Silicosis battle drew in lawyers by the score

WHEN the advocates and their junior counsel packed up their stacks of files and filed out of the courtroom, they left behind them a historic twoweek battle – involving more than 40 advocates and thousands of pages of documents – about whether the biggest class-action lawsuit yet on the continent should be given the green light to proceed.

In January, a full Bench comprising three judges of the South Gauteng High Court in Johannesburg, is expected to deliver its decision about certifying a class action lawsuit that lawyers acting for a group of ailing mineworkers say has the potential to claim damages for 200 000 people stricken with silicosis, and their families.

Gilbert Marcus SC implored the court yesterday to find in favour of certifying the class action, noting that such actions were “an entirely modern invention” previously unknown in common law.

Wim Trengove SC told the court earlier this week that if the application for the certification of the class action failed, hundreds of thousands of sick gold miners and their families would have no other opportunity for a hearing, which was their constitutional right. There was no other realistic alternative to a class action, while the mining firms had not presented a “constructive contribution in finding a solution”.

Michael Kuper SC, for Anglo American, countered that there was no way to try all mines as a single class because it could not be proved that each mine was individually negligent. He contended that the miners’ evidence did not constitute a prima facie case.

Trengrove said the applicants had contracted diseases caused by excessive exposure to silica dust underground, and argued that this was sufficient for their class action to be certified. He said the arguments of the mining firms were “obstructive” because the companies had not suggested alternative avenues by which the miners could exercise their rights.

Judge Basheer Vally questioned Marcus yesterday about why none of the legal teams had offered solutions.