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[2019] ZAGPJHC 260
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Ex Parte Nkala and Others (44060/18) [2019] ZAGPJHC 260 (26 July 2019)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER:
44060/18
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
26/07/2019
In
the
ex parte
application of:
BONGANI
NKALA & 67
OTHERS

APPLICANTS
IN
RE: Application to approve a settlement agreement in respect of the
certified class action between Bongani Nkala and 65 Others
v Harmony
Gold Mining Company Limited and 31 Others.
JUDGMENT
WINDELL
J.
INTRODUCTION
[1]
This is an application for the approval of a settlement agreement in
a class action. The application is brought
ex
parte
by the surviving
class representatives and 20 of the respondent mining companies
[1]
("the Settling Companies"), and is unopposed.
[2]
On 13 May 2016 this court certified a class action against companies
operating in the gold mining industry, with two separate
and distinct
classes; a silicosis class and a tuberculosis class
("the
Nkala certification application" or "Nkala").
[2]
The court also ordered that any settlement agreement reached by the
class representatives on behalf of a class must be approved
by the
court to be valid.
[3]
A settlement agreement was subsequently concluded between the class
representatives and the Settling Companies and signed on 3
May 2018.
Clause 2.1.1 of the settlement agreement provides for the suspension
of the operation of the settlement agreement until
it is sanctioned
by a court of law.
[3]
The class representatives and the Settling Companies, hereinafter
referred to as "the applicants", have consequently
joined
forces to apply for the settlement agreement to be approved and made
an order of court. Eight of the mining companies that
were
respondents in
Nkala
are not parties to the settlement
agreement. They are DRD Gold Limited ("DRD"), East Rand
Proprietary Mines Limited ("ERPM"),
Randgold and
Exploration Company Limited, Evander Gold Mining Company Limited,
Blyvooruitzicht Gold Mining Company Limited, Doornfontein
Gold Mining
Company Limited, Simmer and Jack Mines Limited and African Rainbow
Minerals Gold Limited. They are referred to collectively
as "the
Non-Settling Companies".
[4]
The
Nkala
judgment
is currently on appeal before the Supreme Court of Appeal ("the
SCA") and the certification order is suspended
in terms of
section 18(1)
of the
Superior Courts Act 10 of 2013
. The SCA has
postponed the hearing of the appeal to allow for the possible
settlement of the matter. The settlement agreement,
if approved, will
bind all eligible mineworkers and dependants who do not opt out of
its terms, and will fully and finally settle
all silicosis and
tuberculosis claims of those class members, as against the Settling
Companies. The applicants consequently seek
an order that in the
event that the settlement agreement becomes effective, the
Nkala
class action will be
terminated as against the Settling Companies. The Settling Companies
will then be obliged to withdraw their
appeal against the
Nkala
certification order.
[4]
Barring any subsequent agreement with the Non-Settling companies, the
appeals instituted by them will however proceed.
[5]
The settlement agreement, in a nutshell, provides for the payment of
benefits to mineworkers and the dependants of deceased
mineworkers,
who contracted silicosis or pulmonary tuberculosis as a result of
their employment by the Settling Companies, through
the Tshiamiso
Trust ("the Trust"). The Trust will be funded by six of the
Settling Companies namely African Rainbow Minerals
Limited, Anglo
American South Africa Limited, AngloGold Ashanti Limited, Gold Fields
Limited, Harmony Gold Mining Company Limited
and Sibanye Gold
Limited, who are also the founders of the Trust ("the
Founders"). Their liability to fund the Trust
is unlimited
[5]
.
The Trust is, in terms of the trust deed, obliged to identify and
locate eligible mineworkers and dependants. Claims may be submitted

to and received by the Trust for a period of 12 years from the date
the Trust becomes effective. The effective date of the Trust
is the
date on which the suspensive conditions in the settlement agreement
are fulfilled. The suspensive conditions, set out in
clause 2.1 of
the settlement agreement, are the following:
[1] The court's approval of the
settlement agreement and confirmation of the court's termination of
the class action litigation
as against the Settling Companies.
[2] Confirmation that the number of
claimants that have elected to opt out of the settlement agreement
within the prescribed period
do not exceed 2000 (two thousand). This
condition may be waived by the Settling Companies.
[3] The lodgement of the trust deed
with the Master and the issuing of letters of authority by the Master
to the first trustees
of the Trust.
[6]
The Trust must process and assess the claims and pay eligible
mineworkers and dependants in the amounts stipulated in the trust

deed. The aim of the settlement agreement is to provide compensation
to those beneficiaries, in addition to - and, in most instances,
in
excess of - the compensation available under the Occupational
Diseases in Mines and Works Act 78 of 1973 ("ODIMWA").
PROCEDURE
FOLLOWED
[7]
There is no established procedure in South Africa for obtaining the
approval of a settlement agreement in a class action. The
applicants
pursued the present application by using a two-stage procedure
followed in other jurisdictions.
[6]
The two-stage procedure provides for prior notice to the class of the
proposed settlement, followed by an approval hearing. In
the current
proceedings, the applicants have used the mechanism of a rule
nisi
in order to execute the
two-stage procedure. We are satisfied that the procedure followed by
the applicants affords protection to
the proposed class members by
giving them ample opportunity to familiarise themselves with the
terms of the settlement agreement;
to consider their rights in
relation to the settlement in advance of the return day; and to raise
any objections they may have.
[8]
The first stage of the proceedings was brought on behalf of the
applicants
ex parte
on
13 December 2018. The court granted an order ("the court order")
and certified 4 (four) new separate classes ("the
Settlement
Classes") solely for the purpose of binding their members to the
settlement agreement if the members did not opt
out.
[7]
The court also certified the class representatives (1
st
to 48
th
applicants) and the legal representatives ("the class lawyers")
for the Settlement Classes. The class lawyers are: Richard
Spoor Inc.
("RSI") for the 1
st
to 20
th
applicants, Abraham Kiewitz Inc. ("AK'') for the 21
st
to 39
th
applicants, and the Legal Resources Centre ("LRC") for the
40
th
to 48
th
applicants. The certification is provisional as the court order
provides that the certification of the Settlement Classes will

terminate with immediate effect if the settlement agreement is not
approved, or if the settlement agreement does not become operative.
[9]
At the same time, the court issued a rule
nisi
in order to regulate the
publication of a notice of the settlement agreement ("the
Settlement Hearing Notice") to the
Settlement Classes and any
interested parties to afford them an opportunity to object to it and
to show cause: (1) why the settlement
agreement should not be made an
order of court; (2) why it should not be binding on all members of
the Settlement Classes who do
not opt out and; (3) why the class
action certified in
Nkala
should not be terminated as
against the Settling Companies.
[8]
Paragraphs 6 to 12 and 14 of the court order regulate the various
procedural steps ("the notice requirements") that must
be
taken to publish the rule
nisi
and the settlement
agreement, and to facilitate a full hearing of the matter on the
return day.
[10]
This is the return date of the rule
nisi
and the second stage
of the two-stage procedure.
COMPLIANCE
WITH THE NOTICE REQUIREMENTS IN THE COURT ORDER
[11]
The applicants were directed to publish the Settlement Hearing Notice
to the Settlement Classes and any interested parties
to inform them
of the approval hearing and of the steps to be taken to participate
in the hearing. In addition, the court order
required service of the
rule
nisi
and settlement agreement on the Non-Settling
Companies and on Xulu Attorneys Inc., which at the time, had
indicated that it would
be opposing the application. The publication
requirements were detailed in paragraphs 6.1 to 6.4 of the court
order, and were required
to be fulfilled by 20 February 2019.
[12]
The court order imposed certain duties on the class lawyers, the
Settling Companies and the Founders of the Trust, in relation
to
service of the Settlement Hearing Notice. The class lawyers and the
attorneys for the Settling Companies filed service affidavits
setting
out in detail the steps that were taken to publish the Settlement
Hearing Notice.
[13]
There were instances where strict compliance with the requirements of
the court order was not possible and the applicants seek
condonation
for the resultant non-compliance with the court order. It was, for
instance, not possible to publish in certain of
the identified
newspapers, either because they had gone out of business, or did not
publish weekly (as required by the court order),
or because they
would not accept the Settlement Hearing Notice for publication. It
was, as a further example, also not possible
to broadcast on all of
the identified radio stations, either because they were no longer in
business, or because they were not
willing or able to broadcast the
Radio Advert. Where that occurred, the Founders identified an
alternative newspaper with a similar
circulation or radio station
with a similar target audience and broadcast area stipulated in the
court order, and caused the Settlement
Hearing Notice to be published
in that alternative newspaper or radio station instead. That ensured
that the requirements of notice
and publication were met, even where
strict compliance with the requirements of the court order was not
possible. The Settling
Companies and the class lawyers similarly
followed alternative processes and created alternative notification
processes where strict
compliance was not possible. There was thus,
notwithstanding minor deviations, substantial compliance with the
requirements.
[14]
The Founders established a Call Centre in 2016, in collaboration with
the Compensation Commissioner for Occupational Diseases
("CCOD"),
to deal with queries relating to occupational lung disease
compensation under 00/MWA and it has been a central
point of contact
in this regard for ex-mineworkers. The Settlement Hearing Notice and
Radio Advert provided a toll-free number
for the Call Centre, and
recorded that individuals could call or send a
"please call
me"
if they sought further information on the settlement.
XDS (Pty) Ltd ("XDS"), the company that manages the Call
Centre,
was instructed to accept calls pertaining to the settlement
agreement and to contact anyone who sent a
"please call me"
and direct them either to the class lawyers or to the various
places where the settlement agreement, the court order and judgment,

the Settlement Hearing Notice and other related information could be
found. The number of Call Centre staff was increased to handle
the
additional call volume, and staff was trained to address queries
related to the settlement. Calls to the Call Centre, as well
as
outbound calls responding to
"please call me",
increased
exponentially during the period that the Settlement Hearing Notice
was published and the Radio Advert was broadcast. XDS's
Call Centre
agents have reported that the high call volumes during that period
related to the settlement, and that many callers
indicated that they
sought their compensation to be paid as soon as possible.
[15]
The Settling Companies caused the Settlement Hearing Notice to be
translated into English, Afrikaans, isiZulu, isiXhosa, Sesotho,

Sepedi, Setswana, Tsonga, SiSwati, Ndebele, Portuguese and Chichewa.
In total, the Settlement Hearing Notice was published on 220

noticeboards across the mines owned, operated or controlled by the
Settling Companies.
[16]
It is trite that, in appropriate cases, there might be sufficient
compliance with a mandatory requirement even where there
has not been
exact compliance. If there was substantial compliance, and it
achieved the relevant object, it would be regarded as
constituting
sufficient compliance
[9]
.
The applicants correctly pointed out that the purpose of the
publication requirements in the court order is to ensure that
adequate
notice was given to all those who have an interest in the
approval of the settlement agreement before the return day, so that
any
objections to the settlement agreement could be fully ventilated
in court. Given the extensive collective effort to publish the
notice
in South Africa and neighbouring countries, through various
institutions commonly in contact with current and former gold
mine
workers, through the Call Centre, and through publication of notices
in newspapers, on radio and online, and in the appropriate
languages,
we are satisfied that interested parties have duly been alerted to
the existence and terms of the settlement agreement
and of the
opportunity to object before this court to its approval. Any
non-compliance with the court order in this regard is condoned.
STANDARD
TO BE APPLIED IN APPROVING THE SETTLEMENT AGREEMENT
[17]
In
Nkala
this
court held that any court considering a class settlement must assess
whether it is
"fair,
reasonable, adequate and that it protects the interests of the class"
before approving it.
[10]
Courts in Australia,
[11]
the United States,
[12]
and British Columbia
[13]
have adopted a similar standard. This requirement distinguishes
settlement of a class action from other settlement agreements in

ordinary actions. This is because the settlement agreement, if
approved, will be binding on absent class members unless they
subsequently
opt out, and is proposing to compromise the rights of
absent class members.
[14]
This court must therefore adopt a protective or "fiduciary"
role during these proceedings and is enjoined to carefully
assess the
settlement to ensure that it is in the interests of absent class
members, and that it is not concluded solely in the
interests of the
class representatives and the class lawyers. While approval courts
will generally presume that a settlement negotiated
at arms' length
is concluded in good faith and without collusion, they nevertheless
bring a strict level of scrutiny to bear.
[15]
[18]
Fairness, reasonableness and adequacy are all concerned with whether
the proposed settlement provides sufficient value to class
members,
in return for the surrender of their right to litigate. The court
thus generally compares what class members will receive
under the
settlement with what they could notionally have recovered through
individual actions or seeing the class action to completion,
taking
into account the risks and costs associated with the latter.
[16]
This calls for a balanced inquiry. In
Dabbs
v Sun Life Assurance
Co
of
Canada
[17]
the court had to consider
what judicial scrutiny entails. It held as follows:
"..
.class actions settlements
"must be seriously scrutinized by judges" and should "be
viewed with some suspicion".
On the other hand, all settlements
are the product of compromise and a process of give and take and
settlements rarely give all
parties exactly what they want. Fairness
is not
a
standard of perfection. Reasonableness allows for
a
range of possible resolutions. A less than perfect settlement may
be in the best interests of those affected by it when compared
to the
alternative of the risks and costs of litigation."
[19]
Mulherron
[18]
discusses some of the factors courts have taken into account in
assessing the fairness, reasonableness and adequacy of a settlement

