Nkala and Others v Harmony Gold Mining Company Limited and Others (48226/12, 31324/12, 31326/12, 31327/12, 48226/12, 08108/13) [2016] ZAGPJHC 97; [2016] 3 All SA 233 (GJ); 2016 (7) BCLR 881 (GJ); 2016 (5) SA 240 (GJ) (13 May 2016)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2016
>>
[2016] ZAGPJHC 97
|

|

Nkala and Others v Harmony Gold Mining Company Limited and Others (48226/12, 31324/12, 31326/12, 31327/12, 48226/12, 08108/13) [2016] ZAGPJHC 97; [2016] 3 All SA 233 (GJ); 2016 (7) BCLR 881 (GJ); 2016 (5) SA 240 (GJ) (13 May 2016)

REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
Consolidated
Case Number: 48226/12
Previous
Case Numbers: 31324/12
31326/12
31327/12
48226/12
08108/13
DATE:
13 MAY 2016
In
the matter between:
BONGANI
NKALA
.........................................................................................................
First
Applicant
SIPORONO
PHAHLAM
.............................................................................................
Second
Applicant
MAPHATSOE
KOMPI
..................................................................................................
Third
Applicant
THEMBEKILE
MNAHENI
........................................................................................
Fourth
Applicant
MATONA
MABEA
..........................................................................................................
Fifth
Applicant
MOKHOLOFU
BOXWELL
..........................................................................................
Sixth
Applicant
ALLOYS
MNCEDI
MSUTHU
..................................................................................
Seventh
Applicant
MYEKELWA
MKENYANE
........................................................................................
Eighth
Applicant
MASIKO
SOMI
..............................................................................................................
Ninth
Applicant
ZWELENDABA
MGIDI
...............................................................................................
Tenth
Applicant
MTHOBELI
GANGATHA
......................................................................................
Eleventh
Applicant
LANDILE
QEBULA
...................................................................................................
Twelfth
Applicant
PHUMELELO
SOLITASI
SIYOCOLO
.............................................................
Thirteenth
Applicant
TEKEZA
JOSEPH
MDUKISA
............................................................................
Fourteenth
Applicant
MICHAEL
LITABE
.................................................................................................
Fifteenth
Applicant
JOSEPH
LEBONE
...................................................................................................
Sixteenth
Applicant
LIPHAPANG
AKIME
LEBINA
........................................................................
Seventeenth
Applicant
ZAMA
GANGI
.......................................................................................................
Eighteenth
Applicant
MALUNGISA
THOLE
.........................................................................................
Nineteenth
Applicant
MONOKOA
THOMAS
LEPOTA
.........................................................................
Twentieth
Applicant
MZAWUBALEKWA
DIYA
................................................................................
Twenty-first
Applicant
MSEKELI
MBUZIWENI
..............................................................................
Twenty-second
Applicant
ZANEYEZA
NTLONI
.......................................................................................
Twenty-third
Applicant
TOHLANG
PAULOSI
MAKO
......................................................................
Twenty-fourth
Applicant
NANABEZI
MGODUSWA
................................................................................
Twenty-fifth
Applicant
THULENKHO
KUSWANA
..............................................................................
Twenty-sixth
Applicant
MALEBURU
REGINA
LEBITSA
...............................................................
Twenty-seventh
Applicant
MATAASO
MABLE
MAKONE
....................................................................
Twenty-eighth
Applicant
MATSEKELO
CISILIA
MASUPHA
..............................................................
Twenty-ninth
Applicant
MATIISETSO
MASEIPATI JESENTA
NONG
.....................................................
Thirtieth
Applicant
BANGUMZI
BENNET
BALAKAZI
..................................................................
Thirty-first
Applicant
WATU
LIVINGSTON
DALA
.........................................................................
Thirty-Second
Applicant
ZWELAKE
DALA
.............................................................................................
Thirty-Third
Applicant
DYAMARA
JANUARY
JIBHANA
................................................................
Thirty-Fourth
Applicant
MANTSO
HENDRICK
MOKOENA
................................................................
Thirty-Fifth
Applicant
MBIKANYE
ALFRED
SAWULE
.....................................................................
Thirty-Sixth
Applicant
ZONISELE
JAN
NKOMPELA
....................................................................
Thirty-Seventh
Applicant
ISHMAEL
TSIKWANE
MOTLEKE
.............................................................
Thirty-Eighth
Applicant
THABO
EDWIN
NTSALA
...............................................................................
Thirty-Ninth
Applicant
MALEPA
PUSO
..........................................................................................................
Fortieth
Applicant
NOEBE
JARA
TAU
..............................................................................................
Forty-First
Applicant
ELIA
MOTLALEPULA
PHETANE
...............................................................
Forty-Second
Applicant
MOTLALEPULA
MOKOENA
.........................................................................
Forty-Third
Applicant
SEKHOBE
LETSIE
..........................................................................................
Forty-Fourth
Applicant
TSHEHLA
SOLOMON
HLALELE
...................................................................
Forty-Fifth
Applicant
MONA
ASHTON
MELAO
..................................................................................
Forty-Sixth
Applicant
NKOSI
SELATA
SELATA
..............................................................................
Forty-Seventh
Applicant
EDGAR
NTJANA
NTJANA
.............................................................................
Forty-Eighth
Applicant
MAHOLA
EMMANUEL
SELIBO
....................................................................
Forty-Ninth
Applicant
EZEKIEL
MUTSANA
MASUPHA
...........................................................................
Fiftieth
Applicant
MALEFETSAME
MOHLAKASI
.........................................................................
Fifty-First
Applicant
MTHETHELELI
NELSON
SATU
...................................................................
Fifty-Second
Applicant
VUYANI
ELLIOT
DAWUBE
..............................................................................
Fifty-Third
Applicant
MATELA
HLABATHE
......................................................................................
Fifty-Fourth
Applicant
ZIMOSHILE
BOZO
..............................................................................................
Fifty-Fifth
Applicant
ZAMUKULUNGISA
DYANTI
.............................................................................
Fifty-Sixth
Applicant
MALUSI
BOVU
................................................................................................
Fifty-Seventh
Applicant
AGRIPPA
DLISANI
............................................................................................
Fifty-Eighth
Applicant
MNCEDISI
DLISANE
.........................................................................................
Fifty-Ninth
Applicant
SIQHAMO
HOYI
.......................................................................................................
Sixtieth
Applicant
LUVOKO
MADINDALA
......................................................................................
Sixty-First
Applicant
MTUTUZELI
MTSHANGE
.............................................................................
Sixty-Second
Applicant
MONDE
MXESIBE
.............................................................................................
Sixty-Third
Applicant
MZWANELE
BUNYONYO
..............................................................................
Sixty-Fourth
Applicant
MZIKAYISE
NQOSE
............................................................................................
Sixty-Fifth
Applicant
BUZILE
NYAKAZA
.............................................................................................
Sixty-Sixth
Applicant
PATRICK
SITWAYI
.........................................................................................
Sixty-Seventh
Applicant
XOLISILE
BUTU
...............................................................................................
Sixty-Eighth
Applicant
ZOLISA
JEJANA
.................................................................................................
Sixty-Ninth
Applicant
And
HARMONY
GOLD MINING COMPANY
LIMITED
.............................................
First
Respondent
(Registration
number M1950/038232/06
First
Respondent in case no. 48226/12 and First
Respondent
in case no. 31326/12)
EVANDER
GOLD MINES LIMITED (previously
KINROSS
MINES
LIMITED)
...............................................................................
Second
Respondent
(Registration
number M1963/006226/06
Second
Respondent in case no. 48226/12 and Fifth
Respondent
in case no. 31326/12)
LESLIE
GOLD MINES
LIMITED
..........................................................................
Third
Respondent
(Registration
number 1959/001124/06
Third
Respondent in case no. 48226/12)
RANDFONTEIN
ESTATES
LIMITED
..................................................................
Fourth
Respondent
(Registration
number 1889/000251/06
Fourth
Respondent in case no. 48226/12 and Sixth
Respondent
in case no. 31326/12)
ARMGOLD/HARMONY
FREEGOLD JOINT VENTURE
(PROPRIETARY)
LIMITED
......................................................................................
Fifth
Respondent
(Registration
number 2001/029602/07
Fifth
Respondent in case no. 48226/12 and Third
Respondent
in case no. 31326/12)
AVGOLD
LIMITED (previously TARGET
EXPLORATION
COMPANY
LIMITED)
................................................................
Sixth
Respondent
(Registration
number 1990/007025/06
Sixth
Respondent in case no. 48226/12 and Fourth
Respondent
in case no. 31326/12)
UNISEL
GOLD MINES
LIMITED
.......................................................................
Seventh
Respondent
(Registration
number 1972/010604/06
Seventh
Respondent in case no. 48226/12)
LORAINE
GOLD MINES
LIMITED
.....................................................................
Eighth
Respondent
(Registration
number 1950/039138/06
Eighth
Respondent in case no. 48226/12)
WINKELHAAK
MINES
LIMITED
.........................................................................
Ninth
Respondent
(Registration
number 1955/003606/06
Ninth
Respondent in case no. 48226/12)
BRACKEN
MINES
LIMITED
..................................................................................
Tenth
Respondent
(Registration
number 1959/001126/06
Tenth
Respondent in case no. 48226/12)
ANGLOGOLD
ASHANTI LIMITED (previously
VAAL
REEFS EXPLORATION AND MINING COMPANY
LIMITED)
..............................................................................................................
Eleventh
Respondent
(Registration
number 1944/017354/06
Eleventh
Respondent in case no. 48226/12
and
Respondent in case no. 31327/12)
FREE
STATE CONSOLIDATED GOLD MINES
(OPERATIONS)
LIMITED
....................................................................................
Twelfth
Respondent
(Registration
number 1937/009266/06
Twelfth
Respondent in case no. 48226/12)
GOLD FIELDS
LIMITED (previously EAST
DRIEFONTEIN
GOLD MINING COMPANY LIMITED
AND
DRIEFONTEIN CONSOLIDATED
LIMITED)
........................................................
Thirteenth
Respondent
(Registration
number 1968/004880/06
Thirteenth
Respondent in case no. 48226/12
and
First Respondent in case no. 31324/12)
GOLD
FIELDS OPERATIONS LIMITED
(previously
WESTERN AREAS
GOLD
MINING COMPANY
LIMITED)
.......................................................
Fourteenth
Respondent
(Registration
number 1959/0032096/06
Fourteenth
Respondent in case no. 48226/12
and
Sixth Respondent in case no. 31324/12)
NEWSHELF
899 (PROPRIETARY)
LIMITED
................................................
Fifteenth
Respondent
(Registration
number 2007/019941/07
Fifteenth
Respondent in case no. 48226/12
and
Fourth Respondent in case no. 31324/12)
BEATRIX
MINES
LIMITED
..............................................................................
Sixteenth
Respondent
(Registration
number 1977/002138/06
Sixteenth
Respondent in case no. 48226/12)
FARWORKS/682
LIMITED (previously
KLOOF
GOLD MINING COMPANY
LIMITED)
......................................
Seventeenth
Respondent
(Registration
number M1964/004462/06
Seventeenth
Respondent in case no. 48226/12)
DRIEFONTEIN
CONSOLIDATED (PROPRIETARY)
LIMITED
............................................................................................................
Eighteenth
Respondent
(Registration
number 1993/002956/07
Eighteenth
Respondent in case no. 48226/12)
GFI
MINING SOUTH AFRICA (PROPRIETARY)
LIMITED
............................................................................................................
Nineteenth
Respondent
(Registration
number M2002/031431/07
Nineteenth
Respondent in case no. 48226/12
and
Third Respondent in case no. 31324/12)
VILLAGE
MAIN REEF
LIMITED
..................................................................
Twentieth
Respondent
(Registration
number M1943/005703/06
Twentieth
Respondent in case no. 48226/12)
BUFFELSFONTEIN
GOLD MINES
LIMITED
..........................................
Twenty-first
Respondent
(Registration
number M1995/0100726/06
Twenty-first
Respondent in case no. 48226/12)
BLYVOORUITZICHT
GOLD MINING COMPANY
LIMITED
.....................................................................................................
Twenty-second
Respondent
(Registration
number M1937/009743/06
Twenty-second
Respondent in case no. 48226/12)
DOORNFONTEIN
GOLD MINING COMPANY LIMITED
...................
Twenty-third
Respondent
(Registration
number M1947/024709/06
Twenty-third
Respondent in case no. 48226/12)
SIMMER
AND JACK MINES
LIMITED
.................................................
Twenty-fourth
Respondent
(Registration
number 1924/007778/06
Twenty-fourth
Respondent in case no. 48226/12)
DRDGOLD
LIMITED
....................................................................................
Twenty-fifth
Respondent
(Registration
number 1895/00926/06
Twenty-fifth
Respondent in case no. 48226/12)
EAST
RAND PROPRIETARY MINES
LIMITED
.....................................
Twenty-sixth
Respondent
(Registration
number M1893/000773/06
Twenty-sixth
Respondent in case no. 48226/12)
ANGLO
AMERICAN SOUTH AFRICA
LIMITED
..............................
Twenty-seventh
Respondent
(Registration
number 1917/005309/06
Twenty-seventh
Respondent in case no. 48226/12)
AFRICAN
RAINBOW MINERALS (previously
ANGLOVAAL
MINING
LIMITED)
..........................................................
Twenty-eighth
Respondent
(Registration
number 1933/004580/06
Twenty-eighth
Respondent in case no. 48226/12)
RANDGOLD
AND EXPLORATION COMPANY
LIMITED
........................................................................................................
Twenty-ninth
Respondent
(Registration
number 1992/005642/06
Twenty-ninth
Respondent in case no. 48226/12)
GFL
MINING SERVICES
LIMITED
.................................................................
Thirtieth
Respondent
(Registration
number 1997/019961/06
Second
Respondent in case no. 31324/12)
GFI
JOINT VENTURE HOLDINGS (PROPRIETARY)
LIMITED
...........................................................................................................
Thirty-first
Respondent
(Registration
number 1998/023354/07
Fifth
Respondent in case no. 31324/12)
AFRICAN
RAINBOW MINERALS GOLD LIMITED
...........................
Thirty-second
Respondent
(Registration
Number 1997/015869/06
Second
Respondent in case no. 31326/12)
And
THE
TREATMENT ACTION CAMPAIGN NPC and
SONKE
GENDER JUSTICE
NPC
......................................................................
Amicus
curiae
Index
Paragraph
Number
INTRODUCTION
Background
[1]
The
Application
[5]
Legal
representatives and consolidation of application
[9]
Silicosis
[12]
Pulmonary
Tuberculosis
[17]
AMICI
CURIAE
[19]
CLASS
ACTION IN SOUTH AFRICAN LAW
[24
THE
CERTIFICATION OF A CLASS ACTION
[35]
THE
MINEWORKERS’ CAUSe OF ACTION
The
class definitions
[40]
The
classes are objectively determinable
[42]
The
scope of the definition of the two classes
[51]
Claim
is one in delict
[57]
Alleged
breach of duties by the mining companies
[58]
The evidence
common to every individual mineworker’s
case
which the mineworkers intend to bring to the class actions
[61]
The
claim against parent companies
[71]
Common
questions of law
[72]
The
claims of dependants
[74]
Issues
concerning Pulmonary Tuberculosis
[75]
Are
there conflicts of interests on the common issues?
[77]
The common issues
in the class actions may not finally
determine
each mineworker’s case
[84]
Conclusion
on commonality
[90]
There
is no realistic alternative to class action
[100]
Class
action is the most appropriate way to
resolve
many of the disputes that arise in the
case
of each mineworker
[109]
The
Bifurcated process
[116]
Suitability of
class representatives, legal
Representatives
and their fees
Introduction
[126]
Suitability
of Class Representatives
[129]
Suitability
of Legal Representatives
[143]
Legal
Representatives and their Fees
[147]
The
Notices
[167]
THE
CONDITIONAL COUNTER-APPLICATION OF HARMONY
[169]
TRANSMISSIBILITY
OF GENERAL DAMAGES
[176]
The
Roman law
[177]
The
Roman-Dutch law and the
modern-day
South African common law
[182]
The
common law is dynamic, fluid and ever-changing
[193]
The
constitutional imperative to develop the common law
[199]
The
position in the UK, Australia and the USA
[205]
Should
this matter be decided by the trial court?
[210]
Conclusion
on transmissibility
[211]
CONCLUSION
[223]
COSTS
[228]
THE
ORDER
[230]
JUDGMENT
OF WINDELL J
[231]
Judgment
Mojapelo
DJP et Vally J
INTRODUCTION
Background
[1]
Gold
mining began on the Witwatersrand in 1886. It has grown over the
years spreading to other parts of the country (significantly
the Free
State). In due course it became a significant contributor to the
growth of the gross domestic product of South Africa
and rewarded
handsomely those who invested in it. The South African currency was
for a long time based to a large extent on the
value of this
internationally sought precious metal. As this case demonstrates,
simultaneous with that growth, the industry left
in its trail tens of
thousands, if not hundreds of thousands, of current and former
underground mineworkers who suffered from debilitating
and incurable
silicosis and pulmonary tuberculosis (TB). Many mineworkers also died
from the diseases.
[2]
Soon
after the commencement of gold mining the risk of underground
mineworkers being adversely affected by exposure to silica dust
and
thus suffering from silicosis, which was initially called “
phthisis”,
became manifest. There are other occupational lung diseases in the
industry, but silicosis and to a lesser extent TB are the two
that
are of concern in this case.
[3]
From
as early as 1902 several Commissions of Enquiry (“Commissions”)
were appointed by the government to investigate
the causes and
prevalence of silicosis.  These Commissions found the inhalation
of excessive silica dust to be the sole cause
of silicosis.  The
Commissions recommended that dust control and dust elimination
measures be introduced.
[1]
There were other studies and investigations, including some by the
mining industry itself, which made similar findings. These
developments sketch and lay down a wide carpet of information that
became available and accessible to those involved in the gold
mining
industry.
[4]
This
case is about the attempts by the mineworkers employed in the gold
mining industry and their dependants to obtain compensation
as a
result of the mineworkers having contracted silicosis or TB.
The
Application
[5]
The
applicants seek to bring a class action on behalf of current and past
underground mineworkers who contracted silicosis or TB,
and on behalf
of the dependants of mineworkers who died of silicosis or TB
contracted while employed in the gold mines.
[6]
The
applicants seek an order for certification of one consolidated class
action comprising of two classes, namely a silicosis class
and a TB
class, against companies operating in the gold mining industry. It is
their proposal that the single class action proceed
in two stages,
stage one during which issues common to both classes shall be
determined and stage two during which individual issues
are to be
determined. They refer to this as the bifurcated process. Save for
the twenty-ninth respondent, Randgold and Exploration
Co Ltd
(“Randgold”), the application is strenuously opposed by
all the gold mining companies which are cited as respondents.

Randgold abides by the decision of this court.
[7]
It
is common cause that the potential class members may range in numbers
from seventeen thousand (17 000) to approximately
five hundred
thousand (500 000). The bulk of them belong to the silicosis
class. The mining companies, who are all potential
defendants,
represent almost the entire gold mining industry in South Africa. The
scope and magnitude of the proposed silicosis
and TB claims is
unprecedented in South Africa. The action, if it proceeds, will
entail and traverse novel and complex issues of
fact and law.
[8]
The
applicant mineworkers and putative class members are hereafter
referred to as “the mineworkers”; the applicants
who are
widows of former mineworkers will be referred to as “dependant
applicants”, and the respondents are referred
to as “the
mining companies”.  Where there is reference to only the
applicants and not to the putative class members,
they will be
referred to as “applicant mineworkers” and where there is
a reference to a particular mining company only
it will be referred
to by its name, for example, Anglo American South Africa Ltd (the
twenty-seventh respondent) will be referred
to as “Anglo
American”.
Legal
representatives and consolidation
of
application
[9]
The
application is a consolidated one. Its magnitude and the range of
legal representatives involved is unprecedented. It can only
be
properly appreciated by having regard to its peculiar history.
Initially five separate applications were brought. The first
three
separate but similar applications commenced in August 2012 by
Abrahams Kiewitz Attorneys (“Abrahams”). They were

against three mining companies. In December 2012, Richard Spoor Inc
Attorneys (“Spoor”) commenced with an application
against
many mining companies. Finally in March 2013 the Legal Resources
Centre (“LRC”) brought an application against
one mining
company. All five applications were consolidated into one in August
2013.
[10]
The
relief sought in the notice of motion was amended on more than one
occasion. The relief sought in the five applications was
harmonised
and is reflected in the consolidated notice of motion. In the light
of this history, there is, quite understandably,
more than one
founding affidavit in the papers. However, the mineworkers’
case was neatly crystallised in the replying affidavits.
In addition
to the answering affidavits, the mining companies filed further
affidavits. Some of them were in response to the replying
affidavits
of the mineworkers. The court thus had to deal with more than the
traditional set of affidavits. As a result, the court
accepted and
dealt with the cases of the parties as made out in all the
affidavits. The mining companies had no difficulty with
this.
[11]
The
mineworkers withdrew the entire application for certification against
the twentieth respondent, Village Main Reef Ltd (“Village”)

and the twenty-first respondent, Buffelsfontein Gold Mines Ltd
(“Buffelsfontein”). They also withdrew the application

for certification of the TB class against the twenty-fifth
respondent, DRDGold Ltd (“DRD”) and the twenty-sixth
respondent,
East Rand Proprietary Mines Ltd (“ERPM”).
Silicosis
[12]
Silicosis
is an occupational lung disease which is contracted by mineworkers
who work underground in gold mines. It is caused exclusively
by the
inhalation of crystalline silica dust. Crystalline silica is a common
mineral, also known as quartz, which is found in the
gold mines.
Silica dust is generated and raised into the air by many of the
processes associated with mining, such as blasting,
drilling and the
handling and transport of rock and soil containing crystalline
silica.
[13]
The
process through which crystalline silica dust causes silicosis may be
described briefly as follows: When the smallest particles
of
crystalline silica are raised into the air as part of dust in the
mining process, and mineworkers are exposed to such dust,
the
mineworkers inhale the crystalline silica particles. Once inhaled the
dust particles are deposited in the alveolus region of
the lung. Once
deposited in the alveolus, the particles attack the lung cells and
thus damage the lung tissue resulting in scarring
or fibrosis of the
lungs.
[14]
Silicosis
is an irreversible, incurable and painful lung disease.
It
is characterised by fibrosis of the lungs, which entails the
replacement of normal tissue with connective (“collagenous”

or “scar”) tissue that obstructs and impairs the normal
functioning of the lung.
[2]
It
can be a completely disabling disease, and in many cases it is fatal.
[15]
Silicosis
is a latent and progressive disease. The onset of its symptoms and
disability can ensue several years after exposure.
A person may be
diagnosed with silicosis for the first time long after such person
has worked in the gold mines. The most common
form of silicosis is
“chronic silicosis”. This form typically takes more than
fifteen (15) years for symptoms to appear.
When symptoms of the
disease appear within ten years, then silicosis would be regarded as
“accelerated silicosis”.
Recent studies suggest an
increase in “accelerated silicosis”. Silicosis is
described as a progressive disease because
its symptoms worsen over
time, even after exposure to crystalline silica dust has stopped.
Ongoing medical monitoring and treatment
of current and former
employees of gold mines is thus required to manage and limit the
harmful impact of the silicosis disease
and its complications.
[16]
This
has particular significance in the context of a migratory labour
system, which served in the South African gold mining industry,
where
the labour sending areas were far removed from the location of the
mines. By the time the person is diagnosed, such a person
may be
living far from the mine where he contracted the disease. Furthermore
in those far areas, where medical resources range
from poor to
non-existent, the condition of the affected former mineworkers will
progressively worsen until he eventually succumbs
to the disease.
Pulmonary
Tuberculosis
[17]
TB
is a bacterial lung disease, which (unlike silicosis) can be treated
successfully and cured if detected early. If not cured,
it too, can
be fatal. It is an infection of the lungs caused by a bacterium known
as mycobacterium tuberculosis complex. This is
the only cause of TB.
The bacterium is spread from person to person by inhaling infected
droplets. TB may be present in active
or latent form. It is treated
with antibiotics. In South Africa 80% of all drug sensitive TB cases
are successfully treated.
[18]
It
is accepted that silica dust does not cause TB. It is further
accepted that there is an association between exposure to excessive

respirable silica dust and TB. The mineworkers’ case on TB is
that exposure to silica dust poses a lifelong risk for the

development of TB, even if silicosis is not present in the lungs. It
is an important distinguishing factor that while the silicosis
case
rests on the common cause fact that silica dust causes silicosis (and
is its only cause), the TB case rests on the contention
that the
inhalation of silica dust increases the risk of contracting TB.
Silica dust is not the only factor that increases the
risk, for
instance, tobacco smoking, positive HIV status, cramped and poor
living conditions are also known factors that increase
such a risk.
AMICI
CURIAE
[19]
Prior
to the hearing of the certification application (“main
application”), two non-governmental organisations, Treatment

Action Campaign (“TAC”) and Sonke Gender Justice NPC
(“Sonke”) applied in terms of rule 16A(5) of the Uniform

Rules of Court to be admitted as
amici
curiae
in
the main application. The application was opposed by some of the
mining companies. A separate hearing was held to consider the

application of the
amici.
If admitted the
amici
intended to advance legal argument supporting the mineworkers’
case for certification of the class action and to introduce
evidence
relevant to the main application. They also intended to address
argument on the issue concerning the transmissibility
of general
damages to the estates of the deceased mineworkers who died before
their cases reached the stage of
litis
contestatio
.
[20]
The
amici
intended to focus on four legal issues, namely: 1) The framework of
class actions; 2) How section 173 of the
Constitution
of the Republic of South Africa, Act 108 of 1996
(“the Constitution”) enables the court to regulate its
own process when dealing with class actions
[3]
;
3) The nature of the gold mining industry and the role it played in
the political economy of South Africa; 4) The necessity for
corporate
accountability. They submitted that unlike the applicant mineworkers
they wish to contend that in a class action suit
where a right in a
Bill of Rights has been invoked, the class action representative(s)
need not apply for certification before
they can proceed with a class
action. This they said is based on the fact that the Constitution
already provides for a class action
in those circumstances.
[21]
The
amici
sought leave to admit new evidence in the form of an
affidavit
by Mr. Anand Grover (“Grover”), an advocate of the Bar
Council of Maharashtra who served as the United Nations
Special
Rapporteur on the right of persons to enjoy the highest attainable
standard of physical and mental health. They also sought
leave to
admit into evidence the affidavits of Professor Francis Hunter Wilson
(“Wilson”), an emeritus professor of
economics at the
University of Cape Town and of Mr. Dean John Peacock (“Peacock”),
the executive director of Sonke.
[22]
The
applicant mineworkers addressed the need for a class action and the
implications of not certifying the class action.  They
outlined
the history of the gold mining industry, the socio economic
circumstances of the mineworkers and the migrant labour system
that
predominated for most of the pre-1994 period.  It was not
apparent from the affidavits of Grover and Wilson whether they
would
advance new argument or adopt a position different from that already
articulated by the applicant mineworkers in the main
application and
which would be of assistance to the court. Peacock intended to
introduce evidence that considers the impact of
illness and
unemployment on the children and families of former mineworkers, with
a particular focus on the gendered implications
of occupational lung
disease in areas that provide labour to the mines.
[23]
After
carefully scrutinising the affidavits the
amici
sought to introduce, as well as the arguments raised by them in
support of their application for admission and the argument raised
by
the mining companies in opposition thereto, we concluded that the
amici
have an interest in the main application, and that they raised
argument not raised by any other party already before court. However,

we found that not all the evidence they wished to introduce was new.
Accordingly, in the exercise of our discretion, they were
admitted as
amici
curiae
and
granted leave to file heads of argument and to make oral submissions
at the hearing of the main application. The
amici
were also granted leave to introduce the affidavit of Peacock as
additional evidence in the main application as this evidence was

pertinent and new.
[4]
All
the mining companies as well as the applicant mineworkers were
afforded an opportunity to answer to the affidavit of Peacock.
Some
mining companies took advantage of this opportunity. Their answers,
too, were accepted as further evidence in the main application.
CLASS
ACTION IN SOUTH AFRICAN LAW
[24]
The
Roman-Dutch legal system, on which the development of South African
law was based, was imported onto these shores sometime during
or
after the 1650s. That it is resilient is demonstrated by the fact
that it still constitutes a substantial part of our law despite
the
numerous political, economic and social changes this country has
historically undergone. However, it had no experience of class

actions and therefore had no lessons to offer in this regard.
Nevertheless, by the 1990s, when
the
Constitution of the Republic of South Africa, Act 200 of 1993
(“the Interim Constitution”) was adopted as the supreme
law of the land, class action had, because of its utility,
become an
integral and regular part of many modern legal systems. South African
law found itself having to confront the utility
of the class action
process.
[25]
The
Interim Constitution introduced numerous innovations into our law.
One such innovation was s 7(4)(b)(iv), which, in particular,
expanded
the standing of a person allowed to approach court. It provided for
“
a
person acting as a member of or in the interest of a group or class
of persons
”
to approach court for appropriate relief, even if the person had no
real or direct interest in the relief.
[5]
The provision was replicated verbatim in section 38(c) of the
Constitution. It allows any person (natural or juristic) to approach

