09 November 2022 – Mining companies appeal historic silicosis settlement

LRC logo

For Immediate Release

09 November 2022

Mining companies appeal historic silicosis settlement

BLOEMFONTEIN — On Friday, 11 November 2022, the Supreme Court of Appeal (SCA) will hear an appeal against the 2016 decision of the Johannesburg High Court to certify an unprecedented class action against the majority of gold mining companies in South Africa. The class action was brought to pursue damages against the respondent gold mining companies on behalf of mineworkers who suffer from silicosis and tuberculosis because of their prolonged exposure to excessive levels of silica dust while working on the gold mines. The appeal is brought by DRDGold (DRD) and East Rand Proprietary Mines Limited (ERPM).

Represented by Richard Spoor Incorporated, the Legal Resources Centre and Abrahams Kiewitz Attorneys, the mineworkers argue that the gold mining companies, as their employers, failed for generations to enact proper measures to protect them from the very serious risks associated with the inhalation of silica dust – while profiting from this continued exposure.

In the appeal, the SCA is called upon to determine two key issues which are likely to create ground-breaking precedent. First, whether the high court erred in its decision to certify the class action against the appellants, DRD and ERPM. As DRD did not operate mines for the full duration of the class period, and ERPM went through a liquidation process in 1999, the SCA will undoubtedly canvass complex issues including the principle of commonality in class action proceedings in South Africa and the effect of liquidation on personal injury claims.

Second, the SCA must decide whether the high court was incorrect in its decision to develop the common law to allow for the transmissibility of general damages to the deceased estates of claimants who pass away after the launch of the proceedings but before the close of pleadings. Should the high court’s decision be reversed in this respect, the widows and other family members of the mineworkers who have succumbed to their disease would have no means to bring any general damages claim against the gold mining companies despite the untimely and distressing death of their loved ones. This will disproportionately impact women and children as dependents of the deceased mineworkers.

DRD and ERPM are 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. In contrast, 19 of the other respondent mining companies reached a historic settlement with the affected mineworkers in 2018. This settlement amounted to an uncapped R5 billion in compensation to be administered and paid to the qualifying mineworkers by the Tshiamiso Trust. Sibanye-Stillwater, the majority shareholder of DRD at present, was party to this settlement agreement.

While many of the mineworkers have successfully made and received their claims from the Tshiamiso Trust, only those who worked on the mines owned by DRD and ERPM do not qualify to claim from this trust and must wait for the lengthy appeal, and possible trial process, to be completed. This is a devastating reality for many previous DRD and ERPM employees, and their families, as they continue to contend with the financial burden of their illnesses, including ongoing medical monitoring and treatment, with little to no support. The seriousness of this situation is further illustrated by the fact that many of the class plaintiffs who were appointed to represent the interests of the DRD and ERPM mineworkers in the class action have sadly passed away in the six years this appeal has been pending, and new class representatives will have to be appointed once the action is permitted to continue. As this process has unfolded, many are left feeling frustrated and certain that their pursuit of justice may fall foul to a game of running out the clock.

For more information about this case or media queries, kindly contact:

Legal Resources Centre:     Cell: 068 584 2442/Email: thabo@lrc.org.za

Richard Spoor Inc:                Cell: 082 851 6103/Email: george@rsinc.co.za

Cell: 083 627 1722/Email: richard@rsinc.co.za