agreement in a class action.
[19]
In
US v Seymour Recycling
Corp
[20]
the issue of compromise and
the function of an approval court was reiterated and the court stated
the following:
"any settlement is the result
of compromise
-
each party surrendering something in order to
prevent unprofitable litigation, and the risk and costs inherent in
taking litigation
to completion. A district court, in reviewing
a
settlement proposal, need not engage in a trial of the merits, for
the purpose of settlement is precisely to avoid such
a
trial.
Further the court must engage in an independent evaluation of the
agreement, eschewing
a
rubber stamp approval"
[20]
In the South African context, the overarching consideration must be
whether the settlement is in the interests of justice.
In
Eke
v Parsons
[21]
the Constitutional Court
("the CC") warned against taking a too formalistic approach
towards settlement agreements. With
reference to
Ex
parte Le Grange and Another: In re Le Grange v Le Grange
[22]
the CC held as follows:
[23]
"[22] Surely then, an
expedited end to litigation may not only be in the parties' interest,
it may also serve the interests
of the administration of justice.
This finds support at common law. Le Grange quotes Huber with
approval:
'A
compromise once lawfully struck is very powerfully supported by the
law, since nothing is more salutary than the settlement of
lawsuits.'
[23] Le Grange says:
'(T)he
policy underlying the favouring of settlement has as its underlying
foundation the benefits it provides to the orderly and
effective
administration of justice. It not only has the benefit to the
litigants of avoiding
a
costly and acrimonious trial, but it
also serves to benefit the judicial administration by reducing
overcrowded court rolls, thereby
decreasing the burden on the
judicial system. By disposing of cases without the need for a trial,
the case load is reduced. This
gives the court capacity to conserve
its limited judicial resources and allows it to function more
smoothly and efficiently If
one is then to proceed from the premise
that the wider interests under consideration [are those] of the
administration of justice,
then the court is required, when
exercising its discretion whether to make
a
settlement
agreement an order of the court, to give consideration not only to
the need to make orders that are readily enforceable,
but also to
assess"
[21]
The current settlement approval proceedings are non-adversarial. The
application is supported by affidavits deposed to by the
individual
class representatives, the class lawyers and the Settling Companies,
which set out their attitudes towards the settlement.
Supporting
affidavits from various experts, setting out in detail the terms of
the settlement and the value offered to each claimant,
were also
filed in support of the application. All the parties are in in favour
of the settlement agreement and recommend that
it be approved.
THE
MAIN FEATURES OF THE SETTLEMENT AGREEMENT
The
establishment of the Trust
[22]
The Trust is aptly named the Tshiamiso Trust. Tshiamiso means "to
make good" or "to correct" in Setswana.
The object of
the Trust is defined in clause 3 of the trust deed which reads as
follows:
"The object of the Trust is to
give effect to the Settlement Agreement and provide Benefits to
Eligible Claimants (being the
beneficiaries of the Trust) in the
amounts and upon the terms set out in this Trust deed
(Trust
Object).
The activities of the Trust shall be directed at,
and the Trust Fund shall be used for the pursuit of, the Trust
Object."
[23]
The Founders are jointly liable, in terms of the proportions set out
and/or determined in accordance with Clause 27 of the
trust deed, to
fund the payment of benefits to be made by the Trust. Their liability
to fund the Trust is unlimited and is secured
by guarantees to the
Trust, which, collectively, amount to R5 000 000 000 (R5
billion). Clause 8.3 of the trust deed
provides that the Founders
will also make a once-off initial (start-up) contribution of R5 000
000 (R5 million) towards the Trust
administration in order to ensure
that the Trust is in a position to commence its work as soon as
possible after the settlement
agreement's conditions precedent are
fulfilled. The applicants are of the view that this amount will be
sufficient for the Trust
to establish the systems that are required
and to begin screening claimants and processing claims. Thereafter
the Founders will
provide further payments to fund the administrative
needs of the Trust, up to a maximum of R845 000 000 (R845 million).
The determination
of such needs will be done by the Trustees,
assisted by experts.
[24]
Benefits will be funded in the same way. In terms of the trust deed,
the Founders are required to make initial contributions
in an
aggregate amount of R1 420 000 000 (R1,42 billion), for the
first 2 years of the Trust's life. Thereafter the Founders
will
provide further payments to fund the amounts required by the Trust to
pay benefits to eligible claimants. The Trustees, on
an annual basis
and duly assisted by experts, will determine the contributions that
are payable by the Founders to enable the Trust
to settle the
benefits that will be due to eligible claimants. If there is a
shortfall in the amount that has been determined by
the Trustees for
a particular year, the Founders will pay the additional amount
determined by the Trustees. The trust administration
funding and the
benefits funding are separated to ensure that the money intended to
pay eligible · claimants is not used
for administration
expenses or for any other purpose.
[25]
The Founders have incorporated an agent ("the agent") for
purposes of representing them in certain matters governed
by the
trust deed. The class lawyers have appointed Mr Richard Spoor ("Mr
Spoor") to represent the claimants' interests
in certain matters
governed by the trust deed ("the claimants' agent"). The
agent and the claimants' agent bear joint
responsibility to nominate
experts who will be called upon to resolve disputes that may arise
relating to contributions made by
the Founders. The agent and the
claimants' agent are also responsible for the appointment,
replacement and removal of trustees
under defined circumstances. The
consent of both agents is required for any amendment to the trust
deed, provided that no amendment
adversely affects the rights of
eligible claimants. The agent and the claimants' agent must meet
annually with the trustees to
assess the efficiency with which claims
are processed and to consider improvements that can be made.
[26]
The Trust will be administered by no less than five and no more than
seven trustees at any given time. The trustees are charged
with the
administration of the trust within the confines of the trust deed and
the Trust Property Control Act 57 of 1988 ("the
Trust Property
Control Act"). They have a fiduciary duty to ensure that
eligible claimants receive the benefits to which they
are entitled in
terms of the trust deed. The trustees are vested with the power, and
are obliged to,
inter alia,
administer the trust funds in the
interest of the beneficiaries: to locate claimants; to ensure that
claims are properly managed
and processed; to see to it that benefits
are paid to eligible claimants; and to conduct reviews and dispute
resolution. The trustees
are obliged to establish a Trust Advisory
Committee, which is to comprise of representatives from government,
trade unions, community
leaders, non-governmental organisations, and
any other bodies or entities which the trustees may appoint. The
Trust Advisory Committee
will meet at least twice each year to
advise, give input, and raise concerns with the trustees on matters
relating to the Trust.
[27]
The Trust will receive claims for a period of 12 years and will
operate for an additional period of 1 year to finalise any

outstanding claims that were lodged with it during the preceding 12
years. Dr Deborah Budlender ("Dr Budlender"), an

independent policy researcher employed by RSI and AK, explained in
her affidavit that the 12-year period takes account of the latency

period for the possible contracting of silicosis. She is of the
opinion that symptoms of the diseases will in all likelihood manifest

during the lifespan of the Trust. We believe that a 12-year period
will provide sufficient time to alert claimants to the existence
of
the Trust and to enable claimants to lodge their claims.
The
Settlement Classes
[28]
The settlement covers all persons who qualify as members of the
Settlement Classes. The Settlement Classes are broader and
more
inclusive than the classes that were certified in
Nkala.
[24]
It was necessary to amend the classes to include more mineworkers, to
achieve better integration with the statutory regime under
ODIMWA,
and to recognise that compensation is payable under the settlement
agreement only in respect of years worked on mines owned
or
controlled by the Settling Companies, and not on years worked on the
mines of Non-Settling Companies.
[29]
The Settlement Classes consist of two silicosis and two tuberculosis
classes. Class 1 comprises all persons:
[1] who, as at the effective date are
undertaking, or prior to the effective date have undertaken, risk
work;
[2] who, on or before the effective
date, have or will have contracted silicosis or will have been
exposed to silica dust;
[3] who undertake or have undertaken
risk work on one or more of the qualifying mines after 12 March 1965;
and
[4]
who are not listed in Schedule D of the trust deed (which comprise
the named or identifiable groups of persons whose claims
have been
settled previously).
[25]
[30]
Class 2 comprises the dependants of any of the persons contemplated
in Class 1 who is deceased as at the effective date.
[31]
Class 3 comprises all persons:
[1] who, as at the effective date are
undertaking, or prior to the effective date have undertaken, risk
work;
[2] who on, before or after the
effective date have or will have contracted tuberculosis; and
[3] who undertake or have undertaken
risk work on one or more of the qualifying mines after 12 March 1965.
[32]
Class 4 comprises the dependants of any of the persons contemplated
in Class 3 who is deceased as at the effective date.
[33]
One of the most important features in the definition of the
Settlement Classes is the replacement of the term "underground

mineworkers", used in the definition of the certification
classes, with the term "risk work". During the negotiation

of the settlement the parties agreed that the Trust scheme must cover
mineworkers who performed work on the surface of the mine,
where they
could have been exposed to excessive dust levels - for example in a
laundry where clothing of underground mineworkers
is washed.
[26]
"Risk work" for purposes of the Settlement Classes thus
includes:
[1] ODIMWA risk work at controlled
mines (should these be declared);
[2] All underground work, irrespective
of whether it was performed at a controlled mine in terms of ODIMWA;
[3] Surface work where there is
potential excessive exposure to silica dust, regardless of whether it
was performed at a controlled
mine in terms of ODIMWA and regardless
of whether it was performed underground or aboveground.
[27]
[34]
As stated above, the eligibility of members of the Settlement Classes
to receive compensation under the settlement is qualified
by the
terms of the settlement agreement and the trust deed. The key
eligibility requirement is the undertaking of
"risk work"
at a
"qualifying mine"
during a
"qualifying
period".
Qualifying mines are the mines in respect of which
each of the Settling Companies is responsible for the purposes of the
settlement
agreement. The qualifying periods are the periods during
which the Settling Companies are responsible for those mines for the
purposes
of the settlement agreement. The qualifying mines and the
qualifying periods are set out in Schedule F to the trust deed.
Clause
8 of the settlement agreement establishes a mechanism, through
arbitration, for the resolution of disputes concerning risk work
that
was undertaken at qualifying mines but outside the qualifying periods
("preserved claims').
Where a mineworker worked at a
qualifying mine outside of a qualifying period, his claim will not be
treated as a settled claim
and he will be entitled to pursue
compensation in terms of the preserved claim mechanism under clause 8
or to pursue his claim
directly against the relevant Settling
Company. In terms of Clause 5.6 of the trust deed, benefits will be
reduced or modified
pro rata
for the time that a claimant
performed risk work at a non­ qualifying mine, or at a qualifying
mine but outside the qualifying
period. The underlying principle that
has been agreed to by the parties is that the different exposure
periods are assumed to have
contributed proportionately in time to
the contraction of the qualifying disease. The applicants argue that
the alternative approach,
namely, apportioning liability on the basis
of the actual dust levels or scientifically estimated dust levels to
which the claimant
was exposed, would have been highly complex,
extremely costly and very cumbersome. We agree. Taken together,
clause 8 and clause
5.6 mean that where a mineworker worked at a
qualifying mine both during and outside qualifying periods, the
extent of his benefit
to be paid by the Trust will be reduced by a
stipulated formula, in order to cater for the period not covered by
the settlement
agreement.
[35]
The Settlement Classes also includes mineworkers who were exposed to
silica dust on or before the effective date, but who only
developed a
qualifying disease after that date, to the extent that such symptoms
manifest during the 12- year period of operation
of the Trust.
Mineworkers who are employed by the Settling Companies only after the
effective date of the settlement agreement
are not part of the
Settlement Classes, and will retain their common law and statutory
remedies.
Benefits
payable to eligible claimants
[36]
Benefits will be payable to eligible claimants with silicosis or
tuberculosis or, where those persons have passed away, to
their
dependants or estates. The benefits paid under the settlement and
trust deed are in addition to those payable under ODIMWA.
Eligible
claimants will be paid a specific amount depending on the nature and
severity of the concerned mineworker's illness. Dr
Budlender explains
that applying standardised amounts per disease category is far
preferable to a system in which each individual
claimant's
circumstances have to be determined and taken into account to
determine the benefit payable to him or her. It is a more
efficient
and less costly scheme.
[37]
In respect of benefits payable to mineworkers suffering from
silicosis, three degrees of disease are recognised by the trust
deed.
They are:
(1)
Silicosis Class 1.
Sufferers have mild lung
function impairment i.e. less than 10% lung function impairment. The
Trust benefit for this category of
silicosis is R70 000. ODIMWA does
not compensate for silicosis of this nature.
(2)
Silicosis Class 2.
Sufferers have moderate lung
function impairment
i.e. more than 10% and less than 40%
lung impairment. Under ODIMWA, members of this class are considered
to have Silicosis First
Degree. The maximum compensation payable for
Silicosis First Degree is R63 100. The Trust benefit for this
category of silicosis
is R150 000.
(3)
Silicosis Class 3.
Sufferers have serious lung
function impairment i.e. more than 40% lung impairment. This
corresponds with Silicosis Second Degree
under the ODIMWA regime. The
maximum compensation payable for Silicosis Second Degree is R140 506.
The Trust benefit for this category
of silicosis is R250 000.
[39]
The trust deed also provides for a special award of up to R500 000,
payable at the discretion of the trustees, to any person
who is
certified as having Silicosis Class 3. Such a person must have at
least 10 years cumulative employment; must have undertaken
risk work
on one or more qualifying mine(s) during the qualifying period; and
must have at least one of the following disease processes:

