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Inside the big silicosis war

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Johannesburg - As advocates for gold mining companies and former mine workers went through the motions this week, courtroom GC in the South Gauteng High Court in Joburg was jam-packed with counsel, leaving little room on the public benches for actual members of the public.

The full count was 32 counsel: nine for the mine workers and 23 for the mines.

Instructing attorneys were also present and the number of people belonging to one or other legal team was more or less 42.

Big-name silks included Geoff Budlender and Wim Trengove (for the mine workers) and Jeremy Gauntlett, Chris Loxton and Fanie Cilliers for various mining companies.

Anglo American SA armed itself the most – it brought five counsel to the hearing this week.

Halfway through the week, the fact that nearly all the advocates involved in what will probably be the largest public-interest lawsuit in South African history were white men created a furore in the legal profession.

Protest against the fact that almost all the legal counsel on both sides were white men was recorded by Advocate Roshnee Mansingh.

After attending the hearing, she wrote a note on the issue – called Arrogant Display of White Privilege in a Black Country – which she distributed by email among colleagues in the profession.

“How terribly ironic. How dreadfully unacceptable,” she wrote, arguing that “legal representation in the silicosis case must be representative of the demographics of our country”.

The irony of white lawyers fighting the cause of black mine workers suing white-owned mining companies was picked up by several other legal professionals.

Another advocate, Modise Khoza, posted Mansingh’s article on to the closed Facebook group of the Johannesburg Society of Advocates on Wednesday morning.

Attorney Richard Spoor subsequently responded to that thread, which quickly overflowed with comments.

In Spoor’s reply, he pointed out that two of the three lead attorneys on the mine workers’ side were black, even though all the advocates were white. He then explained why there were no black advocates on his team, saying there was a “really small” number of black advocates who were not only exceptionally talented, but willing to work for a reduced fee because of a commitment to the cause of public interest.

“Those who fit the bill were otherwise engaged when we needed them,” read Spoor’s post.

The part that really caused a storm was, however, the comment that “law is an elitist profession”.

“My interest as an attorney is winning the case and I have no latitude to accommodate unsuitable people ... colour does not qualify you if you don’t meet the other criteria.”

On Thursday, a criticism of Spoor’s response was sent to Advocates for Transformation by Kabelo Lengane, another Johannesburg advocate.

He asked that the organisation circulate it further – in particular to all the members of Advocates for Transformation involved in the silicosis case – and that the debate be made public.

By Friday, more Johannesburg advocates were penning their statements, including The National Association of Democratic Lawyers.

Mansingh is best known for having challenged the South African legal profession’s recognition of “silks” or senior counsel in the Constitutional Court. Silks can only be appointed by the president and the distinction immediately elevates advocates to an entirely different pay grade.

In the silicosis case, arguments in the South Gauteng High Court will continue next week, when the mining companies argue against the certification of sick former mine workers as a class that can sue them collectively.

The Case
David vs Goliath

The case in court this week centres on the certification of silicotic mine workers as a class in order to launch a class action.

The class would potentially cover hundreds of thousands of men, paving the way for a settlement that might cost billions of rands.

It was made possible by Thembekile Mankayi’s 2011 Constitutional Court victory against AngloGold Ashanti, a case won by Richard Spoor.

That case established mine workers’ legal right to sue mines for occupational lung diseases – if the companies could be shown to have been negligent in protecting workers against dust.

While it is now possible for individuals to sue mines, the only way to comprehensively deal with the historical injustice of silicosis is arguably a class action.

That is the point of the current hearing, with the mines essentially arguing that the differences between the workers and the different mining companies make a class action unreasonable.

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