Many people have lost loved ones due to awful diseases such as silicosis and tuberculosis. Silicosis is a lung disease that is incurable. It is caused by inhaling silica dust from gold-bearing rocks over a prolonged period. It causes shortness of breath, coughing, fever and chest pains. People often confuse silicosis with tuberculosis (TB). Tuberculosis is an infectious disease caused by bacteria. Like silicosis it also affects the lungs but can affect other parts of the body as well. If people who have active TB in their lungs cough, sneeze, spit or even speak it may be contracted by persons next to them.
Disabled workers cannot take care of their families. The miners who are suffering from these diseases are now getting a chance to fight for what they deserve in terms of compensation. They want to be able to claim up to half a million rand each from gold mining companies if they contracted silicosis and tuberculosis underground.
In August 2004, asbestos-mining litigation was concluded and GENCOR agreed to pay R480 million to miners who had developed mesothelioma (a type of cancer that is associated with exposure to asbestos) as a result of their work. And then began the silicosis litigation for the South African gold miners. The silicosis and tuberculosis case was brought in 2004 and it and has still not been resolved. However, the South Gauteng High Court in Johannesburg has agreed to the first class action for sick employees in South Africa, allowing these workers to claim from several mining companies. The class action would include two classes, one being the gold miners who have contracted pulmonary tuberculosis and their dependents, and the other being the gold miners who have contracted silicosis and their dependents. Claims can be made for those who have died of silicosis and tuberculosis.
This court case will be historic for the mining industry as well as for workers’ rights in South Africa. In the Johannesburg High Court in October 2015, it was said that the 32 gold companies involved that owned or operated 82 different gold mines knew that they were putting the miners’ lives at risk for more than a century. They were aware of the dangers the silica dust can cause. The 32 mining companies are being accused of failing to protect the health of the employees as they were legally bound to do so.
The case is about both justice and compensation. Each mining company is held liable separately for any of the damages they caused. Some of the world’s biggest bullion producers such as Anglo American, AngloGold Ashanti, GoldFields, Harmony Gold, Sibanye Gold and African Rainbow Minerals are involved. These mining companies together have formed the Occupational Lung Disease working group to deal which issues such as these. The claims go back decades and also involve thousands of former miners from neighbouring countries such as Swaziland. Anglo American and African Rainbow Minerals no longer have interests in gold mining and they no longer operate gold mines.
The court ordered the legal representatives of the mine workers to advertise the notice of class action and gather the details of who might be affected. This will be done using radio and newspapers. The notice will last for a period of 180 days. The mining companies will have to take on a similar process of notification at each location of employment. The mining companies will have to accept half the cost of giving notice. Applicants will later have to give a written notice that they aim to be included in the class action.
The suit has been taken to court again. May's class action is believed to have paved the way to justice for these miners. The size and the scope of the class action is unprecedented. Six separate actions for leave to appeal were made by several mining companies. The gold mining companies have challenged almost every aspect of the judgement. The lawyers representing the mine workers argued that the court’s order on certification was not appealable, because certification is just a procedural step in the litigation and does not adjudicate the real issues. On behalf of the mine workers it was said that allowing the appeal to proceed will only lead to profound delays and in the meantime litigants were dying. Five of the class members had already died since the start of the application for certification had begun in 2012, he said. Earlier, the counsel for the mine workers argued that the interests of justice supported an appeal because the case was unprecedented. Counsel for Anglo American had said an appeal court would consider the fact that all the parties to the case and the court had acknowledged the gigantic scope of the class action, the novelty and them complexity of the issues involved and that this class action was unprecedented in our law. He said the court had been called on to make bold and far-reaching findings, but that a higher court might see things differently.
Deputy Judge President, Phineas Mojapelo, indicated that the purpose of a class action was to assist litigants to receive justice. He asked whether allowing an appeal at certification stage would not negate that purpose and how long it would take for the certification judgment to go all the way to the Constitutional Court, before summons were even issued. Judgement was reserved.
The miners and their dependents want justice. They also need some compensation in order for them to run their lives. The miners are unable to continue working because their employers did not protect their health. The court has approved of their process to proceed with the class action against these mining companies. We shall keep our eyes peeled to see what the outcome of this case is.
- Sarika Doodnath (firstname.lastname@example.org / email@example.com) is a research intern at the Helen Suzman Foundation (HSF). This brief first appeared on the HSF website.
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