Silicosis class action bolstered by SCA ruling against mining companies

The Supreme Court of Appeal.

• The Supreme Court of Appeal has ruled against mining companies that are challenging the certification of the silicosis class action against them.
• The court said it is in the interests of justice that the class action be expedited because the claimants are poor and vulnerable.
• The judge said the issues raised by DRDGold and East Rand Proprietary Mines are not appealable at this stage.
• For more financial news, go to the News24 Business front page

The Supreme Court of Appeal (SCA) has dismissed a bid by two mining companies to challenge a court certification of a class action which could potentially result in them being liable for damages suffered by thousands of miners who contracted silicosis.

Apart from challenging the certification, DRDGold and East Rand Proprietary Mines also wanted to overturn the decision in the Johannesburg High Court to develop the common law, allowing families of miners who have subsequently died, or may die pending the resolution of the case, to benefit from any eventual damages award or settlement.

But the SCA has said neither issue is appealable at this stage and struck the matter from the roll.

This means that the class action can proceed.

At this stage there are only 69 applicants in the class action and a process is underway for others affected to either opt in or opt out of the litigation, following which “common issues” would be determined in a first round of litigation and then individual claims during a second stage.

Following the certification of the litigation as a class action, several of the initial 32 mining companies (and parent companies), the owners of 82 mines, which had been cited, entered into settlement agreements with miners who worked for them.

But DRDGold and East Rand Proprietary Mines launched an appeal with the SCA.

In the ruling handed down this week, Judge Christiaan van der Merwe, writing for the court, said it was common cause that over several decades many thousands of underground mine workers in South African gold mines contracted silicosis or pulmonary tuberculosis, caused through the inhalation of large quantities of silica dust.

Silicosis is a painful, incurable and progressive disease, often resulting in death.

It is contended by the miners that while tuberculosis is a treatable bacterial lung disease, exposure to excessive silica dust increases the risk of miners contracting it.

Judge van der Merwe said the mining companies represented virtually the entire industry in South Africa, including “parent companies” because of their controlling interest.

In the High Court, the 69 miners had presented evidence of prolonged industry-wide underground exposure to unhealthy levels of silica dust and that the mining companies had been negligent and wrong in failing to properly address this health hazard.

They said every affected mineworker – or his dependents – had a claim for damages.

READ | Fund managing mineworkers’ R5bn silicosis settlement starts paying out

After certifying the class action, the high court then signed off on a declaratory order (the declarator) which, in effect, developed the common law which up to that time decreed that any claim for general damages, pain and suffering or loss of amenities of life, terminated on the death of the claimant.

The effect of this was that mineworkers who had died, or would die before the finalisation of the litigation, would still have a valid claim and any damages would go to their estate, for the benefit of their heirs.

Judge van der Merwe said as a result of a settlement agreement signed by the majority of the mines, the certification only now applied to six mining companies. Only DRDGold and East Rand Proprietary Mines appealed.

Judge van der Merwe said orders were generally not appealable if they were not final and definitive.

“The certification is no more than a procedural device aimed at facilitating the determination of the class action. It has no final effect … and is susceptible to alteration by the court hearing the class action.

“It is not definitive of any rights.”

The judge said the mining companies had contended that should the certification not be set aside, their participation in the class action would cause them to suffer undue prejudice because they had little part to play in it.

This was because the tuberculosis claims had already been withdrawn against them, there was no parent company liability against them and they had ceased underground mining between 2000 and 2008.

Judge Van der Merwe, however, said that the trial court would have wide procedural options at its disposal and any issues unrelated to the two mining companies could be separated out.

“The appellants’ complaint of prejudice in this regard appears to be exaggerated,” he said.

“The participation of each of the appellants in underground mining constitutes a significant portion of the ambit of the remaining class action.”

Regarding the declarator, the judge said the potential class members were poor and vulnerable and the litigation had already been ongoing for ten years.

“Should we entertain an appeal at this stage, there may be a further appeal.

“For me the overwhelming interest of justice consideration is that the finalisation of the class action should be expedited.”

The court struck the matter from the roll, ordering the mines to pay the costs.