- We call on mining houses to stop denials and obfuscation and to acknowledge wrong-doing and pay compensation
From last Monday (October 12) the South Gauteng High Court has been hearing a historic case seeking justice for former mine workers who developed silicosis and/or tuberculosis because of the neglect of mining companies. The applicants are seeking to have two classes certified so that the case can continue as a class action. The mining houses are opposing the class action.
Both in court and in the media the mining houses have refused to take responsibility for their failure to protect their workers against dangerously high levels of silica dust. This refusal to take responsibility for their disregard for the lives of mostly black and poor workers over decades is deeply disappointing. At our march to the high court on Wednesday one of our banners read “Dear mining companies, apartheid is over”. This was not said in jest. Judging by their arguments in court, these companies seem intent on continuing to avoid responsibility for their actions – and thereby to continue to deny justice to their former workers. The spirit of apartheid lives on in the denials of these mining companies.
In addition to putting their workers at risk of silicosis and tuberculosis, there can be no doubt that these companies exploited the apartheid migrant labour system to their own benefit and that they helped create and maintain the socio-economic conditions that drove the first decade of the HIV epidemic.
It is unfortunate that mining houses will not voluntarily take responsibility for this painful history. They will now be forced to do so through the law. Our Constitution and common law places the interests of justice and the rights of people above legal technicalities. As in the 2002 PMTCT case, our Constitution and bill of rights will ultimately ensure justice in this matter.
The mining houses started arguing last Wednesday and will continue to do so for the next few days. They have an extraordinarily large team of over twenty Experienced advocates – among which is Advocate Fanie Cilliers – who acted for the Pharmaceutical Manufacturers Association in the 2001 PMA case against the South African government. TAC was also admitted as friend of the court in that case.
Both in their court papers and in court mining companies are arguing every legal avenue available – no matter how far-fetched – against the certification of the two classes. They offer no plausible alternative to a class action. Their implicit argument is that no justice is better than complicated justice. As Advocate Matthew Chaskalson pointed out, “The real question is why do mine bosses not want a class action? Because it is class action or no access to justice at all.”
It is correct that the combined neglect of the industry spans decades and involves many mines and many mining companies and that this necessarily makes the case relatively complicated. The mining houses are attempting to abuse the scale and breadth of the case to convince the court that justice would be too difficult to administer. We disagree. The scale and breadth of the neglect of these companies is exactly why it is so important that justice must be administered in this case.
In addition, the fact that the former mine workers are sick and at increased risk of early death means that the need for justice is highly time-sensitive. As Advocate Gilbert Marcus pointed out, with the laps of time, more and more plaintiffs will die.
We thus call on mining houses to stop their denials and obfuscation and to take responsibility for their shameful neglect of the health of their mostly poor and black workers. We also call on mining houses to stop opposing the class action and to cooperate in the swift settlement of this matter in a way that will ensure that former mineworkers with silicosis and/or tuberculosis and their families can access just compensation.
To learn more about the former mine workers who are applicants in this case see photographer Tom Pearce’s moving portraits on the Guardian website: http://www.theguardian.com/world/gallery/2015/oct/12/south-africa-gold-mine-lawsuit-silicosis-miners-photography
Notes on last week’s proceedings in court:
- On Monday and Tuesday last week council for the applicants led by Advocate Wim Trengove made a compelling case for a class action as the only realistic means by which miners will be able to access justice. It is unrealistic for over 100,000 former mine workers who are mostly poor, all sick, and mostly from rural areas to bring over 100,000 separate cases. While the respondents oppose the class action, they did not propose an alternative means in their court papers by which these former mine workers can access justice.
- On the question of whether mining companies could be held responsible for any specific case of silicosis or TB, council for the applicants made reference to the 2012 Constitutional Court judgement in the Dudley Lee case (a case in which TAC was also admitted as friend of the court). In that case the court found that the Department of Correctional Services could be held liable for Mr Lee contracting TB – not because there was conclusive evidence that their neglect caused his specific infection – but because they failed to institute sufficient infection control measures and thereby placed Mr Lee at increased risk. The same logic should apply in the silicosis case.
- On Tuesday last week Advocate Gilbert Marcus argued compellingly that the court has a duty to develop the common law on the transmissibility of damages in the interests of justice. This essentially means that the law should be advanced in such a way as to ensure that the surviving family of deceased miners will receive compensation as soon as possible. He specifically pointed out the “macabre” argument of mines – “wait for more and more miners to die before you develop the common law”.
- On Wednesday last week Advocate Matthew Chaskalson argued on behalf of TAC and Sonke that the Constitution gives people a right to bring a class action against private companies if their basic rights have been infringed or threatened. He argued that the key question before the court should not be whether or not to certify a class, but whether the class should run from 1994 or from 1965. Given that the harm done by mining companies before and after 1994 was essentially the same Chaskalson argued that the class should span the longer period.
For media comment contact Anele Yawa or Marcus Low on 021 422 1700 or Marcus.email@example.com.