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SA: Ruling by South Gauteng High Court on silicosis and tuberculosis class action

13th May 2016

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The South Gauteng High Court in Johannesburg has certified the first class action in South African history for sick workers, allowing gold miners suffering from silicosis and tuberculosis to proceed with their claims against 30 gold producers, including Anglo Gold Ashanti, Harmony Gold, Gold Fields, Anglo American, and African Rainbow Minerals. Few class actions have been brought in South Africa and none filed for sick workers. The miners are represented by the law office of Richard Spoor Incorporated, Abrahams Kiewitz Incorporated and the Legal Resources Centre.

The class action includes thousands of people – all gold mine workers suffering from silicosis or tuberculosis and the dependents of deceased miners who ultimately died after contracting the often fatal disease. Certifying the class action means that the litigation may continue to the phase which includes discovery and preparing for trial. “As miners we were not helped and protected even though our employers knew that we were going to get sick. I am happy and relieved that the court ‘s decision is in our favour,” said Mthobeli Gangatha, a former gold mine worker living in Lusikisiki in the Eastern Cape. Gangatha is a class representative in the litigation who has been diagnosed with silicosis.
Certification was granted for four separate groups:

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  • Current and former mineworkers who have contracted silicosis and the dependents of mineworkers who died of silicosis, whether or not accompanied by any other disease, who worked for two years or more on one or more of the 82 mines owned by one (or more) of the 30 named respondents.
  • Current and former mineworkers who have tuberculosis, but who do not have silicosis, and the dependents of miners who died of tuberculosis, who worked for two years or more on one or more of the 82 mines owned by one (or more) of the 30 named respondents.

The case was heard before the High Court in Johannesburg, from 12 to 23 October 2015, where we argued that the 30 named South African gold mining companies that owned or operated 82 different gold mines from 1965 to the present, knew of the dangers posed to miners by silica dust for more than a century. We further argued that the mining companies are guilty of 12 specific forms of neglect and endangerment, including willfully ignoring and/or failing to execute almost all of the steps mandated in regulations and legislation designed to protect miners from silica dust. The sick gold miners case is: (1) that the mining companies could have prevented what has often been referred to as an epidemic had they taken effective measures to prevent the exposure of miners to harmful quantities of dust, which the papers claim they had both the knowledge and resources to do; and (2) that the mining industry has been able to profit, for decades, at the expense of employees’ health.

The miners are predominantly from South Africa and several other surrounding countries historically known for supplying migratory labor to the mining industry.
“A pervasive culture has existed for decades in the mining industry that views these miners as disposable. Therefore it has been a privilege to represent them and offer a voice to thousands who have never had one and who have been ignored by society,” said Spoor. “This class action is proof that when we push for what is right for those harmed, we can achieve real reform and in this case, overdue improvements to a broken system that has been in place for decades in the pursuit of justice.”

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“This decision by the High Court is a crucial step in the path to justice for potentially hundreds of thousands of mine workers and the families of deceased mine workers who contracted silicosis and tuberculosis due to their employment in poorly maintained working environments of the gold mining industry of South Africa,” said Charles Abrahams. “We continue to believe it is the only feasible method for sick gold mine workers to have access to justice.”

“We welcome this judgment. The Legal Resources Centre has been involved in litigation since 2004 in the hope of obtaining compensation for all sick gold miners and their families. Mining companies must pay for failing to protect mineworkers against excessive levels of dust and the concomitant risks of silicosis and tuberculosis. This judgment is a step in the right direction,” said Sayi Nindi-Thsiani.

 

Issued by Abrahams Kiewitz Attorneys

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