a court alleging that a right in the Bill of Rights (Chapter 2 of the
Constitution) has been infringed or threatened. Such person
may
approach the court “
as
a member of, or in the interest of, a group or class of persons
”.
The Constitution, therefore, makes special provision for class
actions to be brought in cases where there are allegations
of a
violation of the Bill of Rights: a class action in such a case is now
part of “
the
supreme law of the Republic
”.
[6]
Against this background, there is no reason, logical or practical, to
deprive anyone from bringing a class action in a non-Bill
of Rights
case. The challenge posed by the Roman-Dutch Law unfamiliarity with
the class actions was referred to the South African
Law Commission
(“SALC”) that met it by establishing Project 88 on which
it reported in 1998.
[26]
Project
88 was an “
investigation
into the recognition of class actions and public interest actions
”.
In the course of undertaking what proved to be a comprehensive
investigation, the SALC carefully examined the efficacy,
role and
place of class actions in South African law, and in doing so it
provided us with a definition of the term “class
action”.
The definition it provided reads:
“’
Class
action’ means an action instituted by a representative on
behalf of a class of persons in respect of whom the relief
claimed
and the issues involved  are substantially similar in respect of
all members of the class, and which action is certified
as a class
action in terms of the Act.
”
[7]
[27]
The
SALC recommended that before a class action is brought the person, or
group, intending to bring such an application should first
apply to
the court for an order certifying the proposed action. A
certification application is no more than a request for permission
to
enter the portal of court
en
masse
and for the applicant(s) to be accepted as representative(s) of the
entire mass. Absent such an order, the applicant(s) seeking
to
institute a class action would be precluded from so doing. The need
for certification is based on the time-honoured principle
that the
court alone should be the master of its own process, a principle that
has subsequently received the imprimatur of the
Constitution.
[8]
[28]
The
SALC called on the legislature to enact legislation
[9]
that would direct the court’s attention to the following issues
when considering whether or not to certify a class action:
(a)
whether there is an identifiable class of persons;
(b)
whether there is a cause of action disclosed;
(c)
whether there are issues of fact or law which are common to the
class;
(d)
whether there is a suitable representative available;
(e)
whether the interests of justice require certification; and
(f)
whether a  class action is the appropriate method of proceeding
with the action.
[10]
The
legislature has yet to enact the proposed legislation.
[29]
Life
In the meantime moved on and the common law was called upon to attend
to the vacuum, and give direction as to whether certification
is
necessary, and what factors must be considered during a certification
application. These issues presented themselves in
Ngxuza
v Permanent Secretary, Department of Welfare, Eastern Cape and
Another,
[11]
which commenced in the Eastern Cape Division of the High Court and
concluded in the Supreme Court of Appeal (“the SCA”).
The
SCA accepted that certification was a necessary procedural step to be
taken by the person(s) intending to launch a class action
and then
deemed it appropriate to compress the six issues identified by the
SALC that have to be taken into account into four “
quintessential
requisites
”.
These are:
“
(1)
the class is so numerous that joinder of all its members is
impracticable;
(2)
there are questions of law and fact common to the class;
(3)
the claims of the applicants representing the class are typical of
the claims of the rest; and
(4)
the applicants…will fairly and adequately protect the
interests of the class
”
[12]
[30]
Fifteen
years later the SCA was, in the matter of
Children’s
Resources Centre Trust v Pioneer Foods
[13]
,
once
again, called upon to consider the issues relating to class action.
Unlike the previous occasion, this time the SCA was presented
with
facts and legal issues that were more crystallised for a class action
suit. This allowed the SCA to clarify and develop the
law on class
action. The SCA commenced by adopting the definition of class action
presented by the learned author, Rachael Mulheron,
who advised that:
“
A
class action is a legal procedure which enables the claims (or parts
of the claims) of a number of persons against the same defendant
to
be determined in the one suit. In a class action, one or more persons
(‘representative plaintiff’) may sue on his
or her own
behalf and on behalf of a number of other persons (‘the class’)
who have a claim to a remedy for the same
or a similar alleged wrong
to that alleged by the representative plaintiff, and who have claims
that share questions of law or
fact in common with those of the
representative plaintiff (‘common issues’).  Only
the representative plaintiff
is a party to the action. The class
members are not usually identified as individual parties but are
merely described. The class
members are bound by the outcome of the
litigation on the common issues, whether favourable or adverse to the
class, although they
do not, for the most part, take any active part
in that litigation.”
[14]
[31]
In
Children’s
Trust
the SCA chose to elevate the issues for consideration referred to in
the SALC Report (plus one other) to the status of “
requirements
”
that have to be met by an applicant for a certification. It held that
an applicant has to demonstrate that the following
“
requirements
”
are met in order to succeed in the application:
[31.1]
that a class, objectively identifiable, exists;
[31.2]
that a triable cause of action exists;
[31.3]
that there are some issues of fact, law, or both, which are common
to   the relief claimed by all the potential
members of the
class that will have to be determined;
[31.4]
that the relief sought, or damages claimed, by the potential class
members flow from the cause of action and are ascertainable
and
capable of determination;
[31.5]
that where the claim is for damages there is an appropriate
procedure  for allocating the damages to the members
of the
class;
[31.6]
that the proposed representative is suitable to represent the class
and conduct the litigation; and,
[31.7]
whether in the particular case a class action is the most appropriate
means of determining the claims, or issues (factual,
legal or both)
raised in the claims, of class members.
[15]
[32]
Concerned
about the possibility of these “
requirements
”
calcifying into a set of hard rules which if strictly applied could
cause grave injustice, the Constitutional Court (CC)
in
Mukkadam
v Pioneer Foods
[16]
intervened and commanded
[17]
that they be treated as no more than a set of relevant “
factors
”
that have to be taken into account when determining whether or not
the class action should be certified.
[18]
These should not be elevated to the status of “
conditions
precedent or jurisdictional facts which must be present before an
application for certification may succeed
”,
and the absence of a particular factor “
must
not oblige a court to refuse certification.
”
[19]
Finally, it pronounced that in examining the prevalence or absence of
each or all of the factors, the certifying court should always
remain
mindful of the fundamental principle, which is that the ultimate
decision on whether to certify or not must be made on the
basis of
where  the interests of justice lie. Moreover, in its quest to
achieve this objective the court is not restricted
to examining the
factors listed in
Children’s
Trust
.
[20]
[33]
To
sum up, a class action represents a paradigmatic shift in the South
African legal process. It is a process that permits one or
more
plaintiffs to file and prosecute a lawsuit on behalf of a larger
group or "
class
"
against one or more defendants. The process is utilised to allow
parties and the court to manage a litigation that would
be
unmanageable or uneconomical if each plaintiff was to bring his/her
claim individually. It is normally instituted by a representative
on
behalf of the relevant class of plaintiffs.  The class action
process is part of the equity developed law and is designed
to cover
situations where the parties, particularly plaintiffs, are so
numerous that it would be almost impossible to bring them
all before
the court in one hearing, and where it would not be in the interest
of justice for them to come before court individually.
[34]
It
is not only for the benefit of plaintiffs that the class action
process was conceived, it is also designed to protect a defendant(s)

from facing a multiplicity of actions resulting in it having to
recast or regurgitate its case against each and every individual

plaintiff. Furthermore, it enhances judicial economy by protecting
courts from having to consider the same issues and evidence
in
multiple proceedings, which carries with it the possibility of
decisions by different courts on the same issue. On the other
hand, a
class action allows for a single finding on the issue(s), which
finding binds all the plaintiffs and all the defendants.
THE
CERTIFICATION OF A CLASS ACTION
[35]
Since
the pronouncements of the SCA in
Children’s
Trust,
a class action can only proceed to trial if it has been certified by
the court as being an appropriate means of resolving the dispute

between the putative class members and the defendant(s). The SCA did
not, however, restrict this prerequisite to cases where no
right in
the Bill of Rights has been invoked.
[36]
The
SCA stated that certification is necessary for the court to be
satisfied that certain conditions (the court as we know referred
to
them as “
requirements
”)
are met justifying the burdening of the defendants and the court with
a class action, as well as binding the putative class
members with a
judgment that finally resolves all, or some, of the issues between
the parties.
[37]
The
SCA reasoned its conclusion as follows:
“
Most
jurisdictions around the world require certification either before
institution of a class action or at an early stage of the

proceedings. The exception is Australia. The justifications are
various. First, in the absence of certification, the representative

has no right to proceed, unlike litigation brought in a person's own
interests. Second, in view of the potential impact of the
litigation
on the rights of others it is necessary for the court to ensure at
the outset that those interests are properly protected
and
represented. Third, certification enables the defendant to show at an
early stage why the action should not proceed. This is
important in
circumstances where the mere threat of lengthy and costly litigation
may be used to induce a settlement even though
the case lacks merit.
Fourth, certification enables the court to oversee the procedural
aspects of the litigation, such as notice
and discovery, from the
outset. Fifth, the literature on class actions suggests that, if the
issues surrounding class actions,
such as the definition of the
class, the existence of a prima facie case, the commonality of issues
and the appropriateness of
the representative are dealt with and
disposed of at the certification stage, it facilitates the conduct of
the litigation, eliminates
the need for interlocutory procedures and
may hasten settlement. Lastly, the Australian experience has not
proved entirely satisfactory,
with numerous interlocutory
applications and significant costs and delays being experienced.”
[21]
[38]
Despite
this cogent and forceful reasoning, the
amici
contend that certification is unnecessary in a case where a right
entrenched in the Bill of Rights is invoked by the class action

representative(s). We are unable to agree with them for two simple
reasons, namely that, (i) it can lead to an abuse of court process

and, (ii) that it can, as has occurred in Australia, cause numerous
costly and time-consuming interlocutory skirmishes around the
very
issues that the certification court ought to resolve. The need for
the court to protect its own process does not disappear
in a matter
where a right in the Bill of Rights has been invoked. Section 173 of
the Constitution makes it plain that the court
has inherent power to
protect its own processes.
[39]
The
SALC recommended that a settlement reached after the class action is
certified should be approved by the court for it to be
valid. Neither
the SCA in
Children’s
Trust
,
nor the CC in
Mukkadam
addressed this issue. In the present case, as appears later in this
judgment
[22]
, such approval is
obligatory as the provisions of the
Contingency
Fees Act 66 of 1997
(“CFA”) are applicable. We hold that it is in any event
correct that any settlement agreement reached after certification
of
the class action should be subject to the approval of the court and
that it should only be valid once approved by the court.
This is to
ensure that the settlement reached is fair, reasonable, adequate and
that it protects the interests of the class.
THE
MINEWORKERS’ CAUSe OF ACTION
The
class definitions
[40]
The mineworkers seek, primarily, the
certification of a single class action comprising two separate and
distinct classes; a silicosis
class and a TB class.  The
silicosis class is defined as:
“
Current
and former underground mineworkers who have contracted silicosis, and
the dependants of underground mineworkers who died
of silicosis
(whether or not accompanied by any other disease) -
(i)
where such mineworkers work or have worked
on one or more of the gold mines listed on the attached “Annexure
A” (to
this judgment excluding Village and Buffelsfontein),
after 12 March 1965; and
(ii)
whose claims are not among the claims
which, by agreement, are to  be determined by arbitration in the
matter of
Blom and Others v Anglo
American South Africa Limited
; and
(iii)
who are not named plaintiffs in the
action instituted in the United  Kingdom  against Anglo
American South Africa Limited
under case numbers HQ11X03245,
HQ11X03246, HQ12X02667 and HQ12X05544.
”
[41]
The TB class is defined as:
“
Current
and former underground mineworkers who have or had contracted
pulmonary tuberculosis and the dependants of deceased mineworkers
who
died of pulmonary tuberculosis (but excluding silico-tuberculosis),
where such mineworkers worked or have worked for at least
two years
on one or more of the gold mines listed on the attached “Annexure
A” (to this judgment, excluding Village,
Buffelsfontein, DRD
and ERPM) after 12 March 1965”
The
classes are objectively determinable
[42]
In
terms of the definition of the silicosis class any mineworker, or his
dependants, would have to show the following if he, or
they, wish to
benefit from being members of the silicosis class:
[42.1]
he is a current or former underground mineworker;
[42.2]
he has contracted silicosis, or has died of silicosis (whether or not
accompanied by any other disease);
[42.3]
he worked after 12 March 1965 on one or more of the
specific
gold mines listed in annexure “A” attached to this
judgment (excluding Village and Buffelsfontein);
[42.4]
his claim is not among the claims which are to be determined by
arbitration in the matter of
Blom and
others v Anglo American South Africa Limited
;
and,
[42.5]
he is not a plaintiff in the action instituted in the United Kingdom
against Anglo American South Africa Limited under case
numbers
HQ11X03245, HQ11X03246, HQ12X02667 and HQ12X05544.
[43]
In
terms of the definition of the TB class any mineworker, or his
dependants, would have to show the following if he, or they, wish
to
benefit from being members of the TB class:
[43.1]
he is a current or former underground mineworker;
[43.2]
he has contracted TB, or has died of TB but excluding silicosis;
[43.3]
he works or had worked after 12 March 1965 for at least two years on
one or more of the specific
gold mines listed in Annexure A
(excluding Village, Buffelsfontein, DRD and ERPM) attached to this
judgement.
[44]
The
criteria used to identify members of the two classes must be
objective. In defining the class it is not necessary to identify
all
the putative class members. The class must however be defined with
sufficient precision as to allow for a particular individual's

membership to be objectively determined. This can be done by applying
the criterion contained in the class definition to the individual’s

situation or circumstances. The class definition must also not be
overbroad. If the class is too wide, a class action would be

inappropriate.
[45]
In
the present case,
the
definitions are clear as well as unambiguous. Any individual who
wishes to claim membership of either the silicosis or the TB
class
would easily know what he has to show in order to qualify for
membership of either class. Similarly, this applies to dependants
who
wish to draw a benefit from the class action. The criterion for
membership in our view is objective.
[46]
With
the exception of African Rainbow Minerals (“ARM”) and
Randgold and Exploration Company Ltd (“Randgold”),
none
of the mining companies raised any controversy on this issue. They
accepted that at the appropriate moment in the litigation
they will
be able to scrutinise each and every mineworkers’ claim to
membership. In fact, one of the mining companies, DRD,
explicitly
concedes that the criterion for membership is objective.
[47]
ARM
and Randgold complain that a mineworker who wishes to claim
membership of the classes would have to first establish through

medical diagnosis that he has contracted either silicosis or TB.
This, they say, makes it difficult, if not impossible, for the

mineworker to claim any benefits that the membership may offer
without first undergoing expert medical examination. Unless this
is
done his claim to membership, especially of the silicosis class, is
based on his subjective belief.
[48]
The
objection is misconceived for at least two reasons. Firstly, the
mineworker’s claim to membership is not determinative
of his
actual membership. His actual membership would have to be proven. To
prove his membership he will have to show that he meets
the criterion
contained in the class definition. His actual membership is
determined independently of his subjective belief. We
have shown
above that the definition does not have any built-in subjective
criteria, such as the mineworker’s subjective
belief, as
suggested by ARM and Randgold. Secondly, the mineworkers have
consciously elected to ask for a certification that allows
for or
endorses a two stage process. They describe it as a bifurcated
process.
[23]
For the moment it
bears noting that the first stage involves an opt-out procedure. This
means that any mineworker, or dependants
of a mineworker, who fails
to give notice to opt-out of the class action will be deemed to be
part of it. During this stage the
mineworker or his dependants need
not prove actual membership of either of the classes. Thus, proof of
actual membership is not
a matter that should concern the trial court
in the first stage of the proceedings. It is, therefore, no bar to
the certification
of the class action based on the class definition
outlined above. Once the common issues are determined, and should the
case proceed
to the second stage, then the individual mineworker, or
his dependants, will have to produce cogent evidence demonstrating
that
he contracted silicosis or TB. If he (or they) fails to do so
then he (or they) simply will not have a claim. His, or their, case

is no different from any other mineworker, or mineworker’s
dependants, who fails to prove that he worked on the mines for
a
period of two years.
[49]
In
our view, there simply is no need for the entire class membership to
be determined before the common issues of fact or law can
be
determined, or before relevant evidence common to all class members,
and which advances the cases of each class member, is entertained.

This approach is consistent with the practice adopted in the
Australian and Ontario statutes whose practical utility is well
captured
in the following dictum of Cummings J sitting in the Ontario
Superior Court:
“
the
undoubted complexity of follow-on individual issues does not detract
from the merit in resolving a preliminary common issue.”
[24]
[50]
In
terms of this approach there is no need to identify individual class
members during the first stage of the class action. As the
learned
author, Professor Mulheron reminds us:
“
It
must simply be accepted that the determination of whether each
individual member of the class can only properly be made at some

stage after the resolution of the common issues. The class most
certainly does not have to be built at the very commencement of
the
proceedings.”
[25]
The
scope of the definition of the two classes
[51]
There
can be little doubt that the classes are defined in fairly broad
terms. This is done to ensure that nobody with a legitimate
claim is
excluded. The make-up of the classes is restrained by the fact that
the definitions only cover those mineworkers who worked
underground.
This, of course, excludes all those who worked aboveground, but, we
are told, the circumstances of the aboveground
mineworkers who may
have contracted either of the diseases is significantly different
from those who worked underground, thus making
it necessary to
exclude them. The duration of the class period contained in the
definition covers a span of fifty or more years.
The commencement
date is 12 March 1965. This date was chosen because it coincides with
the coming into force of a new regulatory
regime brought under the
Mines
and Works Act 27 of 1956
.
If an underground mineworker had commenced working in 1965 at the age
of 17 in one of the mines of the mining companies he would,
as at the
date of this judgment, be 68 years old and retired a while ago.
Any underground mineworker who had left before
1965 and who had
contracted either of the diseases would, in all likelihood, have
succumbed to the disease. Hence, 12 March 1965
was chosen by the
applicant mineworkers as a cut-off point. The mining companies do not
object to the need for a cut-off point
but contend that it be
shortened otherwise, they say, the class definition is overbroad.
They also claim that an overbroad definition
would produce
significant problems of manageability for the trial court.
[52]
A
lengthy time period does not automatically translate into an
overbroad definition. Moreover, by truncating the time period, one

risks disqualifying many mineworkers who are still alive and were
supposed to have benefited from the introduction of the new
regulatory regime (but did not because of the alleged breaches by the
mining companies) and from the class action even though they,
like
every other mineworker, may have legitimate claims against the mining
companies. Under these circumstances, their exclusion
would either be
arbitrary or not rationally justifiable. And, it would involve them
having to bring a separate class action in
which they would raise
exactly the same issues as those raised in the one called for in this
case. In short, truncating the time-period
would only result in a
proliferation of the class action. That would certainly defeat the
cause of justice. In sum, once it is
found that there are sufficient
common issues affecting the entire classes that can be determined at
one hearing, or if the hearing
is split into stages at the first
stage, then it follows as a matter of logic that the class
definitions are not overbroad. Concomitantly,
it cannot be
unmanageable. In other words, once it is established that there are
issues, or there is evidence that is either uniform
or applicable to
every mineworker’s claim then the concerns of unmanageability
of the class action or over-breadth of the
class definition do not
feature. What we have here is that the sizes of the two classes may
be very large but that does not make
the class definition overbroad
or the class action trial unmanageable. We agree with the observation
of the full Federal Court
of Australia, expressed thus:
“
It
would be a strange result indeed if an issue which was clearly a
substantial issue if litigated by one party ceased to be a
substantial issue merely by reason of the fact that it was being
litigated by many parties. If that were so, the benefits to be

derived from  Pt IVA (Australian rules) … namely the
saving of court time, the saving of parties’ costs, the

efficient administration of justice and so on, would be available to
a small group in a case such as this, but would be lost if
the group
were very large.”
[26]
[53]
Both silicosis and TB are diseases that can
be diagnosed with certainty. This means that a diagnosis of silicosis
or TB excludes
alternative diagnoses of obstructive lung disease or
other pulmonary diseases or conditions. TB and silicosis are
therefore diagnosable
with a high degree of clinical and scientific
certainty. This makes this aspect of the proposed class definition
objectively and
definitively ascertainable.
[54]
The class requirement of two years of
underground mine work and the employment history of the underground
mineworkers makes it possible
to objectively and definitively
ascertain the silicosis and TB class members.
[55]
The
class definition further facilitates self-identification by class
members by the listing of the relevant mines.
[27]
Irrespective of the technical nature of the relationships between the
mines and the mining companies concerned, prospective class
members
are able to identify themselves as class members with reasonable
certainty so that they can elect to opt-out of the class
action at
the first stage, can know whether they are bound by the judgment on
common issues, and can elect to opt-in at the second
stage for the
determination of individual damages.
[56]
That the classes are objectively
determinable is manifest in four simple questions that would be posed
to any mineworker:
Do you have
TB or
silicosis? Did you work for one or more of the mining companies?
Did you work for one or more of the mining companies
for two years?
Did you work for the mining companies during the period set out in
the notices?
Claim
is one in delict
[57]
The
mineworkers have attached a draft particulars of claim to the
application. The draft reveals that the mineworkers’ claim
is one
in delict. For a delictual action to be successful it will have to be
shown by a plaintiff that (i) the defendant acted or
failed to act,
and (ii) the defendant’s action or omission was wrongful (often
dealt with under the rubric “
breach
of a legal duty
”),
and (iii) the defendant was at fault (often captured under the head
“
negligence
”),
and (iv) the act or omission of the defendant caused the damage
suffered by the plaintiff, and (v) the damage endured
by the
plaintiff is capable of quantification. These elements of a delictual
action would have to be proven with regard to each
and every putative
class member if that class member was to be awarded any compensation
for the damages he suffered. At the outset
it bears mentioning that
the amount of damages suffered by each class member is, without
doubt, unique to that member. This, however,
is not the case with
regard to the other elements of the delictual action. By their very
nature the other elements raise very broad
issues. What is important
for this court is to consider whether there are any issues amongst
those elements of the delictual action
which can be dealt with as
part of a class action where a finding on them will be applicable to
the case of each and every mineworker.
Alleged
breach of duties by the mining companies
[58]
The mineworkers aver that the mining
companies breached their legal duties owed to the members of the
classes arising from:
[58.1]
the mining companies’ common law duty of care owed to the
mineworkers employed in the relevant
mines to take reasonable
measures to provide a safe and healthy work environment that was not
injurious to their health and/or
to take reasonable care for the
safety of persons entering the mines;
[58.2]
the statutory duty owed by the mining companies, in their capacities
as mine owners to comply with
the
Mines
and Works Act 12 of 1911
and the
Mine
Health and Safety Act 29 of 1996
and
the regulations made thereunder and;
[58.3]
the mining companies’ constitutional obligations to the
mineworkers who were employed from
1994 onwards,
based
on the following sections of the Constitution: s 9(4) (the
fundamental right against unfair discrimination by private persons),

s 10 (fundamental right to human dignity), s 11 (right to life), s
12(1)(c), s 12(2) (right to bodily integrity) and
s
24 (right to an environment that is not harmful to the health and
wellbeing of an individual).
[59]
The
mineworkers claim that the mining companies unlawfully exposed all
the mineworkers to excessive levels of harmful silica dust
while they
were in the employ of the mining companies. They claim further that
the mining companies owed the mineworkers a duty
of care to ensure
that their work and living places were safe. They claim that the
respondents breached this duty with regard to
each and every
mineworker by, amongst others, failing to take reasonable steps to
ensure that their work and living places were
safe. This they hope to
prove by producing evidence at the trial showing that the mining
companies failed, amongst others, to:
[59.1]
prevent or minimise the escape of dust into the air breathed in by
the mineworkers by introducing
appropriate engineering controls. The
evidence they intend to lead will deal with the available engineering
methods to control
the escape of dust into the air that mineworkers
were forced to breathe while at the workplace;
[59.2]
dilute the silica dust that the mineworkers were forced to breathe on
a daily basis. The evidence,
which is highly specialised, will
canvass some of the methods that were available to the mining
companies to dilute this silica
dust;
[59.3]
introduce proper ventilation systems to evacuate the contaminated
dust that was being expelled in
the very restricted space that the
mineworkers were required to work. The evidence will canvass the
ventilation systems that were
known and available to the mining
companies. Once again, the evidence will be highly specialised and
technical in nature;
[59.4]
provide the mineworkers with suitable respiratory protective
equipment in situations where this was
absolutely essential;
[59.5]
monitor the effects of the exposure to the contaminated dust upon the
mineworkers; and,
[59.6]
maintain a healthy and safe working environment, and failed to
provide healthy and safe working conditions,
in their mines and to
protect the mineworkers from contracting silicosis and TB, and as a
result breached their duty of care towards
these mineworkers.
[60]
The
mineworkers allege that the mining companies’ negligence was
not a once-off single event or incident. It was an unlawful
practice
or omission that was on-going, relentless, intense and profound in
its impact. They say that the mining companies’
neglect was
industrial in scale resulting in them ultimately being forced to bear
the unbearable. They wish to bring evidence to
this effect to the
trial action. It is evidence that goes to the heart of the mining
companies’ legal duty of care towards
them as well as the
breach of that duty.
The
evidence common to every individual mineworker’s case which the
mineworkers intend to bring to the class actions
[61]
The
mineworkers intend to bring evidence to the class action trial:
[61.1]
showing that the mining companies, through the Chamber of Mines (“the
Chamber”), acted
in concert. This is evidence which each
mineworker would want to rely upon in his individual case, hence the
need for it to be
led once in a class action.
[28]
It is also evidence that no mineworker is capable of bringing to
court on his own, yet it is important, if not crucial, to his
case.
[61.2]
showing that the Chamber, which was formed in 1890 and which is a
voluntary employers’ organisation to which all the
mining
companies belong, played a pivotal role in the gold mining industry
where the mineworkers were all employed. They contend
that the need
to canvass the role it played is necessary, for it will attend to the
issues of the duty of care owed by each of
the mining companies to
the mineworkers it employed and to the breach of that duty. In this
regard the mineworkers intend to show
in the proposed class action
that the Chamber provided services “
over
a wide range of technical, legal, medical, social and environmental
issues
,”
so that they may “
co-operate
and act in concert.
”
[29]
They intend to show that the dust levels in all of the mines
“
remained
roughly the same over a period of 50 years
,”
until 2003, yet in 1964 they already knew that:
“
Men
employed underground on the industry's gold mines are still
contracting pneumoconiosis and at a rate which compels us to regard

the disease as a significant occupational hazard.
Although
the present position is much better than 50 years ago, pneumoconiosis
has not yet been eliminated from South African gold
mines. During the
period 1920 to 1950 the average time taken by certified silicotics to
contract first-stage pneumoconiosis increased
from some eight years
to approximately 22 years, but since 1950 little improvement has
taken place and the average time today is,
according to general
opinion, still of the order of 22 to 24 years. As the 1950 figures
relate to dust breathed over the previous
20 years or so, they appear
to indicate that there has been only a small improvement in dust
conditions in our mines in the past
two or three decades."
[30]
[61.3]
showing that the evidence referred to in par [61.1] is supported by
the factual averments made by
Anglo American in its plea in the Blom
arbitration where it is revealed that there was a unified approach by
all the mining companies
to the problem of dust control.  The
unified approach was informed by, or occurred through, the work of
the Chamber which
all the mining companies were a part of and
participated in. The unified approach commenced upon the formation of
the Chamber in
1890, continues to date and, therefore, covers the
entire class period;
[61.4]
demonstrating that various legislative measures were adopted that at
one stroke refined the mining
companies’ duty of care towards
the mineworkers as well as reminded them of that duty of care.
Further, the evidence they
intend to bring to the trial action will
show that there was a general and pervasive disregard by the mining
companies of their
obligations as spelt out in these legislative
measures. In other words there was pervasive disregard of the
statutory breaches
of duty of care by all of the mining companies,
which breaches, according to the mineworkers, were general in nature
and took place
throughout the class period;
[61.5]
of a highly technical nature some of which has been captured in
academic studies undertaken many
years ago;
[61.6]
of reports of the various Commissions established by previous
political authorities (one of them,
“
The
Weldon Miners’ Phthisis Commission
”,
goes as far back as 1902), as well as the reports of the Chamber.
This fact is relevant to at least one of the elements
of the
delictual action: that of fault or negligence on the part of the
mining companies;
[61.7]
showing that as far back as the early 1900s the mining companies
knew, or should have known, that
silicosis and other dust related
occupational lung diseases were preventable through,
inter
alia
, the effective use of engineering
controls and good work practices. Such knowledge is demonstrated by
the availability of scientific
literature dating back to as early as
the 1920s. The mineworkers attach some of this literature to their
founding papers and what
is clear from a perusal of them is that it
is highly technical and not accessible to an individual mineworker;
[61.8]
of the mining companies’ and the Chamber’s knowledge of
the high incidence of silicosis
and TB amongst the mineworkers since
1965;
[61.9]
showing that as late as 2008 it was found that the serial and
pervasive non-compliance with the legislative
requirements for dust
control by the mining companies continued. Some of this evidence
consists of an audit conducted by the Department
of Mineral and
Energy Affairs, which revealed,
inter alia
:
“…
(that)
there is a pervasive culture of non-compliance to legislative
requirements. Inquiry after inquiry makes findings to the effect
that
risk assessments are not conducted, training is not done, early
morning examinations are not done, equipments (sic) not maintained

and the list goes on and on.”
[31]
[61.10]
of a technical nature concerning gravimetric sampling and its lack of
use by the mining companies;
[61.11]
of numerous investigations that have identified that exposure to
silica dust and a silicosis
diagnosis are strong risk factors for TB,
as well as of some epidemiological studies focusing on this
correlation between silica
dust exposure and silicosis and TB;
[61.12]
of studies that revealed that TB is recognised as an occupational
lung disease in mineworkers
exposed to silica dust, and that a
silicosis diagnosis increases the risk of TB by four times after
adjustment for cumulative dust
and tobacco. Furthermore, studies have
proven that, even in the absence of silicosis, silica dust exposure
increases the risk of
TB, and it continues to elevate the risk even
after exposure ceases;
[61.13]
showing that throughout their existence, and most importantly during
the fifty year period
1965-2015, all the mining companies sacrificed
the health and safety of the mineworkers in order to maximise the
profits they could
extract from mining operations;
[61.14]
showing that mineworkers were forced to live in crowded and
unsanitary conditions in what
has sometimes been referred to as
"
miners' barracks
",
“
mine hostels
”,
“
mining compounds
”
or “
dormitories
”,
which was a major contributing factor to the high rate of TB among
these mineworkers;
[61.15]
showing that black mineworkers’ wages were much lower than
their white counterparts
and that these, at times, were as low as ten
percent (10%) of that which white mineworkers were paid, thus
compromising the black
mineworkers’ ability to, firstly combat
the negative effects of silica dust exposure and secondly, reduce the
pain and suffering
they had to endure once they contracted silicosis
or TB. This latter consequence is relevant to the determination of
the issue
of general damages that each of the mineworkers intends to
claim from the mining companies but the evidence is general to each
mineworker’s case;
[61.16]
showing that the mining companies have over a decade been promising
to assist former mineworkers
in accessing medical examination
facilities in the rural areas and towns from where they were
recruited and where they returned
to since being retrenched, but have
to-date failed to do so. This evidence is general and applicable to
all the mining companies;
[61.17]
showing that while the reports of some mining companies recognised
that significant exposure
to silica dust posed a grave health risk to
the mineworkers, the Chamber, through its officials, has over time
attempted to discredit
valid medical studies documenting the epidemic
rates of occupational lung diseases, such as silicosis and TB, in the
mineworkers;
[61.18]
showing that from their inception, and certainly through a
significant part of the class period,
the mining companies pursued
working practices that discriminated against the black mineworkers in
relation to their white counterparts,
and that one consequence of
this was that black mineworkers have suffered significantly higher
rates of silicosis and TB than white
mineworkers;
[61.19]
about international best practices regarding the health and safety of
workers exposed to silica
dust;
[61.20]
showing that throughout their employment they had no control at all
over the environmental
conditions under which they worked; that those
environmental conditions were determined and regulated solely by the
mining companies,
and that this was true for all the mining
companies;
[61.21]
showing that the problems of silicosis and TB were always industry
problems and were not restricted
to any one mining company. The
prevalence of these diseases was common to all the mining companies
and that not a single mining
company can escape this fact;
[61.22]
showing that over the last 100 years hundreds of thousands of
mineworkers employed on the
gold mines of the mining companies have
developed silicosis and many thousands have developed TB;
[61.23]
to show the failure of the mining companies to take the necessary
steps to protect them from
excessive exposure to silica dust was
caused in part by the existence of the migrant labour system that
prevailed during their
employment with the mining companies. In this
regard they wish to bring evidence about the role of the mining
companies in establishing,
encouraging and bolstering the migrant
labour system. One example of this evidence consists of the opinions
of academics. The opinions
are derived from their extensive research
on the subject which is published jointly in a respected academic
journal. A taste of
this evidence was presented to this court in
order to demonstrate its applicability to the case of each and every
mineworker. This
is manifested in the following quote from the
opinion evidence:
“
The
migrant labour system has weakened the incentives to control dust and
disease by externalizing the cost of disease, moving them
away from
the gold mining industry to communities and the State …
Barriers to compensation are considerable and the majority
of
qualifying claimants have not received awards, thus reducing the
substantial financial incentive to control dust that would
be brought
about by compensation payments and hence increased levies on
mines.”
[32]
[62]
Each
of the applicant mineworkers in this case represented by Spoor also
filed individual affidavits indicating who he is, where
he worked and
what his medical condition as at the date of the deposition was. The
affidavits share a common theme and tell a story
so familiar to each
of the mineworkers that it is bound to be articulated in the same
language. Thus, the following factual narration
in the affidavit of
Mr Bongani Nkala, the first applicant, is common to many of the
affidavits:
“…
I
was frequently and regularly exposed to silica dust released during
day-to-day mining activities. This exposure occurred from
working
with and near activities such as drilling, blasting and crushing of
ore and rock.
The
dust levels underground were generally controlled by spraying the
walls with water. This was done once in the morning and after
each
blast that occurred during a shift. Blasting underground created a
lot of dust and much of it remained in the workplace, even
after the
walls were sprayed with water, as we could still see it, as well as
taste and smell it. There was no ventilation to control
the dust
levels in my workplace underground and, as a result, the watering
process was the only means of dust control. The dust
would remain in
the air until the walls were watered, and soon thereafter, when the
wall dried, the dust levels would increase
again. The watering
process was an ineffective means of controlling the dust levels
underground.
On
a daily basis, I and my co-workers breathed silica dust in the
following areas of the mines: in the travelling tunnels and in
the
worksite.
I
was never provided with any respiratory equipment. I inhaled all the
dust I was exposed to.
The
dust levels were especially high when I would enter the mine at the
beginning of my shift. I had to walk eight kilometres through
the
tunnels underground to get to my workspace. Lots of dust would settle
on the equipment that we used and the equipment was not
cleaned
during or between shifts. The dust would settle on our hair, face and
clothes while we worked.
Prior
to being permitted to work on the gold mines, I was medically tested
for the presence of occupational lung diseases, including
silicosis,
and was deemed well and fit to work underground. Thereafter, I was
examined periodically for the presence of silicosis
and other
occupational lung diseases.
I
was diagnosed to be suffering from TB and Pneumoconiosis during my
Exit Medical Examination conducted by my former employer in
1997. …
As a result of this diagnosis, I was retrenched.
In
June 2012 I was diagnosed with silicosis…I did not have
silicosis prior to working on the mines.”
[63]
The
applicant mineworkers represented by Abrahams also deposed to
affidavits in support of the application. Their evidence speaks
of a
general and pervasive breach of the duties of care by all the mining
companies they worked for. One of them, Mr Bangumzi Bennet
Balakazi,
narrates the following in his affidavit:
“
I
intend to institute an action for damages against AngloGold Ashanti
Limited, the Respondent in this application (‘AngloGold’)

in respect of lung disease, which I have as a result of my employ
with AngloGold, or at least primarily as a result of that employment.

