. The court dismissed all their legal arguments against certification as being without merit. The court also upheld every argument by mineworkers’ legal representatives as to why and how certification should proceed. In doing so, the court drew on international legal precedent on both class action litigation and common law, from the UK, Australia, Canada, and the USA. The judges also drew on South African legal history, in one instance going back 100 years, roughly the lifespan of the South African gold mining industry.
In reaching its conclusions, the court significantly amended the common law, ruling that dependents of all South African litigants in common law delictual damages cases will inherit the claims of family members who die before their cases are settled, in whatever circumstances, whether these claims are made through class actions, or individual actions.
Judge Wendell held that this amendment to the common law should only apply to class action cases, but this opinion was not shared by the other two judges because of its discriminatory implications with regard to equality before the law, which is enshrined in the Constitution. This was the only dissenting finding in the judgment.
In ruling this way, the Court drove a bus through the current “irrational, unjust and discriminatory” common law which holds that dependents can only inherit damages awarded if an applicant happens to die just before judgment is handed down in a delictual damages case.
In ruling on this significant development of common law, the judgment upheld the arguments of the TAC and Sonke Gender Justice, unchallenged by the mines’ legal representatives, that the lives of female dependents of sick mineworkers had been completely reversed by having to care for sick miners in poverty-stricken rural and peri-urban areas with no help from the mines who allegedly caused the sickness in the first place.
The ruling stated clearly that this had worsened rural poverty by preventing these women from earning income, engaging in subsistence activities, or education for the betterment of their family circumstances. The common law denial of damages to these women and their families, according to the court, would be a breach of the constitutional right to gender equality.
The mining companies opposed this development of the common law and argued that at best it should only apply from the date of the trial. But the court ruled that on the contrary it will apply from the beginning of the litigation for the class action case (lodging of court papers in 2012). This means that the dependents of any sick mineworker who died after that date will still inherit any damages awarded, whether through an out-of-court settlement, or by trial of the class action case, no matter how long the mining companies delay such a final settlement.
The ruling noted that mineworker applicants expressed their frustration with the mining companies’ methods in the hearings, alleging the obstruction of justice. It also noted that the mining companies’ legal representatives had not responded to this allegation. The Court found this attitude “unfortunate”, because, the judges wrote, it is a serious allegation worthy of considered response, since obstruction of justice “damages the integrity of the legal system”.
Since 2012, five of the applicants in the Spoor application have died, and eight out of 24 of the LRC applicants have died since 2013. If the potentially 500,000 current and past mineworkers in the class the court has certified are dying at even half of this rate, we begin to understand just what damage the gold industry is accused of inflicting on sub-Saharan Africa, not only in the past five years, but in the past century and more.
The coverage of the court case described in detail the arguments of the mining companies against certification of the class: unmanageability, discriminatory against mineworkers who want to institute individual action, proliferation of sub-classes, non-commonality of issues, variations in the levels of dust and working practices in the different mines, and so on. The Court found that all of these were without merit. It certified the class action in line with the proposal in the mineworkers’ depositions.
The ruling divides the class action into two main sub-classes; those with confirmed silicosis, with or without confirmed TB, wherever they live, who could show they worked underground in one or more of the respondent mines from 1965, for however a short a period; and those with TB only who worked underground at one of the respondent mines for at least two years over the same period. The date 1965 was chosen to coincide with the implementation of new regulations on mine dust control under the Mines and Works Act 1956, which the mineworkers’ shocking affidavits say were flouted, and in recognition of the fact that it is unlikely that anyone who began work in gold mines before that date and who contracted one of the diseases would be still alive.
Members of each sub-class who worked at any one or more of 82 actual mining operations listed in Annexure A of the judgment are included. Any individual mineworker who is part of any other litigation on the same issues, ongoing or settled, is excluded from both sub-classes.
The mining companies had used precedent to argue that because TB is not caused by crystalline silica but by a bacterium, and that other factors such as smoking and HIV may be more important than dust exposure, including a class for TB-only would require the mineworkers to prove that in the absence of exposure to silica dust they would never have contracted TB, which is of course impossible.
However, the court dismissed this argument, and pointed to more recent precedent in common law, which allows for causation to include the concept of increased risk of harm. Since exposure to respirable silica dust weakens the human immune system, it increases the risk of contraction of TB, and therefore compounds the effect of other causes, such as overcrowding and poor conditions in mine hostels, also factors over which the companies had exclusive control, and which feature prominently in the depositions of the mineworkers.
