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[2019] ZAGPJHC 262
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Ex Parte Nkala and Others (44060/2018) [2019] ZAGPJHC 262 (26 July 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
Case
No.: 44060/2018
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: YES
26/7/2019
BONGANI
NKALA
First Applicant
SIPORONO
PHAHLAM
Second Applicant
THEMBEKILE
MNAHENI
Third Applicant
MATONA
MABEA
Fourth Applicant
ALLOYS
MNCEDI
MSUTHU
Fifth Applicant
MASIKOSOMI
Sixth Applicant
MTHOBELIGANGATHA
Seventh Applicant
LANDILE
QEBULA
Eighth Applicant
JOSEPH
LEBONE
Ninth Applicant
ZAMAGANGI
Tenth Applicant
MALUNGISA
THOLE
Eleventh Applicant
MONOKOA
THOMAS
LEPOTA
Twelfth Applicant
MZAWUBALEKWA
DIVA
Thirteenth Applicant
MSEKELI
MBUZIWENI
Fourteenth Applicant
NANABEZI
MGODUSWA
Fifteenth Applicant
THULENKHO
KUSWANA
Sixteenth Applicant
MALEBURU
REGINA LEBITSA
Seventeenth Applicant
MATAASO
MABLE MAKONE
Eighteenth Applicant
MATSEKELO
CISILIA MASUPHA
Nineteenth Applicant
MATIISETSO
MASEIPATI JESENTA NONG
Twentieth Applicant
BANGUMZI
BENNET BALAKAZI
Twenty-first Applicant
WATU
LIVINGSTON
DALA
Twenty-second Applicant
DYAMARA
JANUARY JIBHANA
Twenty-third Applicant
MANTSO
HENDRICK MOKOENA
Twenty-fourth Applicant
MBIKANYE
ALFRED SAWULE
Twenty-fifth Applicant
ZONISELE
JAN NKOMPELA
Twenty-sixth Applicant
ISHMAEL
TSIKWANE MOTLEKE
Twenty-seventh Applicant
THABO
EDWIN
NTSALA
Twenty-eighth Applicant
ZIMOSHILE
BOZO
Twenty-ninth Applicant
ZAMUKULUNGISA
DYANTI
Thirtieth
Applicant
AGRIPPA
DLISANI
Thirty-first Applicant
MNCEDISI
DLISANE
Thirty-Second Applicant
LUVOKO
MADINDALA
Thirty-Third Applicant
MTUTUZELIMTSHANGE
Thirty-Fourth Applicant
MONCE
MXESIBE
Thirty-Fifth Applicant
MZWANELE
BUNYONYO
Thirty-Sixth Applicant
MZIKAYISE
NQOSE
Thirty-Seventh Applicant
XOLISILE
BUTU
Thirty-Eighth Applicant
ZOLISA
JEJANA
Thirty-Ninth Applicant
MALEPA
PUSO
Fortieth Applicant
ELIA
MOTLALEPULA
PHETANE
Forty-First Applicant
MOTLALEPULA
MOKOENA
Forty-Second Applicant
SEKHOBE
LETSIE
Forty-Third Applicant
TSHEHLA
SOLOMON HLALELE
Forty-Fourth Applicant
MONA ASHTON
MELAO
Forty-Fifth Applicant
NKOSI SELATA
SELATA
Forty-Sixth Applicant
EDGAR NTJANA
NTJANA
Forty-Seventh Applicant
EZEKIEL MUTSANA
MASUPHA
Forty-Eighth Applicant
HARMONY
GOLD MINING COMPANY LTD
Forty-Ninth Applicant
(Registration
number M1950/038232/06)
LESLIE GOLD MINES
LIMITED
Fiftieth Applicant
(Registration
number 1959/001124/06)
RANDFONTEIN ESTATES
LTD
Fifty-First Applicant
(Registration
number 1889/000251 /06)
AVGOLD
LIMITED
Fifty-Second Applicant
(Registration
number 1990/0070251/06)
UNISEL GOLD MINES
LIMITED
Fifty-Third Applicant
(Registration
number 1972/010604/06)
LORRAINE
GOLD MINES LIMITED
Fifty-Fourth Applicant
(Registration
number 1950/039138/06)
BRACKEN MINES
LIMITED
Fifty-Fifth Applicant
(Registration
number 1959/001126/06
ANGLOGOLD ASHANTI
LIMITED
Fifty-Sixth Applicant
(Registration
number 1944/017354/06)
FREE STATE CONSOLIDATED
GOLD MINES
(OPERATIONS)
LIMITED
Fifty-Seventh Applicant
(Registration
number 1937/009266/06)
GOLD FIELDS
LIMITED