The lung disease I have is tuberculosis and silicosis and I am
advised that it arose out of my occupation, hence being referred
to
as an occupational lung disease. I am advised though that
tuberculosis and silicosis are of a variety of occupational lung
diseases to which mineworkers on South African mines are prone.
I
am personally aware of a large number of former mineworkers who used
to work for AngloGold and who, like me, are ill. I am advised
by my
attorneys that there are in fact a very substantial number of former
AngloGold mineworkers, running into the thousands, who
fall within
this category.
In
1974, I started working at Vaal Reefs mine as an underground miner.
During that same year I was transferred to Western Deep Levels
mine.
Thereafter, in 1975, I worked for Western Holdings Welkom and Impala
Platinum. However, in 1976, I returned to work at Vaal
Reefs mine as
an underground mineworker, where I continued to work until 1991.
After 1991, I carried on working at Western Areas
Gold Mine between
1995 and 1997 and Randfontein Estate Gold Mine in 1999. I attach
hereto a copy of my employment record issued
by The Employment Bureau
of Africa ("TEBA")
Like
most other miners, I was recruited by TEBA in 1973 at its Peddie
office in the Eastern Cape. TEBA was known in the village
where I
lived. They'd been recruiting young men from my village. At the time
of my recruitment, I was 20 years old and lived with
my parents and
seven siblings in a mud house in Pikoli Village near Peddie. I had
only completed Standard 5 at that time- or, what
I understand is now
referred to as Grade 7.
Because
of my low level of education and the poverty in the village, I'd
hoped that by working on the mine I would be able to provide
for me
and my family. I was a healthy person at the time of my recruitment
and when l started out working on the mine.
After
being recruited, I left my village in a steam locomotive, known as
the "
Madlebe
".
I travelled with fellow miners to Johannesburg. This was my first
time travelling to a big city and I felt quite intimidated.
From
Johannesburg we travelled in a lorry to Orkney in what is now the
Northwest Province. It was very painful for me to leave
my village to
work on a mine far away from home. However, I wanted to provide a
better life for me and my family.
Upon
arrival in Orkney we were examined and thereafter taken to the Vaal
Reefs hostel. I was placed in a dormitory with 15 other
men. The
dormitories were separated by tribe and I stayed with 15 other Xhosa
mineworkers. It was fitted out with 16 cement beds
which had the
appearance of tomb stones. I hated the mine hostels. The dormitory
was dirty and smelly. There was a small coal stove
in the dormitory
as well.
The
showers and toilets were in a different building next to our
dormitory. I cannot say exactly how many showers and toilets there

were but they were shared by about 20 dormitories. There was no
privacy at all in using those facilities and everyone showered
and
used the toilets in full view of the others.
I
underwent a one month training course at the training centre at the
mine. I was trained how to use different mine machinery. I
also
received physical training to improve my abilities to endure the heat
down in the underground. The training involved cycling
on some
machine for 4 hours, completely naked. I found it very humiliating
and so did the other miners too. During the training,
I cannot
remember anything being said about dust and the need at all time to
protect oneself against it. As far as I can remember,
the training
only dealt with how to prevent rock falls.
After
the training I started out working as a loader, responsible for
picking up the crusted rocks with a spade and then loading
it onto a
locomotive. I was given an overall, knee caps, a light helmet with a
lamp, goggles and a mask.
My
daily routine day started at 3:00 a.m. in the morning, when we were
woken up by a siren. Everyone would wake up, including those
for whom
it was an off day. We got up, washed, ate and proceeded to work. We
were then transported to the mine on a lorry because
the shaft was
quite a distance from the hostel. After we've clocked in, the cage
took us down the shaft. Once down in the underground,
it was hot and
humid.
As
time went on, I became a miner's assistant. I was required to follow
the miner everywhere and performed whatever task he'd required
of me.
I spent most of my time with drillers and loaders and as a result, my
job constantly put me in direct contact with dust
and heat. The heat
made it impractical to wear masks all the time. The hot conditions
underground also made it very difficult for
me to breathe with the
mask on. Over time, the mask became so dusty that I could no longer
use it, as it was impossible to breathe
through it.
AngloGold
had a system of blasting which took place during shifts. When
blasting took place, miners moved to a closed-off chamber.
However,
soon after the blasting had finished, miners returned to the blasted
area almost immediately, whilst the area was still
full of dust.
Fellow miners sprayed water, but it did not help much. The white
miners only returned to the blast area after most
of the dust had
settled.
I
cannot recall mine management, most of whom were white at the time,
speaking to me or any of the other miners about the health
risk of
dust. We just had to work and work. For the majority of my time as a
mineworker, I was treated very badly by the white
miners and
supervisors. Most of them forced us to expose ourselves to dangerous
areas and situations. When we refused to carry
out their orders,
being well aware of the possible harm that it might do to us, they
often kicked or beat us with their fists.
I was constantly being
referred to as a "
kaffir
"
and "
doner
”.
An
underground shift was normally about 8 hours during which time we
worked, with only a short interval to eat, drink water and
relieve
ourselves. There were no toilets underground and we had to relieve
ourselves on a few buckets, placed in a faraway section
on our shaft
level. The buckets were often full and the stench was unbearable.
Before we could use the "toilet", we first
had to ask for
permission from the white supervisor. Sometimes my requests were
denied.
By
the afternoon, after a shift, we emerge from the underground to the
surface with our clothes and body full of dust. I returned
with my
clothes and boots to the hostel. It was common for miners to take
their clothes and boots inside the mine hostel since
miners were
responsible for washing their clothes themselves. This created
further dust in the dormitories.
On
my off days I further attended to washing my clothes. I went home
once a year when my contract came to an end.
Over
time and whilst working at Vaal Reefs, I became ill. I started to
cough repeatedly, I was very tired and short of breath and
I also
began to sweat at night. It was subsequently discovered that I had
tuberculosis and silicosis. Thereafter, in 1991 I was
retrenched.
Notwithstanding
my retrenchment, I commenced working for Western Areas Gold Mine
between 1995 and 1997 and thereafter for Randfontein
Gold Mine in
1999.
However,
after I'd stopped working in the mines, I received a letter in 2004
from the Medical Bureau for Occupational Diseases (the
"MBOD"),
informing me that I had tuberculosis and silicosis in the second
degree.  …
Subsequent
to the MBOD's letter, I received R28 000.00 in what I'm advised of,
would have been in all likelihood compensation from
the Compensation
Commission for Occupational Diseases ("the CCOD")
Since
then, I'd been unable to perform work that requires physical labour
or effort. I receive R1 200.00 from the government as
a disability
grant. This is the only income my household lives on, as my wife and
four children are all unemployed. I have not
received any financial
or other support from AngloGold, since my retrenchment or from the
CCOD. Consequently, I want to claim damages
from Anglo Gold because
of my illness.”
[64]
Another
applicant, Mr Watu Livingstone Dala, testifies as follows:
“…
Upon
my arrival, I was taken to Vaal Reefs mine hostel. I was placed in a
dormitory with 15 other men. It was fitted out with 16
beds, each
with its own sponge mattress. The showers and toilets were in a
different building next to the dormitory. There were
about 6 showers
and 6 toilets, which we shared with a lot of other mineworkers living
in the other dormitories. The showers and
toilets were not private
and miners used it (sic) in full view of the others.
My
daily routine started at 3:30am, when a mine policeman woke us up,
using a loud hailer. There was also a siren to wake us up.
Everyone
woke up, including those for whom it was an off day. We got up,
washed, ate and then proceeded to walk to the mine, which
was 5
minutes away from the hostel.
Once
at the mine, the cage took us down the shaft. Once underground, one
immediately experienced the humidity and dust hanging in
the air.
During my employment at Western Deep Levels mine…We took three
cages to get to that level underground. It was extremely
hot at that
level.
Over
time, I became a winch driver. I was responsible for cleaning rocks
from underneath slopes and gullies, after rock blasts.
As a result,
my job constantly put me in direct contact with dust and heat.
Because of the rock blasts and heat, it was not practical
to wear
masks all the time. The hot conditions underground made it very
difficult for me to breathe with the mask on. Over time,
the mask
became so dusty that I could no longer use it, as it was impossible
to breathe through it.
During
most of my shifts, I was present when rock blasting occurred. The
whole place shook when it happened. It was very scary.
Thereafter,
there was always a lot of dust. Sometimes, you could barely see in
front of you. The dust was also suffocating and
got stuck in our
noses and ears. Though water was used to keep the mine surface wet,
it did little to minimize the levels of dust.
Mine ventilation also
did not do much to reduce the dust. I cannot recall mine management,
most of whom were white at the time,
speaking to me or any of the
other miners about the health risk of dust. In fact, I remember being
told by our supervisors that
we should only make sure to wear the
masks when there were "safety reps", meaning safety
representatives inspecting the
mine underground. However, those
representatives were seldom visible, as they almost only appeared
when there was an underground
accident.
Mine
management was only concerned with us having to work all the time. We
worked like slaves. It was common for us to be referred
to as
"
kaffirs
",
or "
mshunukanyoko
",
meaning "
mother fuckers
".
Some mineworkers were regularly kicked under their buttocks by the
white supervisors and some were even hit with the fist
or with
objects. One white supervisor once tried to hit me but I managed to
run away and escaped the attempted assault.
…
During
the course of my employment with the mine, I underwent routine
medical check-ups at the mine hospital. During one of those
visits,
around 1999 I think it was, I was told by the mine doctor that I was
quite ill. Nonetheless, I was allowed to continue
working
underground. In 2004 though I received a letter from the Medical
Bureau for Occupational Diseases ("the MBOD")
stating that
l had tuberculosis and silicosis in the second degree.
Again,
notwithstanding that letter from the MBOD, I was allowed to continue
working underground until 2006 where after and only
then, I was
transferred to the surface. I stopped working for AngloGold in 2007
when I was retrenched due to my illness. I was
45 years old at that
time. I returned to the Eastern Cape to my family.
However,
in 2001, I received R 17 000.00 and subsequent thereto in 2007 I
received a further sum of R 48 000.00.
Currently,
I do odd jobs and receive very little money for it. My wife and I
receive two child support grants from the government
totalling
R560.00. I have not received any financial or other support from
AngloGold Ashanti since my retrenchment or any further
sums from the
CCOD. Consequently, I want to claim damages from AngloGold, because
of my illness.”
[65]
The
evidence concerning their working conditions is similar or almost
identical in all the affidavits deposed to by the individual

mineworkers represented by Spoor and Abrahams. The averments in all
the affidavits of the individual mineworkers divulge the same
or
similar Victorian-era like working conditions regardless of which
mine the deponent worked for and during which time-period
he worked
for these mining companies. Another fact illuminated in many of these
affidavits is that the deponent worked on more
than one mine during
different times of his working life, and yet he testifies to working
conditions that were almost identical
in each of the mines throughout
his tenure as a mineworker.
[66]
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.
[67]
A
further factor illuminated in all the affidavits is that almost every
one of the miners was recruited by a company operating under
the name
and style of TEBA Ltd. (“TEBA”). It was TEBA that placed
him with a particular mine and it was TEBA that kept
a record of his
employment with the mining companies. It appears from these
affidavits that TEBA acted for and on behalf of all
the mining
companies. Its conduct and its omissions were common and universal.
Its conduct and its omissions are relevant to the
case of each
mineworker as they focus upon the issues of breach of the mining
companies’ duty of care as well as the unlawfulness
of their
conduct.
[68]
Four
of the dependant applicants, Ms Maleburu Regina Lebitsa (‘Lebitsa’),
Ms Mataaso Mable Makone (‘Makone’)
and Ms Matsekelo
Cisilia Masupha (‘Masupha’) and  Ms Matisetso
Maseipati Jesenta Nong (‘Nong’) represented
by Spoor are
the widows of mineworkers. As their circumstances are similar in
material respects the affidavits they have filed
share common
averments. One of them, Lebitsa, testifies as follows:
“
My
late husband was a former gold mineworker who worked underground
(from 1972 to 1998).
My
late husband left work on the mines when his former employer found
that he was medically incapacitated and that he was no longer
able to
perform his duties, In early 2005, my husband was certified to be
suffering from tuberculosis and silicosis in the second
degree by the
Medical Bureau for Occupational Diseases (MBOD)
On
30 April 2010, my husband passed away. He was 55 years of age. As per
the copy of the attached death certificate…the cause
of his
death was Tuberculosis. I am advised that scientific research shows
that the risk of dying from tuberculosis is three times
higher in
silicotic mineworkers that those without silicosis.
My
husband supported me whilst he was working in the mine. Consequent to
working on the mines, he developed silicosis and, as a
result, he
left work on the mines due to ill health at the age of 42, long
before the normal retirement age of 65 years. When he
returned home
from the mines his health deteriorated and, as he became weaker, his
ability to support his family was severely undermined.
The support he
provided me was fully terminated when he passed away in 2010.
Accordingly,
as a result of my late husband contracting silicosis and being
retrenched prior to the normal age of retirement due
to his ill
health, I suffered a reduction of support when he left work on the
mines. Thereafter when he died, the support provided
by him was
completely terminated.
My
late husband, along with thousands of other mineworkers, had
contracted silicosis as a result of their employment with
Respondents’
mines.”
[69]
Broadly
speaking the testimonies of Makone, Masupha and Nong are the same as
that of Lebitsa. Hence, if individual actions are to
be brought they
will be repeated in each case.
[70]
The
evidence referred to in [59], [61] – [64] and [68] above is
relevant and necessary for it pertains to the issues of breach
of
duties of care as well as to the fault elements of the delict the
mineworkers complain of. Some of the evidence consists of
highly
technical scientific material and each individual mineworker lacks
the capacity to bring it to court on his own. However,
all this
evidence is applicable to each and every mineworker’s case and
if the thousands of mineworkers were ever able to,
and actually did,
litigate individually then without doubt, the same evidence would be
repeatedly presented to court.
The
claim against parent companies
[71]
The
claim against the parent companies of the respective companies that
employed the mineworkers is that they had authority over,
advised and
guided their respective employing subsidiary company, and were aware
that its subsidiary company would accept its direction,
guidance or
advice and that that direction, guidance or advice materially
impacted upon the health of the mineworkers, especially
with regard
to them contracting silicosis or TB. The evidence they wish to bring
against these companies is the same evidence referred
to in [59],
[61] - [64] and [68] plus evidence about the active involvement of
the respective parent company in the affairs of
its subsidiary. The
latter evidence is not separate, or insulated, from the former
evidence. Parent companies would have to engage
with former evidence
as much as the subsidiary companies would have to do so. This
evidence, too, is general to all the parent
companies. It would,
therefore, make no logical sense to exclude them from the class
action. In addition, they claim that the parent
companies knew, and
in some cases were part, of the decisions to implement the practices
that had a material impact on the environmental
conditions to which
the mineworkers were exposed, and which had a negative impact upon
the health of these workers. In the case
of one parent company, Anglo
American, the mineworkers intend to lead extensive evidence about its
reporting since 1961 on behalf
of all its subsidiaries about the
health of their employees as well as about its own knowledge of the
correlation between silica
dust exposure and the lung diseases of
silicosis and TB. They further intend to show that in many respects
Anglo American was a
trendsetter when it came to advising on the
adoption of health and safety equipment, methods and procedures. Its
advice, they intend
to show with credible evidence, fell woefully
short of what is to be expected of a reasonable employer taking
seriously its obligations
to protect and advance the health and
safety of the mineworkers. Parent companies on the whole would have
to engage with all this
evidence, which the mineworkers intend to
lead in one trial action only.
Common
questions of law
[72]
The
mineworkers also intend to plead certain simplified questions of law
at the class action trial, some of which are amenable to
being dealt
with
in
limine
,
others not so, but they are all common to the case of every
mineworker. These, amongst others, are:
[72.1]
whether the legal convictions of the community justify the imposition
of delictual liability upon
the mining companies for failing to take
the necessary steps to prevent the growth and spread of silicosis and
TB. Some of the
evidence referred to in [61] above would, no doubt,
be relevant to this issue;
[72.2]
whether the element of causation can be determined by application of
the
res ipsa loquitor
rule;
[72.3]
whether breaches of the relevant health and safety statutes and
regulations constitute grounds for
the imposition of strict
liability;
[72.4]
whether the principle of joint and several liability should apply to
multiple mining companies in
cases where they employed the same
mineworker, though at different times, but all exposing him to
excessive levels of silica dust
while he was in their respective
employ;
[72.5]
whether or not the filing of the application for certification
interrupts prescription;
[72.6]
whether the breach of one or more of the constitutional rights
captured in sections 9(4), 10, 11,
12(1)(c), 12(2) and 24 of the
Constitution automatically gives cause for a delictual action; and,
[72.7]
whether compensatory damages are available to mineworkers under
sections 12(1)(c) and/or 24 of the
Constitution
[73]
These
legal questions are general and applicable to the case of each and
every mineworker, and their determination will have a final
and
determinative effect on the claim of each of them.
The
claims of dependants
[74]
As
is the case with the mineworkers, at this stage the dependant
applicants are unable to provide the court with a precise number
of
dependants that will join in the action, save to say that the number
is realistically expected to be in the tens of thousands.
These
dependants would have to establish the same five elements of the
delict as the mineworkers, and they intend to rely on the
same
evidence as that on which the mineworkers rely to prove some of those
elements.
Issues
concerning Pulmonary Tuberculosis
[75]
The
mineworkers contend that there is a correlation between the exposure
to high levels of silica dust and the development of TB.
The question
of whether the dust control measures, or whether the lack thereof,
were wrongful and negligent is therefore a question
that concerns
both the silicosis and TB classes, as well as all the mining
companies. The evidence referred to in [59], [61] -
[64] and [68] is
evidence the entire TB class intends to rely on. Some of the evidence
will be presented by members of the TB class.
[76]
However,
it
is common cause that TB is caused by a mycobacterium and not by
inhaling silica dust and because of this
the
mining companies claim that the mineworkers would have great
difficulty in proving with certainty that they contracted TB as
a
result of their exposure to silica dust during their employment at
the mines. The mineworkers will not be able to show that “but

for” their employment at the mines where they were exposed to
excessive levels of silica dust they would not have contracted
TB.
For this reason they claim that there is no triable issue between
them and the mineworkers that can be resolved at a class
action.
The
problem with this contention is that it ignores altogether the
unassailable fact that before this question of causation can
be
raised there are other factual issues that have to be considered, and
those factual issues are identical to some of the issues
raised in
the determination of the case of the silicosis class. It is this that
inseparably conjoins the two classes and would
allow for a single
class action. It is no doubt true that once these common issues are
dispensed with the cases of the two classes
may diverge. But when and
how that is to be done is a matter only the trial court can
determine. It alone can determine how best
the interest of justice
can be served.
The
mineworkers have acknowledged that the issue of causation for the TB
mineworkers is not an easy one. But, they rely on two recent
cases
where there was evidential uncertainty as to the direct or actual
cause of the harm suffered, and where the courts developed
the law by
finding that the “but for” test is not the only method of
determining the issue of causation. The two cases
are
Fairchild
v Glenhaven Funeral Services Ltd
[33]
,
and
Lee
v Minister for Correctional Services.
[34]
The
majority judgment in
Lee
held that there was nothing in our law that prevented the court from
approaching the question of causation by asking whether the
facts
proven by the plaintiff show that they were the more probable cause
of the harm she suffered. By doing so the CC has expanded
our
perceptions of causation.  What is clear from this development
of the law is that the mineworkers are not incapable of
proving that
there is an inseparable causative link between their contracting TB
and the unlawful exposure to excessive levels
of silica dust while
working on the mines. Their claim is that
exposure
to high levels of silica dust undermines the immune system which
increases the risk of developing TB. The mining companies
do not
dispute that silicosis is associated with an increased risk of TB.
In
the light of the development of the law and the common cause facts
the mineworkers have more than a fair chance of discharging
their
onus in this regard. Thus, as this issue of unlawful exposure to
excessive levels of silica dust is common to that of the
silicosis
mineworkers there is no logical or practical reason to deprive the TB
mineworkers from being part of the same class action.
Accordingly, we
find that the mining companies’ resistance to combining the TB
mineworkers’ case with that of the silicosis
mineworkers is
without merit.
Are
there conflicts of interests on the common issues?
[77]
In
any class action it is inevitable that there will be conflicts of
interests between class members. This is borne out by the fact
that
ultimately each class member must prove his claim in its entirety if
he is to succeed. However we have not been alerted to
any, nor can it
be said that the aforementioned general factual evidence, or the
general questions of law, embody any conflicts
of interest between
the individual class members. Hence, a certification of the class
action would translate into the following:
once the common issues are
determined, and assuming they favour the mineworkers’ case,
then each mineworker would have to
develop the rest of his case on
its own facts. In other words, even after the common issues are dealt
with and finalised there
nevertheless remains the issue of each
mineworker having to prove his own case. It follows axiomatically
that the stage when each
mineworker would have to prove any
outstanding aspects of his case, particularly those aspects peculiar
to his own case, such as
for example, the amount of the damages he
sustained, would have to be the final stage of the class action.
[78]
It
is also conceivable that before that stage is reached, and after the
issues common to all the mineworkers have been dealt with,
there
remain certain issues common to only some mineworkers. This would
best be described as issues pertaining to a sub-class.
Depending on
how the overall general common issues are determined there could be
more than one sub-class that may be identified
by the trial court.
Whether it will be necessary to determine the issues pertaining to
each sub-class before the final stage (of
each individual mineworker
proving his loss) are reached is a matter for the trial court. The
presiding judge would be completely
at liberty to determine how best
to conduct the trial once the overall common issues had been
determined.
[79]
The
mining companies, in particular Harmony
[35]
and AngloGold, point out that to the extent that conditions in one
mine may have been worse than those in other mines the interests
of
the mineworkers employed in the former mine may conflict with those
of the other mines. The fact that conditions in one mine
may have
been better or worse than in other mines does not detract and
distract from the fact that there are sufficient common
issues of
fact and law that allow for, at least at the first stage, a single
proceeding to be held where evidence and argument
common to all the
mines is entertained. In our view, there can be no significant
conflict of interest while these common issues
and evidence are being
dealt with.
[80]
AngloGold
also points out that since a single mineworker is bound by the
processes that would be set in motion in the class action
trial he
would, until the final stage is reached, be precluded from settling
his case on his own. Accordingly, AngloGold contends
that his
interest conflicts with that of the rest of the mineworkers. This
contention forgets that the mineworkers are calling
for the class
action to be held over two stages or conducted in two phases.
[36]
[81]
The
first would be an opt-out stage and the second one an opt-in one.
During the first stage all the common issues can be addressed
and
assuming the findings on these issues are favourable to the
mineworkers then only would the opt-in phase take effect. As this

opt-in phase commences the individual mineworker would have an
opportunity to refuse to be part of the class action. Hence, the

potential conflict of interest AngloGold draws attention to is
mitigated by this election afforded to the mineworker. Of course,

once he opts-in then he would have to accept that any settlement that
is concluded would be one that includes all the mineworkers,

including himself. This is the price he pays, or the benefit he
receives, by being part of the class action.
[82]
In
any event, should there be any conflicts of interest that have not
been catered for or addressed in the settlement reached these
can be
brought to the attention of the court which will make a determination
on the issue. In terms of the contingency fee agreements,
which we
address later in this judgment, any settlement reached on behalf of
the mineworkers will have to be approved by the court.
Even if the
contingency fee agreements were silent on this issue, we hold that
all class actions that are certified should be on
the condition that
any settlement agreement reached by the class representatives on
behalf of the entire class must be approved
by the court in order to
be valid. This provides a moment for any conflicts of interest issues
to be dealt with by the court before
the settlement agreement is
approved and implemented.
[83]
Furthermore,
as we show below, the evidence demonstrates that the large majority
of the mineworkers are incapable of litigating
on their own
[37]
.
Until they are able to do so, there is nothing for them to settle.
Accordingly, we are unconvinced by the arguments that the class

action should not be certified because it inherently bears scope for
conflicts of interest between mineworkers who want to settle
and
those who don’t.
The
common issues in the class actions may not finally determine each
mineworker’s case
.
[84]
It
is obvious that not all the elements of the delictual action will be
finalised once the common issues have been determined. We
know for
instance that as each mineworker’s damages are unique to that
mineworker, these will have to be individually determined.
The same
applies to the mineworkers’ dependants’ cases. The
mineworkers are acutely aware of this reality.
[85]
This
fact was repeatedly highlighted by the mining companies in their
written and their oral submissions. At one stage during the
oral
submissions there was a confusion as to whether this meant that even
if the common issues were determined in favour of the
mineworkers
there would, nevertheless, be a need for a summons to be served by
each individual mineworker against a respective
mining company, or
mining companies if more than one is to be held accountable. We
believe that this perception of what might happen
to the individual
claims once the common evidence on some of the disputed facts is
received and an appropriate finding is made,
and once the common
issues are determined, is misconceived. It is based on speculation,
which no doubt is premature. We have no
clue as to what facts will be
disputed and what will be agreed upon after the pleadings and the
pre-trial processes are complete.
What we know, thus far, is that
there are sufficient disputed facts common to the claims of all the
mineworkers, and that the determination
of these disputed facts can
only be enhanced by a single hearing of the evidence common to all
the claims. We also know that there
are issues common to all the
claims that can be determined at a single hearing, and this can be
done at the initial stage of the
proceedings. That is all we know.
[86]
The
rest will have to be left to the trial court as that court would not
be hamstrung by the same information deficit that besets
this court.
The trial court will, no doubt, be tasked with managing the process
once the class action is certified. Importantly,
while the trial
court is seized with the matter the mining companies will have
pleaded their cases, the pre-trial processes that
are available in
terms of the rules of court will be finalised and that court, using
its powers in terms of s 173 of the Constitution,
the various rules
of court and practice directives, will be able to decide on the
route(s) best suited to resolve the manifold
disputes that are bound
to surface. It can only do that once the issues have been
crystallised by the pleadings. That court has
significant powers to
manage the proceedings in the interests of justice. It is,
furthermore, within the wit of that court to determine
whether
sub-classes should be formed and for the proceedings to be arranged
in such a manner so as to do justice between the parties.
It would be
inappropriate, if not impossible, for this court, which is only
concerned with certification of the class action, to
plot the best
route forward for the trial court, or to identify any possible
sub-classes for the trial court. This court does not
have the benefit
of the pleas of the parties or the outcome of the pre-trial
processes. Sight must never be lost of the fact that
a certifying
court cannot pre-determine for the trial court what should happen at
the trial. In our view, a certifying court doing
so would be
exceeding its remit.
[87]
A
very important consideration to be taken into account is that even
before the pre-trial processes are finalised, the practice
directives
of this court allow for the case to be judicially managed so that it
is trial-ready. If required and if it is in the
interests of justice,
there is no reason why a relevant paragraph in the practice directive
should not be invoked.
[88]
It
must not be forgotten that the mineworkers have asked for a
certification that allows for the adoption of a bifurcated process.

