Pretoria - Two of South Africa’s biggest mining companies lost their appeal this week against an earlier judgment allowing mineworkers suffering from sick silicosis and/or tuberculosis, to bring a class action against them.
Thousands of sick mineworkers and the families of those already dead won a victory in 2016 when the Gauteng High Court, Johannesburg, certified their claims against a host of mining companies and some of the so-called parent companies, to constitute a class action. The court also gave permission to the families of those who had died to sue the mining companies.
Mining giants DRDGold Ltd and East Rand Property Mines, however, turned to the Supreme Court of Appeal (SCA) to overturn the ruling that allowed the class action suits.
The issue before the SCA was whether the high court’s certification and declaratory orders were appealable. That court found it did not have the jurisdiction to entertain this appeal at this stage, and struck the matter off the roll. The two mining companies were ordered to pay the legal costs.
Counsel for the miners, during the earlier high court application, presented prima facie evidence of the prolonged industry-wide underground exposure of mineworkers to unhealthy levels of silica dust. They claimed that the mining companies failed to properly address this health hazard.
They further argued that every mineworker who had worked underground in a gold mine and thus contracted silicosis and/or tuberculosis – or his dependants – had a delictual claim for damages against the mining company for which he worked underground, as well as against the applicable parent companies.
They succeeded with their argument that the commonality between the claims of these claimants justified the certification of a class action.
The court, in 2016, also issued a declaratory order regarding the transmissibility of general damages to the estates of deceased claimants.
At the SCA’s request, the parties addressed the court at the hearing on the appealability of the certification and the declarator. On Monday the SCA said it had come to the conclusion that neither was appealable at this stage.
It said certification was no more than a procedural device aimed at facilitating the determination of the class action. It had no final effect, was not definitive of any rights and did not dispose of any portion of the relief claimed.
The court said while the declarator may not be susceptible to alteration, it is not definitive of the rights of any existing claimant. It is also not dispositive of any relief claimed in the class action. The court said the interests of justice also do not qualify the declarator as an appealable decision.
Neither the certification nor the declarator is a decision under section 16(1) of the Superior Courts Act. The court thus lacked jurisdiction to entertain an appeal against the certification or the declarator, it said.
DRDGold and East Rand Property Miners were the only two mining companies that appealed the class action orders. Several other mining companies have already settled claims with miners and in some instances with the estates of those who had died.
In 2019, the court approved a R5 billion settlement agreement between miners and several of the mining companies.
Pretoria News