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Sil­i­co­sis case one of mind over mat­ter, says attor­ney

A MEET­ING of minds. That’s how an attor­ney involved in South Africa’s land­mark sil­i­co­sis clas­s­ac­tion law­suit has described what it will take to reach an out-of-court-settlement with 30 impli­cated gold min­ing com­pa­nies.

“We’re opti­mistic that we will reach a set­tle­ment, but it will likely take time, as it requires a meet­ing of minds, involv­ing impor­tant and dif­fi­cult issues,” says Georgina Jeph­son, an attor­ney at Richard Spoor Attor­neys.

“We’re duty-bound to ensure that what­ever set­tle­ment is achieved is in the best inter­ests of our clients and the broader class.”

In May last year, in a precedent-setting judg­ment, the high court in Joburg cer­ti­fied the first-class action in the country’s his­tory for sick work­ers, allow­ing for mer gold mine work­ers suf­fer­ing from sil­i­co­sis and TB to pro­ceed with their claim against gold min­ing com­pa­nies.

Since 2004, the ground­break­ing case, which could ben­e­fit more than 200 000 minework­ers and their fam­i­lies, has been cham­pi­oned by Richard Spoor Incor­po­rated, Abra­hams Kiewitz Incor­po­rated and the Legal Resources Cen­tre.

They have argued that the min­ing com­pa­nies could have pre­vented what has often been referred to as a sil­i­co­sis epi­demic “had they taken ef fec­tive mea­sures to pre­vent the expo­sure of min­ers to harm­ful quan­ti­ties of sil­ica dust… A per­va­sive cul­ture has existed for decades in the min­ing indus­try that views these min­ers as dis­pos­able”.

“Our nego­ti­a­tions with the ( Occu­pa­tional Lung Dis­ease) work­ing group con­tinue and we endeav­our to reach an appro­pri­ate set­tle­ment to the lit­i­ga­tion,” says Jeph­son.

“We’re hop­ing that a set­tle­ment trust, along the lines of the Asbestos Relief Trust, will be estab­lished to com­pen­sate qual­i­fy­ing minework­ers with sil­i­co­sis and the depen­dants of those who have already passed away.”

Alan Fine, the spokesper­son for the work­ing group, which includes African Rain­bow Min­er­als, Anglo Amer­i­can, Angl­o­Gold Ashanti, Har mony, Gold­fields and Sibanye, is opti­mistic, too, about reach­ing a set­tle­ment.

“We’re hope­ful it will be pos­si­ble to finalise a set­tle­ment dur­ing the course of 2017. It is pre­ma­ture to say too much about the nature of a set­tle­ment at this stage of the dis­cus­sions.

“How­ever, the work­ing group com­pris­ing the six com­pa­nies envis­ages the estab­lish­ment of a legacy fund that will pay an addi­tional amount to peo­ple who have received or are eli­gi­ble for statu­tory com­pen­sa­tion.”

In appeal doc­u­ments that were sub­mit­ted to the Supreme Court of Appeal last month, Anglo Amer­i­can SA con­tends that the class action “in the form sub­mit­ted, lacked the req­ui­site clar­ity and cer­tainty nec­es­sary for cer­ti­fi­ca­tion”.

“There were man­i­fold fea­tures show­ing that the class action, in the form in which it was pro­posed for cer­ti­fi­ca­tion, was unvi­able and the court erred in fail­ing to reach that con­clu­sion.”

The court action, in the form cer­ti­fied, was “impos­si­bly broad”.

“There are no shared com­mon issues which can jus­tify the exces­sive ambit of the action,” it says.

In its appeal, DRD­Gold states the claimants alleged no con­duct car­ried on jointly by the min­ing houses with the DRD­Gold appel­lants or any rela­tion­ship of law or fact that might ren­der the DRD­Gold appel­lants jointly liable, together with the other min­ing houses, for claims by mem­bers of the sil­i­co­sis or TB classes.

Richard Spoor Attor­neys is work­ing on its heads of argu­ments to be filed in response to those filed by the min­ing com­pa­nies who are appeal­ing the deci­sion of the high court, to be filed on March 28.

“The argu­ments they raise in sup­port of the appeal are sim­i­lar to those raised in the high court when they opposed the cer­ti­fi­ca­tion appli­ca­tion,” says Jeph­son.

 

The Star — Sheree Bega 18 March 2017

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