Landmark silicosis case kicks off

Johannesburg - More than 40 advocates have gathered in the Johannesburg High Court today to hear class certification arguments lodged by gold miners against gold giants.

This landmark case dates back to December 2012 when one of the lawyers, Richard Spoor, filed a motion and supporting paperwork requesting class certification of more than 15 000 prospective class members.

In a statement issued on Monday, the Legal Resource Centre notes the lawsuit - seeking compensation for miners affected by silicosis and tuberculosis - kicked off after law firms Abrahams Kiewitz Incorporated, Richard Spoor Incorporated and the Legal Resources Centre filed paperwork.

“Together, these three firms rep­re­sent tens of thousands of affected mineworkers from across southern Africa, and the dependents of deceased mineworkers, suffering from silicosis and tuberculosis.”

The case is seeking civil damages due to breaches of statutory, constitutional and common law duties by the gold mining companies of South Africa, in regards to their control of silica dust in the work­place, says the LRC. The class sizes are potentially hundreds of thousands and the damages are potentially billions of rand, it says.

Spoor’s site notes there are 31 proposed class representatives from areas that include the Eastern Cape, Lesotho, Botswana and Mozambique - areas historically known for supplying migratory labor to the gold mines.

The litigation alleges that the respondent gold mining companies knew of the dangers posed to miners by silica dust for more than a century and claims they are liable for 12 specific forms of neglect and endangerment. The litigation names 29 respondent gold mining companies incorporated in the Republic of South Africa, the most inclusive list of gold mining companies named in any legal action to date, says Spoor.

Landmark decision

Until recently, this sort of legal action was not possible. In March 2011, the Constitutional Court of South Africa issued a landmark ruling in another of Spoor’s cases, Mankayi v. AngloGold Ashanti, that paved the way for this litigation.

“That case was filed by now-deceased miner, Thebekile Mankayi, against AngloGold Ashanti, the operator of the Vaal Reefs mine in which Mankayi contracted silicosis and tuberculosis. Mankayi had been given a limited payout for his injuries under the terms of the Occupational Diseases in Mines and Works Act (ODIMWA), but he filed suit under common law for his full loss of wages, damages and medical expenses.

“The Constitutional Court’s decision, which overruled both the High Court and the Supreme Court of Appeal’s previous decisions, affirmed injured workers’ rights to sue employers for fair compensation and broke new legal ground for not only workers’ rights but also for the South African legal system and public health,” notes Spoor’s site.

The current hearings will run from October 12 to 23 and the court will hear argument on behalf of the mineworker applicants, The Treatment Action Campaign and Sonke Gender Justice as amicus curiae, and then from the mining company respondents.

Should the court certify the class, the law­suit will proceed as the largest ever class action lawsuit in the country and on the continent, says LRC.

However, should the bid be denied, affected mineworkers will be forced to bring their damages claims on an individual rather than class-wide basis.

“The law­suit has enormous significance for the affected mineworkers, the gold mining industry in South Africa, and class action jurisprudence as a whole in South Africa.”

Spoor notes it has been estimated that one in four gold miners in South Africa suffer from silicosis. “We believe that approaching these claims on a collective basis is essential in order to provide access to justice for mine workers and their families, who otherwise have neither the knowledge nor the means to undertake legal proceedings independently.”