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Gold miner silicosis litigation (re So. Africa)

GoldOn 21 December 2012 attorney Richard Spoor filed a motion in South Africa court seeking class certification for as many as 17,000 ex-gold miners suffering from the lung disease silicosis.  The proposed class action named 30 gold mining companies as defendants, including African Rainbow Minerals, AngloGold Ashanti, Gold Fields and Harmony Gold.  The plaintiffs allege that the defendant companies knew of the dangers posed to the miners by exposing them to silica dust and that defendants failed to take adequate measures to protect the workers from this exposure.

On 31 October 2013 the High Court of Johannesburg ruled that all of the pending lawsuits against gold mining companies regarding silicosis may be consolidated into one action.  The High Court started to hear the class certification motion on 12 October 2015. 

On 13 May 2016, South Africa's High Court allowed the class action lawsuit.  The companies appealed the decision.  On 24 June, the High Court rejected the appeal on the basis that the certification of a class action is a procedural step and therefore, not appealable.  In September 2016, six of the defendant companies were granted the right to appeal the South Gauteng High Court’s decision allowing the plaintiffs to pursue a class action.  In December 2017, both parties requested the Supreme Court of Appeal to postpone the hearing, while they are trying to reach a settlement.  In January 2018, the Court granted postponement.  On 3 May 2018, the parties announced that they have reached an agreement.  The settlement provides for compensation to all workers who worked at the companies' mines at any point since March 1965 and are suffering from silicosis, as well to the families of deceased miners.  Six companies targeted in the lawsuit have set aside approximately $400 million to settle.  The settlement will be submitted for the South Gauteng High Court's ratification before implementation.  The class action will continue against three smaller companies that did not participate in the settlement. A silicosis fund that will disburse the funds is to be established in 2019. On 26 July 2019, the Johannesburg High Court approved 5 billion rands (US$353 million) class-action settlement.

- "South African court allows silicosis class action suit against gold firms", TJ Strydom & Zimasa Mpemnyama, Reuters, 13 May 2016
- “Ex-miners seek silicosis class action vs. South African firms”, Reuters, 28 Dec 2012

- Richard Spoor Inc. Attorneys [counsel for the plaintiffs]:Gold Miner Silicosis Litigation

- [PDF] Nkala, et al. v. Harmony Gold Mining Company Limited, et al. - Judgement on leave to appeal, 24 Jun 2016
- [PDF] Nkala, et al. v. Harmony Gold Mining Company Limited, et al. - Judgement on authorization of class action, 13 May 2016
- [PDF] Nkala, et al. v. Harmony Gold Mining Company Limited, et al. – Notice of Motion, 21 Dec 2012 [application for class certification]
- [PDF] Nkala, et al. v. Harmony Gold Mining Company Limited, et al. – Draft Particulars of Claim, 21 Dec 2012

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25 October 2019

"There is no monster under the bed?"

Author: Legal Design

Transitional justice entails processes following a period of conflict and is associated with a society’s attempts to come to terms with a legacy of large-scale past human rights abuse. It involves four processes: obtaining truth regarding the violations, remediating the violations, achieving justice, and putting in place measures to guarantee non-repetition...

Towards the end of the apartheid regime, South Africa’s Constitution was negotiated and drafted in two stages...The question of whether and to what extent constitutional rights should apply to corporations was one of the most contentious debates during the Multi-Party Negotiation Process (MPNP). Seeking to constitutionally redress past and deter future corporate violations, debates were had over direct or indirect application of constitutional rights to corporations in a new democratic South Africa. 

Direct application means the use by private  persons of rights contained in the Bill of Rights in private litigation against other private or juristic persons - for our purpose corporations.  In contrast, indirect application refers to the infusion of constitutional values as secondary guiding principles in the interpretation of private law...

Decided in 1995, Du Plessis is an important foundational case for corporate accountability in South Africa. It was the first time the Constitutional Court wrestled with the question of direct and indirect application...

The majority judgment is heavily criticized for its failure to engage the important political and jurisprudential concerns which drove the MPNP’s debates. The dissenting minority “bogeyman” fear argument stressed that the majority’s conservatism was predicated on a fear... The unwillingness towards direct application was seen as immunizing from direct constitutional scrutiny a whole range of private racist relationships created and sustained at common law by previous apartheid regimes, which would continue to manifest in the form of social and economic inequality in the “new South Africa.”