progressive massive fibrosis for mineworkers aged less than 50 years;
lung cancer;
car pulmonale;
or massive fibrosis involving the
lungs or oesophagus.
[39]
Provision is made for two categories of dependant silicosis claims.
The first involves a "Dependant Silicosis Claimant
Category A".
Here, the claimant is the dependant of a mineworker who died during
the period between 12 March 1965 and the
effective date, and in
respect of whom the Medical Certification Panel determines that
silicosis was the primary cause of death.
The benefit provided for
"Dependant Silicosis Claimant Category A" under the trust
deed is R100 000 per concerned mineworker.
The second involves a
'Dependant Silicosis Claimant Category B". The claimant here is
the dependant of a mineworker who died
in the period between 1
January 2008 and the effective date, who does not satisfy the
requirements in respect of category A, but
in respect of whom the
medical certification panel or the Trust Certification Committee
determines that the deceased had Silicosis
Class 2 or Class 3. This
category caters for difficulties of proof, particularly in relation
to showing that silicosis was the
primary cause of death. The benefit
provided for "Dependant Silicosis Claimant Category B"
under the trust deed is R70
000.
[40]
The Trust will pay benefits to tuberculosis claimants as follows:
[1]
"Tuberculosis Claimant".
This·is someone who undertook
risk work at a qualifying mine during a qualifying period for a
cumulative period of at least
two years between 1 March 1994 and the
effective date; and who was diagnosed with tuberculosis while so
employed or within 1 year
of leaving employment. lf the lung function
impairment caused by tuberculosis is in the
"first degree"
as defined in Schedule H to the trust deed, the benefit payable
is R50 000 per affected person. By comparison, under ODIMWA the
maximum compensation payable for 'first degree tuberculosis", is
R63 100. If the Jung function impairment caused by tuberculosis
is in
the
"second degree"
as defined in Schedule H to the
trust deed, the benefit payable is R100 000. Under ODIMWA, the
maximum compensation payable for
"second degree tuberculosis"
is R104 506.
[2]
"Historical Tuberculosis
Claimant".
This is someone who, between 1 March
1965 and 28 February 1994, undertook risk work at a qualifying mine
during a qualifying period,
for a cumulative period of at least two
years; and who was issued with a
"tuberculosis certificate"
under the provisions of ODIMWA, while he was employed or within 1
year of his leaving employment. If the tuberculosis certificate
does
not
disclose
the degree of impairment, the benefit payable is
R10 000. If the tuberculosis certificate discloses that the degree of
impairment
was in the
"first degree",
the benefit
payable is R50 000. If the tuberculosis certificate discloses that
the degree of impairment was in the
"second degree",
the
benefit payable is R100 000.
[3]
"Dependant Tuberculosis
Claimant".
This is the dependant of a mineworker
with two or more years' cumulative service of undertaking risk work
at a qualifying mine during
a qualifying period and who is determined
by the medical certification panel of the Trust as having had
tuberculosis which was
the primary cause of his death before the
effective date, while employed or within 1 year of leaving his
employment. The benefit
provided for is R100 000 per affected worker.
[41]
The Trust does not provide for progression of the disease condition
and claimants will receive only one benefit. This represents
a
negotiated compromise between the parties. In exchange for removing
the possibility of claimants filing new claims if their disease

progresses, the parties agreed to increased values of the benefits
payable in each disease category. The result has three advantages:

First, it eases the claimants' administrative burden. This is
important in light of the fact that most claimants are poor and live

in rural and remote parts of Southern Africa. (Mr Spoor is of the
opinion that very few, if any, would be likely to return to the
Trust
even if their disease were to progress.) Second, it ensures that
claimants can receive meaningful compensation in a timeous
manner.
(Having regard to the mortality rates and advanced ages of qualifying
claimants, Mr Spoor submits that it is preferable
to secure higher
benefits for them as soon as possible.) Third, it minimises the
Trust's administration costs because the Trust
will be able 'to focus
its resources on locating, examining and paying as many eligible
claimants as possible.
[42]
The benefits are payable by the Trust as once-off, lump-sum payments.
Dr Budlender discusses the comparative benefits of this
method of
payment in her affidavit and opines that the choice of lump sum
awards rather than recurrent payments is more cost effective
than
paying benefits in monthly instalments. It also gives ex-mineworkers
and their families more control over the use of their
money. Trust
benefits will be adjusted annually, from the last day of the month on
the third anniversary of the payment date (the
payment date is the
last day of the calendar month immediately following the calendar
month in which the effective date falls),
in accordance with the
Consumer Price Index for the preceding year. The trustees are
required to establish a financial literacy
programme to assist
claimants to manage their awards and must also establish a fraud
protection programme.
[43]
Claimants who are alive as at the effective date but who die before
submitting a claim, or who die after submitting a claim
but before
their claim is paid, will be treated as living claimants and the full
value of their claim will be paid to their estates.
[44]
The process to be followed by claimants for submitting their claims
to the Trust is set out in clause 12 of the trust deed.
Two reviewing
authorities shall be established to resolve disputes lodged by a
claimant (within 30 days) over determination in
the claims process
(clause 12.15 of the trust deed). These are:
[1] The Medical Reviewing Authority,
which will hear and resolve disputes over any certificate of medical
finding or medical ineligibility
by the Medical Certification Panel.
The Medical Reviewing Authority shall be an independent medical
practitioner appointed by the
trustees, with wide investigative
powers and the power to confirm and uphold or rescind a certificate
of medical finding (clause
12.15.5 of the trust deed);
[2] The Certification Reviewing
Authority will hear and resolve disputes over any certification of
eligibility or non-eligibility
by the Trust Certification Committee.
The Certification Reviewing Authority shall be an independent person
appointed by the trustees
with wide investigative powers and the
power to confirm and uphold or rescind a Trust certification (clause
12.15.6 of the trust
deed).
Termination
and indemnity
[45]
As stated, the establishment of the Trust is intended to fully and
finally settle all silicosis and tuberculosis claims that
could be
brought against the Settling Companies by class members who do not
opt out. The class representatives accept as much.
It is for this
reason that they agree to an order that the
Nkala
class action
will be terminated as against the Settling Companies if the
settlement agreement becomes effective. We are of the view
that such
an order will be justified because there would be no basis for
permitting the
Nkala
class action to proceed against the
Settling Companies in respect of silicosis and tuberculosis related
claims under these circumstances.
The Settling Companies would have
settled their proportionate share of any liability in full, and are
entitled to be safeguarded
against a finding of liability or the
apportionment of damages against them in any future claims that may
be brought by class members
against the Non-Settling Companies.
[46]
In terms of clause 4.2 of the settlement agreement the parties also
agreed that:
"4.2. The Settling Claimants
shall henceforth:
4.2.1.
not make
claims against a Third Party and any of the Companies or Affiliates
(as at the Signature Date) together, whether jointly
or jointly and
severally; and
4.2.2.
pursue claims,
other than in respect of the Preserved Claims, only against Third
Parties, whether jointly, severally or jointly
and severally, such
that Settling Claimants shall be limited to the degree of liability
proven against a Third Party or the Third
Parties at a trial or
trials, in accordance with section 2(10) of the Apportionment of
Damages Act 34 of 1956 and/or such that
Settling Claimants shall not
be entitled to claim or recover from a Third Party or Third Patties
any damages for which
a
Third Party or Third Parties is or are
entitled to a contribution or indemnification from any of the
Companies or their Affiliates
(as at the Signature Date)."
[47]
The effect of this provision is that class members cannot pursue
Settling Companies for any further damages, whether arising
out of
claims for contributions or for indemnification by third parties.
Members of the Settlement Classes retain their rights
against
Non-Settling Companies for exposure to silica dust whilst in their
employment. The class representatives have undertaken
that, in the
event that they pursue any future claims against Non-Settling
Companies, they will not seek to establish any liability
on the part
of the Settling Companies. This means that the Settling Companies
will not have any interest in those proceedings.
IS
THE SETTLEMENT AGREEMENT FAIR, ADEQUATE AND REASONABLE?
[48]
We accept, as a starting point, that the settlement agreement is not
intended to, and could never make full redress for the
loss and harm
suffered by gold mine workers, their families and communities over
the last 100 years as a result of the epidemic
of lung disease that
afflicted them, and the system of migrant labour and racial
discrimination that sustained this epidemic. It
is therefore
important to recognise that, as with all negotiated settlements, the
settlement agreement represents a compromise
between the parties and
their competing interests. The settlement is a private legal
settlement of the civil claims of the class
members, represented by
the class representatives and the class lawyers on the one hand, and
the Settling Companies on the other.
The
class representatives’ approach to the settlement agreement
[49]
Prior to the conclusion of the settlement agreement, the class
lawyers embarked on an extensive round of consultations with
the
class representatives, government, trade unions and non-governmental
organisations. At all times, extensive reliance was placed
on the
advice of independent professionals, and, in particular, medical
experts, epidemiologists, actuaries and economists. The
class
representatives also relied on the advice of counsel and the
expertise of RSI and AK's US-based partners, Motley Rice LLC
("Motley
Rice") and Hausfeld LLP ("Hausfeld") ("the
consulting US law firms"), who have substantial
experience in
large and complex litigation and class actions. The class
representatives are of the opinion that a class action
settlement is
the best outcome for the classes and the Settling Companies.
[50]
A key consideration weighing on the class representatives and the
class lawyers' approach to the negotiations was the issue
of time and
delay. A class action might continue for at least another 5 - but
possibly even 10 or more years – before it
is resolved. Many of
the class members are elderly and many are unwell. During the last 6
years, 18 of the original 56 class representatives
in the
consolidated application for class certification have died. That is
over 30% of the class representatives that instituted
the litigation
in 2012. RSI has approximately 25 806 individual clients. The great
majority are from the traditional labour supplying
regions and
specifically Lesotho, and the former Transkei area of the Eastern
Cape and Botswana. Since AK and RSI began with the
Mankai
[28]
test litigation in 2006, it is estimated that approximately 40% of
the former gold mineworkers alive at that date have since passed

away. The prospect that the litigation might continue for another 5
or 10 years before it is resolved, is therefore not a favourable
one.
While we accept that litigating individual claims to conclusion is
undoubtedly the best way to determine the exact value of
each
mineworker's claim, there are many drawbacks in this approach, which
were discussed with the class representatives and their
social
partners. The feedback received was that all reasonable steps to
settle the matter should be taken and that the class representatives

