Whether mineworkers and former mineworkers can bring an action for damages as a class, against gold mining companies for negligence as a result of which they were exposed to dust that caused silicosis and TB
June 20, 2016
Whether mineworkers and former mineworkers can bring an action for damages as a class, against gold mining companies for negligence as a result of which they were exposed to dust that caused silicosis and TB
In the matter between Bongani Nkala & 68 others and Harmony Gold Mining Company Ltd & 31 Others and The Treatment Action Campaign NPC and Sonke Gender Justice NPC
High Court of South Africa, Gauteng Local Division
Consolidated Case Number: 48226/12
Mojapelo DJP, Vally J & Windell J
Reported by Linda Awuor & Kevin Kakai
Gold mining began on the Witwatersrand in 1886. It had grown over the years spreading to other parts of the country, significantly the Free State. Simultaneous with that growth, the industry left in its trail tens of thousands, if not hundreds of thousands, of current and former underground mineworkers who suffered from debilitating and incurable silicosis and pulmonary tuberculosis (TB). Many mineworkers also died from the diseases. Soon after the commencement of gold mining the risk of underground mineworkers being adversely affected by exposure to silica dust and thus suffering from silicosis, which was initially called “phthisis”, became manifest.
From as early as 1902 several Commissions of Enquiry (“Commissions”) were appointed by the government to investigate the causes and prevalence of silicosis. These Commissions found the inhalation of excessive silica dust to be the sole cause of silicosis. The Commissions recommended that dust control and dust elimination measures be introduced.
There were other studies and investigations, including some by the mining industry itself, which made similar findings. Mineworkers employed in the gold mining industry and their dependents moved to court to obtain compensation as a result of the mineworkers having contracted silicosis or TB.
(i) Whether a class action touching on the bill of rights should be certified before going to trial
(ii) Whether mineworkers and former mineworkers can bring action for damages as a class, against gold mining companies for negligence as a result of which they were exposed to dust that caused silicosis and TB for damages as a class
(iii) Whether a dependant of a deceased person, or an estate (through the executor) of a deceased person is entitled to pursue a claim for general damages, future loss of earnings, or future medical expenses.
Constitutional law - bill of rights – class actions – certification of class actions-whether class actions touching on the bill of rights require certification before proceeding to trial –Constitution of the Republic of South Africa, sections 38, 39 (2) and 173
Constitutional law – bill of rights – class actions -Whether mineworkers and former mineworkers can bring action for damages as a class – Constitution of the Republic of South Africa, sections 38 and 39
Relevant provisions of law:
Constitution of the Republic of South Africa
Section 38 – Enforcement of rights
Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are—
(a)anyone acting in their own interest;
(b)anyone acting on behalf of another person who cannot act in their own name;
(c)anyone acting as a member of, or in the interest of, a group or class of persons;
(d)anyone acting in the public interest; and
(e)an association acting in the interest of its members.
Section 39 – Interpratation of Bill of Rights
(2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.
Section 173 – Inherent power
The Constitutional Court, the Supreme Court of Appeal and the High Court of South Africa each has the inherent power to protect and regulate their own process, and to develop the common law, taking into account the interests of justice.
Held by majority of the Court (with Windell J dissenting):
- The class action process was part of the equity developed law and was designed to cover situations where the parties, particularly plaintiffs, were so numerous that it would have been almost impossible to bring them all before the Court in one hearing, and where it would have not been in the interest of justice for them to come before court individually.
- Section 38(c) of the Constitution of the Republic of South Africa allowed any person (natural or juristic) to approach a court alleging that a right in the Bill of Rights had been infringed or threatened. Such person would approach the Court as a member of, or in the interest of, a group or class of persons.
- A class action could only proceed to trial if it had been certified by the Court as being an appropriate means of resolving a dispute between the putative class members and the Defendant(s). The Supreme Court of Appeal (SCA) did not, however, restrict this prerequisite to cases where no right in the Bill of Rights had been invoked.
- The Court was unable to agree with the reasoning that certification was unnecessary in a case where a right entrenched in the Bill of Rights was invoked by the class action representative(s) for two simple reasons, namely that, (i) it could have led to an abuse of court process and, (ii) that it could, as had occurred in Australia, cause numerous costly and time-consuming interlocutory skirmishes around the very issues that the certification court ought to have resolved. The need for the Court to protect its own process did not disappear in a matter where a right in the Bill of Rights had been invoked. Section 173 of the Constitution made it plain that the Court had inherent power to protect its own processes.
