Publications
Partners
This article has been updated to clarify that no finding was made that companies violated the constitution.
Johannesburg - Mineworkers suffering from silicosis have made a prima facie case that mining companies had violated their constitutional rights, a South Gauteng High Court judge said on Friday in a monumental ruling over silicosis affecting mineworkers.
"We have to assume, for present purposes, that the mining companies violated their constitutional, statutory and common law rights as at this stage the mineworkers have made out a prima facie case in this regard," Deputy Judge President Phineas Mojapelo said in the judgment.
Mojapelo ruled in favour of mineworkers who contracted the fatal lung disease silicosis as well as tuberculosis to launch a class action suit against 32 companies in the mining sector, including Harmony Gold [JSE:HAR], AngloGold Ashanti [JSE:ANG] and Gold Fields[JSE:GFI].
“We have reached the consensus that there are sufficient common issues to justify the class action. There will be two classes (for silicosis and for TB)," Mojapelo told the court on Friday morning.
“All the mining companies are accused of failing to protect the health of the employees when they were legally bound to do so and as a result causing (the mine workers) to contract TB and silicosis," Mojapelo said.
The judge said if the miners felt they could not access the legal system, they should be permitted to make use of their constitutional right to access to courts.
"If access to courts is denied to them, to follow a particular process to access a class action, then our rule of law is ruptured... We hold the view that in this particular case, class action is the only action.
"It is in the interest of justice that class action be certified in this case."
He said each of the applicant mineworkers represented by law firm Spoor in this case filed individual affidavits; and that all these affidavits were similar or almost identical.
"With remarkable consistency, their evidence reveals that the mining companies stripped them of their dignity, and concomitantly compromised their health and safety, with such intensity and ferocity that they were effectively dehumanised," said Mojapelo.
He said it had been known since 1902 that the inhalation of excessive silica dust is the sole cause of silicosis, an occupational lung disease contracted by mineworkers who work underground in gold mines. It is an irreversible, incurable and painful lung disease. The mineworkers argued in court that their employers had violated their rights to human dignity, bodily integrity and an environment that was not harmful to their health and well-being.
"They say that the mining companies' neglect was industrial in scale resulting in them ultimately being forced to bear the unbearable."
Alan Fine, spokesperson for the Occupational Lung disease Working Group comprising Armgold, AngloGold Ashanti, Anglo American SA, Gold fields, Harmony and Sibanye, said the companies would study the judgment.
"Each company will have to decide for itself whether to consider an appeal or not, in the meanwhile, the working group will continue its work, which involves working with government on compensation systems, improving the compensation systems and will carry one the dialogue with the representatives of the claimants that has been going on for the last several months with a view to seek a comprehensive and fair and sustainable solution," said Fine.
The Treatment Action Campaign, who were admitted as Friends of the Court, welcomed the judgment.
TAC general secretary Andile Yawa said this was a victory for the poor.
"That judgment means that the Constitution was able to be in favour of the majority of the people in South Africa, the poorest of the poor, the black people.
"So this judgment on its own is a victory to the mineworkers who are dying of silicosis, those who are sick and those who died - their families at the end of the day will get justice in compensation in order for them to find ways and means to sustain themselves but this judgment means that no one is above the constitution, it doesn't matter whether you make millions a day, the constitution doesn't recognise that, it recognises facts," said Yawa.
