The Supreme Court of Appeal (SCA) has rejected a petition by two mining corporations to contest the certification of a class action that may hold them accountable for damages suffered by thousands of miners with silicosis.
In addition to contesting the certification, DRDGold and East Rand Proprietary Mines wished to overturn the Johannesburg High Court’s decision to develop the common law, allowing families of miners who have since died or who may die pending the resolution of the case to receive any eventual damages award or settlement.
The SCA, however, has ruled that neither point is appealable at this stage and has removed the case from the roll.
This means that the class action lawsuit may continue.
Currently, there are just 69 applicants in the class action, and a procedure is underway for others affected to opt in or opt out of the litigation, after which “common issues” would be resolved in a first round of litigation, followed by individual claims in a second round.
Following the certification of the litigation as a class action, a number of the first 32 mining corporations (and their parent businesses), the owners of 82 mines that had been identified, entered into settlement agreements with their former employees.
However, DRDGold and East Rand Proprietary Mines appealed to the SCA.
Judge Christiaan van der Merwe, writing for the court in a decision handed down this week, stated that the inhalation of large quantities of silica dust was a common cause for the silicosis or pulmonary tuberculosis contracted by tens of thousands of underground mine workers in South African gold mines over the course of several decades.
Silicosis is a severe, incurable, progressive illness that frequently leads to death.
While tuberculosis is a treatable bacterial lung illness, high silica dust exposure raises the likelihood of miners developing it, according to the miners.
Judge van der Merwe stated that the mining corporations essentially represented the whole mining industry in South Africa, including “parent companies,” due to their dominant involvement.
THE ULTIMATE COURT OF APPEAL
In the High Court, the 69 miners produced evidence of prolonged subterranean exposure to hazardous amounts of silica dust across the mining industry and that the mining companies were negligent and wrong for failing to adequately address this health concern.
They stated that any impacted mineworker or his dependents had a right to compensation.
After certifying the class action, the high court approved a declaratory order (the declarator) that, in effect, developed the common law that had previously ordered that any claim for general damages, such as pain and suffering or loss of amenities of life, terminated with the claimant’s death.
As a result, mineworkers who had died or would die prior to the conclusion of the case would still have a valid claim, and any damages would be awarded to their estate for the benefit of their descendants.
As a result of a settlement agreement signed by the majority of mines, the certification currently only applies to six mining companies, according to Judge Van der Merwe. Only DRDGold and East Rand Private Mines filed an appeal.
Judge van der Merwe stated that orders that are not final and conclusive are often not appealable.
“The certification is merely a procedural device intended to facilitate the resolution of the class action. It has no lasting effect… and is subject to modification by the judge presiding over the class action.
It is not conclusive regarding any rights.
The judge stated that the mining corporations argued that their participation in the class action would subject them to undue prejudice because they played a minor role in it if the certification was not overturned.
This was due to the fact that the tuberculosis claims against them had been abandoned, there was no parent company liability against them, and they had discontinued underground mining between 2000 and 2008.
However, Judge Van der Merwe stated that the trial court will have a variety of procedural alternatives available to it and that any concerns unconnected to the two mining corporations might be handled.
ULTIMATE COURT OF APPEAL DECISION
“The appellants’ claim of bias in this regard seems exaggerated,” he said.
“Each appellant’s participation in underground mining constitutes a significant portion of the remaining class action’s scope.”
Regarding the declaration, the judge stated that the possible class members were poor and defenseless, and that the action had been underway for ten years.
“If we accept an appeal at this point, there may be a subsequent appeal.
“In my opinion, it is in the greatest interest of justice to expedite the conclusion of the class action lawsuit.”
The court dismissed the case and ordered the mines to pay the expenses.