- It was in any event correct that any settlement agreement reached after certification of the class action should have been subject to the approval of the Court and that it should have only been valid once approved by the Court. That was to ensure that the settlement reached was fair, reasonable, adequate and that it protected the interests of the class.
- Any mineworker, or his dependants, would have to show the following if he, or they, wished to benefit from being members of the silicosis class: he was then a current or former underground mineworker; he had contracted silicosis, or had died of silicosis (whether or not accompanied by any other disease); he worked after March 12, 1965 on one or more of the specific gold mines listed in annexure “A” attached to the judgment (excluding Village and Buffelsfontein); his claim was not among the claims which were to be determined by arbitration in the matter of Blom and others v Anglo American South Africa Limited; and, he was not a plaintiff in the action instituted in the United Kingdom against Anglo American South Africa Limited under case numbers HQ11X03245, HQ11X03246, HQ12X02667 and HQ12X05544.
- Any mineworker, or his dependants, would have to show the following if he, or they, wished to benefit from being members of the TB class: he was then a current or former underground mineworker; he had contracted TB, or had died of TB but excluding silicosis; he worked or had worked after March 12, 1965 for at least two years on one or more of the specific gold mines listed in Annexure A (excluding Village, Buffelsfontein, DRD and ERPM) attached to the judgement.
- The criteria used to identify members of the two classes must have been objective. In defining the class it was not necessary to identify all the putative class members. The class must have however been defined with sufficient precision as to have allowed for a particular individual’s membership to be objectively determined.
- There was simply no need for the entire class membership to be determined before the common issues of fact or law would be determined, or before relevant evidence common to all class members, and which advanced the cases of each class member, was entertained.
- For a delictual action to be successful it would have to be shown by a plaintiff that:
(a)the defendant acted or failed to act, and
(b)the defendant’s action or omission was wrongful (often dealt with under the rubric “breach of a legal duty”), and
(c)the defendant was at fault (often captured under the head “negligence”), and
(d)the act or omission of the defendant caused the damage suffered by the plaintiff, and
(e)the damage endured by the plaintiff is capable of quantification.
- The evidence adduced in Court was relevant and necessary for it pertained to the issues of breach of duties of care as well as to the fault elements of the delict the mineworkers complained of. Some of the evidence consisted of highly technical scientific material and each individual mineworker lacked the capacity to bring it to court on his own. However, all this evidence was applicable to each and every mineworker’s case and if the thousands of mineworkers would ever be able to, and actually did litigate individually then without doubt, the same evidence would be repeatedly presented to court.
- The unlawful exposure to excessive levels of silica dust was common to that of the silicosis mineworkers; there was no logical or practical reason to deprive the TB mineworkers from being part of the same class action. Accordingly, the Court found that the mining companies’ resistance to combining the TB mineworkers’ case with that of the silicosis mineworkers was without merit.
- There were sufficient common issues of fact and law that allowed for, at least at the first stage, a single proceeding to be held where evidence and argument common to all the mines was entertained. There could be no significant conflict of interest while these common issues and evidence were being dealt with. The Court was unconvinced by the arguments that the class action should not have been certified because it inherently bore a scope for conflicts of interest between mineworkers who wanted to settle and those who didn’t.
- A certification was not dependent on each mineworker’s case being fully and finally determined once the common issues were determined in favour of the mineworkers. As long as it could be shown that determination of the common issues would advance the cases of the individual mineworkers substantially, a certification of the intended class action would be justified and would be in the interests of justice.
- The class action would not only have been to the benefit of the mineworkers but also to that of the mining companies which raised defences that were common to all or most of the mineworkers. The defences would be determined once and would enjoy the status of finality. The Court would be saved the inconvenience of dealing with more than one case and hearing the same evidence on the same issue. It would enhance judicial economy. Further, it would have prevented the potential harm to judicial integrity caused by various courts hearing the same evidence and producing conflicting decisions from that evidence.
- The trial court would, no doubt, have been tasked with managing the process once the class action was certified. Importantly, while the trial court was seized with the matter the mining companies would have pleaded their cases, the pre-trial processes that were available in terms of the rules of Court would be finalised and that Court, using its powers in terms of the Constitution of the Republic of South Africa, section 173, the various rules of Court and practice directives, would have been able to decide on the route(s) best suited to have resolved the manifold disputes that were bound to surface.