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23 September 2019

Gold Mining: South Africa's Public and Private Violence Part I

Author: Tladi Marumo, Legal Design

In 2011, South Africa’s Constitutional Court in an unprecedented step classified the gold mining industry’s historical and ongoing systemic exposure of mineworkers to occupational lung disease as acts of public and private violence. ...

Gold mining began in South Africa in 1886. It was powered by a racially discriminatory cheap migrant labor system, with mineworkers recruited from the rural areas of South Africa, Lesotho, Swaziland, Zimbabwe, Mozambique, Botswana, Zambia, Tanzania and Malawi. The large transnational gold mining companies united by the Chamber of Mines, jointly influenced foreign exchange and contributed significantly to state revenue... in 1929 there were 193,221 black and 21,949 white mineworkers... As early as 1902, gold mineworkers were facing a major health crisis in which occupational lung diseases, silicosis and TB limited mineworkers’ working lives from four to seven years. 

Responding to the health crisis, the gold mining industry and government initiated several interventions starting in 1902, including more than 20 commissions and select committees of inquiry...

The commissions and select committees of inquiry, some finding in favor of and others against the gold mining industry, noted the separate and unequal treatment of white and black mineworkers. White silicotic mineworkers and those with TB were treated at a sanatorium, given surface jobs, pensions and retraining. In contrast, few black mineworkers were treated at the mines by mine medical officers, and the many with silicosis and TB who became unfit to work were sent back to their originating rural labor-sending areas. Their return caused their communities to be infected with TB. Leaving the mines without medical certification, and returning to rural areas with very minimal to mostly nonexistent medical facilities, many died without receiving compensation. The unequal compensation system is evident from the fact that despite an average of ten black mineworkers for every one white mineworker, the total compensation paid to white mineworkers was thirty times greater. Remedial recommendations included: the introduction of dust control and elimination measures; initial, periodic and exit medical examinations be conducted; and the creation of a uniform system of compensation. 


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30 July 2019

So. Africa: R5-billion silicosis settlement approved by the Johannesburg high court is not a finite amount

Author: Tshegofatso Mathe, Mail & Guardian (South Africa)

‘Money from the silicosis settlement is not fixed’ 29 July 2019

The R5-billion silicosis settlement approved by the Johannesburg high court last week Friday is not a finite amount and can increase depending on the number of claims received, attorneys involved in the case said on Monday at a media briefing at Sunnyside Park Hotel in Parktown. “A lot of settlements are often about the amount without knowing how many claims there may be. This is different because it is not about the amount, it is about the settlement amount per claimant — so that means its open-ended — because we are not sure how many claims there are,” said Graham Briggs, chair of the Occupational Lung Diseases (OLD) working group. The case spans from 2012 when Richard Spoor Attorneys, Abrahams Kiewitz incorporated and the Legal Resource Centre brought a class action against a number of gold mining companies to get compensation for goldmine workers exposed to silica dust and who got sick from either silicosis or tuberculosis.

The settlement will give current and ex gold mineworkers an opportunity to receive a medical examination and much-needed compensation for those eligible claimants suffering from silicosis, the lawyers said. This means goldmine workers or their dependants, if the mineworker has passed away, might be eligible for compensation if the mineworker suffered from silicosis or certain types of tuberculosis contracted at work at certain gold mines any time after March 12 1965. Miners affected are eligible to get R10 000 to R500 000, depending on the nature and the severity of the disease. “There is no maximum and there is also no minimum — so the guarantees of R5-billion are regarded by both sides as being the reasonable estimate of what the ultimate liability might be,” said Micheal Murray of the OLD working group.

“So it’s possible that it could be more than that and possible that it could be less than that,  but anything above that, the companies will remain liable for that [the amount]”. Six gold miners African Rainbow Minerals, Anglo American, AngloGold Ashanti, Gold Fields, Harmony and Sibanye-Stillwaters along with the claimants attorneys will set up the Tshiamiso trust which will make sure qualifying miners get compensation. Briggs said conditions for curbing silicosis on the mines have improved in recent years. He says for many years it has been a problem to deal with silicosis because of the way dust is liberated differs from mine to mine. Briggs said some dust gets released through a scraping process, others through ventilation or blasting.

