Silicosis case one of mind over matter, says attorney
A MEETING of minds. That’s how an attorney involved in South Africa’s landmark silicosis classaction lawsuit has described what it will take to reach an out-of-court-settlement with 30 implicated gold mining companies.
“We’re optimistic that we will reach a settlement, but it will likely take time, as it requires a meeting of minds, involving important and difficult issues,” says Georgina Jephson, an attorney at Richard Spoor Attorneys.
“We’re duty-bound to ensure that whatever settlement is achieved is in the best interests of our clients and the broader class.”
In May last year, in a precedent-setting judgment, the high court in Joburg certified the first-class action in the country’s history for sick workers, allowing for mer gold mine workers suffering from silicosis and TB to proceed with their claim against gold mining companies.
Since 2004, the groundbreaking case, which could benefit more than 200 000 mineworkers and their families, has been championed by Richard Spoor Incorporated, Abrahams Kiewitz Incorporated and the Legal Resources Centre.
They have argued that the mining companies could have prevented what has often been referred to as a silicosis epidemic “had they taken ef fective measures to prevent the exposure of miners to harmful quantities of silica dust… A pervasive culture has existed for decades in the mining industry that views these miners as disposable”.
“Our negotiations with the ( Occupational Lung Disease) working group continue and we endeavour to reach an appropriate settlement to the litigation,” says Jephson.
“We’re hoping that a settlement trust, along the lines of the Asbestos Relief Trust, will be established to compensate qualifying mineworkers with silicosis and the dependants of those who have already passed away.”
Alan Fine, the spokesperson for the working group, which includes African Rainbow Minerals, Anglo American, AngloGold Ashanti, Har mony, Goldfields and Sibanye, is optimistic, too, about reaching a settlement.
“We’re hopeful it will be possible to finalise a settlement during the course of 2017. It is premature to say too much about the nature of a settlement at this stage of the discussions.
“However, the working group comprising the six companies envisages the establishment of a legacy fund that will pay an additional amount to people who have received or are eligible for statutory compensation.”
In appeal documents that were submitted to the Supreme Court of Appeal last month, Anglo American SA contends that the class action “in the form submitted, lacked the requisite clarity and certainty necessary for certification”.
“There were manifold features showing that the class action, in the form in which it was proposed for certification, was unviable and the court erred in failing to reach that conclusion.”
The court action, in the form certified, was “impossibly broad”.
“There are no shared common issues which can justify the excessive ambit of the action,” it says.
In its appeal, DRDGold states the claimants alleged no conduct carried on jointly by the mining houses with the DRDGold appellants or any relationship of law or fact that might render the DRDGold appellants jointly liable, together with the other mining houses, for claims by members of the silicosis or TB classes.
Richard Spoor Attorneys is working on its heads of arguments to be filed in response to those filed by the mining companies who are appealing the decision of the high court, to be filed on March 28.
“The arguments they raise in support of the appeal are similar to those raised in the high court when they opposed the certification application,” says Jephson.