were willing to make significant compromises to achieve an early
settlement.
[51]
Another consideration that informed the decision to settle, from the
class representatives' perspective, was the need to mitigate
the risk
associated with changes in the structure and in the fortunes of
mining companies and the gold mining industry in general.
It has been
submitted that, by all accounts, the gold mining industry is in
decline. Many gold mines have indeed been closed and
many others have
been wound up or became insolvent, often at huge cost to the workers
employed by them. The industry is also engaged
in an ongoing
restructuring that began in the late 1990's. These changes may have a
significant impact on the financial position
of the Settling
Companies and on their ability to pay compensation in the future.
RSl's own research indicates that many gold mines
are marginal and
that their continued sustainability is subject to variables that are
often outside of management's control. These
factors include the gold
price and the Rand/Dollar exchange rate and political risks. It is
therefore not a certainty to the class
lawyers that in 10 years' time
(if not more), when the class action litigation might have come to a
conclusion, that all or even
most of the Settling Companies would
still be in business or that they would have any ability to pay
compensation.
[52]
The class representatives are satisfied that the settlement agreement
provides benefits to class members that would not be
attainable in
the class litigation. First, significant financing is made available
to the Trust to locate potential class members.
Second, except in
particular circumstances, the trust deed provides that, in the
absence of approval ODIMWA certificates, class
members who submit
claims to the Trust will receive medical examinations, which will be
paid for by the Trust. Third, the settlement
agreement establishes a
mechanism to provide compensation to class members who develop
silicosis or tuberculosis during the lifetime
of the Trust - not only
those that presently have a claim, provided that exposure to silica
dust or the undertaking of risk work
took place on or before the
effective date. Fourth, the settlement will be aligned with the
compensation scheme governed by ODIMWA
and facilitated by the Medical
Bureau for Occupational Diseases ("MBOD") so that claimants
compensated through the MBOD
may also be referred to the Trust to
receive compensation under the trust deed. Provision is made for the
appointment of a government­
appointed trustee and it is expected
that this will assist to facilitate the alignment of these processes.
Fifth, the settlement
contains relaxed proof requirements for
eligibility for payment and some of the claimants eligible for
payment of benefits under
the settlement would have no entitlement to
damages in the class action. For instance, in respect of "Dependant
Silicosis
Claimant Category B" claims, the dependants are not
required to prove that silicosis is the cause of death of the
breadwinner.
It suffices if the person was certified to be suffering
from Silicosis Class 2 or Class 3 before their death. Another example
is
the tuberculosis claimants, who need not establish that they
contracted tuberculosis as a result of exposure to dust to claim from

the Trust, only that they have contracted tuberculosis and have the
requisite employment history on the gold mines. Mr Spoor states
that
it is reasonable to assume that a fair proportion of these persons,
who will be eligible to receive a benefit under the settlement,
would
not have been able to prove their claims and would not have been able
to recover anything at the conclusion of the trial.
In addition, any
claimant who is eligible to claim from the Trust, who dies at any
time between the effective date and the end
of the lifetime of the
Trust, will be treated as a living claimant and their dependants may
claim the full benefit for living claimants
from the Trust.
[53]
The uncertainty of litigation is another factor that weighed heavily
on the class representatives. While some of the mining
companies may
be held liable to members of all the classes over the whole class
period, others may be held liable to the members
for a limited number
of sub-classes or for only a part of the class period, or not at all.
This may impact significantly on the
numbers of persons who will be
successful at the conclusion of the trial and on the quantum of
damages that may be awarded. Whether
or not parent companies are
found to be liable at the close of the first stage of the litigation
would have a significant impact
both on the number of class members
who are compensated and the amount of the compensation received. This
is because some of the
subsidiary companies that owned and controlled
the mines where many class members were employed, have since been
wound up and deregistered.
[29]
[54]
Carina Du Toit ("Ms Du Toit"), an attorney at the LRC, who
deposed to an affidavit in support of the settlement agreement,

states that the LRC, with support of Legal Aid South Africa, had
amassed considerable knowledge and expertise in relation to silicosis

and the legal issues arising from claims during their collaboration
with the London based law firm, Leigh Day, during the President
Steyn
litigation or the "Blom" litigation.
[30]
The President Steyn litigation was finally settled during September
2013, shortly before the test case actions were to be decided
by
arbitration. The LRC therefore contributed extensive scientific and
industry-related research and information during the certification

application and the negotiations. The LRC is content that the
settlement agreement is the best possible outcome for the class of

applicants that the LRC represents.
[55]
Ms Du Toit states that the development of the common law on
transmissibility of general damages loomed large during the
negotiations
regarding the benefits for dependant silicosis claimant
classes and was one of the last and most difficult issues to be
negotiated.
A compromise was required from all the parties in order
to agree on the benefits for the dependant silicosis claimant
classes.
The LRC recognises that the settlement agreement does not
wholly embrace the High Court's development of the common law on
transmissibility
of general damages (which is currently on appeal
before the SCA). They are however of the opinion that the benefits
provided for,
in the context of a settlement, is a substantial
increase from initial offers and that the settlement is fair and
reasonable, particularly
considering the difficulty that would likely
have arisen at trial to overcome issues regarding prescription, cause
of death and
proof of damages.
Settling
Companies' approach to the settlement negotiations.
[56]
The Mining Industry Working Group on Occupational Lung Diseases ("the
Working Group), which comprised of the six mining
companies, who in
turn, are the founders of the Trust and who represent all the
Settling Companies, was initially established in
2014 to find a
comprehensive and sustainable solution to tackling compensation for
occupation lung diseases among current and former
gold mineworkers of
the members of the Working Group. Since then the Working Group has
been involved in extensive negotiations
and consultations - with one
another, as well as with the Settling Companies, government and
various other stakeholders - to find
and give effect to a holistic
solution.
[57]
The complexity of the negotiation process is described in the
affidavit of Mr John William Daniel Brand ("Mr Brand"),
an
expert in the field of mediation. He states that it was the most
complex negotiations he has ever been involved in. The settlement

negotiations involved mining companies who have different approaches,
needs, interests, risk profiles and cultures. Historically
and
currently, their policies and procedures regarding the manner of
addressing dust control and the monitoring thereof differ.
They each
have their own unique geological circumstances and are competitors
with each other and are potential adversaries in future
litigation.
Their financial capacities to conclude the settlement also differed.
Each of them had different legal, actuarial, accounting
and other
advisers. On the other side, there were five firms of lawyers
representing tens of thousands of claimants and they too,
had
different priorities. For example, all were concerned about silicosis
but some were particularly concerned about tuberculosis
and others
about dependants. The negotiations involved a multiplicity of complex
medical, financial, legal, social and communication
issues and
overlapped with the complex process of assisting the MBOD and CCOD to
upgrade its services and processes. The negotiations
required
consultation with a multiplicity of non-party stakeholders
representing different and overlapping interests. It involved
large
sums of money and took place against the backdrop of a stressed
economic environment in the gold mining sector. Notwithstanding
the
complexity, the negotiations had to be expedited to ensure that the
costs of litigation were kept to a minimum for all parties
and to
ensure timely compensation to eligible claimants.
[58]
Mr Brand opines that the settlement agreement is innovative and is
rated by many, both here and abroad, as one of the most
complex
multi-party class action settlements in the world. The interests and
concerns raised by the class lawyers, the Settling
Companies and
other stakeholders had to be weighed up in light of the common goal
of reaching a settlement that is reasonable,
adequate and fair. He
cautions that, because the provisions of the settlement agreement are
all closely interrelated, any changes
to the terms of the settlement
agreement may trigger the need to re-negotiate the entire agreement -
with the obvious risk that
settlement may not be reached again.
[59]
The Working Group was chaired by Mr Graham Briggs ("Mr Briggs").
He was previously the Vice President of the Chamber
of Mines of South
Africa, also known as the Minerals Council of South Africa, and has
extensive experience in the operation and
management of gold mines in
South Africa and abroad. He states that the Working Group agreed to
the engagement process not merely
to mitigate their own risk, but
because they felt a sense of responsibility towards current and
former employees who are or might
in future be affected by the
diseases under consideration. They identified, amongst others, two
interrelated issues that needed
to be dealt with among its members,
namely: The challenges affecting the MBOD and CCOO in paying
statutory compensation to workers;
and, the possible settlement of
the
Nkala
litigation.
[60]
The Working Group became aware, through its engagements, of massive
backlogs in the MBOD and CCOD which meant that mineworkers
were
practically unable to access the statutory compensation to which they
were entitled.
[31]
In many cases the mineworkers had been left without access to proper
medical evaluation or support. In its efforts to assist in
the
improvement of the MBOD and CCOD's operations, the Working Group has,
to date, contributed more than R121 000 000 (R121 million)
to the
MBOD and CCOD and it has seconded and engaged staff to assist them.
So far, this· has allowed the MBOD and CCOD to
improve and
upgrade its processes and administration. Through financial
contributions from the members of the Working Group and
the Minerals
Council of South Africa, the MBOD, the CCOD and the Department of
Health have established one-stop service centres
in labour-sending
areas, which will assist claimants with medical examinations and
compiling and lodging their claims. In their
supporting affidavits,
Mr Brand, Mr Briggs and Dr Malcolm Barry Kistnasamy ("Dr
Kistnasamy"), who is the Compensation
Commissioner for
Occupational Diseases, describe in detail the extensive efforts that
the Founders have made in improving the administration
and the
efficiency of the MBOD and CCOD. Mr Briggs opines that the settlement
agreement will provide significant benefits to the
class members as
they will be able to relatively quickly access medical testing and,
where applicable, compensation for their conditions
not just from the
Trust, but also from ODIMWA The alignment of the Trust's
administrative functions in locating claimants and in
the processing
of claims, as well as the overlap in four disease categories with the
MBOD and CCOD, will assist and enhance the
Trust's ability to carry
out its object. The practical significance of the correlation between
the four categories of disease is
that the Trust may accept an ODIMWA
certificate (defined in clause 1.1.6 of the trust deed) as proof of a
qualifying disease for
purposes of claiming a benefit from the Trust.
Importantly, as Dr Budlender underscores
"an
award from the Tshiamiso Trust will not disqualify claimants from
also successfully claiming an ODIMWA award. Given the
backlogs in
dealing with ODIMWA awards, if the Trust can function more
efficiently, workers will enjoy the benefit sooner and,
once located,
will also have access to 00/MWA awards".
[61]
The Working Group took the view that the respondent mining companies
were more likely than not to substantially prevail in
the class
action litigation, but that it would take a considerable period of
time to reach finality. This was because the claimants
anticipated
bringing a class action in two phases. In phase 1 the parties would
litigate any common issues that could be dealt
with and determined
against all (or many) of the mining company defendants in a single
action. Phase 1 would take a considerable
time to litigate because it
related to the conduct of more than 80 mines (each with a number of
different shafts) during a period
of over 50 years. The discovery
process relating to the claims would be massive and cumbersome, and
it would entail significant
costs and time to carry out. Many
experts, including industry experts, would be required to testify
during phase 1 of the proceedings.
The preparation and court time
needed to litigate phase 1 would add to the substantial costs, and
would take many months of leading
evidence, including cross
examination. Whatever the outcome of phase 1, it would be open to any
of the parties to lodge an appeal
against the decision. In phase 2,
class members would have to opt out to a further process in order to
pursue individual issues
against particular dependants. That could
potentially trigger hundreds or thousands of cases being brought,
potentially in parallel
to one another, each involving complex issues
of prescription, negligence, causation and apportionment of damages.
The costs and
time associated with defending those cases would be
astronomical.
[62]
The Settling Companies took into consideration the interests of the
mineworkers who were employees or former employees of the
member
companies and the fact that litigation was unlikely to garner any
meaningful benefits for them. They also considered the
negative
impact on the Settling Companies' reputations for as long as the
claims against them remain unresolved. The Working Group
came to the
conclusion that money and time would be better spent devising
long-term solutions to the systemic and deep­ rooted
issues
around occupational lung disease, and thereby procuring real
benefits, in as short a time as possible, for current and former
sick
mineworkers.
The
reasonableness of the quantum of the benefits payable to claimants
[63]
In determining the reasonableness of the quantum of the benefits,
consideration must be had to the quantum at two levels: the
quantum
of the overall settlement and the quantum of the benefits payable to
the individual class members. The applicants believe
that the
benefits provided for under the settlement agreement, after
discounting the risk and costs associated with protracted
litigation,
are meaningful and that they bear a reasonable relationship to the
value of the claims. In her affidavit, Dr Budlender,
analyses the
benefits payable by the Trust and their impact on beneficiaries and
their families. She concludes that the benefits
payable by the
Tshiamiso Trust
"will be significant for the vast majority of
the mineworkers and their dependants".
[64]
An important factor in consideration of the reasonableness of the
quantum of the benefits paid under the settlement agreement
is the
statutory benefit payable to class members under ODIMWA, which is
funded 100% by the mine owners through the payment of
levies to the
Mine and Works Compensation Fund. The Trust will align with the
ODIMWA scheme and the intention is that persons who
are certified by
the Trust will be eligible to receive their ODIMWA benefit without
any further certification by the MBOD. The
trust deed is therefore
deliberately framed to facilitate the interrelationship between the
Trust and the ODIMWA compensation scheme
managed by the MBOD and
CCOD.
[65]
The effect of an eligible claimant who was not previously compensated
under ODIMWA is that, absent any benefit modifier (i.e.,
pro-rated
deductions for employment at non-qualifying mines or over
non-qualifying periods), the combined benefits payable will
be the
following:
Silicosis Class 2
R213 000
(being an amount of
R63 100 from ODIMWA plus an amount of R150 000 from the Trust)
Silicosis Class 3
R390 506
(being an amount of
R140 506 from ODIMWA plus an amount of R250 000 from the Trust)
First Degree
Tuberculosis
R113 100
(being an amount of
R63 100 from ODIMWA plus an amount of R50 000 from the Trust)
Second Degree
Tuberculosis
R240 506
(being an amount of
R140 506 from the
ODIMWA
plus an amount of R100 000 from the
Trust)
[66] Mr Spoor is of the
opinion that the general damages that may reasonably be recovered by
silicosis class members, if the matter
goes on trial, is between R60
000 and R400 000.
[32]
These amounts align with precedents for lung injuries in Koch's
quantum yearbook.
[33]
In his assessment he considered that the members of the silicosis
class are fairly homogeneous and are almost uniformly poor. The

