South Africa’s mining industry faces a serious battle against a “class certification” application lodged in December on behalf of tens of thousands of workers who claim to have contracted silicosis during the course of duty in gold mines and over the past 47 years.
The application was filed in the South Gauteng High Court on December 21 2012 by human rights lawyer Richard Spoor, in partnership with US based plaintiffs’ law firm, Motley Rice LLC. The certification application has 30 applicants who are positioned to represent the multitudes victims of silicosis, being current and former gold mine workers, as well as dependents of deceased workers.
According to a statement released by the lawyers there are 30 respondent gold mining companies that owned or operated 78 different gold mines from 1965 to the present.
The respondents include Harmony Gold Mining Company Limited, Avgold Limited, AngloGold Ashanti Limited, Gold Fields Limited, Village Main Reef Limited, Simmer and Jack Mines Limited, DRDGold Limited, ERPM Limited, Anglo American South Africa Limited, African Rainbow Minerals, Randgold and Exploration Company Limited, JCI Limited and their subsidiaries.
The statement said the purpose of their action is, first and foremost, to secure access to justice for the thousands of potential claimants who would, otherwise, by virtue of their isolation in remote rural areas and their poverty, never be able to bring their claims in a court. “Its secondary purpose is to reduce the cost of litigation, for plaintiffs and defendants, and to reduce the burden on the courts, which might be called upon to try thousands of individual claims dealing with substantially the same issues”.
“Class actions have the further advantage that they are binding upon all the members of the class, unless potential class members choose to opt out. Therefore, the action has the potential to resolve, once and for all, litigation that could potentially drag on for decades to the great prejudice of employers and the affected mine workers. The litigation holds the promise of resolving a legacy issue that has the ability to dog the industry for many years to come”.
The statement added that the current litigation was made possible by the March 2011 decision of the Constitutional Court in the matter of Thembekile Mankayi. “In this case, the court determined that mine workers with lung disease were not precluded from suing their employers by the provisions of section 35 of the Compensation of Occupational Injuries and Diseases Act (COIDA). COIDA was, until this ruling, construed as a bar to employees from recovering civil law damages from their employers in respect of any occupational injury or disease”.
The sgtatement said silicosis is a wholly preventable disease, yet, for more than 100 years, the South African gold mining industry has continued to cause thousands of new cases of silicosis per year with no consequence. Spoor said the purpose of the litigation is to put an end to the impunity that the mining industry enjoys and to hold it accountable for the harm that it does. The vast majority of former mine workers with silicosis have never been compensated and receive no medical benefits.
“We seek no more than the application of the ‘polluter pays’ principle to be applied to an industry that generates sick men as surely as it produces great wealth for its shareholders. Mine workers do not control the environment in which they work; environmental conditions underground are determined by the mine owner through the provision of proper ventilation. When mine owners skimp on the cost of providing proper ventilation, workers get sick. These men have become ill through no fault of their own, yet, when they do, they are simply dismissed, and they and their families are left to languish in poverty and disease,” Spoor said.