In October 2015, a class action lawsuit dubbed ‘the trial of the decade’ kicked off in Johannesburg, South Africa. Currently, five legal teams are suing 32 gold mining companies, including Gold Fields and AngloGold Ashanti, for exposing employees to potentially deadly lung conditions.
While the trial involves 59 named plaintiffs, tens of thousands of miners could be awarded payouts. If their claim proves successful, it is likely to cost the industry billions of rand (equating to hundreds of millions of dollars), making this the largest case of its kind to be certified in South Africa’s history.
Silicosis, an incurable lung disease, is common across the region. According to studies, nearly a quarter of former mine workers in South Africa may suffer from the disease, which is caused by excessive inhalation of crystalline silica dust. In total, around 196,000 gold miners in South Africa may be affected, along with 84,000 from neighbouring countries.
While the condition is debilitating enough in its own right, it is also linked to tuberculosis (TB), which is hugely over represented within this population. Among South African gold miners, rates stand at between 3,000 and 7,000 cases per 100,000 people; far higher than the World Health Organization’s threshold for ‘health emergency’ (250 cases of TB per 100,000 people).
A history of neglect
This incidence belies the fact that silicosis is a preventative condition. According to the prosecuting legal teams, the mines failed to take the appropriate steps to safeguard the workers’ health and protect them from lung disease. Detailing what they call a ‘history of neglect’, they are dealing with cases dating back to 1965.
Myekelwa Mkenyane, who worked in four mines between 1975 and 2009, and was diagnosed with silicosis in 2003, is one of the plaintiffs represented. He testified that, while he was provided with a small respiratory mask by his employers once a week, the mask was hard to wear as it restricted the airflow into his lungs.
"Only the workers in the parts of the mine with the highest concentration of dust would be provided with masks and the masks were only provided when the conditions were especially dusty," he told South Gauteng High Court during the trial.
Although the current legal action is unprecedented, the occupational risks of gold mining have been known for many years. As early as 1912, South Africa passed the ‘Mining Phthisis Act’, which recognised that miners with silicosis were entitled to compensation.
In practice, however, these miners were made to accept a payout that prevented them suing for damages. Some people could not claim compensation at all, because they had left employment before realising they were ill, only for symptoms to emerge years later. What’s more, of those who did receive payouts, a disproportionate slice of the money went to white workers.
In recent years, efforts have been made to clean-up the mines. A law was passed in 2002 setting maximum permissible dust levels, and in 2005 the industry pledged that anyone beginning work after 2008 would not contract silicosis. That said, as late as 2007 one study found that two thirds of miners had never heard of silicosis, and only 3% had received training in dust control.
The road to class action
The real turning point came in 2011, following a civil claim lodged against AngloGold. While the claimant died before the case could be settled, the Constitutional Court made the broader judgment that miners would now be free to sue. Since then, the question has been how to go about it: do they need to sue as individuals, or can they take class action?
According to the lawyers who wrote a 181-page document to the Gauteng High Court asking for permission to proceed, miners and their families simply do not have the resources to take legal action on their own.
"The interests of justice thus require that the mineworkers and their families be allowed to proceed by class action. It is their only hope. If the facility of a class action is denied to them, most of them will not be able to sue at all…The guilty mines will get off scot-free," the document stated.
The industry strikes back
Conversely, the mining companies have said that because conditions in each mine were different it is not appropriate to treat the workers as a class, or to group the companies together.
Jeremy Gauntlett, advocating for Gold Fields, made this point at the Gauteng High Court on 19 October.
"Before you put Gold Fields in court with other companies, you have to show how an answer for Gold Fields can be an answer for Harmony – and you can’t do that without proving a conspiracy leading to systemic breaches," he said. Certification of a class action means that you have to define common issues."
The mining companies have also stated that silica exposure is not necessarily the cause of all the miners’ illnesses. Of the 59 plaintiffs, seven suffer from TB without silicosis, which may have been caused by contagion as opposed to silica dust. Given the potential confounding factors – and high overall rates of TB in South Africa – Gold Fields wants to exclude the TB-only group from the certification.
The next steps
The initial hearing, which ran from 12-23 October, was just the beginning of a lengthy process. At the time of writing, the court is still deliberating whether or not class action can proceed, with a decision likely to be reached some time in 2016. Should it go ahead, the applicants will pursue action in two stages: firstly by seeking a declaratory order to establish the nature and extent of the mining companies’ liability; secondly by ‘opting in’ as class members in order to claim damages.
With a battle on the horizon, the mining companies are hoping for an out-of-court settlement.
"It’s not in anyone’s interest to spend hundreds of millions of rand and ten to 20 years in court dealing with this issue, "industry spokesperson Allan Fine told the SABC, South Africa’s state-owned media. "We are hoping to find a fair solution but one that is also sustainable for the industry."
For the thousands of sick miners, class action is the only way justice will be served. This landmark case is already making ripples, as one of the largest fights of workers against bosses that any industry has ever seen.