Again, contrary to the depositions and arguments of the mining companies, the court ruled that there would be two phases of the class action trial. The first would deal with common issues applicable to all the applicants and respondents (such as mine ventilation practices, provision of personal protective equipment, watering down dust, dust monitoring, and other technical issues, as well as training and informing mineworkers of the dangers of dust and how to avoid it, and hostel conditions), and the allegation by the mineworkers that the policies of the individual mines on these issues was determined centrally by the Chamber of Mines, thus ensuring “commonality” of issues in the class, though with unimportant variations between individual mines.
Once these common issues had been put to trial and determined, and assuming that the mineworkers established liability for the disease burden in the process, the second phase of the class action would decide on individual issues, without having to prove the common issues which had already been determined. This phase would examine issues such as proof of employment and disease in each case, length of service in the respondent mines, and damages claimed in each individual case.
In line with the arguments of the mineworkers, phase one of the class action trial is to be on an opt-out basis; workers who don’t want to be included will have the opportunity to count themselves out.
Phase two will be on the opposite, opt-in basis: when the common issues have been adjudicated, and if the mineworkers are successful at that stage, those who wish to be included in the determination of damages resulting must opt in.
This process, ruled the court, would be achieved through two separate official and approved notices to mineworkers explaining what they have to decide at each stage, and how to register or not. The Court regarded this as the best way to give individual mineworkers who are potential members of the two sub-classes the maximum amount of choice while maintaining their constitutional and legal options for redress.
The Court ordered each of the two parties to disseminate the notices widely in various media within their constituencies throughout Southern Africa, giving broad discretion to the mineworkers’ representatives to choose the most effective and comprehensive organizational outlets that exist within civil society on the sub-continent. It furthermore ordered that the mining companies must pay half the very substantial costs incurred by the mineworkers’ representatives in this exercise.
The ruling is extremely specific as to how these notices will be disseminated. The text of the notices is given in the judgment, along with a text for radio notices. Fifty newspapers are named, including 16 in other Southern African countries. A long list of radio stations is also given. The notices have to be in multiple languages.
The court ruled that the notices must also penetrate the mines. Each mine in the list is ordered to post the notice in a prominent place at each mine for 180 days, as well as on all company website home pages. Given the direct contact that all mineworkers have through their community networks in the labour sending areas, this is likely to be highly effective in getting the word out.
The court ordered that the parties must report quarterly on progress to the court. Any out-of-court settlement reached will have no effect unless approved by the court, in the interests of justice.
The court found none of the arguments against this process from the mining companies had any merit. The judges noted that the companies had accepted the argument of the miners that individual litigation by so many poor and sick people and their dependents in isolated and inaccessible areas would mean that they would effectively forfeit their constitutional right to redress. So the court was unimpressed that the companies continued to argue that individual litigation was the only possible solution, without putting forward any third possibility.
This ball is rolling, and will have political and economic effects throughout southern Africa.
The mining companies have two options. Either they can offer a settlement that will be acceptable to both the mineworkers and the court, or they can defend the class action litigation, trying to drag this matter out for many years. The latter option is unlikely to be the best option for the companies, the sick mineworkers or their families.
For mineworkers to win compensation through the courts, they will have to win both the first phase of the class action case, in which common issues are dealt with, and then each miner (or his surviving family) will have to win a case dealing with matters specific to him. This could take a long time, but if the miners win phase one, there will be many lawyers willing to represent them on a contingency basis, because winning compensation in phase two cases should be quick and highly probable. One lawyer explained to us that a good comparison is Road Accident Fund cases. Many of these are litigated daily and swiftly.
The court option is not an appetising option for the mining companies. For years their balance sheets will have to record contingent liabilities with much uncertainty about how large an amount they will have to pay out. This will not please their shareholders. The phase one class action case will be a public relations nightmare for the mines: picture a Truth and Reconciliation Commission but with justice meted out to the perpetrators at the end. And the cost of legal fees and final compensation amounts will likely far exceed what the companies can negotiate through a settlement.
The silicosis court judgment might turn out to be one of the most redistributive measures in post-apartheid South Africa.