The first round in the highly publicised silicosis class action litigation in South Africa – which could cost the gold mining industry almost $3.25bn – was recently decided in the claimants’ favour. On May 13, 2016, the High Court in Johannesburg certified the class action (the “certification judgment”), opening the door for about half a million miners to unite to claim compensation from their former employers.
Silicosis is a debilitating disease that can only be contracted through exposure to silica dust, a by-product of gold mining. The risk of contracting tuberculosis is allegedly increased through inhalation of silica dust.
For more than a decade, US, UK and South African lawyers have formed various alliances to pursue some form of redress for the miners. Prosecution of damages claims in the UK (which has a more generous damages regime than South Africa) was ultimately thwarted by the English Court of Appeal when it refused to exercise jurisdiction over a mining company domiciled in the UK (Young v Anglo American South Africa Ltd and others (2014)).
The South African scene was set in 2006 by what became a seminal action by Mr Makayi for damages against his former employer AngloGold Ashanti, flowing from their alleged negligence in causing him to contract silicosis. AngloGold Ashanti challenged the action stating he had in fact been compensated under the applicable statutory compensation framework Occupational Diseases in Mines and Works Act, Act 78 of 1973 (ODIMWA).
It was ultimately decided by the country’s apex court, the Constitutional Court, that the statutory compensation framework created by ODIMWA was separate from the compensation framework created under the overarching legislation and that the claim could, in principle, proceed.
This opened the floodgates for three separate groups of litigants beginning the arduous task of trying to obtain certification for a class action against the mining houses. These applications, brought in 2012, were consolidated and argued last year. It is this consolidated application that gave rise to the certification judgment (Nkala and others v Harmony Gold Mining Company Ltd and others (2016)).
The court first determined that notwithstanding the prosecution of claim was based on an alleged breach of a fundamental right contained in the South African Constitution, certification by a court is necessary. It did so based on limited local jurisprudence, given that class action litigation is in its infancy in South Africa and failing to certify could lead to an abuse of process.
The court then considered if the applicants had met the requirements for certification, including: whether the class was defined with sufficient precision; whether there were common issues of fact or law that are capable of class-wide determination; and whether allowing a class action was appropriate under the circumstances.
The proposed class included mineworkers who had silicosis or tuberculosis, or their dependants. The court ruled that notwithstanding the overbroad definition of the classes or the lengthy period covered (all those affected after 1965), the classes are capable of objective determination.
In considering whether there were common issues of fact that could be dealt with, and in relation to claims against actual operators of the mines, the court noted the applicants would adduce evidence of the following: mining companies acting in “concert” to deprive the mineworkers of basic health and safety; the relationship between exposure to silica dust and silicosis; reports by various commissions of enquiry showing practices of lack of compliance with statutory prescripts; that since 1990, the mining companies knew silicosis was preventable through effective practices; the results of numerous investigations undertaken that demonstrated exposure to silica dust; and flouting of international best practice.
The court decided given the technical nature of the evidence, the individual mineworkers would struggle to prosecute individual actions; that the evidence would be applicable to each case prosecuted; and if each claimant was allowed to prosecute a claim, it would burden the courts with evidence that would be repeated. Accordingly, there were sufficient issues of fact that could be dealt with by way of a class action. It was ruled that parent companies – ostensibly advising and guiding the operating companies – should also form part of the class action because they would have to answer to a number of the factual issues raised by the claimants.
The court was satisfied there were sufficient matters of law that could be dealt with by way of a class action including whether breaches of health and safety legislation could give rise to the imposition of strict liability; whether joint and several liability could be imposed on multiple mining companies where they employed the same mineworker; and whether causation could be determined with reference to the legal principle of “the matter speaks for itself” (which would shift the burden of proof of showing that the claimant did not contract silicosis or tuberculosis on to the mining houses).
In considering the appropriateness of a class action, the court considered the fact not all issues of fact or law could be determined in the action. However, save for suggesting that each mine worker should institute a separate action, the mining companies had no answer to the charge by the applicants that “their vehement opposition to the application for certification is indicative of a determination to prevent the mineworkers from receiving justice, and that they have been single-minded in their desire to escape liability for their alleged pervasive, relentless and intense neglect of the health and safety of the mineworkers”. The court concluded a class action was the only “realistic” way to give access to the courts.
While the decision to certify the class action was expected, more surprisingly, the majority decided that general damages for pain and suffering could be transferred to the mineworker’s estate even after “litis contestatio” (close of pleadings). The mineworkers argued that the common law rule infringed a number of provisions in the South African Bill of Rights, including the right to equality, by “setting apart and discriminating against those who have succumbed to their illnesses pre-litis contestatio from those who had been fortunate enough not to have succumbed to their illnesses pre-litis contestatio”, which is both unfair and irrational. The court considered other jurisdictions, including the UK, and ruled that a “huge injustice” would result if the common law was not appropriately developed.
On June 6, the mining houses noted their intention to appeal and the matter will now continue to wend its way through the court system. If and when the class action is heard, it is destined to send more tremors through the industry and to further impact fundamentally on the development of South African jurisprudence. More than anything else, the case already demonstrates, through the co-operation between claimant bars and the influence of international jurisprudence, how global this issue has become.