As a result of a decision by the Consti- tutional Court that an employee may sue his or her employer for contracting an occupational disease as defined in the Occupational Diseases in Mines and Works Act (ODMWA), numerous claims have been instituted against mining companies under whose employ workers allegedly contracted silicosis, says Edward Nathan Sonnenbergs director and mine health and safety law expert Willem le Roux.

“This created quite a predicament, as several class action certification applications for workers who claim to have contracted silicosis while working on a mine have been made,” Le Roux says.

He explains that in South Africa there are two compensation systems. The Compensation for Occupational Injuries and Diseases Act (Coida) is the general workforce compensation legislation and applies to mining and all other industries.

“Coida applies to certain compensatable diseases and to all work-related injuries,” Le Roux adds.

The second compensation system has been established in terms of the ODMWA, which applies only to controlled mines or mines where “risk work” is performed.

“This legislation applies to claims for certain compensatable diseases, particularly lung disease,” Le Roux says.

However, in terms of Coida, the employer is protected against liability for injuries sustained by the worker in the workplace and certain work-related diseases (excluding lung diseases). The employee would be compensated in terms of the legislation and would not be able to sue the employer, he explains.

However, the Constitutional Court found that, should the employee be eligible to claim damages in terms of the ODMWA, the employer-protection clause of Coida does not apply, resulting in the large amount of claims being made, he explains.

Class Action
A class action, which is quite well known in the US, is a procedural device that enables a large group of people whose rights have been similarly infringed by a wrongdoer to sue the defendant as a collective entity, Le Roux explains.

In a class action, one or more members of the class initiates the action as a representative party of the group without the need to join all the members as claimants.

“There are many intricacies involved in class actions,” he says, adding that South Africa’s Constitution makes provision for the institution of a class action if any right protected in the Bill of Rights is infringed upon or threatened.

At the end of 2012, an important decision was handed down by the Supreme Court of Appeal, in what is known as the ‘bread case’, he says.

In this case, a class action was instituted on behalf of consumers and distributors against bread producers Pioneer Foods and others resulting from an alleged agreement among the bakers of bread to fix its price.

“The importance of that case is that the Supreme Court of Appeal issued guidelines as to which requirements must be met before a class action will be certified,” Le Roux explains.

Firstly, the court said that, in a certification application, the members of the class must be properly defined – not necessarily by name, but by description. Thus, those whom the action is intended to cover are aware that they are covered, while those who are not intended to be covered also know this and can take individual action.

Further, the court said that members of the proposed class should be given a choice. If the class action application is being brought on the basis that all users of a certain product are included, those users will then have the choice of being excluded and initiating their own individual action.

“The certification of the class can also be limited in that people must choose whether they want to be included and notify a relevant party to ensure inclusion,” he explains.

The court also pointed out that an over-inclusive class might make the litigation process unmanageable.

Further, the court said that one should recognise the certification of a class, not only when rights of the Bill of Rights have been infringed, or is under threat, but also when there have been delictual breaches.

The court also stated that an issue must at least be triable for a class to be certified and that the representative of the class had to be a suitable person who was not leading the action solely in his or her own interest.

Le Roux points out that, while little has been said by South African courts on the requirements of class actions, the concept is not new and quite a few pieces of legislation already make provision for class actions.

Such legislation include Section 157 of the Companies Act, Section 4 of the Consumer Protection Act and Section 32 of the National Environmental Management Act.

“I expect that one will see quite a devel-opment in the sphere of class actions over the next few years, as a result of the number of applications for the certification of class actions which have recently been brought,” Le Roux concludes.