An ‘all-encompassing’ class action expected to allow for ‘streamlined evidence’
The three legal teams who have attempted to launch competing class action lawsuits to claim billions from South Africa’s gold mines for sick ex-mine workers, have buried the hatchet and consolidated their cases.
In addition, they are now asking the South Gauteng High Court to also certify a parallel class action for all ex-mine workers from gold mines suffering from tuberculosis – a possibly larger and even more complicated legal campaign.
The new combined class action involves a formidable legal team comprising the nonprofit Legal Resource Centre (LRC), local human rights attorneys Richard Spoor and Charles Abrahams, as well as two of the US’ best known celebrity class action lawyers (see Who’s Who).
Geoff Budlender, one of South Africa’s most respected advocates and co-founder of the LRC in 1979, is now the mine workers’ counsel along with his
The court papers were filed on Thursday after long negotiations between the legal teams to head off what could have been an ugly court battle among themselves before anyone got around to suing a mine.
In its initial affidavit in March, the LRC tried to convince the high court to remove Anglo American South Africa (AASA), likely the single largest defendant, from the Spoor case, which targeted all gold mines.
According to the affidavit, “the magnitude of potential AASA liabilities by far exceed that of any other corporate defendant”.
AASA also has billions of rands of assets (Anglo Coal, Anglo Platinum and most of Kumba Iron Ore) while many of its former gold subsidiaries are now defunct or marginal.
The LRC submitted that “it is not in the interests of the (AASA claimants) that their claims be subsumed in an industry-wide class action rather than a narrower and more manageable class in respect to AASA alone”.
The LRC had been preparing its own case against only AASA for nearly a decade and also claimed that Spoor had earlier said he“had no intention” of including the mining giant in his industry-wide case.
Spoor at the time reacted by saying the LRC’s intervention would cause problems as mine workers tended to work at several mines over their careers and that a joint and several liability across the whole industry would be the only practical solution.
The LRC now agrees.
“Upon review of the occupational history of the various class representatives . . . the LRC now appreciates both the overwhelmingly large number of mine workers that have worked in the respondents’ gold mines and the extent to which the work histories of mine workers involve employment by more than one . . .” read the LRC’s affidavit this week.
An “all-encompassing” class action will also allow “streamlined evidence” and is the best way to determine “the issue of comparative fault and joint and several liability”, says the LRC.
All three of the original legal teams had promised to cap their contingency fees at 15% of whatever amount they eventually get out of the mines, very likely hundreds of millions, if not billions, of rands if they succeed.
That arrangement stays in place for the combined case, says Spoor.
Who’s who: The lawyers taking on the gold mines
Almost everyone involved in the silicosis litigation is a veteran of asbestos litigation and have been working towards this silicosis case for almost a decade.
» THE LOCALS
Spoor is best known for his 2003 settlement worth R465 million with the former Gencor on behalf of asbestosis sufferers. In 2011, he won a historic Constitutional Court case against AngloGold Ashanti that for the first time made it possible to sue South African mines for occupational diseases if negligence could be proved. This was the beginning of the race to certify silicosis class actions.
Spoor’s original partner in the case before the Constitutional Court. Abrahams and Michael Hausfeld from the US collaborated on the class action against AngloGold Ashanti, Gold Fields and Harmony just before the Spoor case. That case is now part of the consolidation while Abrahams remains
in charge of the separate class action for tuberculosis damages.
Nindi is a human rights attorney in the Legal Resource Centre’s constitutional litigation unit and is leading the nonprofit firm’s work on silicosis. She was recently involved with the centre’s litigation on behalf of a village seeking independence from the Bakgatla-Ba-Kgafela Traditional Authority.
Budlender co-founded the Legal Resource Centre in 1979 along with former chief justice Arthur Chaskalson and many others.
He headed the centre’s constitutional litigation unit until 2004 and has since returned to private practice as a senior counsel. Budlender is one of South Africa’s most senior legal minds and has acted as a high court judge in Joburg and Cape Town.
» THE FOREIGN MUSCLE
The US firm backing the Spoor case legally and financially to the tune of R600 000 per month. Motley Rice has been one of the major players in billions of US dollars worth of asbestos-related litigation in North America in more than three decades. The firm’s founder, Ron Motley, was behind the historic American tobacco litigation of the late 1990s.
A class action veteran who has sued for damages related to the Nazi Holocaust and more recently partnered with Abrahams in the ill-fated apartheid reparations case.
Before joining Abrahams for their silicosis class action, Hausfeld already issued 1 055 claims on the back of Richard Meeran’s separate case in
the UK – a seemingly unrelated attempt to join the silicosis campaign.
The British veteran of mass damage claims at Leigh Day & Co, and the Legal Resource Centre’s consultant for nine years, Meeran has pulled out of the
new consolidated class action.
He recently lost a jurisdiction case in the UK, scuppering plans to separately sue Anglo American there on behalf of 2 336 former mine workers.
The case had been in the works since September 2011. He is best known locally for a £7.5 million (R120 million at today’s exchange) settlement for 7 500 South African asbestosis victims in 2002.
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