Largest class action certification in Africa on appeal

06/06/16

Six of the world's largest gold miners lodged on Friday applications for leave to appeal against the certification of  a class action by workers employed over the past 50 years or their dependants. The number of potential claimants is estimated as up to 500 000 workers. It is thought to be the largest class certification to date in Africa.

The gold producers are African Rainbow Minerals, Anglo American, Anglo-Gold Ashanti, Gold Fields, Harmony and Sibanye Gold.

They seek leave to appeal against a judgment handed down by the Full Bench of the High Court in Johannesburg earlier this month. The judgment gave the go-ahead to two widely-drawn classes of claimants: those claiming on the basis of silicosis contracted through blasting processes and those who claim for tuberculosis alleged to have been contracted on the mines. It did so on the basis that no more than two years' exposure to quartzite dust on any one or more of the mines – many of the claimants have worked for multiple employers, and for varying periods – suffices for membership of the silicosis class. No period of exposure at all to tuberculosis is provided in the certification orders made.

The court also introduced a major change in the law of damages by accelerating the transmissibility of claims to date of institution of the claim and not litis contestatio (joinder of issue), as has been the established common-law rule.

The damages claims are brought on various bases: breach of constitutional duties (since the advent of the 1993 and then 1996 Constitutions), breach of statutory duty and liability ex delicto (in tort).

The applications for leave to appeal contend that the Full Bench erred materially in demarcating unworkably large classes, in holding that tuberculosis claimants made out the necessary case for certification, in failing to determine any period of exposure for the latter, and in its remodelling of the principles applicable to transmissibility of  claims to dependants.

The judgment is here.