May 10, 2021

Court Greenlights Massive Class Action Against South African Mines

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Man working in old gold mine, Gold Reef City, South Africa.  Oct. 20, 2012.  Photo: R. Kiedrowski/DPA via ZUMA Press

Man working in old gold mine, Gold Reef City, South Africa. Oct. 20, 2012. Photo: R. Kiedrowski/DPA via ZUMA Press

By Julie Triedman, From Global Lawyer News
In a historic class action decision spearheaded by U.S. plaintiffs firms Hausfeld LLP and Motley Rice and their South African counsel, a court in Johannesburg on Friday greenlighted a four-year-old class action against 32 mining companies on behalf of current and former miners sickened with deadly silicosis and tuberculosis.
As many as a half million current and former gold miners with silicosis may be eligible to join the litigation, which was filed in August 2012; an additional large number of mine workers with tuberculosis will also be covered as a separate class. An estimated quarter to a third of all who worked in the mines are said to have contracted occupational lung diseases, so potential damages are steep. Estimates range between $660 million and a few billion dollars.
The case involved violations at 83 mines where protections were alleged to be grossly inadequate, and the class includes any miners who worked after 1965, when the health risk of silica dust exposure were first widely known and other industrialized countries instituted dust protections.
Now the case heads to discovery, although settlement is possible, the court noted in its 156-page decision. Some companies are likely to appeal Friday’s decision by the High Court in Johannesburg, the district level court.
The mining companies named in the litigation include Harmony Gold Mining Company, Gold Fields Limited, Anglogold Ashanti Limited, Anglo American South Africa Limited, and dozens of others. Baker & McKenzie, Norton Rose Fulbright and six South African firms are representing the various defendants.
In responses in the South African press, six mining companies collectively noted that the ruling doesn’t represent a decision on the case’s merits, which await trial; they also said that they were studying the decision.
The win is a victory not just for the miners and their families, but for the U.S. and South African lawyers who have spent multiple millions of dollars in the past five years on the matter. “This was one of the last major vestiges of apartheid, and involved a massive number of workers,” said Michael Hausfeld, founder of Hausfeld LLP and a longtime backer of the action. “None of these mining companies employed any of the protective technologies or practices used by companies in any industrialized country.”
As detailed in an October 2012 article in The American Lawyer, Hausfeld LLP has funded a nationwide effort by South African lawyer Charles Abrahams to locate and register sickened miners, as well as paying for individual health screenings and the salaries of lawyers on the case. The firm posted an associate to South Africa as a liaison, and both Hausfeld and fellow partner Richard Lewis have made trips to the country to provide advice on class action procedures and case strategy.
“We worked intimately with them in terms of devising the arguments and shaping the focus of both the class definition and the class mechanisms that would be available,” Hausfeld said on Friday a few hours after hearing word of the class action decision, which he called “exhilarating.”
Motley Rice, led by Michael Elsner, has similarly supported the efforts of a team led by co-lead counsel Richard Spoor, a human rights lawyer. Spoor enlisted the firm five years ago because of its experience obtaining large recoveries for asbestos victims in national occupational health cases, and because of its class action experience.
Both firms are now one step closer to reaping a large multiple of their millions in investments via fee sharing agreements with the South African counsel. Under the terms of their contingency agreements with individual miners in a court filing in 2012, plaintiffs firms agreed to cap their contingency fees at 15 percent—shy of the 25-35 percent plaintiffs firms routinely charge in U.S. litigation.
The two U.S. firms were emboldened by 1998 laws that broadly recognized South Africans’ right to join together in class actions. Working behind the scenes with Abrahams in 2002, Hausfeld advised on one of the earliest class actions, a consumer class action in 2002 involving bread prices that became a precedent for the current case.
The latest decision further extends the class action law. Despite the variety of defendants and the differences among the mines, “the only way justice can prevail in the cases of the individual mineworkers or their dependents is if they are afforded the opportunity to pursue their claims by at least having significant parts of it determined through a class action,” Judge Leonie Windell wrote, noting that certification was justified because of the wealth of common issues and evidence and the interests of practicality.
In another groundbreaking part of the ruling, the judge ruled that damages are transferable to heirs of deceased miners with valid claims. Thousands of potential class members have already died since the case was filed. Of the 24 original named plaintiffs, eight have already died. The class is now open to family members, including many “women, and in some cases girls,” the court noted, who had cared for years for a dying family member and had been prevented from attending school or working outside the home.
IMAGE: Man working in a gold mine in Gold Reef City, South Africa. Photo: R. Kiedrowski/DPA via ZUMA Press
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