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Approved Summary of the Court Jugdment: Silicosis Class Action Settlement

NOTICE OF PROPOSED CLASS SETTLEMENT: SILICOSIS

Published by The Legal Resources Centre August 26, 2019

Compliance with order of court dated 26 July 2019

The documents below are published, in compliance with the order of court dated 26 July 2019:

 

IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG

Case Number: 44060/18
In the ex parte application of:

BONGANI NKALA & 67 OTHERS Applicants

IN RE: Application to approve a settlement agreement

SUMMARY OF COURT JUDGMENT

The following summary is provided to assist the members of the Settlement Classes and
interested parties who seek a summary of the court’s judgment. It is not binding on this court
or any member of the court.

1. On 13 May 2016 this court certified a class action against companies operating in the
gold mining industry, with two separate and distinct classes; a silicosis class and a
tuberculosis class (“the Nkala certification application” or “Nkala”). The court also
ordered that any settlement agreement reached by the class representatives on behalf
of a class must be approved by the court to be valid. A settlement agreement was
subsequently concluded between the class representatives and the Settling
Companies and signed on 3 May 2018. Clause 2.1.1 of the settlement agreement
provides for the suspension of the operation of the settlement agreement until it is
sanctioned by a court of law.

2. The settlement agreement, in a nutshell, provides for the payment of benefits to
mineworkers and the dependants of deceased mineworkers, who contracted silicosis
or pulmonary tuberculosis as a result of their employment by the Settling Companies,
through the Tshiamiso Trust (“the Trust”). The Trust will be funded by six of the Settling
Companies namely African Rainbow Minerals Limited, Anglo American South Africa
Limited, AngloGold Ashanti Limited, Gold Fields Limited, Harmony Gold Mining
Company Limited and Sibanye Gold Limited, who are also the founders of the Trust
(“the Founders”). Their liability to fund the Trust is unlimited. The Trust is, in terms of
the trust deed, obliged to identify and locate eligible mineworkers and dependants.
Claims may be submitted to and received by the Trust for a period of 12 years from
the date the Trust becomes effective. The effective date of the Trust is the date on
which the suspensive conditions in the settlement agreement are fulfilled. The
suspensive conditions, set out in clause 2.1 of the settlement agreement, are the
following:

2.1. The court’s approval of the settlement agreement and confirmation of the court’s
termination of the class action litigation as against the Settling Companies.

2.2. Confirmation that the number of claimants that have elected to opt out of the
settlement agreement within the prescribed period do not exceed 2000 (two
thousand). This condition may be waived by the Settling Companies.

2.3. The lodgement of the trust deed with the Master and the issuing of letters of authority
by the Master to the first trustees of the Trust.

3. The Trust must process and assess the claims and pay eligible mineworkers and
dependants in the amounts stipulated in the trust deed. The aim of the settlement
agreement is to provide compensation to those beneficiaries, in addition to and, in most
instances, in excess of — the compensation available under the Occupational
Diseases in Mines and Works Act 78 of 1973 (“ODIMWA”).

4. In Nkala this court held that any court considering a class settlement must assess
whether it is “fair, reasonable, adequate and that it protects the interests of the class”
before approving it. ° This is because the settlement agreement, if approved, will be
binding on absent class members unless they subsequently opt out, and is proposing
to compromise the rights of absent class members.

5. The Settlement Classes are set out in the Opt Out Notice. The eligibility of members
of the Settlement Classes to receive compensation under the settlement is qualified by
the terms of the settlement agreement and the trust deed. The key eligibility
requirement is the undertaking of “risk work” at a “qualifying mine” during a “qualifying
period”. Qualifying mines are the mines in respect of which each of the Settling
Companies is responsible for the purposes of the settlement agreement. The qualifying
periods are the periods during which the Settling Companies are responsible for those
mines for the purposes of the settlement agreement. The qualifying mines and the
qualifying periods are set out in Schedule F to the trust deed.

6. The Settlement Classes also includes mineworkers who were exposed to silica dust
on or before the effective date, but who only developed a qualifying disease after that
date, to the extent that such symptoms manifest during the 12- year period of operation
of the Trust.

7. Benefits will be payable to eligible claimants with silicosis or tuberculosis or, where
those persons have passed away, to their dependants or estates. The benefits paid
under the settlement and trust deed are in addition to those payable under ODIMWA.
Eligible claimants will be paid a specific amount depending on the nature and severity
of the concerned mineworker’s illness.

8. Claimants who are alive as at the effective date but who die before submitting a claim,
or who die after submitting a claim but before their claim is paid, will be treated as living
claimants and the full value of their claim will be paid to their estates.

9. All the parties made an effort to ensure that the settlement agreement is reasonable,
adequate and fair. The terms of the settlement agreement demonstrate that they
succeeded in their efforts. The negotiations yielded the best possible settlement terms
that the parties and stakeholders could find in the circumstances. We wish to express
our indebtedness to all the legal teams which represented various parties in this matter
for the commendable manner in which they discharged their duties to their clients and
to this court.

10. The settlement agreement is approved and made an order of court.
_____

If you are currently or have been a GOLD MINEWORKER in South Africa, at any time after 12 March 1965, and have been exposed to silica dust or you have contracted silicosis or tuberculosis (“TB”) OR you are A DEPENDANT (e.g., the wife, child or life partner) of such a gold mineworker who has since passed away, PLEASE READ THIS NOTICE CAREFULLY AS IT MAY AFFECT YOUR RIGHTS.

If you have some other interest in the  settlement you should also read this notice.

This opt out notice is available in isiZulu, isiXhosa, seSotho, seTswana, Portuguese, English and Afrikaans. You can see the notice in the language of your choice at a link below.

 

Opt out notice (IsiZulu)

Opt out notice (IsiXhosa)

Opt out notice (seSotho)

Opt out notice (seTswana)

Opt out notice (Portuguese)

Opt out notice (English)

Opt out notice (Afrikaans)

The Full Settlement Can be found here: Settlement Agreement and Trust Deed

NOTICE OF INTENTION TO PARTICIPATE can be found here: Notice of intention to participate

 

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