While we discuss this in more detail below, we note here that the
second stage of this bifurcated process involves the invocation
of
the opt-in method of identifying the total number of mineworkers who
form part of the class action. This means that at the conclusion
of
the opt-in process the names and details of all the mineworkers who
claim rights of membership to the classes will be known.
There will
be no need for them to issue summonses. The mining companies are
already before court. All they will then need to know
is who exactly
the plaintiffs are. The trial court will have to fashion a process
for this information to be relayed to all of
them. As we say above,
the trial court is more than capable of doing so.
[89]
Hence,
the fact that the determination of common issues in favour of the
mineworkers will not finalise each mineworker’s case
(or that
of his dependant(s)) is no bar to certifying the class action. A
certification is not dependent on each mineworker’s
case being
fully and finally determined once the common issues are determined in
favour of the mineworkers. As long as it can be
shown that
determination of the common issues will advance the cases of the
individual mineworkers substantially, a certification
of the intended
class action would be justified and would be in the interests of
justice. At the same time it cannot be overlooked
that the cases of
all mineworkers could very well be finalised if the trial court were
to find against the mineworkers on one or
more of the common issues.
This could happen if, for example, an issue such as prescription is
determined in favour of the mining
companies. In this scenario, the
entire cases of all the mineworkers, or of a substantial number of
mineworkers, could be finalised.
This possibility on its own bears
significant weight in favour of certifying the class action.
Conclusion
on commonality
[90]
All
the mining companies are accused of having committed the same wrongs
– failing in their duties to protect the health of
their
employees, the mineworkers, when they were legally bound to do so,
and as a result thereof causing them to suffer the same
harm –
contracting the disease of silicosis or TB. However, sight must not
be lost of the fact that this case is different
from the usual class
action where numerous persons have the same or similar claim against
a single defendant arising from a single
wrong committed by the
defendant. In this case numerous mineworkers have the same claim
against one or more of the mining companies
simultaneously, and while
all their claims are attributable to a single cause, the harm
nevertheless occurred at different times
and in different
circumstances. The mining companies placed heavy emphasis on this
latter fact in their opposition to the certification
of the class
action.
[91]
What
the mining companies do not gainsay is that all the mineworkers have
a similar, albeit not the same, case: that they have all
worked in
the mines owned, controlled or advised by one or more of the mining
companies; they have all contracted silicosis or
TB; that the
exposure to silica dust was the sole cause of them contracting
silicosis and a major contributing factor to them contracting
TB. In
other words, all the silicosis mineworkers have a claim (harm
suffered at the hands of one or more of the mining companies)

attributable to a single cause, even though the harm they are alleged
to have suffered may have occurred at different times, in
different
circumstances and in different mines. At the same time all the TB
suffering mineworkers claim that a major, if not sole,
cause of their
contraction of TB lies in their exposure to silica dust which was
prevalent at the mines they worked in.
[92]
The
mineworkers correctly point out that should the class action not be
certified the evidence referred to in  [59], [61] –
[64]
and [68] above would have to be presented in each individual case
that may be brought, resulting in it being presented many
times over.
And, it would be presented by the same witnesses in each of the
cases. On the contrary, if the class action were to
be certified it
would be presented only once.  Hence, that constellation of
evidence can only be presented in a class action
trial. It is neither
economical, nor in the case of any individual mineworker affordable,
for him to bring it to his trial action
were he to sue in his
individual capacity.
[38]
In a
class action trial the mining companies will be able to challenge all
this evidence once and to the extent that they will
bring direct
contra evidence this, too, can be done once. The class action trial
court will deal with all the evidence once and
for all and will make
a single finding on the issues arising from this evidence as opposed
to many trial courts sitting and hearing
the same evidence. It has to
be borne in mind that if individual trials were ever to be held and
evidence repeatedly presented
in each of the cases, the findings on
each case remain case-specific and are not binding on any subsequent
case, even though the
subsequent case draws on much of the same
evidence as the previous one. It goes without saying that there is
always the problem
of different courts hearing the same evidence but
coming to different conclusions or, to put it differently, making
different and
even mutually contradictory findings. This is as
untenable as it is uneconomical. Thus, if jurisprudential coherence
and integrity
are to be maintained, which in the interests of the
rule of law they must be, then the evidence can only be presented in
a class
action hearing. In other words, the evidence is only truly
digestible in a class action hearing.
[93]
Simultaneously,
most, if not all, the mining companies indicate that they intend to
raise the same defences, such as for example,
the voluntary
acceptance of risk by the mineworkers, and/or the claims by the
mineworkers on the whole have prescribed. These,
therefore, raise
common issues or pose common questions best dealt with in a class
action hearing.
[94]
The
approach adopted by the Canadian Supreme Court in
Vivendi
Canada Inc v Michel Dell’ Aniello
is instructive. There the court held:
“
the
common question may require nuanced and varied answers based on the
situations of individual members. The commonality requirement
does
not mean that an identical answer is necessary for all the members of
the class, or even that the answer must benefit each
of them to the
same extent. It is enough that the answer to the question does not
give rise to conflicting interests among the
members.”
[39]
[95]
This
is particularly so because:
“
the
underlying (commonality) question is whether allowing the suit to
proceed as a representative one will avoid duplication of

fact-finding or legal analysis. Thus an issue will be “common”
only where its resolution is necessary to the resolution
of each
class member’s claim. It is not essential that the class
members be identically situated vis-à-vis the opposing
party.
Nor is it necessary that common issues predominate over non-common
issues or that the resolution of the common issues would
be
determinative of each class member’s claim. However, the class
members’ claims must share a substantial common ingredient
to
justify a class action. Determining whether the common issues justify
a class action may require the court to examine the significance
of
the common issues in relation to individual issues. In doing so, the
court should remember that it may not always be possible
for a
representative party to plead the claims of each class member with
the same particularity as would be required in an individual

suit.
[40]
[96]
In
Vivendi
the court noted with reference to similar cases that an issue will be
considered common if addressing it enables all the claims
to move
forward. It need not be determinative of the final resolution of the
case. It is sufficient that it allows the claims to
move forward
without duplication of the judicial analysis. This however does not
preclude a class action suit.
[97]
The
approach in
Vivendi
,
in our view, is correct for it ensures that the interests of justice
predominate.
[98]
Thus,
in our case the class action would not only be to the benefit of the
mineworkers but also to that of the mining companies
which raise
defences that are common to all or most of the mineworkers. These
defences would be determined once and would enjoy
the status of
finality. At the same time, the court would be saved the
inconvenience of dealing with more than one case and hearing
the same
evidence on the same issue. Thus, it would enhance judicial economy.
Further, it would prevent the potential harm to judicial
integrity
caused by various courts hearing the same evidence and producing
conflicting decisions from that evidence.
[99]
Thus,
we reiterate that in our judgment the receipt of the above evidence
common to all the claims of the mineworkers and the determination
of
the issues identified above will most certainly move the litigation
forward. It is accordingly in the interests of justice that
they be
dealt with in a single class action hearing.
There
is no realistic alternative to class action
[100]
The
mineworkers have urged the court to consider that, in the context of
this case, there is, for most victims of silicosis and
TB, no
realistic alternative to class action. For them, it is said, it is
class action or no action at all. Class action is the
only realistic
option open to the mineworkers and their dependants. 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 necessary to litigate individually, have no
access to
legal representatives and are continually battling the effects of two
extremely debilitating diseases. This is manifest
in the following
uncontested evidence of Spoor:
“
...
It
is not disputed that the majority of the class members are
impoverished rural people, many of whom are in poor health, who are

spread across the sub-continent and who have very limited access to
the civil justice system. The very large proportion of class
members
who were migrant workers from Mozambique, Malawi, Lesotho and
Swaziland, probably have no access to the South African justice

system at all.
Litigating
on behalf of claimants located in remote rural areas and in
neighbouring countries is particularly difficult and expensive.

Communication is difficult and expensive. In many instances letters
and notices must be delivered by hand, travel to and from these

remote areas is slow, expensive and often unreliable. There are few
if any local correspondent attorneys to rely upon and either
the
attorney must travel to see the client or vice versa. A simple matter
such as arranging for a medical examination can take
days to organize
and involve claimants travelling hundreds of kilometres. All of these
costs must be borne by the client (which
is impossible), or they must
be borne by the attorney.”
[101]
While
the factual matrix of the position of most mineworkers is not
seriously disputed by any of the mining companies, they simply
deny
that class action is the only viable option. They do so without
advancing an alternative option that will guarantee access
to justice
for the mineworkers. The mining companies argue, in the main, that
the class action of the magnitude sought by the mineworkers
will be
unmanageable.
[102]
The
mineworkers accuse the mining companies of not acting in good faith.
They also accuse them of doing all to escape justice. The
mining
companies failed to dispute the claim, or present credible evidence
to doubt it.
[103]
They
know, claim the mineworkers, that if the class action is not
authorised that most of the mineworkers and their families will
not
be able to access justice. It was not disputed that the majority of
mineworkers have little to no access to the South African
justice
system as they are all impoverished or indigent and are living in the
rural areas of South Africa, Mozambique, Malawi,
Lesotho and
Swaziland, and are in poor health. They form part of the “
(m)illions
of people (that) are living in deplorable conditions and in great
poverty
”
[41]
in this country and in the neighbouring states.
[104]
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. That being so, the vast majority of them who
cannot sue individually would have to live with the fact that
the
law, with all its promises, affords them no remedy for the pain and
suffering endured while battling the growth of fibrotic
forests in
their ever depleting lungs. If the legal system is inaccessible to
them then the constitutional gift of a right of access
to court,
[42]
is illusory. It is only through access to courts and other
independent tribunals that justiciable disputes can lawfully be
adjudicated.
This makes the right of access to courts one of cardinal
importance in our constitutional democracy.
[43]
If access to court is denied to them because the court refuses to
allow them to follow a particular process, such as class action
when
no other is available, then the rule of law, in our view, is
ruptured. Access to court is an ingredient in the making of the
rule
of law.
[105]
This
court has already addressed the issue of access to court, albeit in a
different context, in a judgment concerning an interlocutory
dispute
between the mineworkers and one group of mining companies, Gold
Fields.
[44]
There is no need
to repeat what is said there save to say that it enjoys the full
confidence of the entire court. We know, too,
access to courts is
fundamental to the survival of our democratic order as well as for
the protection of the Constitution itself.
[45]
It follows that the court should be very careful not to close its
doors in the face of the indigent, the weak and the meek, seeking
to
access justice.
[106]
Correspondingly,
the mineworkers challenged the mining companies to deny that their
vehement opposition to the application for certification
is
indicative of a determination to prevent the mineworkers from
receiving justice, and that they have been single-minded in their

desire to escape liability for their alleged pervasive, relentless
and intense neglect of the health and safety of the mineworkers.
The
mining companies failed to meet the challenge. For them there was
only one route open to the mineworkers and that was individual
trials
for each and every mineworker who claims to have a cause of action.
[107]
The
mining companies persisted with this submission even though they were
not able to deny that this route is only theoretically
available to
the large majority of the mineworkers. In effect, they do not deny
that the mineworkers’ right of access to
court would be
materially limited, if not actually denied, should the class action
be refused. No justifiable reason to materially
limit or deny the
mineworkers their right of access to court in this way was presented
to us. We find none.
[108]
We
hold the view that in the context of this case class action is the
only realistic option through which most mineworkers can assert
their
claims effectively against the mining companies. This is the only
avenue to realise the right of access to the courts which
is
guaranteed for them by the Constitution.
Class
action is the most appropriate way to resolve many of the disputes
that arise in the case of each mineworker
[109]
This
issue was raised by the mining companies, particularly Anglo
American, which say that even if there are questions of fact and
law
which are common to claims of all the mineworkers, it is still
necessary to ask if these outweigh the non-common issues of
fact or
law to warrant a certification of the proposed class action. Anglo
American refers to this as the “
superiority
”
requirement.  It was argued by Anglo American that this issue of
the most appropriate way to proceed was introduced
into our law by
Children’s
Trust
as a “
requirement
”
to be met for a certification application to be successful. As we
have stated, according to the CC in
Mukkadam
any
“
requirements
”
laid down by
Children’s
Trust
are no more than factors to be considered by the court in its
consideration of what is in the interests of justice.
[110]
In
any event, we hold that once it has been established that there are
sufficient common issues whose determination would advance
the cases
of all individual mineworkers, then there is no need for the court to
engage in the exercise of examining whether these
common issues
outweigh the non-common ones. In such a case it has to be in the
interests of justice that a class action be certified.
Articulated
differently, once the determination on whether there are sufficient
common issues to warrant a class action is made,
the question of the
most appropriate way to proceed would almost certainly fall away.
[111]
Furthermore,
we do not read
Children’s
Trust
to be saying that the court must compare a class action to other
available forms of litigation and be satisfied that the most
appropriate way to proceed is a class action before it can certify
the class action, even though it has found that there are common

issues whose determination will advance the case of all individual
class members.  The SCA only said that there is overlap
in these
“
requirements
”
such that “(f)
or
example the composition of the class cannot be determined without
considering the nature of the claim. The fact that there are
issues
common to a number of potential claimants may dictate that a class
action is the most appropriate manner in which to proceed,
but that
is not necessarily the case
”
[46]
,
and left it at that. In our view, this does not mean that the SCA
found that “
the
most appropriate manner in which to proceed
’
is a requirement that must be satisfied before the application for
certification succeeds.
[112]
However,
to the extent that it may be of benefit to the parties that we
address the issue of what the most appropriate way to receive
the
common evidence and to resolve the common issues identified above is,
we now do so.
[113]
There
was no suggestion by the mining companies of a process other than a
class action which would be best suited for the receipt
of a
substantial amount of very focussed evidence of a common nature and
the determination of common legal issues referred to in
this
judgment.
[114]
At
the hearing a question was addressed to the mining companies (though
posed only when lead counsel for AngloGold was on his feet),
as to
whether, if there were many individual claims against them, they
contemplated bringing any evidence that would be common
to all of
them. An answer was promised, but never provided. The fact of the
matter is that they do not disown the possibility that
they would
bring evidence common to all the claims of the mineworkers whether in
a class action or in numerous individual actions.
At the same time,
they are unable to say what process is best suited to entertain this
evidence, or the common evidence the mineworkers
intend to bring to a
trial court.
[115]
Accordingly,
in our view, the institution of hundreds of thousands of separate
individual hearings is not more appropriate than
the proposed class
action to resolve the disputes between the mineworkers and the mining
companies. This is so even if the proposed
class action only resolves
some of the disputes between them. Accordingly, we conclude that the
proposed class action is the most
appropriate way for this matter to
proceed.
The
bifurcated process
[116]
The
notice of motion envisages a bifurcated process involving two stages.
The first stage will involve a hearing on all the common
issues. The
second stage will deal with all the individual issues.
[117]
The
first stage may, depending on what is revealed by the pleadings and
the pre-trial processes, result in the formation of sub-groups
of the
two classes and the issues common to those sub-groups would have to
be determined before the second stage can commence.
With this
approach the first stage would not necessarily be a single proceeding
and would take some time to complete.
[118]
Apart
from dividing the class action into two main stages, the mineworkers
ask that they be allowed to adopt an opt-out process
for the first
stage and an opt-in process for the second stage. Should we sanction
this, it would mean that the mineworkers would
be required to issue
two notices to the putative class members – an opt-out notice
and an opt-in notice.
[119]
The
first one would concentrate on alerting the putative class members of
the class action, and would give each of them an opportunity
to
opt-out. The opportunity to opt-out would only be available for a
limited time-period. At the end of this period the total number
of
class members would not be known. It is important to note that any
mineworker who does not opt-out will be bound by the findings
made by
the court during the first stage. Should the mineworkers be blessed
with any success at the first stage, they would then
issue a second
notice informing the mineworkers of the outcome of the first stage,
and would offer each of them the opportunity
to opt-in to the class
action. Again, the time-period affording the individual mineworker
this opportunity would be limited. At
the end of this period the
total number of class members would be revealed. Any mineworker who
fails or refuses to opt-in, will
not be bound by the outcome of the
second stage. He will still have the right to pursue his claims on
his own without losing any
of the benefits that would have accrued to
him by virtue of the success(es) achieved by the mineworkers as a
whole in the first
stage. The obvious attraction of this
double-barrelled approach is that it ensures that the individual
mineworkers are afforded
the widest possible choice.
[120]
AngloGold
opposes the bifurcated approach because, it claims, that it was
introduced by the mineworkers to overcome the problems
they had with
the class action as a whole, which is that there is insufficient
commonality between the mineworkers to determine
any of the elements
of the delictual action.
[121]
This
complaint is really not directed at the bifurcated process but at the
claim of the mineworkers that there is sufficient common
evidence and
common issues to justify the certification of the class action.
AngloGold, like all the other mining companies, is
adamant that there
is not. It is important not to conflate the issue of commonality with
the adoption of a bifurcated process.
Once it is found that there are
sufficient common issues to warrant a certification then the option
of adopting either a single
process or a bifurcated one presents
itself. The mineworkers have chosen the bifurcated process because
they wish to take advantage
of the benefits offered by both the
opt-in and opt-out options. They claim that it affords the individual
mineworker the widest
choice possible when confronted with the
question of whether to join the class action or not. And, to the
extent that it achieves
this, it serves the interests of justice. The
claim, in our view, has merit.
[122]
Another
objection of the mining companies to the combination of the opt-out
and opt-in processes is that it fails to eradicate the
uncertainty
about the precise number of plaintiffs that are suing them. This,
they point out, would affect and may even be decisive
in, their
answer to the question on whether they should persist with their
opposition or should settle the claims.
[123]
The
objection is without merit. The problem of not knowing the total
number of class members exists in all class actions where the
opt-out
system is adopted. This is bound to be factored into the quantum
awarded on any settlement amount that the parties may
agree on should
they choose not to pursue the litigation.
[124]
In
any event, the mining companies are not completely ignorant of the
potential number of mineworkers that will eventually stake
a claim
against them. These are their former employees or dependants of their
former employees. They have, or should have, records
of these
employees. This is amply demonstrated in the testimonies of the
individual mineworkers and the testimonies of the dependants
of
deceased mineworkers quoted above. In these circumstances, care must
be taken not to exaggerate the problem of identifying the
total
number of actual mineworkers, or dependants of deceased mineworkers,
until the litigation is finalised.
[125]
It
bears remembering that the mining companies may refuse to settle the
claims at all, mainly because they remain convinced that
the
mineworkers will not succeed in proving their cause of action. The
decision to settle the claims is dependent as much on their

assessment of the strength of the case of the mineworkers as well as
the strength of their defence. In the result, the problem
of not
knowing beforehand the actual number of mineworkers or dependants of
deceased mineworkers is not weighty enough for us to
refuse the
certification of the proposed class action, or to refuse to sanction
the adoption of a bifurcated process.
Suitability
of class representatives, legal representatives and their fees
Introduction:
[126]
The
suitability of the proposed class representatives, the lawyers and
their fees are considered against the relevant legal guidelines.
[127]
Firstly
in
Children’s
Trust
,
the SCA held that the capability to conduct the litigation has a
number of aspects that must be dealt with in the certification

application. They include the following:
[127.1]
The representatives must have the time, the inclination and the means
to procure the evidence necessary to conduct
the litigation;
[127.2]
The representatives must have the financial means to conduct the
litigation or must have the ability to procure
finance to conduct it;
[127.3]
The representatives must have access to lawyers who have the capacity
to run the litigation properly;
[127.4]
The representatives have to disclose the basis on which the lawyers
are going to be funded;
[127.5]
If the litigation is to be funded on a contingency fee basis, details
of the funding arrangements must be disclosed
to ensure that they do
not give rise to a conflict between the lawyers and the members of
the class.
[47]
[128]
Secondly
in
Mukkadam
the CC held as follows:
“…
a
representative in whose name the class action would be brought must
be identified. The interests of the representative must not
be in
conflict with those of the members of the class. In addition the
representative must have the capacity to prosecute the class
action,
including funds necessary for litigation”
[48]
Suitability
of Class Representatives:
[129]
Upon
the institution of these proceedings there were over sixty (60)
proposed representatives of the two classes in this application.
Some
have unfortunately passed on. All the representatives are current and
former employees of the mining companies, lawful representatives
of
estates of deceased mineworkers and dependants of the deceased
mineworkers. Some of the mining companies contend that they are
not
suitable class representatives and have made this an issue.
[130]
The
role of class representatives in class action proceedings is
essentially three-fold: they may be required to have personal
knowledge of material facts for the purposes of establishing a
prima
facie
case for certification; they are responsible for instructing the
legal representatives on the conduct of the litigation on behalf
of
all class members; and they play an important role in facilitating
communication with other class members throughout the litigation.
[49]
[131]
There
are more than forty five (45) silicosis class representatives, who
are geographically dispersed across Lesotho, Eastern Cape
and the
Free State. The TB class representatives total over twenty five (25),
similarly based in various parts of South Africa
and the
sub-continent. They will facilitate access to and communicate with
class members in their areas of reach as the litigation
proceeds.
[132]
The
class representatives have access to various employment and community
networks, including trade unions, which the class representatives
and
their legal representatives will utilise to communicate with class
members.
These
include the
Mineworkers
Development Agency
,
which has offices in Johannesburg and Maseru, and contacts in other
former recruitment centres (Swaziland, Mozambique); the
Swaziland
Migrant Mineworkers Association;
the
Association of Mozambican Mineworkers
;
the
Southern African Miners Association
,
which is a coalition of unions that represents a network of
mineworkers in the Southern Africa region; the local trade unions

that are active on the mining companies’ mines, in particular,
the
National
Union of Mineworkers
and
the
Association of Mineworkers and Construction Union;
and the
Legal
Aid South Africa
,
which has access to all  the justice centres across South
Africa.
[133]
It
is not disputed that the class representatives are committed to
vigorously prosecuting the claims of all mineworkers as well
as those
of all the dependants of former mineworkers. They fully appreciate
that they owe a duty to all mineworkers as well as
to the dependants
of mineworkers to provide fair and adequate representation.
[134]
The
mining companies object to the class representatives being appointed
as representative of the two classes. The objection is
based on two
grounds.
[135]
Their
first ground is that the representatives do not cover every mine and
job type of mineworkers on the mining companies’
mines. They
say that this will result in no evidence being led relating to the
conditions applicable to certain mines or certain
jobs. This
objection is unfounded. It is premised on the incorrect assumption
that only the class representatives will give evidence
in the class
action. There is no requirement that all the evidence in the action
be given only by the appointed class representatives.
On the
contrary, it is anticipated that the evidence on the common issues at
the first stage of the class action will be given
by a number of
mineworkers some of whom are not part of the group of
representatives. There will also be evidence by numerous experts
and
their evidence will not be specific to a single mining company or
even a group of mining companies. The lack of a representative
from
each mine, therefore, has no bearing on the evidence to be led at the
trial.
[136]
Their
second ground of objection is that, in respect of a few of the mining
companies, none of the class representatives has a cause
of action
against them. This issue was raised by the third respondent, Leslie
Gold Mines Ltd (“Leslie”), twentieth
respondent, Village,
the twenty third respondent, Doornfontein Gold Mining Co. Ltd
(“Doornfontien”) and the twenty
sixth respondent, ERPM.
The concern of these mining companies really only relates to the
alternative prayer of the applicant mineworkers,
which is that should
this court refuse certification of a single class action it should
certify a class action for each mining
company.  It is
unnecessary to deal with this objection in the light of the
conclusion we reach in this case.
[137]
Section
38(c) of the Constitution in any event permits a class action to be
brought “
in
the interests of
”
a class by someone who is not a member of it. As was appropriately
noted in
Children’s
Trust
:
“
In
some jurisdictions, such as the United States, it is an express
requirement that the representative plaintiff has a claim that
is
typical of the claims of the class. In Canada and Australia,
whilst there is no express requirement of typicality, Professor

Mulheron suggests that the jurisprudence of those countries, in
regard to commonality, makes that a requirement. That question
does
not arise in South Africa, because s 38
(c)
of the Constitution expressly contemplates a class action being
pursued by 'anyone acting as a member of,
or
in the interest of
,
a…class'.  Accordingly, while the appellants include
individuals who may be typical of the class they are seeking
to
represent, the other appellants may permissibly act in the interest
of the class. There is no reason to differentiate in that
regard
between class actions based on infringement of rights protected under
the Bill of Rights and other class actions.”
[50]
[138]
A
few of the mining companies contend that differences in the
conditions on the various mines will give rise to conflicts of
interest
between the class representatives and other members of the
classes. They allege that where, for example, conditions in one mine

were more hazardous than in another, it would be in the interests of
mineworkers who work on the latter to highlight the conditions
on the
former.
[139]
The
objection, in our view, has no merit. The question whether mine A
breached its legal duties owed to its mineworkers is not affected
by
whether mine B did so. The breach of duties by one mining company is
not determined by comparing conditions at one mine with
conditions at
another. It is no defence to a claim in delict that one defendant
conducted itself worse or better than another.
The question of the
relative conditions on different mines is even less relevant in the
context of stage one of the class action,
where evidence will be led
on the common issues pertaining to the constitutional, statutory and
common law duties of care of all
the mining companies where evidence
common to all of them will be received.
[140]
AngloGold
further contends that there is a conflict of interest among class
members, the mineworkers and their attorneys because
a class member
who has a weak case on negligence, or on causation, or whose claim
for damages is relatively small has a stronger
incentive to settle
than one with a strong case and a large claim for damages.
[141]
In
virtually any class action there is bound to be some tension between
those class members with a strong claim and those with a
weak claim.
But this is no bar to certification of the class action nor is it a
bar to the appointment of the applicants who bring
the certification
application as representatives of the class. There will inevitably be
some trade-offs in a class action. However,
the benefits of increased
access to justice and judicial economy outweigh the inevitable
trade-offs involved in aggregate litigation.
[51]
It has to be remembered that any member of the class with a
particularly strong cause of action involving a large claim and who

is capable of pursuing it outside of the class, is entitled to opt
out of the class action.
[142]
In
the result, we are satisfied that the surviving applicant mineworkers
are suitable to be appointed as class representatives.
Suitability
of Legal Representatives:
[143]
The
legal team representing the two classes consists of experienced local
attorneys and counsel and they have the support services
of two
United States law firms, Motley Rice LLC and Hausfield LP, who have
agreed to fund the litigation as well as act as consultants
providing
technical and legal advice for the litigation. They have expertise
and experience in class action litigation.
[144]
The
legal team includes three firms of attorneys one of which operates as
a non-governmental organisation, the LRC. The LRC has
extensive
experience in cases concerning public interests as well as cases
involving large numbers of people. There are nine counsel

representing the mineworkers, five of whom are senior counsel. There
cannot be any serious argument against their competence and

professionalism.
[145]
In
appropriate circumstances the court is available to deal with and to
supervise any conflict between class members that may arise.
Further,
any settlement agreement would, in any event, be subject to judicial
approval. This is required under the contingency
fee agreements
concluded between the applicant mineworkers and the legal
representatives, and in terms of provisions of the CFA.
[52]
It is, furthermore, a requirement imposed upon them by this court.
And, if deemed necessary, the trial court is at liberty to appoint
a
curator
ad
litem
for the purposes of overseeing any settlement agreement on behalf of
all, or part of, the class members.
[146]
We
hold that there can be no doubt as to the  competence and
professionalism of their legal representatives.
Legal
representatives and their fees:
[147]
The
fee sharing arrangements between Spoor and Motley Rice, and between
Abrahams and Hausfield, are challenged by the mining companies
on a
single ground: that they do not comply with the provisions of the
CFA. It bears mentioning that the fee agreements have been
submitted
to the relevant Law Societies for their consideration and they,
having considered the agreements, have recorded that
they have no
objection thereto.
[148]
The
only objections then that deserve consideration, are those based on
the CFA. They have to be considered against the backdrop
of four
principled positions that have emerged. These are:
[148.1]
The mineworkers and their attorneys accept that the position in our
law is clear – the fee agreements
must comply with the CFA,
failing which they are invalid.
[53]
[148.2]
Should this court consider that the amended contingency fee
agreements concluded by the mineworkers are in any
way inconsistent
with the CFA, the mineworkers and their attorneys, including the
consultants, have placed on record that they
are willing to make any
adjustments to these agreements that this court may require.
[148.3]
The mineworkers and the class members have the protection of section
5 of the CFA, which provides as follows:
“
5
Client may claim review of agreement or fees
(1)
A client of a legal practitioner who has entered into a contingency
fees agreement and who feels aggrieved
by any provision thereof or
any fees chargeable in terms thereof may refer such agreement or fees
to the professional controlling
body or, in the case of a legal
practitioner who is not a member of a professional controlling body,
to such body or person as
the Minister of Justice may designate by
notice in the Gazette for the purposes of this section.
(2)
Such professional controlling body or designated body or person may
review any such agreement and set
aside any provision thereof or any
fees claimable in terms thereof if in his, her or its opinion the
provision or fees are unreasonable
or unjust.”
[148.4]
The mineworkers and their legal representatives have no objection to
this court appointing a curator
ad litem
to oversee the recovery of fees as well as any deductions made in
terms of fee agreements
[149]
The
applicant mineworkers and their legal representatives have amended
their agreements a number of times in order to ensure that
there is
no conflict between the agreements and the provisions of the CFA. It
is these amended agreements that they seek approval
for. It is
appropriate at this stage to consider whether it is necessary to
order amendments to the agreements as the class action
has not yet
commenced.  Amendments can still be effected without offending
the fundamental provisions of the CFA and its underlying

principles.
[54]
To decide
whether there is any need for ordering that they be amended it is
necessary to examine the objections raised by the mining
companies.
[150]
Briefly,
the complaints raised by most mining companies are:
[150.1]
firstly, they contended that the Spoor agreement was impermissible in
that it did not indicate that the attorneys
have formed a view on
prospects of success (“the prospects of success objection”);
[150.2]
secondly, the agreements failed to provide that the fees charged
would be no more than double the ordinary fees
of the attorneys or
twenty-five percent (25%) of the total amount obtained by the class
members, whichever is lesser;
[150.3]
thirdly, the agreements failed to define what would constitute
success, and what partial success, and failed to indicate
what amount
would be due in the event of such partial success;
[150.4]
fourthly, the
pro forma
agreements impermissibly provided for the attorneys (rather than the
class members) to be entitled to receipt of party-and costs;
and,
[150.5]
fifthly, the
pro forma
agreements failed to provide for counsel to sign the agreements.
[151]
The
five concerns have been addressed in the replying papers. Amended
pro
forma
contingency fees agreements have been presented for approval in terms
of the amended paragraph 5.3 of the notice of motion.
[152]
With
regard to the first objection, s 2(1) of the CFA provides that a
legal practitioner may enter into a contingency fees agreement,
“
if
in his or her opinion there are reasonable prospects that his or her
client may be successful in any proceedings.
”
A legal representative will presumably not take the risk inherent in
contingency fee arrangements unless s/he holds the
view that the
client has reasonable prospects of success in the contemplated
action. The amended Spoor and the amended Abrahams
agreements both
specifically spell out that Spoor and Abrahams are of the view that
the mineworkers’ case enjoys more than
reasonable prospects of
success. The agreements, therefore, comply with the provisions of the
CFA.
[153]
Both
agreements provide further that if, after further investigations, the
relevant attorney determines that the client does not
have reasonable
prospects of success, the attorney may then cancel the agreement
within thirty (30) days of such investigation.
In those
circumstances, the client would not be liable for any costs to the
attorney.
[154]
As
to the second objection, s 2(2) of the CFA sets out the limits on
fees that may be recovered under a contingency fees agreement.
It
provides for a “
success
fee
”
which shall not be more than hundred percent (100%) of the attorney’s
normal fee or, if the claim is sounding in money
shall not exceed
twenty-five percent (25%) of the total amount awarded to the client
excluding the costs awarded to the client.
[155]
The
amended agreements comply with these limits as follows:
[155.1]
The amended Spoor agreement provides
“
6.1
The parties agree that if the CLIENT is successful in the
proceedings, the fee (exclusive of disbursements)
payable to the
ATTORNEY shall be the lesser of-
6.1.1
200% (TWO-HUNDERD PERCENT) of the ATTORNEY's normal fee; or
6.1.2
15% (FIFTEEN PERCENT) of the total amount awarded or any amount
obtained by the CLIENT in consequence of the proceedings
where the
CLIENT is successful, plus the party and party cost contribution
payable by the other party in such proceedings, provided
that the
amount of the fees payable as determined by the application of this
clause 6.1 shall not exceed 25% (TWENTY-FIVE PERCENT)
of the total
amount awarded or any amount obtained by the CLIENT in consequence of
the proceedings where the CLIENT is successful.
6.2
For purposes of calculating the limit in the proviso to clause 6.1,
the total award or amount obtained,
shall not include any costs
awarded.
”
[155.2]
The amended Abrahams agreement provides:
“
It
is agreed that, if the Client is successful in proceedings pursued in
South Africa, Abrahams Kiewitz shall be entitled to recover

disbursement and a
success fee equal
to the lesser
of:
15.1
TWO HUNDRED PERCENT (
200% or double
)
Abrahams Kiewitz' normal hourly fees as described hereunder, or
15.2
TWENTY FIVE PERCENT (
25%) of the
amount awarded
to
the Client in damages or obtained by the Client in consequence of the
proceedings concerned, which amount does not include any
costs.
”
[156]
As
to the third objection, the amended agreements now define “
success
”
and no longer contain any reference to “
partial
success
”.
[157]
As
to the fourth objection, the agreements now contain no reference to
the attorneys being entitled to payment of party and party
costs. The
mineworkers entitlement to such costs remains unaffected.
[158]
Finally,
as to the fifth objection, signature of counsel for the mineworkers
is not necessary as counsel for the mineworkers do
not act on
contingency. The services of counsel do not fall under the
contingency fee arrangements unless counsel co-signs the
agreement.
The amended agreements nevertheless make provision for signature of
counsel. It is a provision which was not necessary
to include where
it is expressly clear that counsel do not act on contingency.
[159]
One
mining company, ARM, raised three other objections. The first relates
to premature termination of mandates. In terms of the
agreements, if
the mineworkers choose to terminate their mandates and the
accompanying contingency agreements before the date on
which judgment
is given or the matter is settled, the mineworkers become liable for
their
pro
rata
portion of the fees incurred up to the date of termination. ARM
contends that this is inequitable. We do not agree. It is appropriate