majority is in their late 50's and 60's and is unemployed, most for
several years. In most instances gold mine workers were dismissed
on
grounds of medical incapacity in less than 10% of the cases. The
largest proportion was retrenched or simply stopped working.
At the
best of times the work is physically demanding and injuries
associated with accidents and chronic conditions associated
with
aging are commonplace. Their last earnings were in the range of R1000
to R5000 per month depending on how long ago they stopped
working.
There are very few if any of the mineworkers that have less than 10
years underground exposure and the average period
of service is
approximately 17 years. The degree of lung function impairment among
them is heavily weighted towards radiological
silicosis or mild lung
function impairment. Only a small proportion has incurred any
significant medical expenses for the treatment
of their medical
condition. To the extent that they have received medical attention it
pertains mainly to the treatment of pulmonary
tuberculosis at public
health facilities. Very few have access to private medical care
through membership of a medical aid scheme
or otherwise.
[67]
Mr Spoor acknowledges that individual claims may be much larger than
the average award. If the claimant is young and employed
and in a
high paying job at the time he or she contract silicosis, the values
of that individual's claim could amount to as much
as a few million
rand. However, such high value claimants are rare and they have the
right to opt out of the settlement scheme
should they wish to do so.
[68]
The value of the dependants' claims is generally low because of the
advanced age, high levels of unemployment and low incomes
of the
breadwinners who die from silicosis or its complications. Based on
these demographics, Mr Spoor estimates that the typical
dependant's
claim would be less than R150 000. This estimate is based on the
assumption that the average dependant lost five years'
worth of the
breadwinner's support; that the mineworker earned R5000 per month;
and that 60% of those total earnings would accrue
to the dependant.
On these assumptions, the dependant's claim would amount to R180 000.
Deductions for contingencies would reduce
that to below R150 000.
[69]
The ODIMWA benefit is funded wholly by the employers and must, in
terms of settled law, be off-set against any damages award.
Less than
10% of the silicosis class members have received the ODIMWA benefits
to which they are entitled. If the matter proceeds
to trial the
overwhelming majority of class members awards would therefore be
reduced by this off-set. This also applies to dependants'
claims, as
the statutory benefits provided for under the ODIMWA are
transmissible after death and are not reduced.
[34]
[70]
For the reasons above, the quantum of the damages that the class
members might be able to recover through continued litigation,
has
been "discounted" in the benefits payable by the Trust. The
discount on the amounts recoverable by silicosis claimants
and
silicosis dependants is modest and reflects the parties' assessment
of the uncertainty and risk, and the potential costs and
benefits
associated with litigating the claims to conclusion. It is reasonably
anticipated that once a claimant has been screened
and compensated
under the settlement scheme, they will be made aware of the risk of
disease progression and that they will take
steps to ensure that they
undergo the periodic free medical benefit examinations provided for
under ODIMWA. It is anticipated that
they will then also receive the
statutory compensation that becomes due to them if and when the
conditions progress to first degree
or second degree silicosis or
tuberculosis.
[71]
The discounts for members of the tuberculosis-only class and
tuberculosis dependants, assuming they succeeded in their claims,
are
higher. It reflects the fact that the risk of the tuberculosis claims
not _succeeding in the litigation are larger, particularly
given the
complex causation issues arising in these claims. The
tuberculosis-only claimants are also more diverse when it comes
to
their demographic and earning profiles. Unlike silicosis, where the
disease is very unlikely to occur in persons with less than
10 years'
of underground exposure, tuberculosis can and does occur in persons
with much shorter exposures. The age range of victims,
and hence the
range of special and general damages that may be recoverable in
individual actions, is thus considerably wider. In
the case of
tuberculosis-only claimants, they would need to establish that their
contracting of tuberculosis was attributable to
exposure to excessive
quantities of harmful dust rather than to any other cause, and if
it
was multifactorial, the relative contributions of other factors,
such as HIV. The table below reflects the discounts that were applied

to the tuberculosis claimants.
TB only class
Settlement benefit
ODIMWA
benefit
Total
Estimated civil damages
Discount
TB Claimant First Degree
R50 000
R63 000
R113 000
R225 000
50%
TB Claimant Second Degree
R100 000
R140 506
R240 506
R400 000
40%
Undisclosed Impairment
R10 000
RO
R10 000
Indeterminable
n/a
First Degree
R50 000
R63 000
R113 000
R225 000
50%
Second Degree
R100 000
R140 506
R240 506
R400 000
40%
Dependant TB Claimant
R100 000
R63 000 to R140 506
R163 000
To R240 506
R150 000
None
[72]
AK and its partners considered that the damages that may be recovered
by tuberculosis claimants might be half of what may be
recovered by
silicosis claimants on the basis that factors other than dust
contributed to the contracting of the tuberculosis.
Mr Abraham
Kiewitz ("Mr Kiewitz") is content that, in relation to
tuberculosis-only dependants' claims, the discount
reflects the
difficulties in proving that the breadwinner died of tuberculosis in
circumstances where, in the great majority of
cases, there is no
post-mortem and there is a paucity of other medical information
regarding the actual cause of death.
[73]
The quantum of the benefits payable compares favourably with the
benefits payable to comparable schemes. These include the
Cape PLC
settlement scheme, which was a UK settlement of claims of several
thousand South African asbestos miners; the Asbestos
Relief Trust and
the Kgalagadi Relief Trust that compensate former asbestos
mineworkers with asbestos related lung diseases; and
the Qubeka
Trust, which was established pursuant to a settlement of litigation
undertaken in South Africa on behalf of several
thousand former gold
mineworkers employed by AngloGold Ashanti and Anglo American. Save in
respect of mineworkers who have asbestos-related
cancers, the quantum
of damages across all other classes is highest in this settlement.
The
quantum of the overall settlement
[74]
Affordability is always a consideration in any settlement and is a
factor that must be taken into account in assessing the

reasonableness of the settlement. The settlement agreement provides
for the Trust to pay benefits on a defined basis, funded annually
as
claims are paid, and for that liability to be secured by guarantees
to be provided by the Founders. After the third year of
operation of
the Trust, the value of the benefits will increase annually at the
rate of the Consumer Price Index. The main advantage
for the
beneficiaries is that the value of the benefits will be maintained
over the life of the Trust.
[75]
Mr Spoor states that if the settlement had to provide for a single
capital contribution (defined contribution), then the value
of the
benefits payable to beneficiaries would have to be adjusted from time
to time depending on the number of claims paid. If
the number of
claims made exceeds the number of claims anticipated, the value of
the benefits would need to be adjusted (using
actuarial principles)
to maintain the solvency of the Trust. While the parties each
employed experts and actuaries to calculate
the likely number of
claims, the lack of reliable data available means that there is a
significant margin for error. We are in
agreement with the applicants
that the claimants are better served if the individual quantum is
fixed and secured for the life
of the Trust.
[76]
The "top-up" financing model (also understood to be a
defined benefits model) has taken a considerable degree of
risk out
of the settlement, and enabled the parties to agree on defined
benefits that are higher than would likely have been the
case if the
settlement had been funded by a once-off capital contribution (i.e. a
defined contribution model). Dr Budlender opines
that the election of
the top-up funding model is sensible, as it is uncertain how many
claims will be made against the Trust and
the overall amount of
benefits it will be required to pay to its beneficiaries.
[77]
The adequacy of the administrative budget also greatly impacts the
numbers of eligible claimants who are located, screened
and
compensated over the lifetime of the Trust. This depends largely on
how efficiently the Trust achieves its objects. The applicants
are
convinced that the money allocated to the administration of the Trust
is sufficient for the Trust to fulfil its objects.
[35]
The Trust has the opportunity to benefit from other initiatives that
have been or are being established to ensure the payment of

outstanding pension and provident fund moneys owed to gold mine
workers. This includes working with regional World Health
Organisations
programmes focused on addressing tuberculosis across
the sub-continent. The class lawyers are therefore confident that the
Trust,
assisted by experienced trustees, will be adequately resourced
to fulfil its mandate of locating and compensating eligible
claimants.
The
risk
of
an inefficient Trust administration
[78]
The greatest risk in the implementation of the settlement is that the
Trust may not be managed and administered efficiently
and
effectively. We agree with the applicants that the best safeguard
against this risk is to appoint capable and competent trustees
and
provide adequate funding. The applicants have, therefore, taken
considerable care to nominate persons who have proven themselves
to
be capable, competent and who will devote themselves to the supplying
areas, including in neighbouring states. The parties are
optimistic
that the Trust will be able to leverage the benefits of these
investments to enhance efficiencies and reduce the achievement
of the
Trust's objects. (The
curriculum vitae
of the trustees are
attached to the application and confirm this.)
[79]
The trust deed sets a high standard of governance and accountability
for the trustees. Should this standard be breached, the
Trust
Property Control Act provides for a wide range of stakeholders to
seek remedies through the Master of the High Court and
through the
High Court itself.
[80]
The parties are also vested with the power to replace their nominees
from time to time, by agreement between the agent and
the claimants'
agents. A non­ performing trustee may be removed from office
under clause 14.5 of the trust deed. Further, through
the agent and
the claimants' agent, the applicants have reserved the power to
monitor the performance of the Trust and to make
the interventions
where strictly necessary.
[81]
The applicants submit that the settlement agreement, which includes
the trust deed, are complex documents and have required
significant
expertise from lawyers, medical professionals, actuaries and
auditors, and repeated amendments to get it right. There
however
still remains scope for dispute and disagreements in the
interpretation or application thereof. This eventuality is catered

for in the dispute resolution mechanisms established in the trust
deed. The agent and the claimants' agent will play an important
role
in resolving expeditiously any disputes that may arise. In addition
to the general provision for arbitration to resolve any
dispute
between the parties (in clause 26 of the trust deed), the trust deed
provides a special mechanism (under clause 10 of the
trust deed) to
resolve any disputes arising over the amounts payable by any of the
founders. For such disputes the parties have
agreed to appoint an
expert whose decision will be final and binding.
[36]
Incomplete
mineworker employment records
[82]
The applicants submit that the claims process for the determination
whether or not any benefit modifiers apply may, in certain
instances,
become a challenging process. The challenge arises as a result of
inadequate existing work records. While the MBOD should
have a
complete record of all risk shifts worked by gold mineworkers, this
is in fact not the case due to a substantial breakdown
of the MBOD's
system after 1994, which resulted in records either lost, destroyed
or simply not kept.
[83]
The class lawyers and the Working Group have taken significant steps
to remedy this. With the support of the Working Group
the MBOD
database has been digitised. This aspect is extensively dealt with in
the affidavit by Dr Kistnasamy. In terms of clause
11.1.3 of the
trust deed, read with and subject to clause 3.6 of the settlement
agreement, the Settling Companies have committed
to allowing the
trustees to complete a search of their employment records to identify
as many persons as reasonably possible who
might qualify for
compensation under the Trust, to ensure that they are assisted in
lodging a claim. In terms of clause 11.2 of
the trust deed, read with
and subject to clause 3.5 of the settlement agreement, the class
lawyers will also contribute their client
databases to the Trust.
Negotiations are underway to secure access to the ODIMWA database and
employment data held by The Employment
Bureau of Africa (''TEBA").
[84]
The Settling Companies have a financial incentive to populate the
Trust database with all accurate information available, so
as to
reduce their liability for the benefits payable to eligible
claimants. This is because, under the trust deed, the
onus
rests
on the Settling Companies to establish that benefit modifiers are
applicable to a claim. Their agent is required to motivate
for
benefit modification and furnish supporting documentation to the
Trust Certification Committee within 90 days (clause 5.6.3
of the
trust deed). This court was assured that, as the MBOD database is
populated with the employment records of the Settling
Companies, it
will be possible to confirm claimants' employment histories quickly
and reliably.
CONCLUSION
[85]
If the class action proceeds to trial, both the class lawyers and the
Settling Companies feel confident that they would ultimately
be
substantially successful. All the parties recognize, however, that
the mammoth litigation would have been a long and drawn out
process
that could last more than 10 years, during which time the legal fees
for all the parties would have accumulated to inordinate
levels. In
the view of the class lawyers, the mortality rate of class members
would, over the course of the litigation, likely
be around 4% per
annum. The result of litigating the action would therefore be to
delay justice for many of the class members and
to deprive those who
die before damages are paid of any modicum of justice. There is also
a significant risk that the financial
position of some of the
defendant companies may deteriorate to the extent that their ability
to satisfy any judgment obtained against
them would be doubtful.
[86]
Litigation is an inherently risky process. The claimants with the
best prospects of success, if the matter is to proceed to
trial, were
assessed to be living claimants suffering from silicosis. The
prospects of success in litigating the tuberculosis-only
claim was
always more challenging, due to the complexities of proving that
tuberculosis is caused by negligent exposure to harmful
quantities of
dust. Unlike silicosis (which has a single cause - exposure to silica
dust), tuberculosis has multiple causes. Thus,
even though the
association between silica dust exposure and pulmonary tuberculosis
is well established, it will be difficult to
establish causation. The
claimants would have to meet the test for factual causation in
Lee
v Minister of Correctional Services
[37]
and show that proper systemic measures by the mines would have
materially reduced the risk of mineworkers contracting tuberculosis.

