Sil­i­co­sis case one of mind over mat­ter, says at­tor­ney

Saturday Star - - NEWS - SHEREE BEGA

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.

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