The Johannesburg High Court’s decision earlier this month to give 69 mineworkers and silicosis sufferers the right to institute a class action suit against 32 current and historical South African gold mining companies will have far-reaching implications for the country’s common law, according to law firm Clyde & Co.

Speaking at a breakfast discussion at the firm’s Johannesburg offices last month, Clyde & Co associate Gregg Hammond said the scope and magnitude of the case, which could result in about 500 000 current and former mineworkers receiving up to R200 000 each, were unprecedented in South Africa.
He explained that the class action comprised two classes – one for current and former mineworkers who had contracted silicosis, and another for current and former mineworkers who had contracted tuberculosis (TB).

Hammond noted that, prior to the High Court’s judgement, South African common law operated in such a manner that, if a claimant died before the close of pleading, the claimant’s estate, which would include family, was not eligible to receive compensation for general damages.

General damages are determined by a claimant’s pain, suffering or inability to perform certain functions, including work.

The silicosis case judgment now made it possible for a claimant’s estate to receive compensation, even in the event of death before the close of proceedings.

Clyde & Co partner Daniel le Roux stated that this development would have an impact on all future compensation claims and that the insurance industry was likely to reassess its policy models as a result.

Meanwhile, Hammond explained that the mineworkers were claiming delict on the part of the mining houses, stating that there was an act or omission by the mines with regard to mitigating the risk of mineworkers contracting silicosis, which subsequently resulted in their being harmed.

Further, they claimed that the damages incurred could be quantified.

Hammond highlighted the “nine pillars of evidence” that the mineworkers intended to put forward to the trial court.

The workers intended to prove that the mining houses acted in concert to hide the risks of working underground. Various legislative measures would be emphasised to clearly outline the mining companies’ duties of care and that they did not act in accordance with these duties.

The mineworkers would also use technical academic studies and reports of various commissions established under the previous political regime to further support their claims.

They also intended to use literature from the 1990s to prove that mining companies knew silicosis was preventable when effective mitigation practices were implemented.

Numerous investigations to identify the effects of silica dust exposure would be used to prove delict on the part of the mining houses.

Evidence would be presented to highlight that mining companies, to ensure higher profit margins, did not implement effective health and safety measures.

The mineworkers would also provide evidence that the cause of silicosis and, subsequently, TB, had always been related to underground gold mining.

Mineworkers would use international best practice to prove delict on the part of the mining companies.