and equitable that a mineworker who terminates the mandate of the
attorney should be liable for costs incurred up to date of such

termination. By prematurely terminating the agreement, the mineworker
effectively deprives Spoor and Abrahams of the opportunity
of
recovering their fees and disbursements from his or her award upon
the successful conclusion of the case. Yet, at the same time,
his
success would derive from the work of the attorneys. It is only fair
that the attorneys should be entitled to recover their
costs from the
mineworker who terminates the agreement.  Furthermore, the class
members are not subject to these arrangements,
and need not pay any
fees, should they opt-out at the beginning of the proceedings. There
is nothing inequitable or inappropriate
in the provision in question.
[160]
ARM
raises a further concern that the combined effect of the Spoor and
Abrahams agreements might be that fees of up to fifty percent
(50%)
of the damages awarded could be claimed as fees as each could claim
the maximum of twenty-five percent (25%) in respect of
a given class
member. The concern does not arise if each class member is to be
subject to only the Spoor or the Abrahams contingency
fees agreement.
There is no need for the mineworker to conclude two agreements, one
with Spoor and one with Abrahams. Spoor and
Abrahams acknowledge
expressly that, if inadvertently a mineworker concluded a separate
agreement with each of them they would
not both be holding him to the
agreement as this would be unlawful and in breach of the CFA.
Accordingly, this concern is misinformed.
[161]
Finally,
ARM raises a concern about the fact that the agreements contemplate
that class members will be liable for the fees of the
consultants,
which would be covered under the rubric of “disbursements.”
[162]
The
consultants, Motley Rice and Hausfield, are not party to the
contingency fees agreements. There is therefore no basis to hold
them
to the terms of those agreements.   The mineworkers are the
clients of Spoor and Abrahams. The consultants provide
services to
Spoor and Abrahams. The cost of their services, quite rightly, are
disbursements incurred by Spoor and Abrahams
[163]
As
for how they are calculated, we are told that the consultants will
charge the normal fees they charge in the United States.  However,

any legitimate concerns regarding their fees are addressed by them
and by Spoor and Abrahams in two ways.
[164]
Firstly,
they have all expressly agreed that the Taxing Master, this court and
the relevant Law Society will have jurisdiction over
any amounts
charged by consultants in respect of their fees. There are,
therefore, sufficient safeguards  to ensure that the
fees
charged as disbursements by United States consultants are within
reasonable and acceptable professional limits.
[165]
Secondly,
and more importantly, the contingency fees agreements expressly cap
the recovery of any fees payable as disbursements
to the consultants
together with fees recoverable by Spoor or Abrahams (as the case may
be) at twenty-five percent (25%) of the
total amount awarded or
obtained by the mineworker. In other words, seventy-five percent
(75%) of the capital awarded to the mineworker
is protected and
secured for him. This is no different to a situation where the
consultants were made a party to the contingency
fee agreements and
thus subject to the provisions of the CFA. There can therefore be no
legitimate concern of over-recovery by
the attorneys from the capital
awarded to or obtained by a mineworker.
[166]
In
our view, the objections to the fee agreements are devoid of merit.
We reject them.
The
Notices
[167]
The
mineworkers ask that the court sanction the notices annexed to this
judgment as B1 and B2. The mining companies oppose this.
They claim
that the notices are too complicated and inappropriate given that the
large majority of the mineworkers are either illiterate
or
semi-literate. They, however, do not suggest any alternative wording
for the notices. It is really difficult to see how the
notices can be
simplified. They are brief. They say what needs to be said and no
more. They are neutral and objective. They avoid
any ambiguity and
they will be translated where necessary. They must be seen in context
of the existence of the active network
of trade union and
community-based organisations and associations of former and current
mineworkers that we referred to in this
judgment. The message in the
notices will in all probability be carried with ease to the
mineworkers should the process referred
to in the order we make below
be followed. If, for any reason, the process cannot be adhered to, or
if the mineworkers and the
mining companies jointly deem it necessary
to augment the notices with (an) additional process(es), then they
are free to do so
by agreement between themselves. If, on the other
hand, they are unable to do so then any party is free to call upon
this court
for further direction or even for an amendment of the
order.
[168]
In
our view, the notices, as they stand, are sufficient and so too are
the processes that will be set in motion to advertise them.
They are
designed to ensure that they are brought to the attention of the
maximum number of mineworkers possible.
THE
CONDITIONAL COUNTER-APPLICATION BY HARMONY
[169]
Simultaneous
with its answering papers, Harmony launched a conditional
counter-application (“counter-application”).
The
counter-application is conditional upon this court certifying the
class action. In that case, Harmony seeks an order directing
the
mineworkers to:
[169.1]
deliver a report, confirmed under oath by their attorneys listing
each envisaged plaintiff in the silicosis
and TB class action who may
have instructed legal representatives to institute proceedings on his
or her behalf;
[169.2].
furnish copies of any fee agreements, powers of attorney, letters of
instructions and/or other mandate documents which
may have been
signed or authorised by a mineworker;
[169.3]
include in their periodic reports envisaged in prayer 9 of the
amended notice of motion, a list of all persons
who have given or may
give notice of a wish to be excluded from membership of any certified
class at the first stage of the class
action or to be included as
members of any certified class at the second stage of the class
action, together with copies of all
such notices.
[170]
Harmony
claims that it requires this information in order to determine which
claims have prescribed. It also wishes to know the
identity of the
mineworkers who wish to be included in the second phase.
[171]
There
is, in our view, no basis for Harmony to be furnished with all this
information even before summons has been served.
The documents
and information that Harmony seeks may be obtained by it, once the
action has commenced. It will obtain it by operation
of the Uniform
Rules of Court.
[172]
All
the mining companies, including Harmony, will further have access to
all reports which the mineworkers file with the court on
a quarterly
basis as envisaged in the application and the order. Harmony has not
explained why it requires such information prior
to the issuing of
the class action and why the rules and procedures are not sufficient
to safeguard any legitimate interest it
may have in acquiring such
information and documents. It is significant that none of the other
mining companies seek this information
in advance.
[173]
As
already explained, the applicants seek to proceed with class action
in two stages (the bifurcated process), namely the opt-out
stage and
the opt-in stage. It is a peculiarity of the opt-out process that the
class action defendant(s) do not know the number
and identity of the
potential plaintiffs.  The identity of class members will be
revealed at the opt-in stage.  This
however, does not deprive
them of the opportunity to raise whatever defence they wish to raise.
The defence can be raised at the
appropriate stage and can also be
brought by way of an amendment to the plea.
[174]
The
counter-application thus effectively seeks to anticipate the opt-in
stage, or is a pre-discovery fishing expedition. There is
neither a
right nor a legitimate interest that Harmony seeks to enforce or
protect that would justify the granting of the orders
it seeks.
Accordingly, Harmony is not entitled to the relief it seeks at this
stage.
[175]
In
the result the counter-application stands to be dismissed with costs.
TRANSMISSIBILITY
OF GENERAL DAMAGES
[176]
The
mineworkers ask that this court declare that any claim for general
damages that a mineworker brings, or may wish to bring, against
any
of the mining companies is transmissible to his estate should he die
before the litigation reaches the stage of
litis
contestatio.
In order to make sense of this relief it is necessary to explore the
historical roots and development of our law of delict regarding
the
transmissibility of claims for damages (whether general or specific)
to the heirs or the estate of the deceased. To begin with
it is
necessary to have regard to the historical development of the concept
of
litis
contestatio
commencing
with the early Roman law.
The
Roman law
[177]
In
its earliest period, Roman civil law followed a procedure which was
divided into two separate and distinct stages: the first
being
in
iure
and the second being
in
iudicio
or
apud
indicem
.
The
in
iure
stage involved the assertion of a claim before the magistrate, while
the
in
iudicio
stage concerned the actual hearing and decision of the case by a
judge or arbitrator.
[55]
The
in
iure
stage was a preliminary proceeding which determined the validity of
the plaintiff’s claim.
[56]
A
few centuries later the formulary system was introduced. During the
tenure of this system the two stages were effectively kept
intact
albeit in a modified form. The process commenced with an oral
proceeding before a praetor who after hearing from the parties

provided a written
formula
,
which in essence was the synopsis of the plaintiff’s claim and
the defendant’s defence. The written
formula
was:
“
addressed
to the intended judge with instructions on how he was to adjudicate.
The available
formulae
were set out in the praetor’s Edict and the grant of this
formula marked
litis
contestatio
.
[57]
[178]
By
virtue of his (it was always a male, patriarchy reigned without
challenge in that era) authority to issue the written
formulae
(his “
processual
powers
”,
in the words of the learned author J A C Thomas) the praetor was able
to assume immense power over the matter. Apart from
defining the
issue and issuing instructions in the
formula
to the judge, he was empowered to refuse the
formula
and if he did so the matter could not proceed. His discretion in this
regard was wide. Of importance, for the moment at least,
is that the
stage of
litis
contestatio
was reached when the
formula
was obtained or delivered by the plaintiff to the defendant.  In
sum, the stage of
litis
contestatio
was reached once the parties had identified their respective cases
(the plaintiff stated the basis of his claim, the defendant

identified his defence and the praetor issued the instruction to the
iudex
).
Once the stage of
litis
contestatio
was reached, there was no turning back for either party. They were
bound by the terms set out in the
formula
and had to prove their respective cases on those terms alone. If
either party was not able to do so, he would lose his case. Moreover,

once
litis
contestatio
was reached the plaintiff  was not able to re-enact the same
claim.
[58]
Any
attempt on the part of the plaintiff to do so would be an invitation
to the defendant to meet it with an exception (
exceptiones
)
that would be decisive, as the praetor would have to refuse to issue
the
formula
the second time.
[179]
In
the quest to draw meaning on the effect of
litis
contestatio
the early recorders of the Roman law observed:
“
If
the suggested theoretical basis of jurisdiction in the agreement of
the parties and the arbitral concept of litigation be accepted,
the
preparation and issue of the
formula
was not unlike the making of a contract between the parties, as it
were, settling the terms of which they submitted themselves
to the
decision of the judge in lieu of their erstwhile rights. The effects
of
litis
contestatio
were accordingly of great importance.”
[59]
[180]
The
most important aspects of the stage of
litis
contestatio
in the Roman law was that it was arrived at as a result of the
praetor’s (a third party) intervention and was fixed (or
“
frozen
”,
in the words of some learned authors) once the praetor had identified
the issues that were to be taken to the judge.  The
parties were
not able to alter or amend the
formula,
and the judge was bound to determine the matter solely on the basis
of what was stated in the
formula.
[60]
Apart
from “
freezing
”
the rights of the parties, the
formula
went further and prescribed to the judge what issues he should make a
determination on.  In these circumstances, the attempt
to make
sense of the meaning of the concept,
litis
contestatio
,
by way of analogy to a binding contract, and to refer to the rights
of the parties as being “
frozen
”
upon the arrival of the stage
litis
contestatio
[61]
,
is logical and understandable.
[181]
Roman
law prevented the transmissibility of certain claims to or against
heirs of a deceased but allowed the transmissibility of
others. In
general, claims
in
rem
could be transmitted, while those
in
personam
could not. Thus, for example, a claim for an
iniuriarum
(
actio
iniuriarum
– a claim for relief pursuant to a wrongful and intentional
damage to personality) was not transmissible to or against the

heirs.  However, there was an exception to this rule. It was
this: regardless of whether the claim was
in
rem
or
in
personam
,
once
litis
contestatio
had taken place “
the
death of either party in no way prevented the continuation of
proceedings by or against his heir.
”
[62]
Thus,
as far back as the period when the
formulary
system
was in place, the Roman law allowed for the transmissibility of
claims for or against heirs of a deceased litigant once the stage
of
litis
contestatio
had been reached and such transmissibility was not affected by the
nature of the claim.
The
Roman-Dutch law and the modern-day South African common law
[182]
The
learning and experience of the Roman law was neither lost nor
dispensed with upon the collapse of the Roman Empire. Instead,
it was
adopted by other legal systems that followed, not least the
Roman-Dutch system that came many centuries later. The concept
of
litis
contestatio,
the rule prohibiting the transmissibility of certain types of claims
as well as its exception was embraced by the Roman-Dutch law
without
more. This is recorded in a case reported in 1880 dealing with a
claim brought in terms of the
actio
iniuriarum
,
[63]
namely
Executors
of Meyer v Gericke
,
[64]
which
was a claim for damages incurred as a result of a defamation. There
the court observed:
“
This
case raises for the first time so far as reported cases go, the
important question, at what stage of an action for defamation
or
other personal injury the death of one of the parties puts an end to
the action. It is admitted on both sides that such an action
cannot
be instituted after the death of the person who was guilty of the
defamation or other injury, or after the death of the
person defamed
or injured. It is further admitted that such an action, even if
instituted during the lifetime of both parties,
cannot be continued
after the death of either party unless the stage known as
litis
constestatio
has been reached. The authorities fully support these admissions. It
would indeed appear from a passage in
Grotius
(Introduction, 3, 35, 5) that that eminent writer was of opinion that
the heirs of the party committing an injury are only liable
if case
sentence has been pronounced against the party in his lifetime, but
Groenewegen
,
in his note to that passage, enlarges the liability of the heirs, by
extending it to those cases in which, as he expresses it
in the
vernacular, “
de
zake voldongen is
.”
This expression appears to be the Dutch equivalent for the
litis
contestatio
of the Romans, for
Groenewegen
quotes a case decide in the Supreme Court of Friesland on the 22
nd
of May, 1604, where it was held that no action for personal injury
can be brought against the heirs of the guilty party unless
the
litis
contestatio
had taken place in his lifetime.
”
[65]
[183]
In
that case, as the allegedly defamed plaintiff had died pre-
litis
contestatio
the court held that so did his claim and refused to allow the
executor of his estate to pursue the claim. The outcome was a result

of a pure and simple application of the rule established in the Roman
law. Bearing in mind that the Roman system of intervention
by a
praetor in the first stage of a case was not followed in the
Roman-Dutch system, the court there held that in the Roman-Dutch

system the stage of
litis
contestatio
would be reached when pleadings were closed. The next reported case
that had cause to focus on this issue was
Pienaar
and Marais v Pretoria Printing Works Ltd and Others.
[66]
It
was a decision of a full-court constituting Innes CJ, and Smith and
Mason JJ. The full-court there took the view that as the
rule as well
as the exception to the rule was embedded into the fabric of our
common law by the Roman-Dutch authorities all that
was needed in the
case before them was one of application of the rule or its exception
to the facts before them. Hence, the court
found:
“
If
the present firm has not been libelled, it cannot sue for damages
save as successor to the old one, and as being entitled by
way of
cession to its rights in this respect. And it cannot possibly set up
such a case, because a personal action for libel cannot
be ceded. It
perishes on the death of the person libelled, and it does not even
pass to his heirs unless the action had been commenced
before his
death and had reached the stage of
litis
contestatio
.
That was so decided in
Meyer's
Executors v Gericke
,
(Foord 14), in accordance with the weight of Roman-Dutch
authority.
”
[67]
[184]
All
subsequent cases followed this approach.
[68]
The
courts took for granted the correctness of the doctrine and adhered
to it. The position to date, therefore, remains unchanged
from that
expressed in 1880 in
Executors
of Meyer.
As a result, the position of our modern common law, as well as that
of the early Roman-Dutch law is really a facsimile of the early
Roman
law. However, social, economic and legal conditions that prevail
today are very different from those that prevailed during
the tenure
of the early Roman law. One of the most important expressions of that
difference is to be found in answer to the question
as to when the
stage of
litis
contestatio
is reached. We know that in the Roman law it was when the praetor
issued the
formula
and in the early Roman-Dutch law (which was implanted, without more,
into our modern common law) the stage was reached when pleadings
were
closed. But the issue as to when pleadings are closed in our present
legal system is a lot more complicated than it ever was
under both
the Roman law or the early Roman-Dutch law and this is an issue that
is of immense significance in this case. Hence,
the transplantation
of the rule and its exception into our law produced its own
complications and challenges.
[185]
But
before looking into these it is necessary to scan this issue in the
context of the distinction (drawn in the Roman law and carried
over
into the modern-day law of delict) between a claim for patrimonial
loss and one for a non-patrimonial damage. A claim for

non-patrimonial damages, also referred to as general damages, is a
claim for the personal injury sustained in the form of pain
and
suffering, loss of amenities of life and for disfigurement. But this
claim does not fall within the scope of the
lex
Aquilia.
[69]
Roman
law initially did not avail the
aquilian
remedy to a freeman for he “
did
not own his body.
”
[70]
This
was changed by the praetors who allowed the freeman to sue for the
recovery of patrimonial loss incurred (such as medical expenses)
by
the wrongful and negligent conduct of another, but not for any
intangible harm (non-patrimonial loss, or general damages, in
today’s
terms) such as wounded feelings or pain and suffering caused to the
freeman, as no price could be placed on it since,
“
the
body of a freeman is not susceptible of valuation.
”
[71]
The
Roman-Dutch law, however, provided for the payment of compensation to
any man who suffered harm in the form of wounded feeling,
pain and
suffering, disfigurement or loss of amenities of life, but it did so
not by extending the scope of the
lex
Aquilia
but rather by establishing an altogether self-standing independent
remedy, an “
actio
sui generis.
”
[72]
In
essence then:
“
And
we at once faced with the fact that it was essential to a claim under
the
Lex
Aquilia
that there should have been actual
damnum
in the sense of loss to the property of the injured person by the act
complained of. In later Roman law property came to mean the
universitas
of the plaintiff’s rights and duties, and the object of the
action was to recover the difference between that
universitas
as it was after the act of damage, and as it would have been if the
act had not been committed. Any element of attachment or affection

for the thing damaged was rigorously excluded. And this principle was
fully recognised by the law of Holland. As pointed out by
Professor
de
Villiers
the compensation recoverable under the
Lex
Aquilia
was only for patrimonial damages, that is, loss in respect of
property, business or prospective gains. He draws attention to the

clear cut distinction between actions of
injuria
(where intent was of the essence) and actions founded on
culpa
alone. In the former case compensation might be awarded by way of
satisfaction for injured feelings. In the latter all that could
be
claimed was patrimonial damage, which had to be explicitly and
specifically proved. The difference between the two forms of
relief
is emphasised by
Voet,
who states that where one and the same act gives ground for both
actions, the receiving of satisfaction for the
injuria
does not bar the claim for patrimonial loss resulting from the
culpa.
The award of compensation for physical pain caused to a person
injured through negligence, which was recognised by the law of
Holland, constitutes a notable exception to the rule in
question.”
[73]
[186]
While
the claim for pain and suffering, loss of amenities and disfigurement
(non-patrimonial damage) is not part of the
Aquilian
action it is, nevertheless, brought simultaneously with an
Aquilian
action because, as Voet recognised, the facts relied upon to
establish it are the same as those relied upon to claim patrimonial

loss in terms of the
lex
Aquilia
.
It is “
one
and the same act
(that)
gives
ground to both actions.
”
Nevertheless, unlike a claim for patrimonial damages, a claim for
non-patrimonial damages has no scientifically calculable
economic or
monetary value, and as we saw above, for the Romans this problem was
insoluble (“
the
body of a freeman is not susceptible of valuation
”).
Since the Roman-Dutch authorities provided for this claim, the law is
required to do its best by placing a monetary value
in the quest of
providing satisfaction, or solace, to the plaintiff. It does so by
granting the plaintiff a once-off
solatium
as compensation, or reparation for the wrong suffered.
[187]
As
we said above, the common law does not entitle a dependant of a
deceased person, or an estate (through the executor) of a deceased

person, to pursue a claim for general damages, future loss of
earnings, or future medical expenses. However, the dependants of
the
deceased claimant can pursue claims for loss of support and actual
diminution of their patrimony resulting from the wrongful
conduct of
the defendant, and which wrongful conduct caused the death of their
breadwinner.  For the dependant(s) this would
include loss of
support due to the death of the breadwinner as well as medical and
funeral expenses incurred by that dependant(s).
For the estate it
would only cover damage to property as well as medical and funeral
expenses incurred by the deceased and the
estate:
“
The
executor can sue for medical expenses incurred as a result of the
fatal injuries suffered by the deceased before his death and
which,
on his death, vested in his estate. The executor can sue for damage
to property which had been damaged or destroyed during
the deceased’s
lifetime. The executor can recover the funeral expenses of the
deceased; the reason for that is less clear,
but the rule is an
ancient one and is, no doubt, based on the fact that the burial of
the deceased is an expense necessarily defrayed
by the executor.
”
[74]
[188]
In
other words, the executor can sue for any patrimonial loss the
deceased suffered before his death as well as the funeral expenses

which is a patrimonial loss suffered after death, and the dependants
can sue for any patrimonial loss they themselves will suffer
as a
result of the premature death of their financial provider or
breadwinner. Neither can sue for any personal injury such as
pain and
suffering, loss of amenities of life or disfigurement (general
damages) the deceased suffered prior to his death. There
is, however,
an exception to the rule, which is that where the deceased had
already commenced action and the claim had reached
the stage of
litis
contestatio
before his/her death, and the claim is continued by the executor of
his/her estate, the claim for the personal injuries does not
abate.
In such a case, the law allows for the claim for such general damages
to be transmitted to the estate. The basis for the
exception is
exactly the same as that under the early Roman law, which is that the
rights of the plaintiff were defined and “
frozen
”,
at the very moment the stage of
litis
contestatio
was reached. In such a case, so goes the logic, the executor of the
estate has merely stepped into the shoes of the deceased. She
has not
acquired a claim in her own right. However, the issue as to when the
stage of
litis
contestatio
is reached in the modern day law is a complicated one. It is reached
when pleadings are closed. But this is no simple matter. Guidance
as
to when pleadings are closed can be found in Rule 29 of the Uniform
Rules of Court. It advises that pleadings are closed if
all parties
to the case have joined issue and there are no longer any new or
further pleadings, or the time period for the filing
of a replication
has expired, or the parties have agreed in writing that the pleadings
have closed and have filed their agreement
with the registrar of the
court, or the court, on application, has declared that the pleadings
are closed. At that point the pleadings
are treated as being closed
and the proceedings are said to have reached the stage of
litis
contestatio
.
In everyday practice, they are normally closed as soon as the period
for the filing of the replication has expired, for at that
stage
the
issues have become identified and parties are able to commence
preparation for battle. However, it is important to bear in mind

that, as annoying as it can be, the law often places a caveat to its
pronouncements. In this case it is this: pleadings, though
closed,
will be re-opened should an amendment be effected, or should the
parties agree to alter the pleadings. Amendments to pleadings
can be
brought by any party any time before judgment is delivered.
[75]
Thus,
as the law stands, a claim for non-patrimonial loss can be
transmitted to the estate of the deceased claimant should his/her

death occur after pleadings are closed. In such a case, the executor
of the estate would take his/her place as the plaintiff, but
should
any party re-open the pleadings by amending its case or should the
parties agree to alter the pleadings then the claim for

non-patrimonial loss cannot be transmitted, even if by that stage
his/her place had already been taken by the estate, because by
this
time “
the
initial situation of litis contestatio falls away and is only
restored once the issues have once more been defined in the pleadings

or in some other less formal manner.
”
[76]
[189]
It
can be seen from this that
in
our system the defendant is afforded a lot more time than was given
to a defendant in Roman times to spell out his defence. Furthermore,

in our law even when the defendant fails to adhere to the time
periods afforded to him to identify his defence he is always given

the opportunity to seek condonation for his failure to adhere to
those time periods. It follows that in our legal system it takes
much
longer for the stage of
litis
contestatio
to be reached. Further, unlike the old Roman legal process, which
consisted of two stages (
in
iure
and
in
iudicio
or
apud
indicem
)
ours is a single process which can be a long drawn-out affair. In the
Roman legal system the arrival of the stage of
litis
contestatio
was a simple and straightforward matter. As we show above, the
arrival of the stage of
litis
contestatio
now is anything but a simple and straight forward matter. The
procedural developments that have taken place in our modern law have

ensured that our legal process is significantly distinct and
different from that which prevailed during the Roman times. A
difference
of fundamental significance is that in our law pleadings
can be re-opened at any stage before judgment. This means that it can
never be said with absolute certainty in any case that the stage of
litis
contestatio
has been reached at a specific time. Unsurprisingly, in these
circumstances, Holmes JA was prompted to refer to it as the “
alchemy
of litis contestatio
“
[77]
[190]
Furthermore,
we allow far greater time for the defendant to deliver his plea than
was allowed during the Roman law and in this regard,
it bears
remembering that failure to adhere to the time-periods as set out in
the rules of court for the delivery of a plea is
rarely, if ever,
fatal. Accordingly, the probability of a plaintiff dying before
pleadings are closed is significantly higher in
our system than it
ever was in the Roman legal and the early Roman-Dutch law systems.
[191]
To
summarise. The reasoning underlying the rule – that the claim
for general damages is not transmissible to her estate -
is that the
general damages are personal to the claimant: neither the
dependant(s) nor the estate, suffer any loss or damage from
the pain
and suffering, the loss of amenities of life and the disfigurement
endured by the deceased during her lifetime. Therefore,
they can have
no claim for the bodily injuries suffered by the deceased. In other
words, the claim for general damages abated upon
the death of the
deceased. They have not abated though if the stage of
litis
contestatio
was reached before her death. The position of the common law,
therefore, is this: if such a claim is brought and pleadings are

closed then the claim is transmissible to the deceased claimant’s
estate, but if they are not then the claim is not.
The
fact of the matter is that the common law has failed to keep pace
with the procedural developments harvested over the centuries,
which
have been collated in the rules of court regarding pleadings and
amendments thereto.
[192]
It
is this failing of the common law that the mineworkers turn their
attention to. They claim that it has the potential to cause
immense
injustice, and will certainly cause immense injustice to them and
their heirs in this case. They also claim that the common
law
infringes various provisions in the Bill of Rights.
[78]
To
prevent any further injustice from prevailing they ask that the
common law be developed. They ask that it be developed in such
a
manner as to allow them to transmit any claim for general damages
that accrued as at the date of the launch of the certification

application to the estate of any mineworker who passes on after that
date, even though his case is a long way from reaching the
stage of
litis
contestatio
.
All the mining companies are opposed to this court developing the
common law in the manner suggested by the mineworkers.
Apart from two
respondents, Harmony and AngloGold, all the mining companies contend
that this court should not develop the common
law at all. Harmony and
AngloGold contend that in the event this court authorises the class
action, it should leave this issue
for the trial court to determine.
They proffer no sound reason as to why that court is in a better
position than this one
to finalise the issue.
The
common law is dynamic, fluid and ever-changing
[193]
It
is no revelation to say that to remain purposeful and to retain its
moral authority the common law should whenever necessary
change to
meet changing facts and circumstances. This has long been accepted
and, as we will shortly show, been applied by our
courts. As
knowledge or ideas change, and as political, social and economic life
progresses, develops and advances with time so
should the law.
Indeed, on more than one occasion it has done so.  This approach
is not alien to the Roman or the Roman-Dutch
legal systems. It is
embedded in the very fabric of the two legal systems. It is on this
principled basis that the common law has
retained its utility and its
moral authority. The principle is also not exclusive to the Roman or
Roman-Dutch legal systems. Innes
CJ reminded us of this principle and
articulated its premise in these terms:
“
There
come times in the growth of every living system of law when old
practice and ancient formulae must be modified in order to
keep in
touch with the expansion of legal ideas, and to keep pace with the
requirements of changing conditions. And it is for the
Courts to
decide when the modifications, which time has proved to be desirable,
are of a nature to be effected by judicial decision,
and when they
are so important or so radical that they should be left to the
Legislature.”
[79]
[194]
This
approach was basic and fundamental to the Roman law, as is evidenced
by the role of the praetors’
Ius
Honorable
remedy. This was recognised more particularly during Justinian’s
reign where in order to remain relevant to changing social
conditions
the law underwent some significant changes. And, as observed by Lord
Tomlin, this has been true for the Roman-Dutch
legal system too:
“
In
the first place, the questions to be resolved are questions of
Roman-Dutch law. That law is a virile living system, of law, ever

seeking, as every such system must, to adapt itself consistently with
its inherent basic principles to deal effectively with the
increasing
complexities of modern organised society
”
.
[80]
[195]
More
recently, the Appellate Division (now SCA) has reiterated this
principle. In
Kommissaris
van Binnelande Inkomste v Absa Bank Bpk,
Botha JA pointed out:
“
om
met letterknegtige formalisme vas te klou aan stellings in die ou
bronne, wat onversoenbaar sou wees met die lewenskragtige
ontwikkeling van die reg om te voorsien in die behoeftes van nuwe
feitelike situasies
”
.
[81]
[196]
Accordingly,
the need to develop the common law is not a recent phenomenon. It has
been recognised and practised for a long time.
In the development of
the common law so that it remains relevant and purposeful to the
needs of society in order for justice to
prevail, courts are
sometimes required to engage in policymaking, even if only in a very
narrow sense of the term.
[82]
One
of the policymaking functions is to ensure that practices which
through time have become antiquated and which cause injustice
are no
longer allowed to stand. History demonstrates that our courts have
not evaded their responsibility to develop the common
law in this
regard. When necessary, it has embraced the challenge to create new
obligations, to create new rights, to remove penalties
for certain
conducts, to eliminate obstacles posed by old and dated practices and
to fashion new remedies.
[83]
This
it has done by taking heed of the ever-changing “
legal
convictions of the community
”
[84]
,
a concept that is now so deeply ingrained into our law that it
infuses all areas of our law.
[197]
This
is not unique to South Africa. As observed by Lord Goff, this is the
position in all common law countries:
“
It
is universally recognised that judicial development of the common law
is inevitable. If it had never taken place, the common
law would be
the same now as it was in the reign of King Henry II; it is because
of it that the common law is a living system of
law, reacting to new
events and new ideas, and so capable of providing the citizens of
this country with a system of practical
justice relevant to the times
in which they live.”
[85]
[198]
In
the common law world it is not unusual for judges to make law as they
are from time to time required to do so if justice is to
prevail.
After all,
“
(t)he
common law is judge-made law. For centuries judges have been charged
with the responsibility of keeping this law abreast of
current social
conditions and expectations. That is still the position.
”
[86]
On
this, Lord Hoffmann is more forthright:
“
To
say that they [the judges] never change the law is a fiction and to
base any practical decision upon such a fiction would indeed
be
abstract juridical correctitude. But the other question is whether a
judicial decision changes the law retrospectively and here
the answer
is equally clear. It does. It has immediate practical consequence
that the unsuccessful party loses, notwithstanding
that, in the
nature of things, the relevant events occurred before the court had
changed the law.
”
[87]
The
constitutional imperative to develop the common law
[199]
In
South Africa this responsibility to reform and refocus the common law
in order to keep it “
abreast
of current social conditions and expectations
”
is entrenched in the Constitution, with the added obligation that the
judges do so in a manner that it is consistent with,
and gives
expression to, the rights articulated in the Bill of Rights.
Sub-sections 8(3) and 39(2) of the Constitution explicitly
enjoins
the court to develop the common law to the extent that it is
necessary to make it consistent with the values enshrined
in the
Constitution, especially those explicitly mentioned in the Bill of
Rights.
[88]
Thus,
it is the constitutionally imposed duty of this court to develop the
common law in order to harmonise it with the Bill of
Rights. The
development must reflect the “
spirit,
purport and objects of the Bill of Rights
”.
We are duty-bound to develop the common law so that it does not
“
deviate
”
from the “
spirit,
purport and objects of the Bill of Rights
”.
[89]
It
is a duty we cannot abdicate.
[200]
The
mineworkers claim that the existing common law violates their
rights
to equality,
[90]
human
dignity,
[91]
life,
[92]
freedom
and security of the person
[93]
and
access to courts.
[94]
They
say that the failing of the common law is
“
a
constitutional matter
”
that requires redress by this court. By refusing to transmit their
claim for general damages to their estates upon their
deaths, the
common law violates their right to “
bodily
integrity
”.
Their right to “
bodily
integrity
”
is an integral part of their right to “
freedom
and security of the person
.”
[95]
Their
right to bodily integrity is vindicated by them being compensated in
the form of general damages by the wrongdoer, in this
case the mining
companies. The benefit they acquire from this is, without doubt,
shared by their dependants. Denying them the opportunity
to transmit
this compensation of general damages to their estates effectively
removes their “
right
to bodily integrity
”.
To the extent that it does so, the common law is incompatible with,
or “
deviates
from
”,
the Constitution. They are entitled to the compensation from the
wrongdoer (the mining companies) and their dependants
are entitled to
benefit therefrom. The fact that the harm to their “
bodily
integrity
”
was specific to them is not, and should not be, a bar to their right
to compensation
post
mortem
.
That they themselves would not have received the benefit during their
lifetime is of no moment.  As the common law presently
stands,
it unjustifiably takes away from them the right to see that the
beneficiaries of their estate, who in most cases are their