Fifty-Eighth Applicant
(Registration
number 1959/003209/06)
GOLD
FIELDS OPERATIONS LIMITED
Fifty-Ninth Applicant
(Registration
number 1968/004880/06)
NEWSHELF
899 (PROPRIETY) LIMITED
Sixtieth Applicant
(Registration
number 2007/019941/070
BEATRIX
MINES (PROPRIETY) LIMITED
Sixty-First Applicant
(Registration
number 1977/002138/07)
FARWORKS/622
(PROPRIETY) LIMITED
Sixty-Second Applicant
(Registration
number M1964/004462/07)\
DRIEFONTEIN
CONSOLIDATED (PROPRIETY) LIMITED
Sixty-Third
Applicant
(Registration
number 1993/002956/07)
SIBANYE
GOLD
LIMITED
Sixty-Fourth Applicant
(Registration
number M2002/031431/06)
ANGLO
AMERICAN SOUTH AFRICA LIMITED
Sixty-Fifth Applicant
(Registration
number 1917/005309/06)
AFRICAN
RAINBOW MINERALS LIMITED
Sixty-Sixth Applicant
(Registration
number 1933/004580/06)
FREEGOLD
(HARMONY) (PROPRIETY) LIMITED
Sixty-Seventh Applicant
(Registration
number 2001/029602/07)
GFL
MINING SERVICES
LIMITED
Sixty-Eighth Applicant
(Registration
number 1997/019961/06)
GFL
JOINT VENTURE HOLDINGS (PROPRIETY) LIMITED
Sixty-Ninth Applicant
(Registration
number 1998/023354/07)
K2018259017
(SOUTH AFRICA) (PROPRIETY) LIMITED
Seventieth Applicant
(Registration
number 2018/259017/07)
IN
RE: Application to certify a settlement class and approve a·
settlement agreement in respect of the certified class action
between
Bongani Nkala and 55 Others v Harmony Gold Mining Company Limited and
31 Others
Judgment
Vally
J
Introduction
and background
[1]
l have had the privilege of reading the comprehensive judgment of
Windell J. I agree with the order she proposes. I have, however,
penned a separate judgment as the approach I adopt and the emphasis I
place on certain issues is slightly different.
[2]
This case encapsulates the tragic and sad aspect of gold mining in
South Africa. Gold mining has a long history in this country.
At one
level it has produced great wealth for a few and bas allowed for the
development of the country in general (by virtue of,
amongst others,
the foreign exchange and taxes earned through this industry) and of
its richest province in particular. Yet at
the same time it has
produced untold pain, suffering, physical harm and death for hundreds
of thousands of people who worked in
these mines. This has been the
persistent dialectic of the times.
[3]
Focussing on the pain, suffering and the deaths, particularly those
associated with the contraction of two diseases namely silicosis
and
tuberculosis (TB), certain applicants approached this Court for
authorisation to bring a class action against 32 mining companies
(the mining companies). They sought an order certifying a
consolidated class action comprising of two classes, namely a
silicosis
class and a TB class, against the mining companies. They
were successful. This Court issued a detailed order (the
certification
order) in that regard.
[4]
The mining companies were aggrieved by the certification order and
have succeeded in securing leave to appeal against it to
the Supreme
Court of Appeal (SCA). The appeal is still pending. The certification
order is therefore suspended.
