Lung-disease-afflicted miners file class action certification applications against gold producers

South African gold producers AngloGold Ashanti, Gold Fields and Harmony Gold could face a lawsuit from former mineworkers who suffer from occupational lung ailments.

Nongovernmental organisation Jubilee South Africa, with Cape Town-based law firm Abrahams Kiewitz Attorneys, filed 3 class action certification applications final week within the South Gauteng High Court, which, if granted, would permit a class action summons to become instituted against the three firms.

The case against AngloGold Ashanti involves the workers at its Vaal River and West Wits operations, whilst the situation against Harmony Gold pertains to its Cost-free State, Randfontein, Elandskraal, Evander, Totally free Gold, ARMGold, Avgold and Kalgold operations.

The case against Gold Fields requires its KDC, Beatrix and South Deep operations.

The class actions are available in the wake of last year’s Constitutional Court decision inside the situation of former mineworker Thembekile Mankayi against AngloGold Ashanti, in which it ruled that mineworkers with occupational lung ailments might claim for damages against their employers, Abrahams Kiewitz Attorneys senior partner Charles Abrahams said at a press conference in Johannesburg.

Abrahams says: “These applications assert that the mining organizations have breached their common, statutory and Constitutional duties towards these mineworkers. Inside the situation of common law, they have breached their duty of care to maintain a healthy and safe environment within their mines. Their statutory breach pertains to the Mines and Works Act and the regulations pursuant to this, as well as subsequent statutory enactments. The breach of constitutional duties is in respect of the court papers, which aver that Section 12 (1)(c) of the Constitution has been breached and it refers to the right to be free of charge from all forms of violence from either public or private sources.

“The three suits are fundamentally the same, as three mineworkers are, in each case, submitting the certification suit on behalf of all mineworkers who had worked for the specific firms on certain mines and who had contracted [some] form of occupational illness,” Abrahams added.

The certification application is a precursor to the actual class action that Jubilee South Africa and Abrahams Kiewitz Attorneys intend to pursue.

In the event of the class certification application being successful, the next step would be to issue class action summonses against the mining companies, seeking declaratory relief and damages.

With regard to the declaratory relief, there are common factual and legal issues we would want the court to rule on. The common factual issues are whether the mining firms, among others, maintained conditions within the gold mines to protect mineworkers from contracting occupational lung illnesses and whether they knew, or ought to have known, that exposure to silica dust causes occupational lung ailments such as silicosis and tuberculosis,” Abrahams explained.

The court will have to rule on common legal issues, which include whether the mining organizations had a legal duty under common law, statutory law and the Constitution to protect workers’ rights and whether such rights have been violated. Should the declaratory issues be decided in favour of the claimants, only then will the issue of damages be dealt with in court.

Abrahams declined to discuss an amount for the damages. “Only once certification has been granted and the declaratory stage of the summons has been successful will the damages amount be declared.”

However, if the high number of mineworkers involved was considered – research indicated that there were between 350 000 and 500 000 former mineworkers in Southern Africa who might suffer from occupational lung illness and who had not received compensation – the claim potential could amount to tens of billions of rands.

Jubilee South Africa chairperson Malletpumelele Giyose, who also spoke at the press conference, pointed out that the workers were the forgotten party in South Africa’s mining industry, as they had not made any fortune out of the operations and yet they had sacrificed their health because of the i pndustry.

“Today we have come to the hour of reckoning, where the gold mineworkers are standing up and campaigning to demand compensation for their health and all their losses as a result of working in the mining industry,” he said.

“Jubilee South Africa will stand at the head of this campaign and we will fight with the miners until no one can ignore the issue any longer,” Giyose concluded.

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