dependants, receive the benefit of the compensation that they were
entitled to, and would have received but for their premature
deaths,
which premature death was caused by the acts and/or unlawful
omissions of the mining companies. For this reason the common
law has
to be developed so that they are allowed to transmit their claims to
their estates upon their deaths. The argument bears
considerable
force.
[201]
One
of the mining companies, Gold Fields, reminds us that the CC has
noted that the claim for non-patrimonial loss (general damages)
is a
claim “
for
the deterioration of a highly personal legal interests that attach to
the body and personality of the claimant
.”
[96]
The
obiter
dictum
of Moseneke DCJ in
Van
der Merwe,
which Gold Fields rely upon reads in full:
“
On
the other hand non-patrimonial damages, which also bear the name of
general damages, are utilised to redress the deterioration
of a
highly personal legal interests that attach to the body and
personality of the claimant. However, ordinarily the breach of
a
personal legal interest does not reduce the individual's estate and
does not have a readily determinable or direct monetary value.
Therefore,
general damages are, so to speak, illiquid and are not instantly
sounding in money. They are not susceptible to exact
or immediate
calculation in
monetary
terms. In other words, there is no real relationship between the
money and the loss. In bodily injury claims, well-established

variants of general damages include ‘pain and suffering’,
‘disfigurement’, and ‘loss of amenities
of
life.’
”
[97]
[202]
Gold
Fields argues that the obvious conclusion to draw from this is that
the CC recognised that it is not transmissible to anyone
else. We do
not agree. Moseneke DCJ made no comment on the constitutional
compliance of the common law rule that precludes the
transmissibility
of general damages pre-
litis
constestatio
.
All that Moseneke DCJ did was describe what non-patrimonial loss is.
There is nothing in the
dictum,
or
in the judgment as a whole, that indicates that the Moseneke DCJ was
even remotely conscious of the issue concerning the transmissibility

of the general damages pre-
litis
contestatio
to the estate of the deceased plaintiff who allegedly suffered at the
hands of the defendant. There is no indication in the judgment
that
Moseneke DCJ gave any thought to the impact of the evolved legal
convictions of the community, and therefore came to the conclusion

that the common law as it stands is consistent with the legal
convictions of our community captured in the Bill of Rights. There

can be no suggestion that Moseneke DCJ found the common law rule to
be consistent with our modern day constitutional democracy.
It is,
therefore, our view, that the conclusion proffered by Gold Fields is
mistaken.
[203]
Another
right the mineworkers invoke in support of transmissibility is the
right of the dependants, especially the children, of
the deceased
mineworkers.
[98]
It
is a well-established constitutional principle that whenever the
rights of a child are brought to bear on a matter, the court
must
ensure that the best interests of the child receive paramount
consideration. This is in terms of section 28(2) of the Constitution,

which is nothing short of “
an
expansive guarantee that a child's best interests are paramount in
every matter concerning the child.
[99]
[204]
The
mineworkers further point out that the common law rule contravenes
section 9 of the Constitution in that it arbitrarily differentiates

between survivors pre-
litis
contestatio
from survivors post-
litis
contestatio
.
None of the mining companies took issue with this claim. In short,
the mineworkers claim that this issue concerns the rights of
the
terminally ill who may not survive the finalisation of the action.
Such persons or their heirs will lose what may be a genuine
claim
only because they succumbed to their illness pre-
litis
contestatio
.
By virtue of this result, the rule of non-transmissibility pre-
litis
contestatio
violates the right to equality by setting apart, and discriminating
against, those who have succumbed to their illnesses (silicosis
or
TB) pre-
litis
contestatio
from those who had been fortunate enough not to have  succumbed
to their illnesses pre-
litis
contestatio.
This distinction is discriminatory. It is a discrimination that is
unfair as well as irrational, and it is made all the more poignant

when it is to a considerable extent a consequence of the legal
process over which they have little control: they have minimal
influence over when the stage of
litis
contestatio
is reached.  In the meantime, given the fatal character of their
illnesses some of them would have, as many mineworkers already
have,
succumbed to their illnesses. In the circumstances, the legal process
would have failed them by cementing the discrimination
between them
and their fellow claimants who were fortunate enough to have survived
until the stage of
litis
contestatio
was reached.
The
Position in the UK, Australia And The USA
[205]
The
mineworkers refer to developments in other jurisdictions,
particularly the UK, the USA and Australia to support their case in

this regard.  In these jurisdictions the legislatures intervened
to put an end to the injustices caused by the common law
holding that
general damages can only be transmitted post
litis
contestatio
.
[206]
The
history underlying the legislative intervention in the UK is
succinctly articulated in a single paragraph in a recent judgment
of
the UK Supreme Court, where the following is observed:
“
Before
1846, English law did not permit actions in tort for the death of a
human being. This was the combined result of two rules
of common law.
The first was that the right of action or a person who had been
tortuously injured was a personal action, which
did not survive for
the benefit of the estate upon his death. This rule survived until
1934, when it was abolished by the Law Reform
(Miscellaneous
Provisions) Act. The second rule was that “[i]n a civil court,
the death of a human being could not be complained
of as an injury”
by dependents claiming in their own right: Baker v Bolton (1808) 1
Camp 493 (Lord Ellenborough). This is
still the rule at common law,
but it was largely superseded by the Fatal Accidents Act 1846 (“Lord
Campbell’s Act),
which created a new statutory cause of action
in favour of certain categories of dependent, including widows. The
1846 Act was
repeatedly amended, elaborated and re-enacted, and the
statutory cause of action is now contained in section 1(1) and (2) of
the
Fatal Accidents Act 1976.”
[100]
[207]
Similarly
in Australia, it was stated in the legislature that it was necessary
to intervene in order to avert the injustice that
prevailed, and that
many had previously been forced to endure, because of this rule
precluding transmissibility of general damages
pre-
litis
contestatio
.
It was especially highlighted that this failing was most acute in
cases involving claims for pain and suffering endured by plaintiffs

by virtue of them contracting dust-related diseases. The failing of
the common law was eloquently captured in a speech delivered
in a
South Australia Parliamentary debate where it was said:
“
The
way the current legislation exists, if litigation has commenced but
the applicant passes away before it has been completed,
that
individual is not able to have that case proceeded with on their
behalf for the non-economic loss. That is an absurdity. There
is
clearly no justice, equity or fairness in a system such as this when
we are talking about a totally unique disease of this nature.
This
puts enormous pressure on the sick and the dying plaintiffs to press
ahead as quickly as possible with their litigation, the
pressure of
which may greatly increase the plaintiff’s distress. Sometimes
they may succeed in doing that, and sometimes
they may not. It is
simply a lottery: sometimes it may happen, and sometimes it may not
work.”
[101]
[208]
All
fifty states in the United States of America have enacted statutes to
attend to the issue of wrongful death and the claim for
damages for
injuries sustained by the deceased. The majority of them allow for
the estate of the deceased to receive the amount
due to the deceased.
There is no restriction in any of the statutes for the deceased to
have launched his/her case for the claim
prior to his/her death and
for the case to have reached the stage of
litis
contestatio
in order for the claim to remain valid.
[209]
These
legislative interventions demonstrate that the law which prohibits
the transmissibility of general damages pre-
litis
contestatio
fails to reflect the
boni
mores
of a modern society organised along the principle of the rule of law.
Should
this matter be decided by the trial court?
[210]
The
mineworkers contend that this court should determine the issue now.
One of the mining companies, ARM, maintains that the issue
should be
left to the trial court as that court will receive more evidence, and
therefore will be able to make a more informed
decision on the matter
than this court. We disagree with ARM. All the facts that are
pertinent to the determination of this issue
are already known and
placed before this court. The key facts are these:
[210.1]
the stage when
litis
contestatio
will be reached in this case, if indeed it will be reached,
[102]
is
a very long way off;
[210.2]
the mining companies agree that a large number of the mineworkers
have already lost their lives as a result
of contracting silicosis or
TB, and that the only new evidence that the trial court will receive
on this issue is that many more
would have died before the stage of
litis
contestatio
is reached. This new evidence  will not alter the outcome of the
issue – the death of a single mineworker with a legitimate

claim, is sufficient evidence for this court to note the undue,
unjustified and irreparable prejudice that will ensue if the issue
is
left  undeveloped;
[210.3]
the common law in its present form endorses the financial loss and
social harm that the estates of the deceased
mineworkers and their
families endure as a result of these mineworkers succumbing to the
diseases of silicosis or pulmonary TB.
The mining companies are the
only ones which benefit from this state of affairs and their benefit
is at the expense of the deceased
mineworkers and their dependants;
[210.4]
it is common cause that the common law does not reflect the legal
convictions of the community and violates
a number of constitutional
principles, and to that extent it fails to promote the “
spirit,
purport and objects of the Bill of Rights
”;
and,
[210.5]
finally, the issues have been extensively canvassed in the pleadings
before this court and comprehensively argued
by all the parties.
Conclusion
on transmissibility
[211]
The
irrefutable fact is that there exists a high mortality rate amongst
the miners suffering from silicosis and TB. By May 2014
five of the
applicant mineworkers in the Spoor application had passed away.
Initially the LRC had instituted proceedings on behalf
of twenty-four
(24) plaintiffs but by the time it instituted the certification
application, eight (8) of those had passed away
– that
constitutes a third of those plaintiffs. During the course of the
hearing we were informed that the 33
rd
applicant mineworker, Mr Zwelake Dala, had passed away. This means
that, as all these persons (and others) that have passed away

pre-
litis
contestatio,
if the common law is not developed, they will have to forego their
claims for general damages despite the fact that such claims
can be
proven even though they have passed away.
[212]
It
is true that the defect in the common law could be remedied by the
legislature. There is, however, no possibility of our legislature

doing so in the near future. It is in any event, a failing of the
common law and not the statutory law that we are asked to focus
our
attention on. It was the judicial arm of the state that established
the rule prohibiting the transmissibility of general damages
to the
estate of a deceased plaintiff or defendant. When the initial rule
was found to be wanting, it was the judicial arm, once
again, that
decided to establish the exception to the rule. Now that it has come
to light that the rule as well as the exception
cause grave injustice
and are incompatible with the legal convictions of our community and
do not reflect the “
spirit,
purport and object of the Bill of Rights
”,
it is necessary for the judicial arm to perform its obligations in
terms of sub-sections 8(3) and 39(2) of the Constitution
and remedy
this defect. In our view, one of the reasons the sub-sections were
enacted was to cater for precisely the kind of situation
that
prevails in this case where intervention by the legislature to remedy
the huge injustice that prevails is not contemplated
for the near
future. These sub-sections ensure that it should not be left to the
legislature to remedy all the injustices that
prevail by virtue of
the failings resulting from the rules established by the common law.
[213]
There
is no doubt that on the facts of this case a huge injustice would
result if the general damages that would have been due to
the now
deceased class member is denied simply because he succumbed to his
disease before the case he brings or intended to bring
had reached
the stage of
litis
contestatio
The injustice is all the more poignant when regard is taken of the
fact that a denial of the benefits of general damages to the

beneficiaries of the estate of the deceased class member could well
result in the mining companies securing a benefit from the
very harm
they caused the deceased class member. Undoubtedly, the loss of the
general damages (by dint of the operation of the
existing common law)
will, in this case, be borne by the widows and children of the
deceased class member, as they would have benefited
should their
primary provider not have died pre-
litis
contestatio
.
It bears reminding that they are the indigent, the weak and the
vulnerable in our society. That they should bear this loss and
the
respective mining company(ies) benefit from the death of their spouse
and/or parent is grossly unjust, especially when regard
is taken of
two facts: one, the respective mining company(ies)’ conduct (or
wrongful omission) may be a significant contributor
to the early
death of their breadwinner, and two, the respective mining
company(ies)’ attitude and approach to the litigation
has a
significant influence over when the stage of
litis
contestatio
is reached. In fact, to the extent that they can amend their
pleadings at any time before judgment is given by the trial court

they have significant, if not determinative, control over when the
stage of
litis
contestatio
is reached. Consequently, if the law is not developed, then in this
case it would have failed the weak individuals and benefited
the
powerful corporates. It has to be borne in mind that while the
mineworker experienced pain and suffering from the loss of amenities

of life prior to his death, his widow and children too, bore some
hardship by virtue of the care they were required to give to
him as a
result of his loss of amenities of life.
[214]
The
amici
,
forcefully contended that this rule of non-transmissibility of
general damages pre-
litis
contestatio
had, on the facts of this case, a strong gender bias in its
consequence. They also produced evidence in support of this
contention,
which evidence was neither challenged nor contradicted by
any of the mining companies. The evidence they brought shows that the

mineworkers come from rural areas (
“
labour-providing
areas
”) where
they are dependent largely upon home-based care to assist them in
coping with their illnesses. Such care is ordinarily
provided by
their wives and daughters. The care-work is demanding and includes
efforts such as carrying, lifting and bathing the
mineworkers,
monitoring their medication, and staying up at night to attend to
their needs. These women, and in some cases girls,
are often anxious
about the physical deterioration of their loved ones, the
mineworkers, and as a result “
have
reported experiencing tearfulness, nightmares, insomnia, worry,
anxiety, fear, despair and despondency, … trauma …

headaches, body aches and physical exhaustion.
”
In short, they too bear a heavy burden as a result of the mineworkers
contracting silicosis and TB.  Often, the care
work requires
full-time attention, effectively compelling many women and girls to
forego income-generating, educational, and other
opportunities.
Should the mineworkers receive compensation for the pain and
suffering and loss of amenities of life they endured,
(i.e. general
damages) these women and girls would benefit therefrom by reducing
the care-work they provide. It would also indirectly
compensate them
for the care-work they have already provided. Should the claim for
general damages dissipate because the mineworker
succumbed to his
illness pre-
litis
contestatio
it would
mean that these women and girls would be deprived, by the common law,
of that which they otherwise would have received.
Hence, the
amici
point out, the common law, in effect, has a gender bias to it and
s
uch
gender bias, they forcefully argue, is not consonant with our
constitutional values and principles.  They are only denied
this
benefit because the common law’s approach to compensation for
general damages has failed to keep pace with the procedural

developments of the law as a whole. There is no logical or principled
reason for the common law to deny them the benefits they
would have
received had their spouses and fathers not succumbed to their
illnesses pre-
litis
contestatio
.
[215]
In
the light of these circumstances and bearing in mind the injunctions
of sub-sections 8(3) and 39(2) of the Constitution, it is
our view
that the common law has to be developed to allow for the claim for
general damages to be transmissible to the estate or
executor of a
deceased mineworker, even though the stage of
litis
contestatio
had not been reached at the time of his death. Also, the development
is necessary in the light of the court’s general duty
to do
justice by the persons affected by its orders.
[216]
The
development should not be restricted to the case where the plaintiff
has died pre-
litis
contestatio
.
It should also apply to the case where the defendant or potential
defendant has died pre-
litis
contestatio
as the same principles as those that apply to plaintiffs apply to
them.
[217]
We
have read the dissenting judgment of Windell J and wish to comment
thereon briefly. Windell J is of the view that the development
of the
common law should be restricted to class actions only. We do not
agree with her for the following reasons:
[217.1]
The common law precluding transmissibility of general damages
pre-
litis contestatio
is part of our substantive law. It is not part of our procedural law.
A class action is a procedural device. It is neither proper
nor
logical to make a substantive law applicable only to a particular
procedural device.
[217.2]
As a procedural device a class action allows the court to enter
judgment that is binding on all class members who joined
in the class
action whether by failing to opt-out or by agreeing to opt-in. The
judgment does not bind anyone who did not join
the class action
regardless of whether they were entitled to do so or not. Since the
substantive law as developed by Windell J
would only apply to class
action litigants, any plaintiff(s) bringing the same case against the
same defendant(s) but who refuses
or fails to join the class action
would  not have his (their) claim(s) for general damages
transmitted should he (they) die
pre-
litis
contestatio
. Thus in this case, should
two mineworkers both sue the same mining companies with one doing so
as part of the class action and
one individually, and should both die
pre-
litis contestatio
one would have his claim for general damages transmitted to his
estate while the other not. The law as proposed, would effectively

discriminate between them. Not only is there no rational or logical
reason to justify this discrimination, it is patently unjust.
[217.3]
The law precluding transmissibility of general damages pre-
litis
contestatio
is a law of general
application. It applies to all cases. It cannot be developed for some
cases and not for others. In other words,
it cannot be developed for
delictual cases involving claims by employees or former employees
against their employers or former
employers for unlawfully causing
damage to their health, but not developed for delictual claims
brought by for example victims
of motor vehicle accidents who sue the
wrongdoer, or the insurance that indemnified the wrongdoer, for the
unlawful harm caused
by the wrongdoer. There is no rational or
reasonable basis to discriminate between both delictual claims. The
fact that the damages
caused by a wrongdoer in the case of the motor
vehicle accident may be covered by the Road Accident Fund is of no
moment. In fact,
as it presently stands, the common law does not
discriminate against or in favour of any particular plaintiff or
species of plaintiffs.
It, without discrimination, holds that no
claim for general damages is transmissible pre-
litis
contestatio
and all such claims are
transmissible post
litis contestatio
,
including those involving motor vehicle accidents. Should such a law
be found to be inconsistent with the values of our society,

especially those values articulated in our Bill of Rights, its
development, accordingly, has to be equally non-discriminating.
This
is the only way to make the law equally applicable to all and sundry.
To develop the law as suggested by Windell J would mean
that those
plaintiffs who are part of a class action would have the new modern
law on the transmissibility of general damages pre-
litis
contestatio
applicable to their cases,
while those who are not would have the old law on transmissibility
applicable to their cases. A conclusion
to this effect does not
reflect the “
spirit, purport and
objects
” of the Constitution. It
is one that is, at the very least, not consistent with a fundamental
principle expressed in s 9
of the Constitution, which is that
“
everyone is equal before the law
and has the right to equal protection and benefit of the law
.”
There may be other rights, such as the right to access to court,
which may be violated by a general law that discriminates
in favour
of one set or group of litigants against all other litigants.
[218]
By
holding that the common law can only be developed in the manner we
suggest below does not, in our view, mean that we have ignored
the
judicial caution captured in the
dictum
that judges should only develop the common law incrementally.
Judicial caution in this regard, it has to be remembered, is borne

out of a need to ensure that the judicial arm of the state does not
trespass on the field reserved for the legislature; the legislature

is doubtlessly better placed to make laws than the judiciary is, but
as we point out above judges are often required to make law
for no
reason other than to ensure that the law adapts to new circumstances
and meets new challenges. This, we believe, is all
we are doing.
Moreover, the need for judicial restraint expressed in the
dictum
does not mean that we must always only develop the law piecemeal. How
the law is developed depends on the circumstances that prevail
at the
time.  Of course, if it is possible to make a small adjustment
to the law in order to make it reflect the “
spirit,
purport and objects”
of the Constitution, then this must be the route to follow. But if by
doing so we create as many problems as we attempt to solve,
or to put
it differently, we create as much hardship and injustice as there
already prevails in the law, then a small (or piecemeal)
adjustment
is to be avoided. This approach we advocate is not an innovation of
ours. It has long been part of our law. More than
a century ago,
Innes CJ said:
“
And
we should be slow to perpetuate a form of legal remedy which may work
hardship, if it can be modified so as to do away with
that
possibility”
[103]
We
hold the view that this is precisely what will occur if we are to
develop the common law on transmissibility of general damages
only
for class action suits. We have no doubt that the problems we allude
to in the previous paragraph are bound to surface in
practice.
[219]
In
our view there is no way other than the one suggested by us below to
develop the common law that prohibits the transmissibility
of general
damages pre-
litis
contestatio
.
This is because this law, as we say above, is one of general
application. Its failings, too, are of general application. Hence,

its development has to be of general application. There simply is no
middle road and there can be no half measures. Once one accepts
that
the common law precluding the transmissibility of general damages
pre-
litis
contestatio
does not reflect the “
spirit,
purport and objects
”
of the Bill of Rights, there can be no retreat from this conclusion.
One becomes bound to develop it in a manner that fully
and
uncompromisingly reflects the “
spirit,
purport and objects
”
of the Bill of Rights. Anything less, would not suffice. It would
only replicate the very anomalies and injustices that
result from its
application in practice.
[220]
In
conclusion, we hold that the common law should be developed as
follows:
1.
A
plaintiff who had commenced suing for general damages but who has
died whether arising from harm caused by a wrongful act or omission

of a person or otherwise, and whose claim has yet to reach the stage
of
litis
contestatio,
and who would but for his/her death be entitled to maintain the
action and recover the general damages in respect thereof, will
be
entitled to continue with such action notwithstanding his/her death;
and,
2.
The person who would have been liable for the general damages if the
death of a plaintiff had not
ensued remains liable for the said
general damages notwithstanding the death of the plaintiff so harmed;
3.
Such action shall be for the benefit of the
estate of the person whose death had been so caused;
4.
A defendant who dies while an action against him has commenced for
general damages arising from
harm caused by his wrongful act or
omission and whose case has yet to reach the stage of
litis
contestatio
remains liable for the said
general damages notwithstanding his death, and the estate of the
defendant shall continue to bear the
liability despite the death of
the defendant.
[221]
This
we find is the only way to cure the common law of the arbitrariness,
irrationality and unreasonableness that presently plagues
it.
[222]
Before
closing on this subject it is necessary to deal with the issue of
which stage in this litigation should the general damages
that would
be claimed by the mineworkers be transmissible to their estates. The
mineworkers have at this stage only applied for
certification of
their class action. Those who want to be part of the class action
have to await the outcome before they can take
any further steps.
Until then they are legally paralysed. Once the class action is
certified they can issue summons against the
mining companies. Only
then would their claims be legally recognisable. The application for
certification was first filed in August
2012. It is now May 2016. For
various reasons the matter has taken four years to reach this stage.
In the meantime many mineworkers
have succumbed to their illnesses.
For this reason the mineworkers have asked that, should we declare
their claims for general
damages be transmissible to their estates
then, we should do so on the basis that it be recognised that their
claims have actually
commenced as from the date when the
certification application was launched and not from the date when the
judgment is handed down.
They argue that but for the legal
requirement that a class action be certified before they issue
summons they would have actually
done so in August 2012, or at least
when the consolidated notice of motion was filed. As a result of this
legal requirement all
the mineworkers who have succumbed to their
illnesses since the launching of the certification application would
be deprived of
their claim for general damages. Such deprivation is,
they say, unfair and unjustifiable as they cannot be held responsible
or
accountable for the delays inherent in the legal process which
resulted in their case only being finalised in May 2016. The mining

companies did not mount any serious opposition to the request of the
mineworkers. We find great force in the argument of the mineworkers.

That many mineworkers have succumbed to their illnesses since the
commencement of this application for certification is an undeniable

fact. There is no doubt that failure to recognise their claims for
general damages as having commenced from the date of the
certification
application would produce an unfair and unjust result
for the heirs of mineworkers who have succumbed to their illnesses
after
the certification application was launched but before summons
was issued in the class action. We can find no justifiable reason
to
deny their heirs the benefit of such claims. Accordingly, we hold
that the only way justice can prevail is if the declaratory
order
sought by the mineworkers is granted.
CONCLUSION
[223]
The
only way justice can prevail in the cases of the individual
mineworkers or their dependants is if they are afforded an
opportunity
to pursue their claims by at least having significant
parts of it determined through a class action. Further, in our
judgment it
is in the interests of the mining companies that the many
common issues as well as the common evidence referred to above be
dealt
with in a class action proceeding. As for the practical
arrangements, we hold that these can be fully and finally determined
by
the trial court after pleadings have closed and all the factual
and legal issues have crystallised or been identified.  It
is
not within the power of this court to prescribe to that court how it
should structure its hearings.
[224]
Accordingly,
we reject the submissions of the mining companies that the class
action is untenable and unmanageable and hold to the
contrary.
[225]
We
wish to iterate that by holding that it is in the interests of
justice that a class action be certified in this case, we do not,
as
was contended by the mining companies, hold that the mining companies
are jointly liable for the harm suffered by an individual
mineworker.
Our law of delict is clear in this regard. A defendant can only be
held liable for his own delict and not that of another
defendant. The
liability of each mining company will be determined at the second
stage of the proceedings when all the mineworkers
and all the
dependants of deceased mineworkers have staked their claims. At that
stage the claims will be pared against the respective
mining
company(ies) alleged to have committed the delict. Hence, each mining
company will be held responsible for its own actions
or unlawful
omissions.   But, this does not affect the fact that a
substantial body of the evidence to be led against
them is the same,
or common, to all of them and that the evidence is relevant to the
individual mineworker’s case. Once this
is received and the
common factual and legal issues are determined, the case if necessary
will proceed to the next stage where
their individual culpabilities
will be scrutinised and determined.
[226]
Finally,
it bears mentioning that at the hearing the mineworkers through their
counsel voiced their frustration with the mining
companies. They
complained about being stonewalled without relent by the mining
companies from the beginning and all the way through
this litigation.
They say that their frustration must be understood in the context of
the fact that they are no strangers to the
mining companies: they are
all former employees, or dependants of former employees, of the
mining companies. They allege that the
mining companies have placed
every possible obstacle to having the matter adjudicated and that the
mining companies have fought
this application as vigorously and as
aggressively as they possibly could. They have spared neither effort
nor resources in doing
so.  They say that the mining companies
have done this, despite the fact that the mining companies are not
able to deny that,
should this court refuse the certification and the
mineworkers be forced to bring individual actions, the result without
doubt
will sterilise the large majority of the individual claims.
They allege that the mining companies’ conduct has been
obstructive
and deliberately undermining of the interests of justice.
The mineworkers say that it is necessary for them to voice their
frustration
as this is only the first stage in the litigation, and
they ask the court to take note of it so that the mining companies
may reconsider
their approach as the litigation proceeds. The mining
companies chose to ignore the accusation that they have deliberately
obstructed
the course of justice.
[227]
This
is unfortunate. An accusation that a party is deliberately
undermining the interest of justice is a serious one. It is one
thing
for counsel to exchange insults (and there was no shortage of that at
the hearing) but it is another for the party to stand
accused of
deliberately undermining the interests of justice. It is one that is
cause for disquiet. Conduct that deliberately undermines
the cause of
justice damages the integrity of the judicial system. Law-abiding
persons, including juristic ones, should refrain
from such conduct.
That said, we have no doubt that the rest of the litigation will be
conducted in a manner that advances
rather than hinders the interests
of justice.
COSTS
[228]
The
mineworkers seek costs against the mining companies, including costs
of nine counsel. They have assured the court that the services
by
counsel were shared and there was no duplication. The costs will
follow that pattern; and they assured the court that the combined

costs of nine counsel shall not exceed the costs of three counsel.
This we find is justified having regard to the complicity and
the
aggregated strength of opposition by the mining companies. Counsel
for the mining companies, like those for the mineworkers,
shared
responsibility and topics in presenting the case to this court and
would, if successful, all have been included in the mining
companies’
entitlement to costs. The costs order sought by the mineworkers is
justified.
[229]
Finally,
we seize this opportunity to thank all the parties, including the
amici
for their assistance in this matter.
THE
ORDER
[230]
The
order of the court is as follows:
1. It is declared
that the following group of persons constitutes a class:
1.1
Current and former underground mineworkers who have contracted
silicosis, and the dependants of
underground mineworkers who died of
silicosis (whether or not accompanied by any other disease) -
1.1.1
where such mineworkers work or have worked on one or more of the gold
mines listed on the attached
“Annexure A”, after 12 March
1965;
1.1.2
whose claims are not among the claims which, by agreement, are to be
determined by arbitration
in the matter of Blom and Others v Anglo
American South Africa Limited; and
1.1.3
who are not named plaintiffs in the action instituted in the United
Kingdom against Anglo American
South Africa Limited under case
numbers HQ11X03245, HQ11X03246, HQ12X02667 and HQ12X05544 (the
silicosis class).
2.
It is declared that the following group of
persons constitutes a class:
2.1
Current and former underground mineworkers
who have contracted pulmonary tuberculosis, and the dependants of
deceased underground
mineworkers who died of pulmonary tuberculosis
(but excluding silico-tuberculosis), where such mineworkers work or
have worked
for at least two years on one or more of the gold mines
listed on the attached “Annexure A”, after 12 March 1965
(the
pulmonary tuberculosis class)
3.
The attorneys of record for the applicants
are certified as the legal representatives of the members of the
classes for the further
conduct of the class action as follows:
3.1
Abrahams Kiewitz Incorporated (Abrahams),
Richard
Spoor Inc. Attorneys (Spoor) and the Legal Resources Centre (LRC) are
certified as the joint legal representatives of the
members of the
silicosis class;
3.2
Abrahams is certified as the legal representative of the members of
the pulmonary tuberculosis
class; and
3.3
The fee arrangements set out in annexures RS13 and RS21 to the
replying affidavit of Richard Spoor
are authorised in respect of the
legal representatives of the classes.
4.
In the further conduct of these proceedings (the class action), the
following applicants, whomever
are surviving at the time of the class
action, are granted leave to act as class representatives –
4.1
The first to fifty-second applicants are granted leave to act as
representatives of the silicosis
class of which they are members;
4.2
The thirty-third, thirty-fifth, thirty-sixth and the fifty-third to
sixty-ninth applicants are
granted leave to act as representatives of
the pulmonary tuberculosis class of which they are members.
(the
class representatives)
5.
It is declared that the class representatives in para 4 above have
the requisite standing to bring the class action and to represent
the
members of the silicosis class and the pulmonary tuberculosis class
in claims for damages.
6.
It is directed that the following steps shall be taken to give notice
of the class action to members
of the classes substantially in
accordance with the notice attached as “Annexure B1” (the
notice):
6.1
The applicants’ legal representatives shall forthwith publish
the notice:
6.1.1
as an advertisement in the newspapers listed in “Annexure D”
hereto.
The notice shall be published in each such newspaper once per
week for a period of four (4) weeks;
6.1.2
as a radio announcement substantially in the form of “Annexure
C1”,
broadcast on each of the radio stations listed in
“Annexure D” and in the languages stipulated therein.
Such broadcasts
are to be made twice daily on alternate days for a
period of 4 weeks;
6.1.3
on a prominent notice board at each of the offices of the applicants’

