Silicosis class action bolstered by Appeal Court ruling against gold miners

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, following which “common issues” would be determined in a first round of litigation and then individual claims during a second stage.

Following the certification of the litigation as a class action, several of the initial 32 mining companies (and parent companies), the owners of 82 mines, which had been cited, entered into settlement agreements with miners who worked for them.

But DRDGold and East Rand Proprietary Mines launched an appeal with the SCA.

Read the full judgment here.

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.

It is contended by the miners that while tuberculosis is a treatable bacterial lung disease, exposure to excessive silica dust increases the risk of miners contracting it.

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.