Other non-occupational factors for contracting tuberculosis (which
are common cause), such as person's living conditions, proximity
to
infected persons, or the person's HIV-status, complicate the enquiry.
It is clear that a significant portion of class members
who are
eligible to receive compensation under the settlement could not be
assured of success if the matter were litigated to a
conclusion. This
is an aspect that weighs heavily in the assessment of whether the
settlement agreement is in the interest of justice.
[87]
The settlement fees and disbursements must be compared with those of
ongoing litigation. It is difficult for the applicants
to provide an
accurate estimate of the expected fees and costs associated with
running such a large and complex class action through
to completion.
The Settling Companies' legal representatives have estimated it could
take 10 to 15 years to litigate the class
action to completion, and,
on that assumption, it would cost an additional R2.466 billion for
the matter to be litigated to finality
(excluding inflation). In
terms of the settlement the Settling Companies are paying the full
costs of litigation. The costs to
be paid to the class lawyers were
negotiated separately from, and after, agreement had been reached on
the benefits payable to
class members, the tariffs and categories for
qualifying diseases, and the administrative costs of the Trust, in
order to avoid
the risk of a conflict of interest arising. No amount
will be deducted from the compensation payable to class members under
the
Trust, and the class members are indemnified against payment of
any legal costs. A settlement avoids the costs and risks of a
protracted
and highly complex class action.
[88]
If the settlement agreement is approved it will mean that class
members will receive their benefits within a relatively short
period,
rather than having to wait until the class action trial has run its
course. This is of particular importance given the
mortality rates
and advanced ages of qualifying claimants. The Trust­
administered process for paying benefits to eligible
claimants at the
specified amounts is a streamlined and relatively simple process,
which will expedite the pay-out of benefits.
The settlement contains
relaxed proof requirements for eligibility for compensation by the
Trust and provides benefits to class
members that would not be
attainable in litigation. The quantum of the benefits under the Trust
is meaningful and the Trust scheme
is structured to align with and
support the compensation scheme governed by ODIMWA.
[89]
Given the complexity of the matter, it is difficult to project the
prospects of success if the class action proceeded to trial.
Even
though the class lawyers remain confident of their prospects, success
is not guaranteed. It is not in the public interest
that a massive
amount of resources be applied to continuing with this litigation
when a settlement achieved at an early stage allows
the resources of
the Settling Companies to be applied to compensate persons suffering
from silicosis and tuberculosis, and in appropriate
circumstances
their families. Minerals are a finite resource and by some accounts
the industry is in decline. lf the settlement
is rejected and the
litigation continues, there is the very real risk that the ability of
the Settling Companies to fund a settlement
of this scale will
diminish overtime, particularly as resources that might be otherwise
have been applied to compensation are instead
applied to ongoing
litigation.
[90]
The class representatives filed affidavits in which they have all
expressed their support for the settlement agreement. They
indicate
that they are anxious for the settlement to be concluded as speedily
as possible, so that members of the Settlement Classes
- many of whom
are very ill and elderly - will receive compensation in their
lifetime. Nobody has suggested that the settlement
is not in the
interests of class members. We believe that settling the class action
is more
!
beneficial for the litigants than litigating the claim.
The settlement arrived at caters for the best interest of the
applicants
and is fair, adequate and reasonable.
THE
CLASS NOTICE AND OPT OUT PROCEDURE
[91]
There may be class members, particularly those with high value
claims, who may prefer to litigate their claims individually.
They
can elect to opt out of the settlement and not be bound by its terms.
[92]
Clause 5.2 of the settlement agreement provides that the agent and
the claimants' agent shall, without unreasonable delay after
the
return date, or on a date to be determined by the court, publish the
opt out notice. This notice will be published widely,
in the manner
prescribed in clause 5.4 of the settlement agreement. The applicants
propose that the date of 26 August 2019 be determined
to enable the
class lawyers and Settling Companies' attorneys to make the necessary
prior arrangements for publication.
[93]
The opt out notice
inter
alia
notifies the members
of the Settlement Classes that the Settling Companies want to settle
the dispute that is the subject of the
class action by paying
compensation to members of the Settlement Classes who submit eligible
claims to the Trust. It explains the
effect of opting out and informs
class members that if they do not opt out, they will automatically
form part of the Settlement
Class. This, however, does not mean that
they automatically qualify to receive benefits from the Trust. The
benefits they receive
from the Trust, and whether they receive any
benefits at all, will be determined by the medical examinations and
related procedures
conducted under the auspices of the Trust and
their having worked on the qualifying mines during a qualifying
period. Those who
wish to opt out must do so by completing a notice
with supporting documents and submitting it to the independent
auditor appointed
for this purpose within sixty (60) days after the
last day of publication of the notice. The notice can be transmitted
by hand,
post, fax or by email. The notice requires class members who
wish to opt out to provide certain information depending on whether

the person seeking to opt out is a mineworker or a dependant of a
deceased mineworker or a person acting on behalf of a minor dependant

of a deceased mineworker. The required information includes personal
information and supporting documentation.
[38]
[94]
Ninety (90) days after the publication of the opt out notice the
independent auditor must deliver a notice to the agent and
the class
lawyers advising whether more than two thousand (2000) class members
have opted out of the settlement. If more than 2000
class members opt
out, the settlement agreement will not come into effect unless the
Settling Companies waive that suspensive condition.
If the "opt-out
threshold" is not achieved (or the condition is waived by the
Settling Companies) and the other suspensive
conditions in clause 2.1
are fulfilled, then the settlement agreement will become effective.
Clause 5.3 of the settlement agreement
provides that the agent and
the class lawyers will be responsible for publishing a third notice,
which shall: (1) Announce the
settlement of the claims contemplated
in the agreement; (2) Announce that the settlement agreement has
become unconditional: (3)
Invite the settling claimants to lodge
their claims with the Trust, and; (4) Set out the claims lodgement
process. The method of
publication is the same as that for the
previous class notices, and is defined in clause 5.4 of the
settlement agreement. An initial
publication period of thirty (30)
days is proposed.
[95]
A toll-free Call Centre will be maintained to receive any queries
pertaining to the opt-out process. Class members can also
send free
"please call me" messages to a help-line (to be specified
in the opt-out notice), or contact the class lawyers.
SUBMISSIONS
FROM OTHER PARTIES
[96]
The court order permitted any member of the Settlement Classes and
other interested parties to be heard on the return date
by delivering
notice of their intention to participate in the hearing in the form
attached as annexure D to the court order and
by delivering an
affidavit dealing with their proposed participation by no later than
20 March 2019. Four parties have reacted
to that invitation. They are
the Southern African Miners' Association ("SAMA"); Xulu
Attorneys lnc; DRD Gold; and ERPM.
SAMA
[97]
SAMA initially filed a notice to participate in the approval hearing
and filed an affidavit and a counter application. Its
fundamental
objective was to secure  ' the rights and interests of SAMA and
its members and in particular their right to participate
in the
management of the Trust. SAMA has subsequently withdrawn its
opposition and retracted the submissions made in their heads
of
argument. It has subsequently informed the applicants that it is
anxious to see that the settlement agreement be confirmed as
soon as
possible so that effect can be given thereto.
Xulu
Attorneys Inc.
[98]
Xulu Attorneys Inc. instituted a self-standing application in July
2018, which is currently litigated under a separate case
number and
is being case-managed. In that application it seeks an order
recognising Xulu Attorneys Inc. as the legal representative
of
certain alleged class members, and an order directing the Trust to
pay it a reasonable percentage of (or amount from) its alleged

clients' claims under the Trust scheme. The class lawyers and
Settling Companies have opposed the application and the matter is

still pending.
[99]
Xulu Attorneys filed a "notice of intention to oppose" the
approval of the settlement agreement on 28 January 2019.
The notice
does not comply with annexure D to the court order, nor does it set
out any grounds of opposition. Xulu Attorneys subsequently
failed to
file an affidavit or written submissions as required by the court
order, despite being informed by the Settling Companies'
attorneys
that its notice was insufficient to afford it a right to participate
in the approval hearing. Xulu Attorneys Inc. did
not appear on the
return date and no oral submissions were made on its behalf, despite
the fact that the said attorneys were aware
of the hearing date and
the obligation to submit written submissions.
DRD
and ERPM
[100]
DRD and ERPM have, through their attorneys, addressed a letter to the
applicants recording that they have no interest in the
settlement
agreement or its approval by this court. They did not file a notice
to oppose and did not make any submissions to this
court. In the
letter, which the applicants brought to the attention of the court,
they raised two issues:
[1] Certification of the Settlement
Classes and approval of the settlement agreement will serve to vary
the classes certified in
Nkala,
and it is not competent for
the High Court to vary an order that is the subject matter of an
appeal ("the variation complaint").
[2] Only the SCA has jurisdiction to
approve the settlement agreement because it would involve setting
aside the
Nkala
certification order, which constitutes a
judgment
in rem
(" the
in rem
complaint").
The
variation complaint
[101]
DRD and ERPM's first submission is that the effect of the settlement
agreement, coupled with the confirmation of the rule
nisi,
is
to vary the
Nkala
certification order. It is contended that
the High Court cannot competently do that whilst that order is under
appeal or, indeed,
at all.
[102]
In the
Nkala
certification proceedings, this court certified
the class action, not the classes that pursue it or the defendants
against whom
it is pursued. The focus of its enquiry was thus the
nature of the claim pursued, not the identity of the plaintiffs or
defendants
implicated in that claim. The claim persists even where
some defendants to that claim settle their liability or otherwise
fall
out of the proceedings.
[103]
The present application seeks the certification of new classes for
settlement purposes, and the approval of the settlement
agreement. If
it is granted, the Settling Companies' liability in respect of the
claims at issue in the
Nkala
class action will be settled and
they will be excluded from having to participate in the certified
class action. But the class action
itself - and the claims that it
seeks to determine - would nevertheless proceed.
[104]
The current proceedings do not vary the
Nkala
certification
order and this court has jurisdiction to grant the relief sought in
these proceedings.
The
in rem complaint
[105]
DRD's and ERPM's second submission is that only the SCA can approve a
settlement agreement
that sets aside an order
in rem
and
the court lacks jurisdiction to approve the settlement agreement
(emphasis added).
[106]
To properly understand the contention it is necessary to first
establish what a judgment
in
rem
is. In
Maartens
and Others v South African National Parks
[39]
the court described it as follows:
"a
judgment which is
conclusive as against all the world in whatever it settles as to the
status of a person or property, or as to
the right or title to the
property and as to whatever disposition it makes of the property
itself, or of the proceeds of its sale.
All persons regardless of
whether or not they are parties to any legal proceedings are bound by
a judgment in rem and as such are
estopped from averring that the
status of persons or things, or the right or title to property is
other than what the Court has
by its judgment declared or made it to
be."
[107]
DRD and ERPM's contentions have no merit for the following reasons.
Firstly, the certification order is not a judgment
in rem.
It
is an interlocutory order of a procedural nature. It permits the
aggregation of various claims against a number of defendants.
It is
not determinative of the parties' rights or status, far less against
the world at large. Secondly, the applicants do not
seek, through the
settlement agreement, to set aside the certification order. This
court has jurisdiction to consider and grant
the relief sought in
these proceedings and the Settling Companies do not require the SCA's
imprimatur to conclude the settlement
agreement or to have it made an
order of court.
LEGAL
FEES
[108]
In terms of clause 6.1 and 6.2 of the settlement agreement, the
Settling Companies are obliged to pay the fees and disbursements
of
the class lawyers, including the costs of the two US consulting law
firms, within 10 business days of the effective date. The
settlement
agreement provides for payment of the following amounts:
[1] R15 million (incl. VAT) to the
LRC.
[2] R163.3 million (incl. VAT) to AK
and Hausfeld between them.
[3] R191.7 million (incl. VAT) to RSI
and Motley Rice between them.
[109]
The Settling Companies confirm that the payments to be made to
LRC,RSI, AK and the consulting US law firms are
"fair
and reasonable having regard to, among other things: the period over
which Richard Spoor and Abraham Kiewitz have been
engaged in the
litigation, the scale and complexity of the litigation, the costs
incurred by the respective parties to date, and
are likely to be
incurred if the litigation were to run to finality, and the quality
of the services provided to advance the matter
to this point.”
[40]
[110]
RSI and AK have agreed that they will not seek to recover any fees
and costs from their clients and class members. No costs
will
therefore be deducted from the benefits payable to the individual
claimants in terms of the contingency fee agreements entered
into
between RSI and AK and their clients. The issue of legal costs was
negotiated between RSI, AK, the consulting US law firms
and the
Settling Companies only after agreement had been reached on the fixed
administrative costs of the Trust, the categories
of qualifying
diseases to be compensated and the general tariffs payable for each
disease category. This was done deliberately
to avoid any possibility
of a trade-off between the quantum and other material terms of the
settlement agreement on the one hand
and the legal fees and
disbursements on the other.
LRC
[111]
The LRC is a public interest law clinic. It does not charge fees to
its clients nor does it seek to generate profit from legal