legal representatives for a period of not less than 180 days;
6.1.4
on a prominent notice board at each office of the Employment Bureau
of Africa
in Southern Africa for a period of not less than 180 days;
6.1.5
on a prominent notice board at each Justice Centre and public office
of Legal
Aid South Africa for a period of not less than 180 days;
6.1.6
on a prominent notice board at each regional office of the National
Union
of Mineworkers (NUM) and the Association of Mineworkers and
Construction Union (AMCU) for a period of not less than 180 days;
6.1.7
by procuring Legal Aid South Africa to circulate the notice to each
of its
attorneys and candidate attorneys employed in providing legal
aid in civil matters; and
6.1.8
by delivering a copy of the notice to each advice office, paralegal
office
and community-based organisation with which the applicants’
legal representatives are familiar and which are likely, in the

opinion of the applicants’ legal representatives, to be
approached by members of the class; and
6.1.9
on the websites of the applicants’ legal representatives.
6.2
The respondents shall publish the notice:
6.2.1
on a prominent notice board for mineworkers at each mine owned,
operated,
controlled and/or advised by the respondents for a period
of not less than 180 days; and
6.2.2
on the homepage of each respondent’s website for a period of
not less
than 180 days.
7.
The applicants’ legal representatives are directed to file
reports with the court on a quarterly basis setting out the
steps
taken to publish the notice and the progress made in identifying the
members of the classes, the first such report to be
filed 3 months
after the date of the order.
8.
It is declared that any claimant, who has claimed for general
damages, and who has died or dies prior to the finalisation of
his
case, will have such general damages transmissible to his estate,
regardless of whether he has joined the class action or not.
The
claim of general damages in this case shall be transmissible from the
date when the certification application was launched
in August 2012.
9.
It is ordered that the members of the classes will be bound by the
judgment or judgments in the first stage of the class action
against
the mining companies, unless they give written notice to Abrahams,
Spoor, or the LRC by 31 January 2017, that they wish
to be excluded
as members of any of the classes against each or any of the
respondents.
10.
It is ordered that:
10.1
upon conclusion of the first stage of the class action, the members
of the silicosis class must
give written notice to Abrahams, Spoor or
the LRC by a date to be determined by the court at that time:
10.1.1
that they wish to opt in and be included as members of the silicosis
class in the second
stage of the class action; and
10.1.2
which respondent or respondents they seek to hold liable in the
second stage of the class action.
10.2
upon conclusion of the first stage of the class action, the members
of the pulmonary tuberculosis
class must give written notice to
Abrahams by a date to be determined by the court at that time:
10.2.1
that they wish to opt in and be included as members of the pulmonary
tuberculosis class in the second stage of the class
action; and
10.2.2
which respondent or respondents they seek to hold liable in the
second stage of the class action.
10.3
only members who give such notice timeously will have the benefit of
and be bound by the judgments in the
second stage of the class action
as against the respondent or respondents that are found to be liable
to them.
11.
The references to respondent or respondents:
11.1
In paragraph 6.2 exclude the twentieth (20
th
),
twenty-first (21
st
), twenty-fifth (25
th
) and
twenty-sixth (26
th
) respondents insofar as they pertain to
the notice obligations and costs in respect of the tuberculosis class
11.2
In paragraph 6.2 exclude twentieth (20
th
) and twenty-first
(21st) respondents insofar as they pertain to the notice obligations
and costs in respect of the silicosis class.
11.3
In paragraph 15 exclude the twentieth (20
th
), twenty-first
(21
st
) and twenty-ninth (29
th
) respondents as a
whole and the twenty-fifth (25
th
) and twenty-sixth (26th)
respondents insofar as they pertain to costs of the
tuberculosis class.
12.
It is ordered that the respondents are jointly and severally liable
for half of the mineworkers’ costs of publicising
the notice as
set out in paragraph 6.1 above.
13.
It is ordered that any settlement agreement reached by the parties
shall only be of force and take effect if approved by this
court.
14.
The conditional counter-application of first (1
st
), second
(2
nd
), fourth to eighth (4
th
- 8
th
)
and thirty-second (32
nd
) respondents is dismissed with
costs.
15.
It is ordered that the respondents are jointly and severally liable
for the costs of this application which costs are to include
those
occasioned by the employment of four senior counsel and five junior
counsel.
16.
The parties are granted leave to approach this court, on the same
papers duly supplemented, for an order varying or amplifying
the
provisions of this order pertaining to notice and the costs
associated with notice, in the event that this is considered
necessary
by any party.
P. M. MOJAPELO
DEPUTY JUDGE
PRESIDENT
GAUTENG
LOCAL DIVISION
B. VALLY
JUDGE OF THE HIGH
COURT
GAUTENG
LOCAL DIVISION
Windell
J
[231]
I
dissent with the majority judgment on one issue only; that issue
concerns the question of the transmissibility of general damages

prior to
litis
contestatio
.
I consider it necessary to express my perspective on this aspect
only, as the majority judgment encompasses my views on the
certification
of
the
class action
.
I agree with my brothers’ interpretation of the common law and
the exposition of the facts and issues. I further agree with
the
reasoning as to why it is incumbent for this court to develop the
common law. I however, respectfully differ with the extent
of the
development, for the reasons that follow.
[232]
The
mineworkers claim damages under five separate heads: past loss of
earnings; future loss of earnings; past medical expenses;
future
medical expenses; and general damages for pain and suffering, loss of
amenities of life, disablement and reduced life expectancy.
The
damages claimed under two of the five heads of damage constitute
special damages (past loss of earnings and past medical expenses)
and
will immediately be transmissible to their deceased estates in the
event of death occurring after the institution of these

proceedings.
[104]
[233]
In
terms of the common law claims for general damages are not
transmissible, except after
litis
contestatio
has occurred during the lifetime of the injured party. The general
damages claimed by the mineworkers in this instance are for
pain and
suffering, loss of amenities of life, disablement and reduced life
expectancy as well as prospective medical expenses
and future loss of
income. The mineworkers seek a declarator that, in the event any
class member dies after the institution of
the certification
application and prior to the finalisation of the class action, such
general damages as a class member would have
been entitled to claim,
shall be transmissible to his or her deceased estate. The development
of the common law is proposed in
relation to class actions only. It
was only during the hearing of this matter that the proposition that
the common law should also
in that respect be developed in respect of
all actions and not only for class actions, was raised and debated.
[234]
The
general development of the common law proposed by Mojapelo DJP and
Vally J to
provide
for active and passive transmissibility before
litis
contestatio,
will
have far reaching implications.
The
mine workers’ arguments were directed at class action
proceedings and the implications of the common law position (that

general damages are only transmissible after
litis
contestatio
)
on a class action.  The mining companies also prepared arguments
based on the relief originally sought by the mineworkers
in the
notice of motion. Transmissibility of general damages in all actions
generally was neither dealt with nor is it relevant
for the purpose
of deciding this case. We have not had the benefit of well-researched
arguments on the proposed far reaching development.
I am accordingly
hesitant to tread this complex field of the law in the absence of a
proper opportunity to consider the implications
that such a
development may and will have on the broader community and the
knock-on effect it might have on other branches of the
law, for
example, the law of cession
[105]
and on litigation in, for example, Road Accident Fund matters.
Road accidents are one of the leading causes of death in South

Africa. Any development that would lead to the transmissibility of
actions for general damages before
litis
contestatio
in general, will have an impact on the economic viability of the Road
Accident Fund. The same policy considerations that militate
in favour
of the development of the common law in class actions of this nature
will not necessarily be present in other situations
where delictual
liability accrues to a defendant.
[235]
The
common law rule dealing with transmissibility of general damages
regulates both the active and passive transmissibility of general

damages. Claims are accordingly available to the heir of the person
wronged and against the heir of the wrongdoer. It is important
to
strike a balance between the rights of heirs of wrongdoers and the
rights of heirs of persons who have been wronged. The development
of
the common law will have implications for the deceased estates (and
hence the heirs) of any wrongdoers who die before
litis
contestatio
.
Neither the mineworkers nor the mining companies dealt with those
implications on passive transmissibility.
[236]
During
the hearing of this matter, legislation in foreign jurisdictions such
as the United States of America, the United Kingdom
and Australia
where the law regarding transmissibility has been developed, were
referred to and considered. Legislation has been
enacted in all three
countries to provide a statutory cause of action for wrongful death
and the preservation of any pre-existing
rights of action held by the
injured party. The legislation in these countries differs with
respect to the type of damages that
can be claimed. Two States in the
USA exclude damages for pain and suffering, and all Australian states
exclude damages for pain
and suffering except in the case of deaths
resulting from dust-related or asbestos-related diseases. The
majority of the Canadian
provinces have expressly excluded the
transmissibility of claims for "damages for loss of expectation
of life, pain and suffering,
physical disfigurement or loss of
amenities”. There are clearly divergent approaches in the
respective legislatures of different
jurisdictions. Foreign models
should not be used without proper recognition of non–legal
aspects that influence the procedures
in both foreign and local
jurisdictions. Incorporating foreign customs into practice through
judicial prescriptions may not have
the desired result.
[106]
This approach is sensible, specifically in the South African social
context. We did not have the benefit of a complete comparative

analysis dealing with the effect that the transmissibility of general
damages had in those countries where such enabling legislation

exists.
[237]
The
power of the courts to develop the common law must be exercised in an
incremental fashion as required by the facts of each particular
case.
This duty was summarised in
R
v Salituro
[107]
and
cited with approval in
Du
Plessis and Others v De Klerk and Another
[108]
as
follows:
“
Judges
can and should adapt the common law to reflect the changing social,
moral and economic fabric of the country. Judges should
not be quick
to perpetuate rules whose social foundation has long since
disappeared. Nonetheless there are significant constraints
on the
power of the Judiciary to change the law. . . In a
constitutional democracy such as ours it is the Legislature and
not
the courts which has the major responsibility for law reform. . . .
The Judiciary should confine itself to those incremental
changes
which are necessary to keep the common law in step with the dynamic
and evolving fabric of our society.
”
[238]
South
Africa does not have legislation governing class action claims. The
rules governing class actions have been developed by the
courts. In
the absence of legislative regulation in South Africa, the courts are
duty bound to continue the development of class
action proceedings.
In
Children’s
Trust
the
court for example held that for purposes of prescription, service of
the application for certification should constitute service
of
process claiming payment of the debt for the purpose of
s 15(1)
of
the
Prescription Act 68 of 1969
[109]
.
In Australia specific legislation exists to provide for
transmissibility of claims for pain and suffering resulting from
dust-related
or asbestos-related diseases.
Section 173
read with
s
39(2)
of our Constitution imposes an obligation on courts to develop
the common law appropriately, if it is in the interest of justice.

The foreign jurisdictions referred to have no equivalent duty under
their constitutional framework.
[239]
In
Thebus
and Another v S,
[110]
the need to develop the common law under s 39(2) of the Constitution
was held to arise in at least two instances. The first,
when a rule
of the common law is inconsistent with a constitutional provision and
the second, where the common law may have fallen
short of its spirit,
purport and objects, even though not inconsistent with a specific
constitutional provision.  It is then
that “
the
common law had to be adapted so that it grew in harmony with the
'objective normative value system' found in the Constitution”
[111]
.
[240]
Social
justice and the advancement of human rights and freedoms (with an
emphasis on the values of human dignity, substantive equality,
and
non-discrimination) are described as “
[t]he
leitmotif of our Constitution
.”
[112]
These constitutional values militate in favour of the development of
the common law.  In the present matter the constitutional
rights
of two categories of persons are relevant to transmissibility: the
rights of mineworkers, who are members of the class,
and the rights
of their heirs.
The
question is whether these values (human dignity, equality and
non-discrimination) are advanced by acknowledging and perpetuating

the distinction the common law draws between the transmissibility of
actions for pain and suffering before and after
litis
contestatio,
particularly
in circumstances of the kind currently before this court.
[241]
The
development of the common law must be fact-driven. Insufficient facts
were placed before this court to go as far as holding
that general
damages are transmissible in all matters in which an injured party
has a claim. The facts are however, sufficient
to justify the
development of the common law in relation to class action
proceedings. Such development is in the interest of justice
and any
further delay would cause an injustice. In the context of a class
action, and specifically a class action of this magnitude,
it will
take much longer to reach
litis
contestatio
.
The courts have not yet pronounced on the application of the rules
relating to close of pleadings and transmissibility in the
context of
class action proceedings. If the rule is applied strictly,
litis
contestatio
cannot
be reached during the certification proceedings at all. It would be
reached only after the finalization of the certification
process, and
thus after the exchange of pleadings.
[242]
The
mineworkers and their dependants form part of the most vulnerable and
marginalized members in our society. Such injustice as
there may be
extends to women and children living in geographical localities of
mining and rural communities. These communities
are home to
individuals (mostly relatives) upon whom ailing mineworkers would
have relied on for the provision of accommodation
and food as well as
maintaining the quality of life of terminally ill mineworkers.
[243]
Taking
into consideration the specific circumstances of this case, as
highlighted in the main application and the evidence of the

mineworkers, I am of the view that the spirit, purport and objects of
the Bill of Rights requires the incremental development of
the common
law regarding transmissibility in respect of class actions. This
development extends only to the transmissibility of
claims for
general damages in those cases where a class member dies after the
institution of the certification application and
prior to
finalisation of a class action. In those instances, such general
damages  as that class member would have been entitled
to claim,
will be transmitted to his or her deceased estate.
L. WINDELL
JUDGE OF THE HIGH
COURT
GAUTENG LOCAL
DIVISION
Counsel
for the Applicants: Adv W. H. Trengrove SC
Adv
G. J. Marcus SC
Adv
G. Budlender SC
Adv
A. C. Dodson SC
Adv
S. Budlender
Adv
M. le Roux
Adv
J. Brickhill
Adv
N. Ferreira
Adv
J. Bleazard
Counsel
for 1
st
to 10
th
and 32
nd
Respondents (“Harmony”):
Adv
C. D. A. Loxton SC
Adv
A. E. Franklin SC
Adv
R. M. Pearse
Adv
L. Sisilana
Counsel
for 11
th
and 12
th
Respondents (“AngloGold
Ashanti”):
Adv
S. A. Cilliers SC
Adv
D. M. Fine SC
Adv
I. B. Currie
Adv
K. D. Iles
Counsel
for 13
th
– 19
th
, 30
th
and 31
st
respondents (“Gold Fields”):
Adv
J. J. Gauntlett SC
Adv
W. H. G. van der Linde SC
Adv
I. P. Green
Adv
D. A. Turner
Adv
F. B. Pelser
Counsel
for 20
th
and 21
st
Respondents (“Village Main Reef”):
Adv
D. N. Unterhalter SC
Adv
A. D. Stein
Counsel
for 25
th
and 26
th
Respondents (“DRD
Gold”):
Adv
B. E. Leech SC
Adv
M. A. Wesley
Adv
R. A. Carvalheira
Counsel
for 27
th
Respondent (“Anglo American”):
Adv
M. D. Kuper SC
Adv
M. du P van der Nest SC
Adv
A. C. Cockrell SC
Adv
K. S. McLean
Adv
D. J. Smit
Counsel
for 28
th
Respondent (“ARM”):
Adv
T. Beckerling SC
Adv
I. Goodman
Adv
K. Hofmeyr
Counsel
for the amici curiae: Adv M. Chaskalson SC
Adv
A. Hassim
Adv
J. Berger
Attorneys
for the 1
st
to 30
th
Applicants: Richard Spoor Inc Attorneys
Attorneys
for the 31
st
to 39
th
Applicants: Abrahams Kiewitz Inc
Attorneys
for the 40
th
to 52
nd
Applicants: Legal Resources Centre
Attorneys
for 1
st
to 10
th
and 32
nd
Respondents: Baker & McKenzie Attorneys
Attorneys
for 11
th
and 12
th
Respondents: Edward Nathan
Sonnenbergs
Attorneys
for 13
th
– 19
th
,
30
th
and 31
st
Respondents:
Norton
Rose Fulbright South Africa
Attorneys
for 20
th
and 21
st
Respondents: Tugendaft, Wapnick, Banchetti and Partners
Attorneys
for 25
th
and 26
th
Respondents: Malan Scholes Inc
Attorneys
for 27
th
Respondent: Webber Wentzel
Attorneys
for 28
th
Respondent: Cliffe Dekker Hofmeyr
Attorneys
for 29
th
Respondent: Van Hulsteyns Attorneys
Hearing
of Argument: 12 to 23 October 2015
Date
of delivery of Judgment: 13 May 2016
ANNEXURE
“A” LIST OF MINES*
1.
Harmony Gold Mine
2.
Virginia Gold Mine
3.
Merriespruit Gold Mine
4.
Unisel Gold Mine
5.
Free State Saaiplaas Gold Mine
6.
Free State Saaiplaas Gold Mine Shafts 2 and 3
7.
Saaiplaas Gold Mine Shafts 4 and 5 (now Masimong Mine)
8.
President Steyn Gold Mine
9.
President Steyn Gold Mine Shafts 1 and 2 (now part of Bambanani)
10.
President Steyn Gold Mine Shaft 4
11.
President Brand Gold Mine
12.
President Brand Gold Mine Shafts
1, 2,
3 and 5
13.
Kusasalethu Gold Mine (formerly Elandsrand)
14.
Elandsrand Gold Mine
15.
DeeiKraal Gold Mine
16.
Evander Gold Mine
17.
Kinross Gold Mine
18.
Winkelhaak Gold Mine
19.
Bracken Gold Mine
20.
Leslie Gold Mine
21.
Randfontein Estates Gold Mine
22.
Doornkop Gold Mine
23.
Freegold 1 Gold Mine (now Bambanani)
24.
Freegold 2 Gold Mine (now part ofTshepong)
25.
Free Gold 3 Gold Mine (now part ofTshepong)
26.
Freegold 4 Gold Mine (now part ofTshepong)
27.
Tshepong Gold Mine (formerly Freegold 2 and 4)
28.
Bambanani Gold Mine (formerly Freegold 1)
29.
Masimong Gold Mine (formerly FS Saaiplaas 4 and 5)
30.
H J Joel Gold Mine
31.
Joel Gold Mine
32.
St Helena Gold Mine
33.
Western Holdings Gold Mine
34.
Matjhabeng Gold Mine (formerly part of Western Holdings)
35.
Target Gold Mine
36.
Target Gold Mine Shafts 1 and 2
37.
Target Gold Mine Shaft 3
38.
Loraine Gold Mine
39.
Loraine Gold Mine Shaft 3 (now part of Target)
40.
Freddies Gold Mine
41.
Freddies Gold Mine Shafts 7 and 9 (now part of Target)
42.
Phakisa Gold Mine
43.
Hartebeesfontein (now part of Buffelsfontein)
44.
Vaal Reefs Gold Mine
45.
Vaal Reefs Gold Mine Shafts
1,
2,
3, 4, 5,
6 and 7
46.
Vaal Reefs Gold Mine No 8 Shaft (now Great Noligwa)
47.
Vaal Reefs Gold Mine No 9 Shaft (now Kopanong)
48.
Vaal Reefs Gold Mine No 10 Shaft (now Tau Lekoa)
49.
Vaal Reefs Gold Mine No 11 Shaft (now Moab Khotsong)
50.
Great Noligwa Gold Mine (formerly Vaal Reefs 8)
51.
Kopanang Gold Mine (formerly Vaal Reefs 9)
52.
Tau Lekoa Gold Mine {formerly Vaal Reefs 10)
53.
Moab Khotsong Gold Mine {formerly Vaal Reefs 11)
54.
Western Deep Levels Gold Mine
55.
Western Deep Levels Gold Mine Shaft 1 (now Mponeng)
56.
Western Deep Levels Gold Mine Shaft 2 (now Savuka)
57.
Western Deep Levels Gold Mine Shaft 3 (now Tau Tona)
58.
Mponeng Gold Mine (formerly Western Deep Levels 1)
59.
Savuka Gold Mine(formerly Western Deep Levels 2)
60.
Tau Tona Gold Mine(formerly Western Deep Levels 3)
61.
Free State Geduld Gold Mine
62.
South Deep Gold Mine
63.
Beatrix Gold Mine
64.
Oryx Gold Mine
65.
Kloof Gold Mine
66.
Libanon Gold Mine
67.
Leeudoorn Gold Mine
68.
Venterspost Gold Mine
69.
Western Areas Gold Mine
70.
East Driefontein Gold Mine
71.
West Driefontein Gold Mine
72.
Driefontein Consolidated Gold Mine
73.
Kloof-Driefontein Complex (KDC Complex)
74.
of stat Buffelsfontein Gold Mine
75.
Blyvooruitzicht Gold Mine
76.
Doornfontein Gold Mine (now part of Blyvooruitzicht)
77.
East Rand Proprietary Mines
78.
Durban Roodepoort Deep Gold Mine
79.
Welkom Gold Mine
80.
East Geduld Gold mine
81.
Orkney Mines
82.
Vlakfontein Gold Mine
ANNEXURE
B1 (AMENDED): PUBLISHED NOTICE TO CLASS MEMBERS
NOTICE
OF CLASS ACTION TO
:
All
underground mineworkers who work or have worked on any of the gold
mines listed below, at any time after 12 March 1965, and
who have
silicosis and/or pulmonary tuberculosis;
and
The
dependants of underground mineworkers who worked on any of the gold
mines listed below, at any time after 12 March 1965, and
who died
from silicosis and/or pulmonary tuberculosis.
THE
RELEVANT MINES
:
Bambanani Gold
Mine (formerly Freegold 1)
Matjhabeng Gold
Mine (formerly part of Western Holdings
Beatrix Gold Mine
Merriespruit Gold
Mine
Blyvooruitzicht
Gold Mine
Moab Khotsong
Gold Mine (formerly Vaal Reefs 11)
Bracken Gold Mine
Mponeng Gold Mine
(formerly Western Deep Levels 1)
Buffelsfontein
Gold Mine
Oryx Gold Mine
DeelKraal Gold
Mine
Phakisa Gold Mine
Doornfontein Gold
Mine (now part of Blyvooruitzicht)
President Brand
Gold Mine
Doornkop Gold
Mine
President Brand
Gold Mine Shafts 1, 2, 3 and 5
Driefontein
Consolidated Gold Mine
President Steyn
Gold Mine
Durban Roodepoort
Deep Gold Mine
President Steyn
Gold Mine Shaft 4
East Driefontein
Gold Mine
President Steyn
Gold Mine Shafts 1 and 2 (now part of Bambanani)
East Rand
Proprietary Mines
Randfontein
Estates Gold Mine
Elandsrand Gold
Mine
Saaiplaas Gold
Mine Shafts 4 and 5 (now Masimong Mine)
Evander Gold Mine
Savuka Gold Mine
(formerly Western Deep Levels 2)
Freddies Gold
Mine
South Deep Gold
Mine
Freddies Gold
Mine Shafts 7 and 9 (now part of Target)
St Helena Gold
Mine
Free Gold 3 Gold
Mine (now part of Tshepong
Target Gold Mine
Free State Geduld
Gold Mine
Target Gold Mine
Shaft 3
Free State
Saaiplaas Gold Mine
Target Gold Mine
Shafts 1 and 2
Free State
Saaiplaas Gold Mine Shafts 2 and 3
Tau Lekoa Gold
Mine (formerly Vaal Reefs 10)
Freegold 1 Gold
Mine (now Bambanani)
Tau Tona Gold
Mine (formerly Western Deep Levels 3)
Freegold 2 Gold
Mine (now part of Tshepong)
Tshepong Gold
Mine (formerly Freegold 2 and 4)
Freegold 4 Gold
Mine (now part of Tshepong)
Unisel Gold Mine
Great Noligwa
Gold Mine (formerly Vaal Reefs 8)
Vaal Reefs Gold
Mine
H J Joel Gold
Mine
Vaal Reefs Gold
Mine No 10 Shaft (now Tau Lekoa)
Harmony Gold Mine
Vaal Reefs Gold
Mine No 11 Shaft (now Moab Khotsong)
Hartebeesfontein
(now part of Buffelsfontein)
Vaal Reefs Gold
Mine No 8 Shaft (now Great Noligwa)
Joel Gold Mine
Vaal Reefs Gold
Mine No 9 Shaft (now Kopanong)
Kinross Gold Mine
Vaal Reefs Gold
Mine Shafts 1, 2, 3, 4, 5, 6 and 7
Kloof Gold Mine
Venterspost Gold
Mine
Kloof-Driefontein
Complex (KDC Complex)
Virginia Gold
Mine
Kopanong Gold
Mine (formerly Vaal Reefs 9)
West Driefontein
Gold Mine
Kusasalethu Gold
Mine (formerly Elandsrand)
Western Areas
Gold Mine
Leeudoorn Gold
Mine
Western Deep
Levels Gold Mine
Leslie Gold Mine
Western Deep
Levels Gold Mine Shaft 1 (now Mponeng)
Libanon Gold Mine
Western Deep
Levels Gold Mine Shaft 2 (now Savuka)
Loraine Gold Mine
Western Deep
Levels Gold Mine Shaft 3 (now Tau Tona)
Loraine Gold Mine
Shaft 3 (now part of Target)
Western Holdings
Gold Mine
Masimong Gold
Mine (formerly Free State Saaiplaas 4 and 5)
Winkelhaak Gold
Mine
PLEASE
TAKE NOTE THAT
:
1.
A
class action for money damages has been started in the Gauteng Local
Division of the High Court, Johannesburg, against the companies
that
owned, operated, controlled and/or advised the gold mines listed
above, on behalf of:
All
current and former underground mineworkers who have silicosis and/or
pulmonary tuberculosis and who have worked on any of the
above listed
gold mines at any time after 12 March 1965, as well as the dependants
of such mineworkers who have died of silicosis
and/or pulmonary
tuberculosis, with the exclusion of persons –
(i)
whose
claims are to be determined by arbitration in the matter of Blom and
Others v Anglo American South Africa Limited; and
(ii)
who
are named plaintiffs in the action instituted in the United Kingdom
against Anglo American South Africa Limited under case numbers

HQ11X03245, HQ11X03246, HQ12X02667 and HQ12X05544.
2.
If
you fall in the above class of persons, you automatically form part
of the class action unless you opt out of the class action
by sending
a written notice to the attorneys representing the class, to be
received by no later than 31 January 2017.
3.
Please
include your name, address and telephone number in the notice, and
send it by post, fax or email to one of the following
attorneys:
Richard
Spoor Incorporated
Tel:
+27 (0)11 482 6081
Fax:
+27 (0)11 482 1419
Email:
info@richardspoor.co.za
Postal
address: PO Box 303 Parklands, 2121
Attention:
Richard Spoor
Abrahams
Kiewitz Incorporated
Tel:
+27 (0)21 914 4842
Fax:
+27 (0)21 914 1455
Email:
classaction@ak.law.za
Postal
address: PO Box 3048, Tygervalley, 7536, Cape Town
Attention:
Charles Abrahams
Legal
Resources Centre
Tel:
+27 (0)11 836 9831
Fax:
+27 (0)11 834 4273
Email:
sayi@lrc.org.za
Postal
address: PO Box 9495, Johannesburg, 2000
Attention:
Sayi Nindi
www.lrc.org.za
4.
TAKE
NOTE THAT: Each class member who does not opt-out will be bound by
any judgment or settlement, whether favourable or not, and
will not
be allowed to proceed with an independent action.
5.
Any
money damages and other court order obtained by the class
representatives under a judgment or settlement will be distributed
to
individual members of the class. Should the class action proceed to a
stage where the liability of specific companies has to
be decided and
individual money damages are to be decided, class members will be
advised by the legal representatives of the steps
you will have to
take as a class member to opt-in to the action for this purpose.
This
means that you will have to take more steps yourself at a later stage
to benefit personally from any success in the class action
.
6.
The
attorneys have entered into contingency fee agreements with the class
representatives with respect to recovery of their legal
fees and
disbursements. These agreements provide that the attorneys will not
receive payment for their work unless and until the
class action is
successful or costs are received from the defendant gold mining
companies. If the class action is successful, the
attorneys will be
entitled to a fee payable out of the amount recovered under the
judgment or settlement of the action, which amount
will require court
approval.
As
a member of the class, you have a right to participate in the
proceedings. Should you wish to do so, kindly contact the attorneys

