May 13, 2016
Class Action Certified for South African Gold Miners in Landmark Case
The South Gauteng High Court in Johannesburg has certified the first class action in South African history for sick workers, allowing gold miners suffering from silicosis and tuberculosis to proceed with their claims against 30 gold producers, including AngloGold Ashanti, Harmony Gold, Gold Fields, Anglo American, and African Rainbow Minerals. Few class actions have been brought in South Africa and none for sick workers.
The class action includes thousands of people – all gold mine workers suffering from tuberculosis or silicosis and the dependents of deceased miners who ultimately died after contracting the often fatal diseases.
U.S. plaintiffs’ law firm Motley Rice LLC was retained by South Africa human rights lawyer Richard Spoor to consult on the litigation in 2011 to help bring justice to the miners. In addition to the Law Office of Richard Spoor Incorporated, the plaintiffs are represented by the Legal Resources Centre and Abrahams Kiewitz Incorporated.
“As miners we were not helped and protected even though our employers knew that we were going to get sick. I am happy and relieved that the court’s decision is in our favour,” said Mthobeli Gangatha, a former gold mine worker living in Lusikisiki in the Eastern Cape. Gangatha is a class representative in the litigation who has been diagnosed with silicosis.
Certification was granted for two separate groups:
- Current and former mineworkers who have contracted silicosis and the dependents of mineworkers who died of silicosis, whether or not accompanied by any other disease, who worked for two years or more on one or more of the 82 mines owned by one (or more) of the 30 named respondents.
- Current and former mineworkers who have tuberculosis, but who do not have silicosis, and the dependents of miners who died of tuberculosis, who worked for two years or more on one or more of the 82 mines owned by one (or more) of the 30 named respondents.
The Court also granted the plaintiffs’ prayer for transmissibility of damages permitting family members of workers who die after filing the complaint, a cause of action. The Court also awarded plaintiffs’ costs including costs for nine counsel.
The litigation alleges that the 30 named South African gold mining companies, that owned or operated 82 different gold mines from 1965 to the present, knew of the dangers posed to miners by silica dust for more than a century and alleges 12 specific forms of neglect and endangerment, including willfully ignoring and/or failing to execute almost all of the steps mandated in regulations and legislation designed to protect miners from silica dust. The plaintiffs allege that the respondents could have prevented what has often been referred to as an epidemic had they taken effective measures to prevent the exposure of miners to harmful quantities of dust, which the papers claim they had both the knowledge and resources to do. The litigation alleges that the mining industry has been able to profit, for decades, at the expense of employees’ health. The miners are predominantly from South Africa and several other surrounding countries historically known for supplying migratory labor to the mining industry.
“We are pleased with the Court’s decision because a class action is the best mechanism to manage tens of thousands of individual lawsuits. A class will provide meaningful access to justice for miners and their dependents,” said Motley Rice LLC human rights lawyer Michael Elsner. “Proceeding on a class-wide basis levels the playing field against the mining houses and provides the best opportunity to curb the silicosis public health crisis in South Africa.”
“A pervasive culture has existed for decades in the mining industry that views these miners as disposable. Therefore it has been a privilege to represent them and offer a voice to thousands who have never had one and who have been ignored by society,” said Spoor. “This class action is proof that when we push for what is right for those harmed, we can achieve real reform and in this case, overdue improvements to a broken system that has been in place for decades in the pursuit of justice.”
The action was made possible by Spoor who brought suit for Thembekile Mankayi, a single miner suffering from silicosis. The Constitutional Court found in 2011 that because miners were historically excluded from the traditional workers’ compensation system they may bring an action against their employers for negligence (See, Mankayi and AngloGold Ashanti, Ltd.).
Silicosis is caused by breathing in crystalline silica dust, which comes from the common mineral known as quartz. When inhaled, it damages lung tissue and results in scarring or fibrosis, which reduces lung function. Many mining processes, such as blasting, drilling, handling and transporting rock containing quartz, can generate crystalline silica dust. The most usual complication of silicosis, and a frequent cause of death, is tuberculosis. Individuals with silicosis are three times more likely to develop tuberculosis, which is already at epidemic levels in South Africa. Silicosis is irreversible, progressive and incurable.