Books as David takes on Goliath
cate Geoff Budlender SC. He added that the mines had a statutory, constitutional and common-law duty to protect their employees, and none had denied this.
He said it was “striking” that there were so many similarities in how the mines explained how silica dust should be dealt with.
Budlender said this proved “sys- temic neglect” across the industry, and it indicated that the mines had shared information.
Matthew Chaskalson SC, counsel for the Treatment Action Campaign and Sonke Gender Justice, which were admitted as friends of the court, said t he “mine bosses” opposed a class-action suit because they did not want it to go to court at all.
Another unprecedented issue is the applicants’ request for the court, at this early stage, to develop the common law so that damages claimed by the dependants of deceased miners could be paid to them because they were in desperate need of the money.
This is because, as the law stands, the claims cannot be transferred to the estate of the deceased until litis contestatio has been reached by the parties: that is, the point at which the issue is being contested and opposing statements by the parties have been made.
This would only happen at the trial stage of the class action. Another counsel for the miners, Gilbert Marcus SC, argued that this would be too late for many of the families of the deceased miners.
Most of the plaintiffs are old and dying of the progressive disease. Hundreds have already died.
Zwelakhe Dala was one of the plaintiffs. He started working underground in 1976 at the age of 13, working 13-hour night shifts. Over time he began to lose weight and strength, and started coughing up blood.
Dala was diagnosed with tuber- culosis in 2004 and was eventually retrenched by Anglo American, the court heard.
“We are informed that he died a few months ago,” Marcus said.
Ma t i i s e t s o J o n g ’ s h u s b a n d , Samuel, was retrenched at the age of 48. He had contracted silicosis and TB, according to her affidavit. He had worked on the gold mines since 1984 and died in 2007.
Marcus said if the common law is not developed at this stage, many more claimants will die and their damages claims will not be transmissible to their families. This includes caregivers, who, Marcus said, “bear an extraordinary burden”.
“These people are entitled to a measure of justice,” he said.
The mines, he said, had countered this with “a lethal combination of arguments”.
Some of the mines contend that the court should not develop the common law at this stage and, if the law is developed, it should not be done retrospectively.
“Macabre” was how Marcus described this argument.
The mines have only just begun to argue their case. With the reputation of the industry at stake, they are likely to come out fighting.
The case continues.