Silicosis case boost for poor litigants

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CLAIMANT: Former gold miner Kalakune Marake registers with a legal clerk in a district office in Semongkong, 120 km east of the capital Maseru in January. Hundreds of migrant workers from Lesotho with suspected lung disease are coming forward to launch a class action lawsuit against South Africas giant gold mining houses. Picture: Reuters

DIANNE HAWKER

A lawSUIT against South Africa’s major mining corporations could change the landscape of class action litigation locally.

A legal expert and the lawyer involved in the case both say the matter, which has yet to be enrolled at court, could provide a boost for access to justice for poor litigants in class action cases that follow.

To bolster the case, Mpumalanga based lawyer Richard Spoor has enlisted the help of US based firm Motley Rice, which was instrumental in securing a $246 billion settlement from America’s major tobacco corporations. So far, Spoor has rounded up close to 7 000 former gold miners suffering from silicosis – a lung disease which is highly prevalent among gold miners who spend years working in poorly ventilated mines. The case could be a first of its kind in South Africa, based on the number of litigants, and the potential size of the claim.

In 1995, the Leon commission of inquiry into safety and health in the mining industry found that shaft sinkers and stopers who had worked 8 000 shifts had a more than 30 percent probability of developing silicosis.

“With silicosis after 15 years’ exposure, a worker will have lost about 50 percent of his lung function if he reached 65 years of age,” read the commission’s report.

Spoor estimates 20 mining companies will be listed in the case, including AngloGold Ashanti, Harmony Gold, Goldfields and DRD Gold. By his own admission, trying the case will be a massive undertaking, particularly since he will be traversing new ground by initiating a class action of this magnitude.

“If the class action isn’t approved, all these people will have to litigate individually, which is impossible. Effectively if (the courts) don’t allow this class action (they’re) denying them access to justice.”

Unlike some other countries, SA has no legislation dealing with how class action law suits should be handled, meaning the courts have to decide on how to proceed.

Procedural law expert Professor Wouter de Vos said while the US was the leaders in class action litigation, Australia, Canada and Zimbabwe all had detailed law dealing with how cases should be handled.

Section 38 of the SA constitution allows for anyone to approach the court “acting as a member of, or in the interest of, a group or class of persons” to enforce a provision in the Bill of Rights. Simultaneously, section 173 grants courts “the inherent power” to decide how they will deal with cases, meaning lawyers could persuade the court to hear a class action, whether or not it contains a constitutional issue.

The SA Law Commission had also motivated for our courts to allow for class actions, even in cases not involving constitutional issues, said De Vos.

“The most important purpose of a class action for litigants is that it gives them access to justice. One sole miner – what means does he have to take on a mining company? He has no legal knowledge and no money. A procedure like this improves access to justice,” he said.

“The difficult part will be the damages. How do you prove the damages? In other countries you have detailed legislation dealing with that. If you have 50 000 miners, you can’t call them all to court (to testify about their claim). That will bog the whole thing down and that won’t serve any purpose.”

He said it was “essential” that the government began working on effective class action legislation which could address this question in future cases. “It is very difficult for judges because they don’t know how to deal with it. And it is not as if there is nothing (for legislators to work from). There is the report by the law commission which includes a draft bill,” he said.

Most of the claimants are likely to come from the Eastern Cape and Lesotho – which Spoor calls “major labour supply centres” for mining. Many are sickly. “Mining companies failed to provide adequate provisions. This disease is preventable. For years, mines have been churning out sick people on an industrial scale. “The culture has been so blasé, they have been treated as natural deaths. The problem was never addressed. The main reason for that was because it was cheaper not to do anything.” Silicosis also made these miners more susceptible to tuberculosis (TB), which they were likely to pass on to their families, Spoor said.

De Vos said the case was likely to be watched by critics of class action litigation, who argued that it would “kill off big business”.