- It could only do that once the issues had been crystallised by the pleadings. That Court had significant powers to manage the proceedings in the interests of justice. It was, furthermore, within the wit of that Court to determine whether sub-classes should be formed and for the proceedings to be arranged in such a manner so as to have done justice between the parties.
- It would have been inappropriate, if not impossible, for the Court, which was only concerned with certification of the class action, to plot the best route forward for the trial Court, or to identify any possible sub-classes for the trial court. The Court did not have the benefit of the pleas of the parties or the outcome of the pre-trial processes. Sight must have never been lost of the fact that the certifying court could not pre-determine for the trial court what should happen at the trial. In the Court’s view, the certifying court doing so would be exceeding its remit.
- Common Law did not entitle a dependant of a deceased person, or an estate (through the executor) of a deceased person, to pursue a claim for general damages, future loss of earnings, or future medical expenses. However, the dependants of the deceased claimant could pursue claims for loss of support and actual diminution of their patrimony resulting from the wrongful conduct of the Defendant, and which wrongful conduct caused the death of their breadwinner.
- Denying them the opportunity to transmit the compensation of general damages to their estates effectively removed their right to bodily integrity. To the extent that it did so, the common law was incompatible with, or deviated from, the Constitution. They were entitled to compensation from the wrongdoer (the mining companies) and their dependants were entitled to benefit therefrom.
- The common law had to be developed to allow for the claim for general damages to be transmissible to the estate or executor of a deceased mineworker, even though the stage of litis contestatio had not been reached at the time of his death. Also, the development was necessary in the light of the Court’s general duty to do justice by the persons affected by its orders. The development should not have been restricted to the case where the plaintiff had died pre-litis contestatio. It should have also applied to the case where the defendant or potential defendant had died pre-litis contestatio as the same principles as those that applied to plaintiffs applied to them.
- The common law should have been developed as follows:
(a)A plaintiff who had commenced suing for general damages but who had died whether arising from harm caused by a wrongful act or omission of a person or otherwise, and whose claim had yet to reach the stage of litis contestatio, and who would but for his/her death would have been entitled to maintain the action and recover the general damages in respect thereof, would have been entitled to continue with such action notwithstanding his/her death; and,
(b)The person who would have been liable for the general damages if the death of a plaintiff had not ensued remained liable for the said general damages notwithstanding the death of the plaintiff so harmed;
(c)Such action should have been for the benefit of the estate of the person whose death had been so caused;
(d)A defendant who died while an action against him had commenced for general damages arising from harm caused by his wrongful act or omission and whose case had yet to reach the stage of litis contestatio remained liable for the said general damages notwithstanding his death, and the estate of the defendant would continue to bear the liability despite the death of the defendant.
- By holding that it was in the interests of justice that the class action be certified, the Court did not, hold that the mining companies were jointly liable for the harm suffered by an individual mineworker. The law of delict was clear in this regard.
- Having had regard to the complicity and the aggregated strength of opposition by the mining companies, Counsel for the mining companies, like those for the mineworkers, shared responsibility and topics in presenting the case to the Court and would, if successful, all have been included in the mining companies’ entitlement to costs. The costs order sought by the mineworkers was justified.
Windell J Dissenting:
- The common law rule dealing with transmissibility of general damages regulated both the active and passive transmissibility of general damages. Claims were accordingly available to the heir of the person wronged and against the heir of the wrongdoer. It was important to strike a balance between the rights of heirs of wrongdoers and the rights of heirs of persons who had been wronged. The development of the common law would have implications for the deceased estates (and hence the heirs) of any wrongdoers who died before litis contestatio.
- There were clearly divergent approaches in the respective legislatures of different jurisdictions. Foreign models should not have been used without proper recognition of non–legal aspects that influenced the procedures in both foreign and local jurisdictions. Incorporating foreign customs into practice through judicial prescriptions may not have had the desired result. The power of the courts to develop the common law must be exercised in an incremental fashion as required by the facts of each particular case.
- South Africa did not have legislation governing class action claims. The rules governing class actions had been developed by the courts. In the absence of legislative regulation in South Africa, the courts were duty bound to continue the development of class action proceedings.
- The courts had not yet pronounced on the application of the rules relating to close of pleadings and transmissibility in the context of class action proceedings. If the rule was applied strictly, litis contestatio could not have been reached during the certification proceedings at all. It would be reached only after the finalization of the certification process, and thus after the exchange of pleadings.
- The spirit, purport and objects of the Bill of Rights required the incremental development of the common law regarding transmissibility in respect of class actions. The development extended only to the transmissibility of claims for general damages in those cases where a class member died after the institution of the certification application and prior to finalisation of a class action.
