The gist of the mines’ opposition is that each individual mine worker’s case is unique and requires its own evidence based on when and where they worked.
The class action covers all dead, living, current and former mine workers with silicosis or TB, and their heirs, since 1965 at virtually all South African gold mines, most of which have closed.
The mines say this class is so vast and diverse that there can be no real common issues.
All the companies also attack the common law development in last month’s judgment that has given many widows and children of dead mine workers a shot at far larger claims against the mines.
This would stop mine workers’ claims for “general damages” from getting extinguished when they die and has far-reaching implications for personal injury law in general. This would only have a practical effect on the class action if there was not a settlement and the court determined compensation, said Spoor.
A full Bench of three high court judges had ordered that the class action take place in two phases.
In the first phase, all the common issues for all the class members should get sorted out. In the second, individual issues would be dealt with. The mines’ court papers give a good indication of how they see this panning out.
According to AngloGold “the class action would in effect decide nothing on a class-wide basis, and unravel into a series of individual actions” and become “a time-consuming, expensive, but futile exercise”.
Anglo American predicts that the class action will advance by the “constant creation of subclasses, resulting in procedural complexity and increasing the possibility of procedural miscarriages”.
The better option would be smaller “test cases”, said Anglo.