proceedings. Its general practice, which it has adopted in this
matter, is to recover legal costs if successful. The LRC has
dedicated
significant time and resources over the course of more than
15 years pursuing litigation on behalf of mineworkers who contracted

silicosis on South African goldmines. It has been an integral part of
the claimants' attorneys' team for the past 6 years in the
class
action litigation.
[112]
In terms of clause 6.1 of the settlement agreement, R15 000 000 (R15
million) was set aside for the full and final settlement
of the LRC's
legal costs and disbursements. The LRC seeks approval of R12 234
469.57 which includes R 11 069 729 (including VAT
at 15%) for legal
fees and R 1 164 740.23 for disbursements.
[41]
There has been no opposition or challenge to the LRC's calculation of
its costs or the facts upon which its calculations are based.
[113]
The LRC has calculated its costs on the basis permitted by section
79A of the Attorneys Act 53 of 1979 and Section 20 of the
Legal Aid
Act 34 of 2014. Clause 6.1 of the settlement agreement implicitly
accepts that it is entitled to do so. In its bill of
costs, the LRC's
fees and disbursements are broken down annually from 2013 to 2019.
The amount of R 12 234 469.57 has been calculated
with reference to
contemporaneous timesheets, invoices and documents. The LRC does not
seek any contingency fees or any other fee
in addition to its costs
and disbursements.
[114]
The LRC has taken additional steps to verify the reasonableness and
accuracy of its bill of costs and has employed a cost
consultant, Mr
Peru Du Toit,
[42]
to review the bill of costs and source material. The bill of costs
was also sent for review and confirmation by those involved
in the
litigation.
[43]
We are satisfied that every effort has been made to verify the dates,
the nature of the work and time spent on each task and that
care has
been taken to ensure that the bill of costs is an accurate reflection
of the work done by the LRC in the class action
litigation.
[115]
The time and rates used in the calculation of the bill of costs must
reflect reasonable remuneration for work necessarily
and properly
done for the attainment of justice. The time and rates used by the
LRC meet this requirement. It has charged reasonable
hourly rates for
the time spent by its in­ house counsel, attorneys, candidate
attorneys, paralegals and researchers on the
matter. Given that the
party-party scale was used, the rates used by the LRC for its
attorneys and counsel are low compared to
commercial rates.
[116]
The LRC has meticulously calculated its costs and disbursements. The
amount of R 12 234 469.57 is a fair and reasonable amount
for the
work done on the matter. As such, the amount is approved.
RSI
and AK's legal costs
[117]
The amount of work done by RSI and AK in laying the foundation for
the class action and obtaining certification was, by any
measure,
extraordinary. The work in the litigation has spanned almost 10 years
- commencing for RSI in May 2010 and for AK in 2011.
The costs these
firms have incurred include the costs of establishing and maintaining
a branch office of RSI in Johannesburg;
[44]
the costs of establishing satellite offices in the areas where most
class members reside;
[45]
the costs of employing and facilitating the work of paralegals to
take instructions from tens of thousands of former gold mineworkers,

mostly in rural villages and towns in South Africa and neighbouring
countries; the costs of communicating with clients primarily
through
public meetings and consultations at the satellite offices; the costs
of medical examinations and obtaining medico legal
expert reports for
approximately 300 clients; the costs of employing medical mining and
occupational health experts; the costs
of employing researchers;
[46]
the costs associated with establishing, maintaining and operating the
data processing and storage systems required to manage the

litigation; the costs of counsel; the costs associated with the
extensive engagement with stake holders across Southern Africa

including national, and local government structures; numerous trade
unions; non-governmental organisations and agencies; the costs
and
fees of the consulting US law firms;
[47]
the costs associated with negotiating the settlement, including
seeking advice from experts and consultants on the establishment
and
operation of the Trust and the fairness of the settlement; and the
costs associated with these approval proceedings, including

compliance with the steps required following any approval by the
court. While the costs of experts, researchers and counsel were

incurred as and when they were required, the majority of the costs
associated with the maintenance and support of the clients were
fixed
ongoing costs, which required a constant supply of funding. This
includes the costs associated with the employment of paralegals
and
managers, office and equipment rentals, transport, IT services and
the like.
[118]
Mr Spoor states that neither RSI nor AK would in their own right have
been able to cover even a fraction of the costs associated
with the
class action. They accordingly required significant funding to
support the litigation if it was ever to get off the ground.
As a
result, RSI and AK relied principally on funding from the consulting
US law firms. In November 2018 Motley Rice had advanced
approximately
R49 million to RSI to cover the costs of the class action, while
Hausfeld had advanced approximately R50 million
to AK to finance the
running-costs in the litigation.
[119]
RSI and AK entered into contingency fee agreements with the class
representatives and with each of the 38 000-plus class members
that
mandated RSI or AK to represent them. Their fee arrangements were
authorised in the
Nkala
certification order and the court
specifically confirmed that the RSI and AK contingency fee agreements
comply with section 2(2)
of the Contingency Fee Act 66 of 1997 (CFA).
[120]
RSI appointed two attorneys and cost consultants, Mr Leon Hurter and
Mr Nick du Preez, to determine the fees and disbursements
that would
be payable to the class lawyers under the provisions of the
contingency fee agreements authorised by the court. Mr du
Preez has
more than 20 years' experience in the field of costs and Mr Hurter
has close on 30 years' experience, including having
served as taxing
master and chief taxing master in this court. The cost consultants
prepared an account of the fees and disbursements
that would be
payable to RSI on an attorney-and-own-client scale under the
contingency fee agreements. The cost consultants confirm
in their
affidavits that the information furnished to them enabled them
adequately to prepare a "Summary of Fees and Disbursements"

which accounts for the fees and disbursements that would be payable
to RSI under its contingency fee agreement. The cost consultants

detail their assessment of the fees and disbursements incurred in the
matter as against the requirements of the contingency fee
agreements.
They concluded that the RSI fees and disbursements comply with the
requirements in the RSI contingency fee agreement,
and are fair and
reasonable given the nature and scale of the work done. The cost
consultants further concluded that if RSI were
to have recovered
legal costs under the contingency fee agreement at the 200% success
fee and subject to the additional cap of
15% of the total award, it
would have been entitled to recover a total of R260 866 739.92
(R260,86 million) for fees and disbursements.
[48]
Since R191, 7 million is payable to RSI under the settlement
agreement, Hurter concludes that RSI has in fact under-recovered by

R69 166 739.92 under the RSI contingency fee agreement.
[121]
AK also appointed two cost consultants, Mr Johan Ackerman and Ms Maya
Arendse, to assess the fees and disbursements that would
be payable
to AK in terms of its fee agreement, and to assess the reasonableness
of the fees and hours spent given the nature of
the work and the
disbursements. Mr Ackerman has more than 20 years' experience in the
field of costs and has served as an assistant
registrar and taxing
master. Ms Arendse has 26 years' experience in the field. The
assessment was done to ensure that the costs
payable to AK under the
settlement agreement comply with, and do not exceed, the costs that
AK would have been entitled to recover
under its fee agreement. They
also filed affidavits and "Summaries of Fees and Disbursements"
for AK. They concluded
that AK's fees and disbursements are fair and
reasonable and that it complied with AK's contingency fee agreement.
AK's 200% success
fee under the AK contingency fee agreement would
have totalled R216 169 859.10.
[49]
Under the settlement agreement, AK is receiving R163.3 million
towards all the firm's legal costs (fees and disbursements). This

represents an under­ recovery of R52 869 859.10 or 32.3% of what
AK is entitled to under the contingency fee agreement if the
200%
success fee were applied.
[122]
The consulting US law firms also instructed a US-based expert on
costs in class action litigation, Professor Fitzpatrick,
on the fees
payable to the US­ based attorneys under the settlement
agreement. Professor Fitzpatrick confirms the reasonableness
of the
US-based attorneys' fees by US standards and the overall
reasonableness of the legal costs payable to the class legal
representatives
under the settlement (again, by US standards).
[123]
RSI, AK, and the consulting US law firms, set out on affidavit the
legal costs they have incurred, and will still incur, in
the
Nkala
litigation and in the settlement process. Mr Spoor and Mr Kiewitz
explain in detail why the legal costs payable under the settlement

agreement comply with the RSI and AK contingency fee agreements, and
why the legal costs are fair and reasonable in the context
of the
unprecedented scale of the litigation. Because the contingency fee
agreements were found to be compliant with the Contingency
Fees Act
in
Nkala,
it follows that if the fees and disbursements
payable in terms of the settlement are compliant with those
agreements, they will
also be compliant with the Act.
[124]
If regard is had to the period RSI and AK have been involved in the
litigation and the scale and complexity of the litigation,
the
amounts provided for in the settlement agreement is fair and
reasonable and is approved.
FINDING
[125]
All the parties made an effort to ensure that the settlement
agreement is reasonable, adequate and fair. The terms of the

settlement agreement demonstrate that they succeeded in their
efforts. The negotiations yielded the best possible settlement terms

that the parties and stakeholders could find in the circumstances. We
wish to express our indebtedness to all the legal teams which

represented various parties in this matter for the commendable manner
in which they discharged their duties to their clients and
to this
court.
[126]
The applicants have prepared a draft order which they have placed
before court. They request that it be made an order of court
by
agreement between the parties.
[127]
The draft order with annexures is hereby made an order of court.
_____________________
L.WINDELL
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
agree
______________________
P.M.
MOJAPELO
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEARANCES
Counsel
for the Applicants: Gilbert Marcus SC
Vincent
Maleka SC
Alfred
Cockrell SC
Alan
Dodson SC
Isabel
Goodman
Janice
Bleazard
Emma
Webber
Cingashe
Tabata
Yanela
Ntloko
Attorneys
for the 1
st
to 20
th
Applicants: Richard Spoor
Inc Attorneys
Attorneys
for the 21
st
to 39
th
Applicants: Abraham
Kiewitz Inc.
Attorneys
for the 40
th
to 48
th
Applicants: Legal
Resources Centre
Date
of hearing: 29 May 2019 to 30 May 2019
Date
of judgment:
[1]
African Rainbow Minerals Ltd, Anglo American SA Ltd, Anglogold
Ashanti Ltd, Avgold Ltd, Freegold (Harmony) (Proprietary) Ltd,
Free
State Consolidated Gold Mines ( Operations) Ltd, Gold Fields Ltd,
Gold Fields Operations Ltd, Newshelf 899 (Proprietary
Ltd), Beatrix
Mines (Proprietary) Ltd, Farworks/682 (Proprietary) Ltd, Driefontein
Consolidated (Proprietary) Ltd, GFL Mining
Services Ltd, GFI Joint
Venture Holdings (Proprietary) Ltd, Harmony Gold Mining Company Ltd,
Unisel Gold Mines Ltd, Loraine Gold
Mines Ltd, Randfontein Estates
Ltd, Sibanye Gold Ltd, Leslie Gold Mines Ltd, Bracken Mines Ltd, and
K2018259017 {South Africa)
(Proprietary) Ltd. At the time of the
settlement agreement Leslie Gold Mines Ltd was in final winding up
and Bracken Mines Ltd
was dissolved. Both were erroneously included
as parties to the settlement agreement. They have subsequently been
removed. See
Second Addendum to the Settlement agreement dated 12
December 2018.
[2]
Nkala and Others v Harmony Gold Mining Companies Limited and Others
[20161 3 All SA 233 (GJ).
[3]
Nkala Court Order at [13].
[4]
This undertaking is recorded in clause 2.12 of the settlement
agreement, which provides as follows: "Without unreasonable

delay after the effective date, each Company which has appealed the
Class Action Litigation shall withdraw its appeal instituted
in the
Supreme Court of Appeal of South Africa under the case citation
Harmony Gold Mining Company and Others v Bongani Nkala
and Others,
case number 688112 (the Appeal). The provisions of this clause 2.12
do not impose any obligation on any of the Companies
to secure the
withdrawal of its Appeal in respect of the interests of any third
party that is an appellant in that Appeal but
is not a party to this
Agreement."
[5]
The Founders' liability is to be secured by guarantees to the Trust,
which, collectively, amount to R5 000 000 000 (R5 billion).
[6]
See, for example, rule 23(e) of the United States Federal Rules of
Civil Procedure and section 33V of the Federal Court of Australia