I. It was declared that the following group of persons constituted a class:
(a)Current and former underground mineworkers who had contracted silicosis, and the dependants of underground mineworkers who died of silicosis (whether or not accompanied by any other disease –
(i) Where such mineworkers worked or had worked on one or more of the gold mines listed on the attached “Annexure A”, after March12, 1965;
(ii) Whose claims were not among the claims which, by agreement, were to be determined by arbitration in the matter of Blom and Others v Anglo American South Africa Limited; and
(iii) Who were not named plaintiffs in the action instituted in the United Kingdom against Anglo American South Africa Limited under case numbers HQ11X03245, HQ11X03246, HQ12X02667 and HQ12X05544 (the silicosis class).
II. The following group of persons constituted a class:
(a)The then current and former underground mineworkers who had contracted pulmonary tuberculosis, and the dependants of deceased underground mineworkers who died of pulmonary tuberculosis (but excluding silico-tuberculosis), where such mineworkers were working or had worked for at least two years on one or more of the gold mines listed on the attached “Annexure A”, after March12, 1965 (the pulmonary tuberculosis class)
III. The attorneys on record for the applicants were certified as the legal representatives of the members of the classes for the further conduct of the class action as follows:
(a)Abrahams Kiewitz Incorporated (Abrahams), Richard Spoor Inc. Attorneys (Spoor) and the Legal Resources Centre (LRC) were certified as the joint legal representatives of the members of the silicosis class;
(b)Abrahams was certified as the legal representative of the members of the pulmonary tuberculosis class; and
(c)The fee arrangements set out in the annexures RS13 and RS21 to the replying affidavit of Richard Spoor were authorised in respect of the legal representatives of the classes.
IV. The following applicants, whomever were surviving at the time of the class action, were granted leave to act as class representatives –
(a)The first to fifty-second applicants were granted leave to act as representatives of the silicosis class of which they were members;
(b)The thirty-third, thirty-fifth, thirty-sixth and the fifty-third to sixty-ninth applicants were granted leave to act as representatives of the pulmonary tuberculosis class of which they were members.
V. The class representatives in para 4 had the requisite standing to bring the class action and to represent the members of the silicosis class and the pulmonary tuberculosis class in claims for damages.
VI. The following steps should be taken to give notice of the class action to members of the classes substantially in accordance with the notice attached as “Annexure B1” (the notice):
(a)The applicants’ legal representatives should publish the notice:
(i) As an advertisement in the newspapers listed in “Annexure D” thereto. The notice should be published in each such newspaper once per week for a period of four (4) weeks;
(ii) As a radio announcement substantially in the form of “Annexure C1”, broadcast on each of the radio stations listed in “Annexure D” and in the languages stipulated therein. Such broadcasts were to be made twice daily on alternate days for a period of 4 weeks;
(iii) On a prominent notice board at each of the offices of the applicants’ legal representatives for a period of not less than 180 days;
(iv) On a prominent notice board at each office of the Employment Bureau of Africa in Southern Africa for a period of not less than 180 days;
(v) On a prominent notice board at each Justice Centre and public office of Legal Aid South Africa for a period of not less than 180 days;
(vi) On a prominent notice board at each regional office of the National Union of Mineworkers (NUM) and the Association of Mineworkers and Construction Union (AMCU) for a period of not less than 180 days;
(vii) By procuring Legal Aid South Africa to circulate the notice to each of its attorneys and candidate attorneys employed in providing legal aid in civil matters; and
(viii) By delivering a copy of the notice to each advice office, paralegal office and community-based organisation with which the applicants’ legal representatives were familiar and which were likely, in the opinion of the applicants’ legal representatives, to be approached by members of the class; and
(ix) On the websites of the applicants’ legal representatives.
VII. The applicants’ legal representatives were directed to file reports with the court on a quarterly basis setting out the steps taken to publish the notice and the progress made in identifying the members of the classes, the first such report to be filed 3 months after the date of the order.
VII. Any claimant, who had claimed for general damages, and who had died or died prior to the finalization of his case, would have such general damages transmissible to his estate, regardless of whether he had joined the class action or not. The claim of general damages in this case should be transmissible from the date when the certification application was launched in August 2012.
IX. The members of the classes would be bound by the judgment or judgments in the first stage of the class action against the mining companies, unless they gave written notice to Abrahams, Spoor, or the LRC by January31, 2017, that they wished to be excluded as members of any of the classes against each or any of the respondents.
