The silicosis case was back in court yesterday (Thursday), with lawyers representing mine workers arguing that allowing gold-mining companies to appeal against the Gauteng High Court (Johannesburg) landmark class action judgment would delay the resolution of the case, while litigants were dying without compensation, says a Business Day report. It notes May’s class-action certification judgment paved the way for billions in claims by former goldmine workers suffering from silicosis and tuberculosis. The size and scope of the class action is unprecedented. If the lawsuit were to go ahead on the basis certified by the High Court, it will be against almost all the major mining companies involved in goldmining in SA since 1965, including parent companies. It would cover their conduct for more than 50 years and th ere could be between 17 000 and 50 000 claimants. In six separate applications for leave to appeal, gold-mining companies have challenged almost every aspect of the judgment. But lawyers for the mine workers argued that the court’s order on certification was not appealable, because certification is just a procedural step in the litigation not implicating the real issue – whether the companies are liable to pay damages. On behalf of the mineworkers, Alan Dodson SC said allowing the appeal to proceed would lead to ‘profound delays’. In the meantime, litigants were dying, he said. Five of the class representatives had already died since the start of the application for certification had begun in 2012, he said. Judgment was reserved.

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Earlier counsel for the mining companies argued for single test cases, rather than a class action, saying this would be a better way for mineworkers suffering from silicosis to establish whether gold mining companies are liable to pay them compensation. According to a BDlive report, Anglo American SA’s counsel, Michael Kuper SC, said an appeal court would consider the fact that everyone – all the parties to the case and the court – had acknowledged the ‘gigantic scope’ of the class action, the novelty and the complexity of the issues involved and that this class action was ‘unprecedented in our law’. He said the legal issues common to all the potential claimants would be better decided by test c ases – brought by individual workers, rather than a class – which would then set legal precedent for those that came later. Kuper argued that the court had been called on to make bold and far-reaching findings. But that a higher court might well see things differently. Chris Loxton SC, for Harmony Gold, said the court had been wrong to find that it was in the interests of justice to certifiy a class action where the issues were ‘so multifarious, and there are so many of them’. All it would mean for the trial court was an ‘unmanageable state of affairs’, which would not advance justice. Kuper said the court had been rightfully concerned about whether the mineworkers would be able to pursue their claim without a class action. But if the cases of the mineworkers were ‘in truth, individualistic’, it would not help the mineworkers or the mines to put them all together into a single massive class action. Nor would it progres s justice, he said.

Full BDlive report

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