Mining companies will appeal against last month’s certification of a potentially enormous class action by mine workers with silicosis and TB.
This had “complicated” the ongoing talks about a settlement, an outcome the mines also preferred, said Richard Spoor, who is representing the mine workers.
Applications to the Supreme Court of Appeal were filed by Anglo American, AngloGold Ashanti, African Rainbow Minerals, Gold Fields and DRDGold.
Even without this appeal, the class action had been expected to take a year to go to trial, said Spoor. The appeal now suspends the certification of the class action.
“A settlement is contingent on there being a class,” said Spoor. “It is impossible to talk in good faith ... You cannot reconcile the two things. The appeal is not sincere; it is a tactic.
“The irony is that the industry has a powerful interest in a settlement that binds everyone.”
The mine workers’ lawyers are working on new strategies as well.
“We are obliged to do something ... We will do everything possible to expedite this,” said Spoor.
He said they were “looking at” forcing the companies to disclose estimates of their liability to shareholders, among other things.
“We cannot tolerate a situation where up to 4% of the class is dying every year and the industry is dragging this on.”
The companies are still pushing their original argument that the class action is legally pointless and just plain impossible from a practical perspective.
The gist of the mines’ opposition is that each individual mine worker’s case is unique and requires its own evidence based on when and where they worked.
The class action covers all dead, living, current and former mine workers with silicosis or TB, and their heirs, since 1965 at virtually all South African gold mines, most of which have closed.
The mines say this class is so vast and diverse that there can be no real common issues.
All the companies also attack the common law development in last month’s judgment that has given many widows and children of dead mine workers a shot at far larger claims against the mines.
This would stop mine workers’ claims for “general damages” from getting extinguished when they die and has far-reaching implications for personal injury law in general. This would only have a practical effect on the class action if there was not a settlement and the court determined compensation, said Spoor.
A full Bench of three high court judges had ordered that the class action take place in two phases.
In the first phase, all the common issues for all the class members should get sorted out. In the second, individual issues would be dealt with. The mines’ court papers give a good indication of how they see this
According to AngloGold “the class action would in effect decide nothing on a class-wide basis, and unravel into a series of individual actions” and become “a time-consuming, expensive, but futile exercise”.
Anglo American predicts that the class action will advance by the “constant creation of subclasses, resulting in procedural complexity and increasing the possibility of procedural miscarriages”.
The better option would be smaller “test cases”, said Anglo.