X. It was ordered that:
(a)Upon conclusion of the first stage of the class action, the members of the silicosis class had to give written notice to Abrahams, Spoor or the LRC by a date to be determined by the court at that time:
(i) That they wished to opt in and be included as members of the silicosis class in the second stage of the class action; and
(ii) Which respondent or respondents sought to hold liable in the second stage of the class action.
(b)Upon conclusion of the first stage of the class action, the members of the pulmonary tuberculosis class had to give written notice to Abrahams by a date to be determined by the court at that time:
(i) That they wished to opt in and be included as members of the pulmonary tuberculosis class in the second stage of the class action; and
(ii) Which respondent or respondents they sought to hold liable in the second stage of the class action.
(c)Only members who gave such notice timeously would have the benefit of and be bound by the judgments in the second stage of the class action as against the respondent or respondents that were found to be liable to them.
XI. The references to respondent or respondents:
(a)In paragraph 6.2 excluded the twentieth (20th), twenty-first (21st), twenty-fifth (25th) and twenty-sixth (26th) respondents insofar as they pertained to the notice obligations and costs in respect of the tuberculosis class
(b)In paragraph 6.2 excluded the twentieth (20th) and twenty-first (21st) respondents insofar as they pertained to the notice obligations and costs in respect of the silicosis class.
(c)In paragraph 15 excluded the twentieth (20th), twenty-first (21st) and twenty-ninth (29th) respondents as a whole and the twenty-fifth (25th) and twenty-sixth (26th) respondents insofar as they pertained to costs of the tuberculosis class.
XII. The respondents were jointly and severally liable for half of the mineworkers’ costs of publicizing the notice as was set out in paragraph 6.1.
i. Any settlement agreement reached by the parties should only be of force and should take effect if approved by the Court.
ii. The conditional counter-application of the first (1st), second (2nd), fourth to eighth (4th – 8th) and thirty-second (32nd) respondents was dismissed with costs.
iii. The respondents were jointly and severally liable for the costs of the application which costs were to include those occasioned by the employment of four senior counsel and five junior counsel.
iv. The parties were granted leave to approach the Court, on the same papers duly supplemented, for an order varying or amplifying the provisions of the order pertaining to the notice and the costs associated with the notice, in the event that it is considered necessary by any party.
Relevance to Kenyan Situation
The Constitution of Kenya, 2010 under article 22 (1) states that every person has the right to institute court proceedings claiming that a right or fundamental freedom in the bill of rights has been denied, violated or infringed or is threatened. The Constitution, further under article 22(2) states that in addition to a person acting in their own interest may be instituted by a person acting as a member of , or in the interest of a group or class of persons.
The Civil Procedure Rules, 2010 under Order 1 Rule 8 states that one person may sue or defend on behalf of all in same interest, where numerous persons have the same interest in any proceedings, the proceedings may be commenced, and unless the Court otherwise orders, continued, by or against any one or more of them as of all in same representing all or as representing all except one or more of them.
The Civil Procedure Rules, 2010 further under Order 4 Rule 4 states that where the plaintiff sues in a representative capacity the plaint should state the capacity in which he is suing and where the defendant is sued in a representative capacity the plaint should state the capacity in which he is sued, and in both cases it should be stated how that capacity arises.
The Kenyan position on the institution of class actions going by the courts decisions is that for one to bring a class action, one first needs to seek leave of court.
In Halima Mohamed Abdile & 3 others(suing on their own behalf and on behalf of the members of Korogocho Owners Welfare (KOWA) v Peter Kinyanjui & 38 others ELC Civil Suit No.231 of 2013 the court held that Order 1 Rule 8 (2) provides for the giving of notice to all persons on whose behalf the suit is brought to enable such persons to decide whether or not they wish to be enjoined as parties to the suit. Thus the plain Applicants could properly initiate the suit in the manner they did. The Court further held that the Applicants were in order to file a suit embodying a prayer for leave to bring a representative action and a prayer for injunctive relief.
In Motion No. 44 of 2014 between Kenya Bankers Association and Rose Florence Wanjiru & 2 others (Application for certification of matters of general public importance) the Supreme Court agreed with the Appellate Court that the issue of whether or not a party instituting a representative suit had obtained the permission of the Court to do so, was not a matter of general public importance. The Court further agreed with the Appellate Court’s holding that the question as to whether the 1st respondent was required to obtain leave in order to bring a representative suit, was not a substantial one, and had no significant bearing on the general public.