TAC and SECTION27 welcome historic judgment in silicosis and TB class action
JOHANNESBURG, FRIDAY 13TH MAY 2016: The Treatment Action Campaign (TAC) and SECTION27 welcome the judgment handed down by Deputy Judge President Mojapelo today in the South Gauteng High Court in the case of Bongani Nkala and 68 Others v Harmony Gold Mining Company Ltd and 31 Others. This judgment is an important step toward providing just compensation for the many thousands of miners who contracted silicosis or tuberculosis on South Africa’s gold mines.
“For over 100 years the mining companies have simply allowed their employees to get sick with silicosis and tuberculosis,” says Anele Yawa, General Secretary of the TAC. “They knew how to protect their workers, but they chose not to do so. This judgment says to those companies that apartheid is over. Under the Constitution you will no longer get away with treating your workers as if they are not human beings.”
The court today certified two classes. The first and larger is gold miners and former gold miners who have contracted silicosis and the second is those who have contracted TB. The class criteria require that a person worked underground in the mines for at least two years since 1965 and contracted either disease. Anyone who meets these criteria is part of the class. The lawsuit, unless settled, will now proceed into trials in which common issues relevant to all class members will be determined.
The court confirmed today that for mineworkers, “it is class action or no action at all. Class action is the only realistic option open to mineworkers and their dependents. It is the only way they would be able to realise their constitutional right of access to court bearing in mind that they are poor, lack the sophistication to litigate individually, have no access to legal representatives and are continually battling the effects of two extremely debilitating diseases.” [para 100]
Today’s judgment is also important for all vulnerable people in South Africa. A class action is a powerful mechanism by which poor or vulnerable people can access justice. It is however not commonly used in South Africa. This judgment helps those who do not have resources on their own to pool efforts in order to access justice. It recalibrates the balance of power to give the poor a better chance of holding the powerful to account. Thus, while the judgment is important in its own right, it also has far reaching implications for the prospects of the poor who seek to challenge the powerful. As the court wrote today “class action represents a paradigmatic shift in the South African legal process” to benefit those for whom it would be otherwise “almost impossible” to win justice. [para 33]