(details listed above). You can also visit the following website for
copies of the legal documents filed in the case:
www.lrc.org.za
;
and
www.goldminersilicosis.co.za
.
7.
To
get more information about the class action, to obtain assistance in
opting out or opting in, or if you wish to participate in
the case,
you may:
(a)
Contact
one of the legal representatives (details listed above);
(b)
Call
the toll free Call Centre at [insert number]. The Call Centre will
operate from [hours], until [date]. There is no cost to
persons
calling that number from within the borders of the Republic of South
Africa; or
(c)
Send
a “please call me” by SMS to the following number [insert
number], and one of the legal representatives will call
you.
8.
The
following persons have been certified as the class representatives,
and will act on behalf of the class in the action:
BONGANI NKALA
KAMBI
ADMINISTRATIVE AREA, MTHATHA
SIPORONO
PHAHLAM
IMIZIZI A/A
REDOUBT, BIZANA, 4800
THEMBEKILE
MNAHENI
MOHOABATSANA A/A,
MT FLETCHER, 4770
MATONA MABEA
MOHALE’S
HOEK, MEKALING, HA-MAKOANYANE
MOKHOLOFU
BOXWELL
BUTHA-BUTHE,
TLOKOENG
ALLOYS MNCEDI
MSUTHU
MTHUMASI A/A,
RAMAFOLE LOC, MT FLETCHER
MYEKELWA
MKENYANE
BIZANA
ZWELENDABA
MGIDI
TWAZI A/A,
FLAGGSTAFF, 4810
MTHOBELI
GANGATHA
NKUNZIMBINI A/A,
LUSIKISIKI
LANDILE QEBULA
NGXOKWENI ADMIN
AREA, LIBODE
PHUMELELO
SOLITASI SIYOCOLO
NTLENZI
ADMINISTRATIVE AREA, FLAGGSTAFF
TEKEZA JOSEPH
MDUKISA
MADIBA A/A,
BIZANA, 4800
JOSEPH LEBONE
MOHALE’S
HOEK, TAUNG, HA-MONYAKE
ZAMA GANGI
GORHA ADMIN AREA,
LUSIKISIKI, 4820
MALUNGISA
THOLE
IMIZIU A/A,
BIZANA, 4800
MONOKOA THOMAS
LEPOTA
MASERU, ROMA,
HA-ELIA
MZAWUBALEKWA
DIYA
TYENI A/A BIZANA,
4800
MSEKELI
MBUZIWENI
NQABENI VILLAGE,
ISIKELO A/A, BIZANA, 4800
ZANEYEZA
NTLONI
TWAZI A/A
FLAGGSTAFF
TOHLANG
PAULOSI MAKO
MOHALE’S
HOEK, TAUNG, SILOE
NANABEZI
MGODUSWA
WPHILISWENI/
TSHUZI WOC, BIZANA
THULENKHO
KUSWANA
MIKHWE LOC,
BIZANA
MALEBURU
REGINA LEBITSA
LIRIBE,
PELA-TSOEU, HA-MOTSOANE
MATAASO MABLE
MAKONE
BUTHA BUTHE,
MAKENENG, HA-TUMANE
MATSEKELO
CISILIA MASUPHA
THUATHE,
PUTHA-LICHABA, MASERU
MATIISETSO
MASEIPATI JESENTA NONG
HA RANNAKOE,
MATELILE, MAFETENG
BANGUMZI
BENNETT BALAKAZI
PEDDIE, EASTERN
CAPE
WATU
LIVINGSTON DALA
CALA, EASTERN
CAPE
ZWELAKE DALA
CALA, EASTERN
CAPE
DYAMARA
JANUARY JIBHANA
MERINO PARK,
QUEENSTOWN, EASTERN CAPE
MANTSO
HENDRICK MOKOENA
25 REITZ STREET,
DOORN, WELKOM, FREE STATE
MBIKANYE
ALFRED SAWULE
458 KOPANO,
MIDFORD, EASTERN CAPE
ZONISELE JAN
NKOMPELA
1909 MZAMO
STREET, LINGE, QUEENSTOWN, EASTERN CAPE
ISHMAEL
TSIKWANE MOTLEKE
516 SLOVO PARK,
WITSIESHOEK, FREE STATE
THABO EDWIN
NTSALA
4422 ZONE 7,
MEQHELENG, FICKSBURG, FREE STATE
MALEPA PUSO
916 PHOMOLONG
RHEEDESPARK EXT 2, 9458, WELKOM, FREE STATE
NOEBEJARA TAU
HA-KHOLANYANE,
MATELILE, MAFITENG, LESOTHO
ELIA
MOTLALEPULA PHETANE
MOSOANG HA-MOJELA
HA MAPHEPHE, LESOTHO
MOTLALEPULA
MOKOENA
HA-MOTLOHELOA,
LESOTHO
SEKHOBE LETSIE
MATISENG, LESOTHO
TSHEHLA
SOLOMON HLALELE
3878 KS,
KUTLWANONG, OD 9480, WELKOM, FREE STATE
MONA ASHTON
MELAO
HANGOATONYANE,
MAZENOD, MASERU, LESOTHO
NKOSI SELATA
SELATA
35149 HANIPARK,
SHILOSERT, BRONVILLE, 9459, FREE STATE
EDGAR NTJANA
NTJANA
PO BOX TLALI 70,
SETLEKETSENG, LESOTHO
MAHOLA
EMMANUEL SELIBO
SAINT RODERICK,
HA-SHOEPANE, KHUBETSOANA, LESOTHO
EZEKIEL
MUTSANA MASHUPA
ROOM E20,
HARMONY, WELKOM, 9460, FREE STATE
MALEFETSANE
MOHLAKASI
MOSOANG,
HA-MOJELA, HA-MAKOETUE SEHLABENG SA, LESOTHO
MTHETHELELI
NELSON SATU
ESKOBENI
LOCATION, COFIMVABA, EASTERN CAPE
ANNEXURE
C1 (AMENDED): RADIO NOTICE TO CLASS MEMBERS
This
is a message to
:
All underground mineworkers who work or have worked on certain gold
mines in South Africa, at any time from 12 March 1965, and
who have
contracted silicosis, and/or tuberculosis.
This
message is also directed to
:
All the dependants of underground mineworkers who worked on certain
gold mines in South Africa, at any time from 12 March 1965,
and who
died from silicosis or tuberculosis.
PLEASE
TAKE NOTE THAT
:
1.
A
class action for money damages has been started in the Gauteng Local
Division of the High Court, Johannesburg, against the companies
that
owned, operated, controlled and/or advised certain gold mines in
South Africa, on behalf of:
All
current and former underground mineworkers who have silicosis and/or
pulmonary tuberculosis and who have worked on any of the
gold mines
cited in the proceedings, at any time after 12 March 1965, as well as
the dependants of such mineworkers who have died
of silicosis or
pulmonary tuberculosis, with the exclusion of persons –
(i)
whose
claims are subject to arbitration in the matter of Blom and Others v
Anglo American South Africa Limited; and
(ii)
who
are named plaintiffs in the actions pending in the United Kingdom
against Anglo American South Africa Limited
.
2.
If
you fall within this class of persons, you automatically form part of
the class action, and you will be bound by any judgment
or settlement
obtained in the class action.
3.
If
you do not wish to be part of the class action, you must opt out by
sending a written notice to the attorneys representing the
class, to
be received by no later than [date].
4.
Please
refer to this week’s [SPECIFY NEWSPAPERS] for the list of gold
mines covered by the class action; and for details of
how to “opt
out” should you choose not to be a member of the class and how
to “opt in” at the stage when
final liability and damages
are decided.
5.
For
more information, you can also:
a.
Call
the following toll-free number: [insert]. The Call Centre will
operate until [date]. There is no costs to persons calling that

number from within the borders of the Republic of South Africa; or
b.
Send
a “please call me” by SMS to the following number
[insert], and the legal representative will call you; or
c.
Visit
the websites at
www.lrc.org.za
and
www.goldmindersilicosis.co.za
.
ANNEXURE
D: LIST OF NEWSPAPERS
Newspapers
South Africa
Newspapers
Language/s
Distribution
Alex Pioneer
Horizon
Soweto Express &
Soweto Times
Kathorus Mail
Tshwane Sun
Hammanskraal, Tswane Sun Central
Kruger 2 Canyon
The Herald
The Herald
The Herald
Highlands
Panorama
Polokwane
Observer
Bulletin
Limpopo Mirror
Seipone, Mogol
Post
Zoutpansberger
Mangaung Issue
Eastern Free
State Issue
Maluti News
Northwest
Independent, Overvaal
Zeerust News
Mmega District
News
Pinetown
Izindaba, Amanzimtoti,
Galaxy, Northern
Star, Stanger Weekly
Al Qalam KZN
Ladysmith Herald,
Stanger weekly
The Reporter
Eastern Cape
Today
Pondo News
Kathu Gazette
De Aar Echo
Durban North News
All Languages
English,
Afrikaans
Zulu, Xhosa,
English, S Sotho, Pedi
Zulu, SeSotho,
English
Setswana and
English
N Sotho, Tsonga,
Siswati & English
N Sotho, Tsonga,
Siswati & English
Setswana, Ndebele
& English
SiSwati, Zulu,
English, Afrikaans
N Sotho, Tsonga,
Siswati, Pedi, English
N Sotho &
English
N Sotho, Tsonga,
Afrikaans, English
Venda, Tsonga,
Sepedi, Afrikaans, English
N Sotho, English,
Afrikaans, Ndebele
English,
Afrikaans, Venda, Sotho, Tsonga
English, Sotho
Sesotho, Zulu &
English
Sesotho &
English
Setswana,
Afrikaans, Sesotho, N Sotho
Setswana,
English, Afrikaans
Setswana,
Afrikaans, English
Zulu, Xhosa &
Siswati
Zulu, English,
Xhosa
Zulu, English,
Afrikaans, German
Zulu, English
Xhosa, Afrikaans,
English
Xhosa &
English
Xhosa, English,
Sesotho, Afrikaans
Afrikaans,
Setswana, Xhosa & English
Afrikaans, Xhosa,
English
Xhosa &
English
Gauteng
Gauteng
Gauteng
Gauteng
Gauteng
Mpumalanga
Mpumalanga
Mpumalanga
Mpumalanga
Mpumalanga
Limpopo
Limpopo
Limpopo
Limpopo
Limpopo
Free State
Free State
Free State
North West
North West
North West
Kwa-Zulu Natal
Kwa-Zulu Natal
Kwa-Zulu Natal
Kwa-Zulu Natal
Eastern Cape
Eastern Cape
Eastern Cape
Northern Cape
Northern Cape
Western Cape
Zimbabwe
Newspapers
Language/s
Distribution
Sunday Mail
The Chronicle
The Herald
The Manic Post
English
English
English
English
National
National
National
National
Zambia
Newspapers
Language/s
Distribution
Zambia Daily Mail
The Post
English
English
National
National
Swaziland
Newspapers
Language/s
Distribution
Times of
Swaziland
Swazi Observer
English
English
National
National
Mozambique
Newspapers
Language/s
Distribution
Noticias
Savana
Domingo
Portuguese
Portuguese
Portuguese
National
National
National
Malawi
Newspapers
Language/s
Distribution
Malawi News
The Sunday Times
English, Chichewa
English
National
National
Lesotho
Newspapers
Language/s
Distribution
Public Eye
English, Sesotho
National
Botswana
Newspapers
Language/s
Distribution
Botswana Gazette
The Voice
English
English, Setswana
National
National
ANNEXURE
D: LIST OF RADIO STATIONS
Radio Stations
South Africa
Station
Language/s
Distribution
Alx FM
Eldos FM
Jozi FM
Kasie FM
Radio Moretele
Radio Shoshanguve
Barberton
Community Radio
Radio
Bushbuckridge
eMalahleni
Community
Radio Middleburg
Radio Kangala
Radio Kanyamazane
Radio Moutse
Tubatse
Radio Botlokwa
Greater
Lebowakgomo
Greater Tzaneen
FM
Makhado FM
Radio Mohodi
Mokopane Radio
Radio Moletsi
Musina
Phalaborwa
Radio Sekgosese
SKFM
Radio Univen
Motheo FM
Radio Naledi
Qwa Qwa Radio
Setsoto FM
Aganang
Kopanong
Lethlabile
Radio Mafikeng
Modiri FM
Radio Mafisa
Vaaltar
Icora FM
Imbokodo
Inanda FM
Izwi Lomzansi
Radio Khwezi
Zululand
Alfred Nzo
Inkonjane
Radio Khanya
Lukhanji
Nkqubela Radio
Radio Takalani
Unique FM
Radio Unitra
Radio Vukani
Radio Riverside
Radio Teemaneng
Ulwazi
Radio Zibonele
All Languages
English,
Afrikaans
Zulu, Xhosa,
English, S Sotho, Pedi
Zulu, SeSotho,
English
Setswana and
English
Setswana and
English
N Sotho, Siswati
& English
N Sotho, Tsonga,
Siswati, English
N Sotho, Tsonga,
Siswati, English
Zulu, Ndebele and
English
Setswana, Ndebele
& English
SiSwati, Zulu,
English, Afrikaans
N Sotho, Tshonga,
Siswati, English
N Sotho, Pedi,
English
N Sotho and
English
N Sotho and
English
N Sotho, Tsonga,
Afrikaans, English
Venda, Tsonga,
Sepedi, Afrikaans, English
N Sotho and
English
N Sotho, English,
Afrikaans, Ndebele
N Sotho and
English
English,
Afrikaans, Venda, Sotho, Tsonga
Tsonga, Sepedi,
Zulu, English
SePedi &
English
SePedi and
English
Venda and English
English, Sotho
Sesotho and
English
Sesotho, Zulu and
English
Sesotho and
English
Setswana,
Afrikaans, Sesotho, N Sotho
Setswana,
English, Afrikaans
Setswana, English
Setswana, English
Setswana,
Afrikaans, English
Setswana and
English
Setswana and
English
Zulu
Zulu, Xhosa,
Siswati
Zulu, English,
Xhosa
Zulu, English
Zulu, English,
Afrikaans, German
Zulu, English
Xhosa & S
Sotho, with English in the News
Xhosa, English
Xhosa, English
Xhosa, Afrikaans,
English
Xhosa, English
English, Xhosa
English, Xhosa
Xhosa, English,
Sesotho, Afrikaans
Xhosa
Afrikaans,
Setswana, Xhosa, English
Xhosa, Tswana, S
Sotho, English
Afrikaans, Xhosa,
English
Xhosa, English
Gauteng
Gauteng
Gauteng
Gauteng
Gauteng
Gauteng
Mpumalanga
Mpumalanga
Mpumalanga
Mpumalanga
Mpumalanga
Mpumalanga
Mpumalanga
Mpumalanga
Limpopo
Limpopo
Limpopo
Limpopo
Limpopo
Limpopo
Limpopo
Limpopo
Limpopo
Limpopo
Limpopo
Limpopo
Free State
Free State
Free State
Free State
North West
North West
North West
North West
North West
North West
North West
Kwa-Zulu Natal
Kwa-Zulu Natal
Kwa-Zulu Natal
Kwa-Zulu Natal
Kwa-Zulu Natal
Kwa-Zulu Natal
Eastern Cape
Eastern Cape
Eastern Cape
Eastern Cape
Eastern Cape
Eastern Cape
Eastern Cape
Eastern Cape
Eastern Cape
Northern Cape
Northern Cape
Northern Cape
Western Cape
Zimbabwe
Station
Language/s
Distribution
ZFM
Star FM
ZBC FM (official
radio)
BBC WS Africa
English/Shona
English/Shona
English/Shona/Ndebele
English
National
National
National
International
Zambia
Station
Language/s
Distribution
ZNBC (official
radio)
BBC WS Africa
English
English
National
International
Swaziland
Station
Language/s
Distribution
SBIS Radio 1
SBIS Radio 2
TWR Voice of the
Church
Siswati
English
English
National
National
National
Mozambique
Station
Language/s
Distribution
Radio Mozambique
BBC WS Africa
RDP Africa
All indigenous
languages, English & Portuguese
English
Portuguese
National
International
National
Malawi
Station
Language/s
Distribution
MBC Radio 1
MBC Radio 2
BBC WS Africa
English,
Chichewa, Tumbuka, Ya, Lomwe, Tonga
English, Chichewa
English
National
National
International
Lesotho
Station
Language/s
Distribution
Radio Lesotho
BBC WS Africa
People’s
Choice FM
Sesotho and
English
English
Sesotho and
English
National
International
National
Botswana
Station
Language/s
Distribution
Radio Botswana
RB1
Radio Botswana
RB2
Duma FM
English, Setswana
English, Setswana
English, Setswana
National
National
National
[1]
See
for instance the 1902 Weldon Miners’ Phthisis Commission;
South African Native Affairs Commission of 1903 (Report: 1903
–
1905), 1994 Leon Commission, Commission of Inquiry into Safety and
Health in the Mining Industry; Several parliamentary
select
committees (at least ten) and state industry reports also looked at
the incidence of silicosis in the gold mining industry.
Several
legislative interventions and regulations were promulgated (not less
than fifteen Acts of Parliament between 1912 and
1946 followed by
the Occupational Diseases in Mines and Works Act 78 of 1973
(“ODIMWA”). Occupational lung diseases
(including
silicosis) have also been the subject of several national and
international conferences and studies.
[2]
Radiologically,
silicosis presents as widespread nodules in the lungs, measuring 2-5
mm in diameter with predominance in the middle
and upper zones. In
severe cases large conglomerate nodules are present in the middle
and upper lung zones with associated emphysematous
lung tissue
changes. This severe type of silicosis is also known as Progressive
Massive Fibrosis or PMF.
[3]
Section
173 of the Constitution reads:
“
The
Constitutional Court, Supreme Court of Appeal and High Courts have
the inherent power to protect and regulate their own process,
and to
develop the common law, taking into account the interests of
justice.”
[4]
See
footnote 32 for a further explanation as to why Wilson’s
affidavit was not admitted as evidence
[5]
Section
7(4) of the Interim Constitution read:
'(a)
When an infringement of or threat to any right entrenched in this
chapter (Bill of Rights Chapter) is alleged, any person
referred to
in para (b) shall be entitled to apply to a competent court of law
for appropriate relief, which may include a declaration
of rights.
(b)
The relief referred to in para (a) may be sought by -
(i)
a person acting in his or her own interest;
(ii)
an association acting in the interest of its members;
(iii)
a person acting on behalf of another person who is not in a position
to seek such relief in his or her own name;
(iv)
a person acting as a member of or in the interest of a group or
class of persons;  or
(v)
a person acting in the public interest.'
[6]
Section
2 of the Constitution
[7]
South
African Law Commission,
The
recognition of Class Actions and Public Interest Actions in South
Africa, Report 88
,
August 1998 (SALC Report), Recommendation 8
[8]
In
terms of s 173 of the Constitution
[9]
Included in its Report is a proposed statute that comprehensively
deals with class actions
[10]
SALC
Report, Recommendation 11
[11]
2001
(2) SA 609 (E)
[12]
Permanent
Secretary, Department of Welfare, Eastern Cape and Another v Ngxuza
and Others
2001 (4) SA 1184
(SCA) at  [16]
[13]
2013 (2) SA 213 (SCA)
[14]
Id.
at  [16]
[15]
I
d.
at [26] and [28]
[16]
2013 (5) SA 89
(CC) at [36] and [37]
[17]
By
dint of the operation of the
stare
decisis
(stand by your earlier decisions) principle
[18]
Mukaddam
at
[35] and [37]
[19]
Id.
at
[35]
[20]
Id
.
at [47]
[21]
Children’s
Trust
(
supra)
,
at [24]
[22]
See
[145] below
[23]
See
[116]
– [125] below
[24]
Wilson
v Servier Canada Inc
.
50
O.R. (3d) 219, 49 C.P.C (4
th
)
233 at [135]; See also:
Harrington
v Dow Corning Corp
(1996) 22 B.C.L.R. (3d) 97 at [22];
Bright
v Femcare Ltd
[2002] FCAFC 243
at
[153]
[25]
Mulheron,
R.
The
Class Action in Common Law Legal Systems: A Comparative Perspective
(Hart: Portland, 2004) at 337.
[26]
Johnson
Tiles Pty Ltd v Esso Aust Ltd
[1999] FCA 636
at
[16]
; See also Mulheron (
supra
)
at 259-260
[27]
This
is to be found in Annexure A to this judgment.
[28]
It
would be evidence that each of the 17 000 mineworkers represented by
Spoor would want to lead in his case
[29]
Report
of the Leon Judicial Commission of Inquiry into Mine Health and
Safety, 21 Oct 2003
(The Leon Commission Report), (Government Printer, 2005) at 9
[30]
F.G.
Hill,
The
importance of better dust control in the prevention of
Pneumoconiosis.
20 November 1964, at 1 – 2; It can be found in
Papers
and Discussions 1964-1965, Association of Mine Managers of South
Africa
,
pp 69-81, 1965
[31]
Report of the Dept. of Mineral and Energy Affairs, 2008, at p 51- 52
[32]
Jill
Murray, Tony Davies and David Rees,
Occupational
Lung Disease in the South African Mining Industry
,
Journal of Public Health Policy 32, 565-579, 2011. In their
application for admission as
amici
,
TAC and Sonke asked for the evidence of a renowned academic, Wilson,
to be admitted as evidence in this (the certification)
proceedings
as it would enhance the hearing by giving context to the evidence of
Murray
et
al
that would be brought to the class action trial. The evidence of
Wilson that they sought to introduce concerned the alleged
collaboration between the mining companies and, what in
sociological, social anthropological, developmental studies and
political
science literature is referred to as, “
the
apartheid state
”,
which collaboration was part of the breach of the duty of care the
mining companies owed to the mineworkers. However,
TAC and Sonke
specifically renounced for the moment, any intention to participate
in the class action trial (i.e. if that trial
action were to be
certified by this court) and therefore could not guarantee that the
evidence of Wilson would eventually find
its way to the trial. The
evidence of Wilson may well be relevant for the determination of the
issue of breach of duty of care
by the mining companies but as there
was no guarantee that it would be presented to the trial court we
deemed it inappropriate
to allow its introduction in this
certification proceeding.
[33]
[2002]
3 AllER 305 (HL)
[34]
2013
(2) SA 144 (CC)
[35]
The
reference to Harmony includes Harmony Gold Mining Company Ltd (the
first respondent) as well as its subsidiaries, which are:
Evander
Gold Mines Ltd (second respondent), Randfontein Estates Ltd (fourth
respondent), Armgold/Harmony Freegold Joint Venture
(Pty) Ltd (fifth
respondent), Avgold Ltd (sixth respondent), Unisel Gold Mines Ltd
(seventh respondent), Lorraine Gold Mines
Ltd (eighth respondent)
and African Rainbow Minerals Gold Ltd (thirty-second respondent).
[36]
See  [116 ] – [125] below
[37]
See
[100]
- [108] below
[38]
See
[100] – [108] below
[39]
[2014]
R.C.S 1
at
[46]
[40]
Western
Canadian Shopping Centres Inc v Dutton
[
2001 CSC 46
;
2001]
2 R.C.S. 534
, at [39]; See also,
Rumley
v British Columbia
[2001] 3 R.C.S. 184
, at [32]
[41]
Soobramoney
v Minister of Kwwazulu-Natal
[1997] ZACC 17
;
1998 (1) SA 765
(CC) at
[8]
. This fact is forcefully reiterated in
Moise
v Greater Germiston TLC: Minister of Justice and Constitutional
Development intervening (Women’s Legal Centre as Amicus

Curiae)
[2001] ZACC 20
;
2001 (4) SA 485
(CC) at
[14]
[42]
Section
34 of the Constitution which provides:
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.
[43]
Beinash
and Another v Ernst & Young and Others
1999 (2) SA 116
(CC) at [17]
[44]
Gold
Fields Ltd v Motley Rice LCC
2015 (4) SA 299 (GJ)
[45]
Mukkadam
,
(
supra
),
at [29]
[46]
Children’s
Trust
(
supra
)
at [26]
[47]
Children’s
Trust
(
supra)
at [47] -  [48]
[48]
Mukkadam
(
supra
)
at [18]
[49]
See
Mulheron, (
supra
),
at 290 – 300
[50]
Children’s
Trust
at [46]
[51]
Dabbs
v Sun Life Ass Co of Canada
(1999), 40 OR (3d) 429 (Gen Div) at [30]. See also
Ontario
New Home Warranty Program v Chevron Chemical Co
(1999), 46 OR (3d) 130 (SCJ) at [89]
[52]
Mofokeng
v Road Accident Fund and Two Other Cases
[2012]
ZAGPJHC 150 at [51], [53] – [54]; See section 4.3 of the CFA.
The court’s approval of a settlement agreement
in a class
action is required in foreign jurisdictions, such as, the USA,
Canada and Australia. See, Mulheron, (
supra
)
at 390 - 407.
[53]
Price
Waterhouse Coopers Inc and others v National Potato Co-operative Ltd
2004 (6) SA 66
(SCA) at [41];
Mofokeng
v Road Accident Fund and Two Other Cases
[2012] ZAGPJHC 150 at [41];
South
African Association of Personal Injury Lawyers v Minister of Justice
And Constitutional Development (Road Accident Fund,
Intervening
Party)
2013 (2) SA 583
(GSJ) at [8], [27] and [34];
De
La Guerre v Ronald Bobroff & Partners Inc and Others
[2013] ZAGPPHC 33 at [13] – [14] .The CC and SCA refused leave
to appeal in both the
SAAPIL
and in the
De
La Guerre
matters, see:
Ronald
Bobroff & Partners Inc v De la Guerre
2014 (3) SA 134 (CC)
[54]
Consider
Tjatji
v Road Accident
2013
(2) SA 632
at  [15], [19] and [23]
[55]
J.A.C.
Thomas,
Textbook
of Roman Law
,
(North-Holland Co), 1976, at 70. The description of the system by
the learned author demonstrates that the system of arbitration
as we
know it today is no modern invention. His description reads:
“
Returning
to the individual judge, the parties might have agreed upon a name,
failing that they could select one from the list
(
album
)
of qualified persons kept by the magistrate (i.e. praetor); if they
could not agree, a name would be chosen by lot from the
album
.”
(At 76).
Another
learned author reminds us that the judge was a private individual
and not always a lawyer. (P van Wermelo,
An Introduction to the
Principles of Roman Civil law
, 1976 (Juta) at para 734)
[56]
Peter
Spiller,
A
Manual of Roman law
,
1985, (Butterworth Publishers (Pty. Ltd), at 8
[57]
J.A.C
Thomas,
supra
,
at 84
[58]
This
was in terms of
the
rule
ne
bis in idem
(no one can try the same case twice or no legal action can be
instituted twice for the same cause of action)
,
See:
P
Van Wermelo, (
supra
)
at para 733
[59]
J.
A. C. Thomas (
supra
)
at 104, see the authorities cited therein.
[60]
Government
of the Republic of South Africa v Ngubane
1972
(2) SA 601
(A) at 608A-B
[61]
Litis
contestatio
was then, and still is now, dealt with in the literature and
case-law as “
a
legal concept
”
as well as “
a
stage in the legal process
”
[62]
J.
A. C. Thomas (
supra
)
at 92.
[63]
The
Actio
iniuriarum
is basically a claim in delict aimed at protecting the dignity,
reputation or personal integrity of an individual
[64]
1880
Foord 14
[65]
Id.
at
15 - 16
[66]
1906
T.S. 654
[67]
Id
.
at 656
[68]
Jankowiak
and Ano v Parity Insurance Co. (Pty) Ltd
1963
(2) SA 286
(W);
Government
of the RSA v Ngubane
1972 (2) SA 601 (A)
[69]
The
lex
aquilia
was developed around 286 BC by the Romans. It was an action that was
penal in nature and was designed to compensate a person
for the
damage done to his property. It is not uncommon to refer to it as
“
the
delict of damnum iniuria datum
”
– J C Van der Walt,
Delict
Principles and Cases
,
Butterworths, 1979 at para 7
[70]
Guardian
National Insurance Co. Ltd. v Van Gool N.O.
1992 (4) SA 61
(A) at 63H
[71]
Id.
at 64E. See also:
Hoffa
N.O. v S.A. Mutual Fire & General Insurance Co
.
1965 (2) SA 944
(C) at 950D-E. This principle has been captured in a
lecture of Professor J.C. de Wet which was approvingly quoted by
Holmes
JA. It reads:
“
In
Roman law, as we have seen, a free man, who had been wounded, could
claim medical expenses and loss of earnings from the male-factor,

but no claim was allowed for scars and disfigurement, the reason
being that the body of a free man had no monetary value. This
rule
was retained in medieval secular law and also in the Canon law. Our
Roman-Dutch institutional writers are, however, unanimous
in
allowing the victim of bodily injuries not only his medical expenses
and loss of earnings but also a claim for pain and suffering
(dolor)
and disfigurement (cicatrix, deformitas).
That
a claim for pain and disfigurement was an anomaly in a system which
was supposed to know only 'actiones reipersecutoriae'
cannot be
contradicted. Grotius realised this and admits that pain and
disfigurement (are) really not capable of compensation.”

(
Government of R.S.A v Ngubane
1972 (2) SA 601
(A) at 606B-C)
[72]
Administrator,
Natal v Edouard
[1990] ZASCA 60
;
1990 (3) SA 581
(A) at 595H. A most illuminating exposition of the
development of this legal rule is provided by Van Winsen J in
Hoffa
(
supra
)
at 950E – 952F
[73]
Union
Government (Minister of Railways and Harbours) v Warneke
1911
(AD) 657 at 665 - 666 (references omitted)
[74]
Lockhat’s
Estate v North British & Mercantile Insurance Co. Ltd.
1959 (3) SA 296
(A) at 304B-C
[75]
Rule
28 of the Uniform Rules of Court. Courts have, over the years,
identified the principles underlying the granting of an application

for an amendment to a pleading. These have been succinctly
summarised in
Commercial
Union Assurance Co Ltd. V Waymark NO
1995 (2) SA 73
(Tk) at 77F-I. See also:
Affordable
Medicines Trust v Minister of Health
[2005] ZACC 3
;
2006 (3) SA 247
(CC) at
[9]
[76]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) at [15]
[77]
Ngubane
(
supra
),
at 608C
[78]
See [200] below
[79]
Blower
v Van Noorden
1909 TS 890
at 905
[80]
Pearl
Assurance Co.v Union Government
1934 AD 560
at 563. The judgment is that of the Privy Council; See
also,
Feldman
(Pty) Ltd v Mall
1945 AD 733
at 789 and
Willis
Faber Enthoven (Pty) Ltd v Receiver of Revenue and Another
[1991] ZASCA 163
;
1992 (4) SA 202
(A) at 220C-G
[81]
1995
(1) SA 653
(A) at 669F-H
[82]
See,
Corbett M M,
Aspects
of the Role of policy in the evolution of our common law
,
(1987) 104
SALJ
52
at 54
[83]
A
brief but thoroughly digestible read of this development of the
common law in South Africa is provided by Corbett M M (
supra
)
who went on to become the Chief Justice of this country and whose
contribution in developing the common law to meet the changing
norms
of society is exemplary. Many of his judgments were rich in
scholarship and rich in thought.
[84]
Minister
van Polisie v Ewels
1975 (3) SA 590
(A) at 597A
[85]
Kleinwort
Benson Ltd v Lincoln City Council and other appeals
[1998] UKHL 38
;
[1998] 4 All ER 513
(HL) at 534g-h
[86]
In
Re Spectrum Plus Ltd: National Westminster Bank plc v Spectrum Plus
Ltd and others
[2005] 4 All ER 41
(HL) at [32]
[87]
Deutsche
Morgan Grenfell Group plc v IRC
[2007]
1 AllER 449
(HL) at [23] (References omitted)
[88]
Sub-sections
8(3) and 39(2) of the Constitution read:
“
8(3)
When applying a provision of the Bill of Rights to a natural or
juristic person in terms of s 8(2),
(a)
a court in order to give effect to a
right, must apply, or if necessary develop, the common law to the
extent that legislation
does not give effect to that right; and,
(b)
may develop rules of the common law to
limit the right, provided that the limitation is in accordance with
s 36(1).
39(2)
When interpreting any legislation, and when developing the common
law or customary law, every court, tribunal or forum must
promote
the spirit, purport and objects of the Bill of Rights.”
[89]
Carmichele
v Minister of Safety and Security and Another
[2001] ZACC 22
;
2001
(4) SA 938
(CC) at
[33]
;
First
National Bank of SA v Min of Finance
2002(4) SA 768 (CC) at [31];
Van
Jaarsveld v Bridges
2010 (4) SA 558
(SCA) at [3]
[90]
Section
9 of the Constitution
[91]
Section
10 of the Constitution
[92]
Section
11 of the Constitution
[93]
Section
12 of the Constitution
[94]
Section
34 of the Constitution
[95]
See:
Law
Society of South Africa and others v Minister of Transport and
another
2011 (1) SA 400
(CC) at [63];
S
v Baloyi
[1999] ZACC 19
;
2000 (2) SA 425
(CC) at
[11]
[96]
Van
der Merwe v The Road Accident Fund and Others (Women’s Legal
Centre Trust as Amicus Curiae
[2006] ZACC 4
;
2006 (4) SA 230
(CC) at
[39]
[97]
Id
.
[98]
Section
28 of the Constitution
[99]
Sonderup
v Tondelli and Another
2001 (1) SA 1171
(CC) at [29]. See also:
Teddy
Bear Clinic for Abused Children v Minister of Justice and
Constitutional Development
2014 (2) SA 168
at [71];
S
v M (Centre for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2008 (3) SA 232
(CC) at
[15]
– [21]
[100]
Cox
v Ergo Versicherung
[2014] UKSC 22
at
[6]
[101]
South
Australia, Parliamentary Debates, House of Assembly, 4 October 2001,
2385.
[102]
We were informed that it is not impossible for the matter to be
settled without going to trial
[103]
Blower
(
supra
)
at 900
[104]
Lockhat’s
Estate v North British and Mercantile Ins
Co
Ltd
1959
(1) SA 24
(D&CLD).
[105]
See
Ngubane
supra at p 607 where the Court relied on the
maxim
-
what cannot be transmitted on death, cannot be ceded in life. See
however the exception in relation to
ususfructus.(Collegium
Theoretico-practicum ad Pandectas).
H
de Cocceii argues
(Disputationes
2 65)
that the two institutions, cession and succession differ so
radically that any rule endeavouring to create a link between the

two would of necessarily be incorrect.
[106]
Hurter
2006; Cilsa 485
at 500 and 503
[107]
(1992)
8 CRR (2d) 173 ([1991] 3 SCR 654)
[108]
1996
(3) SA 850 (CC).
[109]
At
[89]
[110]
[2003] ZACC 12
;
2003
(6) SA 505
(CC) para 28
[111]
Thebus
at para 28
[112]
Kaunda
and Others v The President of the Republic of South Africa and
Others
2005 (4) SA 235
(CC) para 220