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29 July 2019

So. Africa: Johannesburg High Court approves $353 million class action settlement in lawsuit against mining firms re lung disease

Author: Africa News

"South African court approves $353 million class action settlement", 28 Jul 2019

A Johannesburg High Court on Friday approved a 5 billion rand ($353 million) class action settlement between gold mining companies and law firms representing thousands of miners who contracted the fatal lung diseases silicosis and tuberculosis.

The settlement follows a long legal battle by miners to win compensation for illnesses they say they contracted over decades because of negligence in health and safety.

“All the parties made an effort to ensure that the settlement agreement is reasonable, adequate and fair,” the High Court said in its judgment...

The gold producers agreed in May last year to the settlement but it needed to be approved by the Johannesburg High Court before being implemented.

The class-action suit was launched in 2012 on behalf of miners suffering from silicosis, an incurable disease caused by inhaling silica dust from gold-bearing rocks.

It causes shortness of breath, a persistent cough and chest pains, and also makes people highly susceptible to tuberculosis.

The companies involved are Harmony Gold, Gold Fields, African Rainbow Minerals ARIJ.J, Sibanye-Stillwater SGLJ.J, AngloGold Ashanti and Anglo American South Africa. The latter no longer has gold assets but historically was a bullion producer...


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31 May 2019

So. Africa: 5 mining companies ask Court to accept 5 billion rand settlement in lawsuits re gold miners affected by silicosis & tuberculosis

Author: Ciaran Ryan, AllAfrica

"South Africa: Five Mining Groups Ask Court to Approve R5 Billion Silicosis Settlement Case", 30 May 2019

Lawyers for thousands of gold miners afflicted by silicosis or tuberculosis lined up on the side of five mining groups this week to ask the Gauteng High Court to approve a R5 billion settlement agreement.

The agreement provides for the payment of benefits worth R5 billion to mineworkers and the dependents of dead mineworkers who contracted silicosis or pulmonary tuberculosis during or after their employment from 1965. The benefits will be paid through the Tshiamiso Trust, which was set up specifically for this purpose

In 2016 the case was certified as a class action by the Gauteng Local Division of the High Court, and in December 2018 the court certified four classes of claimants: (1) those who contracted silicosis or were exposed to silica dust; (2) the dependents of deceased miners with silicosis; (3) those who contracted tuberculosis; and (4) the dependents of deceased miners who contracted tuberculosis while working at the mines.

Now the court is being asked to approve the R5 billion settlement agreement between legal representatives of the mineworkers and the five mining companies. The mining companies have secured guarantees for the R5 billion claim, though the eventual claim could be higher. Of this, R845 million has been set aside for administering the Tshiamiso Trust, which will accept claims for a period of 12 years, plus one additional year to wrap things up.

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14 December 2018

So. Africa: High Court sets out process for approving settlement between miners affected by silicosis, TB & mining companies

Author: Marleny Arnoldy, Creamer Media (So. Africa)

"High Court sets out process to action against silicosis, TB settlement agreement", 13 Dec 2018

The Johannesburg High Court on Thursday issued a court order setting out the processes in terms of which members of the settling classes and any interested parties should be invited to show cause why the silicosis and tuberculosis class action settlement agreement should not be made an order of court.

This follows the signing of a settlement agreement on May 3 by 48 representatives of the settling classes...and the companies that are members of the Occupational Lung Disease Working Group, including African Rainbow Minerals, Anglo American South Africa, AngloGold Ashanti, Gold Fields, Harmony Gold and Sibanye-Stillwater.

...This second hearing’s purpose is to determine the fairness and reasonableness of the settlement. The second hearing has been scheduled for May 29 to 31, 2019...

The parties to the settlement agreement can seek an order from the Johannesburg High Court approving the settlement agreement.

This will enable the parties to fulfill the remaining conditions in the settlement agreement, leading ultimately to the establishment of a trust that will be responsible for making payments to all eligible beneficiaries...

