In the first round of a class action lawsuit, which has garnered a lot of international publicity, silicosis claimants had their class action lawsuit approved. This move could potentially cost the gold mining industry upwards of $3.25 billion USD.
Back in May 2016, the High Court in Johannesburg South Africa, awarded the certification judgment which has provided the opportunity for approximately half a million miners to claim compensation from former employers.
In the last 10 years, lawyers in the United States, United Kingdom and South Africa have been making alliances in the effort to pursue compensation for the affected miners and their families. Initially, prosecution of damages in the UK was hampered by the English Court of Appeal, who refused to exercise jurisdiction over a mining company domiciled in the UK. That case was Young v Anglo American South Africa Ltd and Others, 2014. It is worth noting that damages are generally more generous in the UK than in South Africa.
In South Africa, back in 2006, an initial action by Mr Makayi for damages against his former employer, AngloGold Ashanti, was started. It alleged that their negligence resulted in him contracting silicosis.
The disease is only contracted through exposure to silica dust, a byproduct of mining for gold. It is alleged that the risk of contracting tuberculosis is increased by inhaling the dust, resulting in the disease.
The company challenged the action and claimed that Mr Makayi had been compensated through statutory framework under the Occupational Diseases in Mines and Works Act of 1973.
However, the Constitutional Court in South Africa decided that the statutory framework was separate from a compensation framework created by the overarching legislation. As a result, the claim was approved to proceed. As a result, this opened up the courts to three separate groups of litigants who sought certification for a class action suit against their own mining employers
In 2012, those three applications were consolidated – in 2015 they were argued, giving rise to the May 2016 certification judgment. The consolidated case is Nkala and Others v. Harmony Gold Mining Company Ltd and Others, 2016.
Initially, the court determined that notwithstanding, prosecution based on an alleged breach of a fundamental right in the South African Constitution meant certification by the court was necessary. It made the decision based on limited local jurisprudence because class action lawsuits are relatively new in South Africa. Failing to certify could potentially lead to an abuse in process.
Next, the court looked at whether the applicants met the requirements for certification, namely:
- Whether the class was defined with the appropriate precision
- If there were common issues of fact or law capable of class action determination
- Whether allowing for a class action suit was appropriate in the circumstances
Despite the overbroad definition of the classes, including miners who had silicosis or tuberculosis or their descendants, or the fact that the period covered was lengthy, including all those affected after 1965, the court decided that the proposed class was capable of objective determination.
It was also considered whether there were enough common, factual issues that could be dealt with; regarding claims against mine operators, the court pointed out that applicants should provide evidence of the following:
- Mining companies working to deprive miners of basic health and safety rights
- A relationship between silica dust exposure and silicosis
- Reports by different commissions showing lack of compliance with statutory rights
- That since 1990, mining companies were aware silicosis was preventable through safer mining practices
- That the results of investigations demonstrated exposure to silica dust and flouting internationally-accepted best practices
The court also decided that given the amount of technical evidence, individual miners would struggle to prosecute their actions separately. As the evidence applied generally to each of their cases, multiple claims would only be a burden on the court system and swamp them with repeat evidence. As such, a class action suit was deemed to be more appropriate.
Next, the court ruled that parent companies that advised and guided operating companies should also form part of the class action lawsuit because they could answer factual issues the claimants presented.
The information presented satisfied the court that the matters of law could be dealt with most effectively in this way, including:
- Whether any breaches of health and safety legislation could increase the imposition of strict liability
- If both joint and several liability could be imposed on multiple mining companies if they had employed the same miners
- Whether causation could be of the legal principle could be determined, shifting the burden of proof to prove miners who contracted silicosis or tuberculosis did so at the hands of their former employers
Ultimately, the court decided a class action lawsuit was the most realistic way to provide access to the courts to pursue this matter. While this decision was expected, the more noteworthy decision was that damages for pain and suffering could be transferred to miners’ estates even after pleadings were closed.
On the other hand, the miners argued that the rule of common law infringed on provisions to protect them under the South African Bill of Rights. These included the right to equality. The court also took into consideration the other jurisdictions such as the UK and ruled it would be a huge injustice if common law wasn’t appropriately applied.
Most recently, on 6th July the mining companies filed the intention to appeal. The case will now proceed through the court system; if and when it’s heard, it will certainly result in more upheaval of the gold mining industry. It should also impact how South African jurisprudence is developed.
What this case really shows is that between the claimants and the international jurisprudence, it has truly become far more than just a South African issue. This is truly an interesting matter that will continue to garner attention worldwide; many mining companies and investors will be closely monitoring the outcome.
