Two mining companies fail in bid to appeal against silicosis class action certification

The Supreme Court of Appeal (SCA) has struck down with costs an appeal by two gold mining companies against the decision of the high court in 2016 to certify a class action against them and other gold mining companies by workers with silicosis.

DRDGold (DRD) and East Rand Proprietary Mines Limited (ERPM) opted not to participate in the settlement agreement by mining companies after the certification of the class action, and decided to appeal against the certification and an aspect of the certification before the SCA.

The full bench of the SCA heard the application in November and struck the case off the roll.

The aspect the mining companies sought to appeal was a declarator which provided that a miner who has claimed damages, but who has died, will have such general damages transmissible to his estate.

The SCA ruled that neither the certification nor the declarator was a decision under the old Supreme Court Act. All of the applications that formed part of the consolidated application for certification were made before the Superior Courts Act commenced in 2013.

“Even though leave to appeal against both was granted, this court lacks jurisdiction to entertain an appeal against the certification or the declarator,” the court said.

In November last year, the Legal Resources Centre (LRC), one of the law firms representing the miners, said DRD and ERPM were the only mining companies that have persisted in litigating this matter.

“Their decision is unfortunate as these companies have been active in the South African gold mining industry from as early as the 1890s and are, therefore, long-standing parties to the historical wrongs giving rise to the class action.”

The LRC said in contrast, 19 of the other mining companies reached a historic settlement with the affected mineworkers in 2018. This settlement amounted to an uncapped R5bn  in compensation to be administered and paid to the qualifying mineworkers by the Tshiamiso Trust.

After the judgment, the LRC said for its clients, since all the companies they worked for have settled, those companies formed part of the settlement agreement and would not be proceeding to trial.

“We only represented our clients on the issue of transmissibility of damages, which we do not have a final decision on yet since the Supreme Court of Appeal struck the matter off the roll,” said LRC candidate attorney Tsukudu Moroeng.

“However, for those mineworkers whose mines did not settle (like those that appealed and six others), it is possible the class action will proceed to trial unless there is an appeal to the Constitutional Court or unless remaining companies settle.”

The lawyer representing some miners, Richard Spoor, said he remained hopeful DRD and ERPM would be willing to sit down with lawyers representing the miners and find agreement on a way to settle the claims against them.

“It would be the responsible thing to do,” he said.

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