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19 October 2018

So. Africa: Trust to disburse funds to miners following silicosis & tuberculosis lawsuit settlement to be established in 2019

Author: South African News Agency

"Silicosis fund to be established in April 2019", 17 Oct 2018

A trust, which will disburse funds for mine workers who contracted silicosis and tuberculosis, is to be established in April 2019...

This follows the historic class action settlement reached on 3 May between mining companies and claimants’ attorneys. The class action involved mining companies African Rainbow Minerals, Anglo American SA, AngloGold Ashanti, Gold Fields, Harmony and Sibanye-Stillwater.

The class action also involved attorneys Richard Spoor Inc, Abrahams Kiewitz Inc and the Legal Resources Centre, who represented mineworkers and their dependents.

The class action involved current and former workers from the six mining companies from 12 March 1965 to 3 May 2018, who were certified as having contracted silicosis, as well as those who contracted certain severe forms of tuberculosis.

The settlement needs to be approved by the South Gauteng High Court, which could take several months...

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3 May 2018

Mining companies to fork out about R5-billion to mineworkers after silicosis settlement

Author: Nico Gous, Sunday Times (So. Africa)

...[A]n historic class action settlement was reached on Thursday with those suffering from silicosis and tuberculosis.  The settlement was the first of its kind in South Africa...The draft settlement...will provide a medical examination and compensation to mineworkers who worked in gold mines from March 12‚ 1965‚ to date.  The High Court in Johannesburg will now review the draft settlement.  Once it has been approved‚ a trust deed will be set up...The parties compromised and reached a settlement out of concern for the “inevitably lengthy and expensive litigation”...Mineworkers’ benefits will increase annually in line with the consumer price index (CPI) from the third year of the trust.  Mining companies agreed to contribute R845-million in administration costs to the trust...

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3 May 2018

South Africa miners reach $400 million silicosis settlement with mining companies

Author: Ed Stoddard, Patricia Aruo, Reuters

South African gold producers agreed a 5 billion rand ($400 million) class action settlement on with law firms representing thousands of miners who contracted the fatal lung diseases silicosis and tuberculosis, officials said...The most far-reaching class action settlement ever reached in South Africa follows a long legal battle by miners to win compensation for illnesses they say they contracted over decades because of negligence in health and safety.  The six companies involved had already set aside the settlement amount in provisions in previous financial statements and it should not affect future earnings, unless the number of claimants who come forward exceed the current provisions.  Estimates for the number of potential claimants range from tens of thousands to hundreds of thousands.  Three smaller gold producers are not party to the settlement and the class action against them will continue...The settlement is broken into three parts and a trust will have 12 years to track down the claimants and distribute the funds...The companies involved are Harmony Gold, Gold Fields, African Rainbow Minerals, Sibanye-Stillwater, AngloGold Ashanti and Anglo American South Africa...

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3 May 2018

South African Gold Producers Reach Lung-Disease Settlement

Author: Felix Njini, Jef Feeley, Bloomberg (USA)

Anglo American Plc, Harmony Gold Mining Co. Ltd. and other mining companies agreed to resolve a lawsuit filed by workers who said they contracted deadly lung diseases in South African gold mines in the country’s largest class-action settlement deal.  The agreement provides for compensation for all eligible workers suffering from silicosis or tuberculosis who worked in the companies’ mines at any point since March 1965, the parties said in a statement...The six producers, which also include AngloGold Ashanti Ltd. and Gold Fields Ltd., last year set aside about 5 billion rand ($390 million) to settle the lawsuit.  The settlement will be submitted to South Africa’s South Gauteng High Court for ratification...There is no limit on the number of potential claimants, the parties said in a statement.  The agreement was reached following three years of negotiations and is the first class-action settlement of its kind in South Africa...The mining companies were represented by the Occupational Lung Disease Working Group, while Richard Spoor Inc, Abrahams Kiewitz Inc., Motley Rice, Hausfeld LLP and the Legal Resources Centre represented the class members...Under the deal, the companies will set up a trust to fund silicosis-treatment programs in South Africa and other countries where miners migrated from, including Mozambique, Botswana and Zimbabwe, according to a statement.  Ten classes of miners are eligible for medical assessment and treatment...Families of miners who died also are eligible for compensation, under the settlement...

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