Silicosis: will there be justice?

It is estimated that over 20 percent of former workers in South Africa’s gold mines who are still alive have silicosis.

Now, mineworkers are seeking justice. In 2011, the Constitutional Court ruled that former mineworkers can bring civil claims against mining companies in addition to the paltry compensation available through an existing statutory mechanism. If the former mineworkers have their way, those civil claims will now proceed in the form of a class action lawsuit – a case likely to cost the 32 gold mining companies involved billions of rands.

For two weeks this October, the South Gauteng High Court heard arguments from an extraordinary assembly of South Africa’s top legal counsel for and against allowing the case to proceed as a class action.

The counsel for the workers argued that a class action is the only realistic way in which workers could access justice – since it is not feasible that over a hundred thousand mineworkers, most of whom are poor, sick and live in rural areas, will bring separate cases.

In addition, counsel argued that proceeding as a class action makes sense because there are many common issues to be dealt with – such as what legal obligations mining companies had and have for the safety of their workers.

In response, counsel for the mining companies argued that a class action would be unmanageable due to the long time period (1965 to the present) and the wide variety of mines and mining companies involved. They however did not put forward any alternative proposals as to how over a hundred thousand mineworkers might access justice.

The court has reserved judgment. If the court rules that the matter can go ahead as a class action it would either proceed to trial or be settled out of court.

What are the mining companies alleged to have done wrong?

Counsel for the applicants presented evidence showing that gold mining companies in South Africa systematically and over decades failed to protect their workers from exposure to dangerously high levels of silica dust. It should be noted, though, that since these hearings were only concerned with establishing whether or not the case could proceed as a class action, this evidence wasn’t dissected as would be done in a trial. Instead, counsel for the mineworkers merely had to convince the three judges that on the face of it there was a case to be answered.

They referred to four sources of evidence to make their case. Most compellingly, they referenced the extremely high prevalence of silicosis among former workers in the gold mines.

Clearly, if the mining companies had sufficiently protected their workers there simply wouldn’t be so many people with silicosis around.

Secondly they cited a number of independent reports into the mining industry and safety in mines that were published through the decades. Thirdly they cited reports from the industry itself. And finally, they cited some of the personal accounts of the miners who are applicants in the case.

The core counter argument from the mining companies was that it does not make sense to treat the industry, or former miners, as homogenous. They argued that different mines did things differently, that underground conditions at mines differed substantially, and that given all this variation, there is a risk of punishing some mines for the transgressions of others.

Are the mining companies legally liable?

One of the remarkable things about the hearings was that the mining companies did not attempt to deny the fact that large numbers of their workers contracted silicosis. Instead, they provided a number of arguments as to why some or specific mining companies could not be held accountable. One of these arguments related to the difficulty of proving causality.

In this regard, the so-called ‘but for’ test was at issue. To pass the ‘but for’ test, it would need to be shown that ‘but for’ the wrongful conduct of the mining companies, the miners would not have contracted lung diseases. If this could not be proved, the company could not be held liable.

Put another way, it is possible that some miners would still have developed lung disease even if the companies did everything they were supposed to. This makes proving causation potentially tricky. In response, counsel for the miners cited the 2012 Constitutional Court judgment in the case of Dudley Lee. Mr Lee contracted TB while incarcerated at Pollsmoor Prison in Cape Town. In Mr Lee’s case, the court ruled that a strict application of the ‘but for’ principle would not serve the interests of justice. Instead, the court followed a flexible approach to the ‘but for’ test, an approach informed by the interests of justice in the context of vulnerable people and the difficulty in proving causation when it comes to lung disease. It went so far as to indicate that acts or ommissions that increase the risk of contracting lung disease may on their own be sufficient to prove causation. The same, the lawyers argued, would apply in regards to mining companies and silicosis and/or TB.

Will the families of deceased mineworkers have access to compensation?

Another hotly debated issue was the transmissibility of damages (whether or not the families of deceased mineworkers would also have a right to compensation). Certain types of damages, such as loss of wages, are automatically ‘transmissible’ to surviving dependants. However, other types, such as damages for ‘pain and suffering’ have not in the past been ‘transmissible’. In this regard, the court heard evidence about the wider impact of a miner becoming sick with silicosis and/or TB. In many cases, this meant that families lost bread-winners and that wives or daughters had to give up employment or educational opportunities to look after these sick men. Lawyers for the miners argued that the distinction between the types of damages is not rational. They urged the court to develop the common law to allow for the transmissibility of damages such as those for pain and suffering.

The two classes

The mineworkers asked the court to ‘certify’ two classes.
The first class would include everyone who had worked on a gold mine in South Africa for at least two years since 1965 and developed silicosis. This class includes workers who have both silicosis and TB. It is also not limited to just South African citizens. If certified, former mineworkers who live in neighbouring countries will also be able to access compensation as members of the class.

The second class is the TB-only class. It is the same as the first class except that it excludes all people with silicosis (whether or not they have TB as well). The TB-only class was much more hotly debated in court than the silicosis class. Counsel for the applicants presented evidence that excessive exposure to silica dust significantly increases the risk of developing TB – even if the silica dust exposure is not sufficient to cause actual silicosis. Counsel for the mining companies responded by arguing that TB has many potential causes and that exposure to silica dust would in most cases have been only one risk factor among many. Here too, though, the Lee judgment appears to have set a precedent that will favour the mineworkers: the causation questions that made the Lee case difficult are precisely the same as those that the mining companies say render the TB class impossible. The court in Lee’s case, however, cut through the problems to reach a just outcome.