The recent High Court judgement certifying mineworkers suffering from silicosis and TB as a class has been welcomed by mining unions, jurists and mine workers.
The South Gauteng High Court ruled against 29 respondent gold mining companies allowing a class action suit by thousands of workers suffering from the fatal lung disease, silicosis and co-related tuberculosis.
The class is the largest ever to be certified in South Africa, including not just the miners with silicosis but their surviving next of kin as well. Over 20,000 former mine workers have signed up to seek damages from corporations that profited from gold yielded by mine work that they knew was hazardous to long-term respiratory health. Among them are Harmony Gold, Gold Fields, Sibanye Gold, African Rainbow Minerals and Anglo American. In their replying affidavits these mine owners argue that they cannot be responsible for mines they owned just shares in. Silicosis is also a disease that strikes many years after breathing in the silica dust that is thrown up by drilling and blasting.
It is not yet clear whether the mine owners will appeal the judgement.
George Kahn, an attorney for one of the senior counsels on the case, says the judgement was the most practical approach to the problem of mineworkers that’s over a century old. “The judgement itself is likely to be an important precedent in South African courts, not only on class actions and jurisprudence concepts,” he says. “Class actions are going to become a staple diet. We’re going to start seeing an exponential growth of class actions in South Africa in the next few decades. There’s a massive scope for class actions to take place.”
Mining unions welcome the High Court ruling
In a statement, the National Union of Mineworkers (NUM) has hailed the ruling as a major turning point in occupational health and safety in mining. NUM’s National Chairperson for Health and Safety, Peter Bailey is quoted as saying that the class action judgment will bear fruits for the sufferers of silicosis. Rather than flooding the courts with individual claims, the class action enables any current or former mine employees to ‘opt-in’ to the class. The consequences of settling damages for the industry will be massive.
One of the most ground-breaking aspects of the judgement is that it recognizes that the mines and the migrant labour system they depend on, under-developed the communities from where labour was recruited. It admits damages are transmitted through the family and down generations. “It is a controversial judgement that will have consequences for the road accident fund and others. It goes beyond the class action insofar as we have gone beyond our existing understanding in the law. It’s rationalized our legal system.”
In their statement responding to the judgement, the Association of Mineworkers and Construction Union (AMCU) described the judgment as a victory as it will allow hundreds of thousands of gold miners and their families to access justice and redress.
The mining companies have together formed the Occupational Lung Disease (OLD) working group to deal with such issues. Alan Fine, a spokesman for OLD said in a statement the gold companies were studying the judgment and each firm would decide whether to appeal the court ruling. “Either way, it should be noted that the finding does not represent a view on the merits of the cases brought by claimants,” Fine stated.
Mine owners on the defensive
Proving that the mine owners are responsible for silicosis will follow complex legal argument. It will be difficult for the mine companies to prove that they were not aware of the epidemic when they were meant to be measuring dust levels as well as the health of their workforce. Anglo American has already indicated that it cannot dodge its responsibility. Earlier this year the corporation came to a R500-million settlement with over four thousand of its old mine workers who have silicosis. The class action brings the day of reckoning for all profiteers from sickness and death closer.
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