Guns blaz­ing

CityPress - - Business -

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.

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