Act, read with section 14 of the Federal Court's 'Class Actions
Practice Note' (GPN-CA) (which replaced Practice Note CM17).
[7]
Ex parte Nkala and Others, Unreported judgment of Mojapelo DJP dated
13 December 2018.
[8]
Notice in Schedule 7 of the Addendum to the Settlement Agreement
headed "the First Notice; Notice of Proposed Class settlement".
[9]
Allpay Consolidated Investment Holdings (Pty) Ltd v CEO South
African Social Security Agency
2014 (1) SA 604
(CC) at [22(b)].
[10]
Nkala at [39].
[11]
Section 33V of the Federal Court of Australia Act, 1975 provides:
"11.1. When applying for Court approval of a settlement,
the
parties will usually need to persuade the Court that:
(a) the proposed settlement is fair
and reasonable having regard to the claims made on behalf of the
group members who will be
bound by the settlement; and
(b) the proposed settlement has been
undertaken in the interests of group members, as well as those of
the applicant, and not
just in the interests of the applicant and
the respondent/s. "
[12]
Rule 23(e)(2) of the United States Federal Rules of the Civil
Procedure states: "(2) If the [settlement] proposal would
bind
class members, the court may approve it only after a hearing and on
finding that it is fair, reasonable and adequate."
[13]
In Dabbs v Sun Life Assurance Co of Canada [1998] O.J. No 1598 (Gen
Div), the Court found that a settlement agreement must be
fair
reasonable and in the best interest of the class.
[14]
Newberg on Class Actions. Fifth Edition, Westlaw. Chapter 13.40.
"Fiduciary Role of Court".
[15]
Newberg on Class Actions Chapter 13:40.
[16]
Class Action Litigation in South Africa. M. Du Plessis (Juta 2017)
at p88.
[17]
(1999) 40 0. R. (3d} 429 (Gen. Div). The Court made reference to a
paper delivered by a certain Professor Watson. Is the Price
still
right? Class Proceedings in Ontario". Paper delivered at a CIAJ
Conference in Toronto, October 1997.
[18]
R. Mulherron. The Class Action in Common Law Legal Systems: A
Comparative Perspective. (Hart Publishing , 2004) at page 399 -407.
[19]
(1)The terms of the settlement.(2) The amount or value offered to
each class member.(3)The cost, complexity, risk and likely
duration
of the litigation if the settlement were not approved.(4) The
attitude of class members to settlement. (5) The risk
of maintaining
and succeeding in representative proceedings. (6) The risks of
further litigation and of recovery. (7) The views
and
recommendations of experts or neutral parties. (8) Good faith and
the absence of collusion between the class representatives
and the
defendants.
[20]
554 F Supp 1334,1337-38 (SD Ind 1982)
[21]
Eke v Parsons
2016 (3) SA 37
(CC) paras 22-24; 33-34 and 36.
[22]
[2013] ZAECGHC 75. It is reported as PL v YL 2013 (6) SA 28 (ECG).
[23]
[2013] ZAECGHC 75.
[24]
Defined as follows in Paragraph 1 and 2 of the Nkala Court Order:
[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)
(i) 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;
(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 Ltd; and
(iii) who are not named plaintiffs in
the action instituted in the United Kingdom against Anglo American
South Africa Ltd under
case Nos HQ11X03245, HQ11X03246, HQ12X02667,
and HQ12X05544 (the silicosis class); and
[2] Current and former underground
mineworkers who contracted pulmonary Tuberculosis, and the
dependants of diseased underground
mineworkers who died of pulmonary
tuberculosis (but excluding silica-tuberculosis), where such
mineworkers work or have worked
for the last two years on one or
more of the gold mines listed in Annexure "A" [to the
court's order], after 12 March
1965 (the TB class).
[25]
Qhuheka claimants whose claims against Anglo American South Africa
limited and Anglogold Ashanti Limited have been settled on
4 March
2016 and Blom claimants whose claims have been settled against Anglo
American South Africa Limited on 19 September 2013.
A list of
claimants affected can be found in Schedule D annexed to the Trust
deed.
[26]
"Risk work" was originally defined in the trust deed as
"risk work as contemplated in ODIMWA (as at the Signature

Date)". The parties however overlooked the fact that the ODIMWA
definition of "risk work" does not encompass all
of the
parts of a mine and all of the mines that the parties to the
settlement negotiation sought to cover. In order to remedy
this
oversight, the parties concluded the addendum to amend Clause 1.1.68
of the trust deed.
[27]
Surface work includes: (1) work in a laundry where clothing of
underground mineworkers is washed; (2) work on a slimes dam of
a
gold mine; (3) work in an assay laboratory of a gold mine where the
composition of gold bearing ore is analysed, and where
the mass of
respirable dust from personal sampling is determined; (4) work in a
metallurgical plant of a gold mine, including
crushing, milling,
transporting and smelting of ore; (5) work at the conveyor belt
operations which are undertaken to convey
broken rock from the
underground operations of a gold mine to surface.
[28]
Mankayi v AngloGold Ashanti 2011 (3) SA 237 (CC).
[29]
Leslie Gold Mines Ltd was in final winding up and Bracken Mines Ltd
was dissolved at the time of the conclusion of the settlement

agreement.
[30]
Blom and Others v Anglo American South Africa Ltd.
[31]
Mining companies contribute, by way of levy payments, to the Mine
and Works Compensation Fund ("the Compensation Fund")
that
was established by ODIMWA. The monies in the Compensation Fund are
intended to be disbursed by the State, through the MBOD/CCOD,
to
claimants who qualify for statutory compensation. Funds of around R4
billion in the Compensation Fund represent the levies
paid by the
mining companies. A portion of this amount related to unpaid claims
and unreported claims.
[32]
R60 000 for radiological silicosis, R125 000 for Jung function
impairment of less than 10%, R 225 000 for lung function impairment

of between 10% - 40%, and R400 000 for Jung function impairment
greater than 40%.
[33]
Koch. The Quantum Yearbook 2018.
[34]
Other ODIMWA benefits that would likely be off-set in any damages
award is the cost of the periodic medical examinations and
the
medical benefits that must be provided by the employer to persons
who contract a compensable disease while employed.
[35]
The consideration that informed this assessment include the
following: A chest X-ray from a mobile X-ray unit deployed to a
labour supplying area costs approximately R300 per X-ray, a further
R300 per lung function test, and further R300 per medical

examination. If R50 000 000 (fifty million Rand) per year was
devoted to mobile medical units, it would be adequate to screen
over
55 000 former gold mineworkers per annum, or over 650 000 over the
lifetime of the Trust. However, even that can be improved
upon.
Technology exists to perform real time X-ray screening using
computer aided diagnosis, and this would allow medical staff
to
eliminate medically non-qualifying claimants immediately, and
thereby avoid the need for time consuming and relatively costly
lung
function test and medical examinations for persons who do not have a
lung disease. This would significantly improve efficiencies
and
costs. Over the last several years, there has been some significant
donor Investment, predominantly from the Working Group,
in
establishing medical screening facilities (so called "one stop
shops") in the labour cost to the Trust of medical
screenings.
This is confirmed in the affidavit of Dr Kistnasamy.
[36]
See clause 10 of the trust deed read with the definition of expert
in the trust deed.
[37]
(CCT 20/12}
[2012] ZACC 30
;
2013 (2) BCLR 129
{CC); 2013 (2) SA 144
(CC); 2013 (1) SACR 213 (CC).
[38]
Personal information include their name, date of birth, address, the
name of their employer, their employee number and whether
they are a
current or an ex-worker. Personal details of the dependant, if they
are dependants of deceased mineworkers. Supporting
documentation,
including the identity document of the current or deceased
mineworker, proof of their employment, the death certificate
(if
applicable) and proof of residence.
[39]
Maartens and Others v South African National Parks (C 117/2001)
[2004] ZALC at [5].
[40]
Clause 6.4 of the settlement agreement.
[41]
During the process of verifying each item in the breakdown of costs,
the LRC became aware that the estimate of R15 million, which
had
been provided by the LRC finance department, was partly based on
incorrect information. The finance department inadvertently
failed
to differentiate between the two separate silicosis matters that
overlapped during 2013. It incorrectly included time
and work for a
different matter being run by the LRC (the President Steyn
litigation). In addition, legal staff used the case
numbers for the
silicosis class action and the President Steyn litigation matter
interchangeably in their timesheets. After this
mistake was
detected, the bill of costs was checked and the work on the
President Steyn litigation was removed. As a result,
the LRC's final
costs total to R12 234 469.57 rather than R15 million.
[42]
Mr Du Toit has filed an affidavit, confirming that he had unlimited
access to all the documents relevant to the class action
litigation
and that he consulted frequently with the attorney compiling the
bill of costs. In his affidavit, he states that the
breakdown of
costs is a fair and reasonable account of the work performed by the
LRC in the class action. In particular, he confirms
that items with
a high time allocation are accurate and justified.
[43]
Mr Jason Brickhill and Ms Sayi Nindi, who have both filed
confirmatory affidavits, reviewed and confirmed the correctness of

the bill insofar as it relates to the work that they performed as
the LRC lead lawyers in the class action litigation from 2013
to
2016.Ms C Du Toit confirmed the remainder of the bill as the lead
attorney from 2016 to date.
[44]
The branch office was dedicated almost exclusively to the running of
the class litigation out of the High Court of Johannesburg,
and
which served as the address for service and fifing of pleadings.
[45]
Historically, the principal "labour supplying areas" for
the gold mine sector, included Lesotho, the Eastern Cape,
Botswana
and the Free State. AK also established satellite offices in the
Eastern Cape, Swaziland, Lesotho and Mozambique.
[46]
Mostly over a three-year period, from 2010 to 2012 to conduct
research into, inter alia, the history of lung disease in gold

mines; knowledge of the prevention of occupational lung diseases and
control of dust in mines; the history of the laws and regulations

governing health and safety in the mines and compensation for
occupational diseases in South Africa and internationally; the
work
processes involved in gold mining in South Africa; the history of
the gold mining industry in South Africa and the ownership
and
operational structures of the gold mines in South Africa.
[47]
The US based lawyers were responsible for arranging and providing
the funding for the litigation, providing the information technology

infrastructure for managing the class action, including the large
databases for capturing and storing all the relevant data
accumulated, administering the financial management of the class
action, providing all of the foreign-based input and expertise
into
the class action, locating and engaging international experts on
aspects of class actions, flying out to South Africa for
purposes of
meetings and consultations, playing a leading role in the conduct of
the negotiations on behalf of the class.
[48]
A fee of R129 017 373.90 (incl. VAT), which includes: (a) Generic
attorneys' fees of R36 939 302.36 doubled as a success fee
to R73
878 604.72; (b) R55 138 769.17 for client-specific work by
paralegals. Disbursements of R131 849 366.02 (incl. VAT), made
up
of: (a) Motley Rice Fee of R102 506 423.67; and (b) Other
disbursements of R29 342 942. 35 (incl. VAT).
[49]
Calculated as follows R90 274 505.37 (incl. VAT) for AK's
professional uplift fees, with the 200% uplift on professional
hourly
rates for generic work; and R125 895 353. 75 (incl. VAT) in
respect of AK's disbursements, of which R85 561 078.03 is Hausfeld

consultancy costs.