Two South African mining companies which lost their bid to challenge the certification of a class action brought by gold miners who contracted silicosis and tuberculosis, will now have to consider joining the settlement scheme, writes Tania Broughton.
The Tshiamiso Trust was established in 2019 to receive, process and pay claims following a settlement with six other mining companies – African Rainbow Minerals, Anglo American, AngloGold Ashanti, Gold Fields, Harmony and Sibanye-Stillwater – after a court certification of the class action.
The trust has a guaranteed value of R5 billion ($279 million). By the end of last year, it had paid out about R800 million ($44 million) in benefits to 9 000 claimants who worked for the six companies between March 1965 and December 2019.
Only DRDGold and East Rand Proprietary Mines held fast, first appealing the certification and some of its terms in the Johannesburg High Court. After losing there, they launched an appeal in the Supreme Court of Appeal, but the court has dismissed their appeals.
Attorney Richard Spoor, who is a member of the legal team which spearheaded the class action, said: “We now hope they will enter into discussions on terms to participate in the settlement scheme.”
Apart from challenging the certification of the class action, the mining companies were also seeking to overthrow a decision in the high court to develop the common law on delict claims.
In South Africa, a damages claim lapses on the death of a claimant. However, the high court ruled, in a declarator, that families of miners who had subsequently died from either of the two diseases, or who may die before the finalisation of the case, could benefit from the settlement or any court imposed damages.
In essence, the SCA said neither of the issues were appealable at this stage. This means that, should the mines not settle, the class action will proceed against them.
SCA Judge Christiaan van der Merwe, on behalf of the court, said thousands of underground mine workers had, for many decades, contracted silicosis or pulmonary tuberculosis, caused through the inhalation of large quantities of silica dust. In the high court, there had been evidence of prolonged industry-wide underground exposure to unhealthy levels of silica dust.
In certifying the class action, the high court found that the mining companies had been negligent and had not properly addressed this health hazard. Every affected mineworker, or his dependents, had a damages claim against them.
Van der Merwe said orders were generally not appealable if they were not final, and the certification was no more than a procedural device aimed at facilitating the class action. He said the mining companies’ complaints of prejudice if the certification was not set aside were “exaggerated”, and a trial court would have procedural options to ensure the two companies received a fair trial.
Van der Merwe noted that, should the court tamper, at this stage, with the declarator on the common law, it would probably lead to further appeals.
“For me, the overwhelming interest of justice consideration is that the finalisation of the class action should be expedited,” he said, noting that the miners and their families were poor and vulnerable and the litigation had begun some ten years ago.
The court struck the matter from the roll, ordering the mines to pay the costs.
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