"Silicosis class action bolstered by SCA ruling against mining companies", 7 Feb 2023

The Supreme Court of Appeal (SCA) has dismissed a bid by two mining companies to challenge a court certification of a class action which could potentially result in them being liable for damages suffered by thousands of miners who contracted silicosis.

Apart from challenging the certification, DRDGold and East Rand Proprietary Mines also wanted to overturn the decision in the Johannesburg High Court to develop the common law, allowing families of miners who have subsequently died, or may die pending the resolution of the case, to benefit from any eventual damages award or settlement.

But the SCA has said neither issue is appealable at this stage and struck the matter from the roll.

This means that the class action can proceed.

At this stage there are only 69 applicants in the class action and a process is underway for others affected to either opt in or opt out of the litigation...

In the ruling handed down this week, Judge Christiaan van der Merwe, writing for the court, said it was common cause that over several decades many thousands of underground mine workers in South African gold mines contracted silicosis or pulmonary tuberculosis, caused through the inhalation of large quantities of silica dust.

Silicosis is a painful, incurable and progressive disease, often resulting in death...

Judge van der Merwe said the mining companies represented virtually the entire industry in South Africa, including "parent companies" because of their controlling interest.

In the High Court, the 69 miners had presented evidence of prolonged industry-wide underground exposure to unhealthy levels of silica dust and that the mining companies had been negligent and wrong in failing to properly address this health hazard.

They said every affected mineworker - or his dependents - had a claim for damages...

Judge van der Merwe said as a result of a settlement agreement signed by the majority of the mines, the certification only now applied to six mining companies. Only DRDGold and East Rand Proprietary Mines appealed.

Judge van der Merwe said orders were generally not appealable if they were not final and definitive.

"The certification is no more than a procedural device aimed at facilitating the determination of the class action. It has no final effect … and is susceptible to alteration by the court hearing the class action.

"It is not definitive of any rights."

The judge said the mining companies had contended that should the certification not be set aside, their participation in the class action would cause them to suffer undue prejudice because they had little part to play in it...

The court ... order[ed] the mines to pay the costs.