Updated 25 August 2015

High court reserves judgement as civil society groups push for entry into silicosis case

South Africa's first class action case against the gold mining industry aims to win compensation for 200 000 miners affected by silicosis or TB and activists may know if they can testify by 28 August 2015.

The South Gauteng High Court today (25 August) reserved judgement on whether the Treatment Action Campaign (TAC) and Sonke Gender Justice will be allowed to appear as friends of the court in what could be the county’s first class action against the gold industry.

Represented by public interest law organisation Section27, TAC and Sonke are pushing to be admitted as friends of the court ahead of an October hearing that will determine whether the landmark class action suit against about 30 gold mines is allowed to move forward.

Lodged by Richard Spoor Attorneys, Abrahams Kiewitz Inc and the Legal Resources Centre (LRC), the class action aims to win compensation for up to 200,000 miners affected by silicosis or tuberculosis (TB) and their families. However, first the South Gauteng High Court must rule in October to accept the class action.

TAC and Sonke Gender Justice say that, if accepted, they will provide testimonies showing that silicosis and TB not only affect miners and families, but also larger communities. Sonke argues that, by effectively sending sick miners home to die, the gold industry shifts the burden of caring for their workers to rural women and girls.

“We are interested in the private and hidden lives of women and girls because they really carrying the burden of these really sick mine workers who are no longer able t continue learning a living in the mines,” said Tanya Charles, Sonke Gender Justice Policy Development and Advocacy Specialist. “This is the story of how gold mining impacts on women, girls and communities.”

The majority of mining houses have opposed the civil society bid. During two days of litigation, teams representing Anglo America, Harmony Gold and Gold Fields argued that TAC and Sonke’s testimonies failed tests for novelty and relevance. With the larger silicosis class action already having dragged for three years and created more than 5,000 pages of court documents, mining houses also argued that the addition of more testimonies would cost them and the court time and money.

But Judge Bashir Vally chastised mining houses for citing costs as a concern while no less than eight legal teams were representing the companies. However with about six weeks until the court is due to decide whether the class action can continue, judges acknowledged that time was a major concern.

They have asked TAC, Sonke and the mining houses to present a timeframe that could accommodate the admission of new civil society evidence by Wednesday afternoon.

Section27 Executive Director Mark Heywood said that while he did not want to try to predict the future, the judges’ request for such a timetable could be a sign that TAC and Sonke have made strong cases for their inclusion.

Heywood said that not only could the class action help shape future actions against, for instance, the pharmaceutical industry, it was also likely the only hope for justice for many who could not afford to litigate individually.

“In this country, we have access to justice in theory, not in practice because people can’t afford justice,” he said. “If the class action is not certified then for tens of thousands of mine workers the matter is literally dead.”

Silicosis is a lung disease arising from exposure to silica dust during mining that can appear decades after people are exposed to the dust. About a quarter of long-serving miners have silicosis, according to statistics cited by the LRC.

The high burden of silicosis among South African miners has also helped to fuel a deadly epidemic of TB that has been raging for decades. By 2007, the Department of Health estimated that the country’s gold mining industry had the world’s highest rate of new TB case.

Photo caption: A 2011 ConCourt judgement involving Nozuzile Mankayi's husband, Thembekile, set a precedent for miners everywhere. To this day, she has yet to receive compensation stemming from her husband's death from the state or his former employers AngloGold Ashanti. She is now set to be part of the class action if the court accepts it in October. Credit: Laura Lopez Gonzalez / Health-e News.


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