[1]
In the meantime, however, the applicants in the certification
application and some of the mining companies (the settling companies)
engaged in negotiations aimed at settling the entire dispute between
themselves. They have concluded a settlement agreement (the
agreement). The agreement is intended to deal with the concerns of
both the silicosis and the tuberculosis classes. Consequently,
the
parties to the agreement ask this Court to sanction it, for until
this Court does so it is not binding on the parties. But
first they
sought a rule
nisi
allowing
them to publish the agreement in various media and on various notice
boards and websites informing class members that they
have the right
to object to the agreement. The rule
nisi
incorporated the agreement.
It was issued by Mojapelo DJP on 13 December .2018. It was duly and
widely published in the hope that
it would come to the attention of
all members of the two classes so that they could acquaint themselves
with the terms of the agreement,
and, should they wish to do so,
challenge the application to have it approved by this Court. The rule
nisi
indicated
that the return date for confirmation or discharge of the rule would
be 29 - 31 May 2019. On 29 and 30 May 2019 this Court
heard the
application. We received extensive oral submissions from the
applicants' counsel in support of the application. The application,
it has to be said, was well prepared and presented in every respect.
I remain indebted to all the legal representatives for the
professionalism they demonstrated and for the very helpful assistance
they provided as a whole.
[5]
Should this Court approve the agreement, the applicants would be
required to once again publish the terms of the agreement in
various
media so that class members
[2]
who wish to opt-out of the settlement are afforded an opportunity to
do so. Should any class member exercise the right to opt-out
s/he
would be entitled to pursue his/her claim against any or all of the
settling companies. The recognition of this right of a
class member
to opt-out and its exercise by the class members constitute the basis
for one of the condition precedents of the agreement.
More of this
will be said later.
[6]
The application of a rule
nisi
first, and the application for
the approval of the agreement thereafter, is characterised as
"a
two-stage process".
The process enjoys international
pedigree: a number of national jurisdictions that are familiar with
class action litigation have
found the process useful. It has been
adopted for one reason only: to protect the interest of the class
members who (a) were not
consulted with regard to the amount of the
compensation they should each receive, and (b) remain ignorant as to
the terms of the
agreement concluded on their behalf and in their
name. The purpose of the approach is well encapsulated by the learned
author Rachael
Mulheron who writes:
"First, the
interests of class members are affected by the result, and the court
must ensure that their interests have been
served by the settlement.
... Secondly, representative plaintiffs must be prevented from using
the class action to improve their
own bargaining positions to settle
their individual claims on terms more favourable than for the other
class members (the "sweetheart"
settlement). Thirdly, court
approval seeks to preclude class lawyers from benefiting themselves
while obtaining minimal benefit
for their clients.... Fourthly, court
approval of settlements is a means for the court to monitor
extortionate settlements to prevent
profiteering from vulnerable
defendants."
[3]
[7]
One of the issues that courts entrusted with the responsibility to
approve a settlement agreement in a class action have to
consider is
whether the compensation awarded to the class members is fair,
adequate and reasonable. There could well be a variety
of opinions on
this issue, with members of the class adopting views that could be on
opposite sides of a spectrum. The settlement
agreement could, in such
circumstances, be a recipe for division and conflict. The two-stage
process to the approval bears the
great merit of allowing for the
ventilation in court proceedings of any division and conflict that
may arise. Class members, or
indeed anyone else, whose views are in
discord with those who promote the agreement are afforded an
opportunity to oppose the approval
or to just raise their concerns,
so that a court acting judiciously can take them into account.
[8]
An important fact that should be recorded is that not all the
ex-mineworkers who were authorised by the certification order
to act
as class representatives are part of the applicants in this
application. Sadly, some of them have, as at the date the founding
affidavit in this case was filed, passed away. They are: Mr Maphatsoe
Kombi, Mr Mokholofu Boxwell, Mr Zwelendaba Mgidi, Mr Michael
Litable,
Mr Liphapang Lebina, Mr Zaneyeza Ntoni, Mr Tekeza Joseph Mdukisa, Mr
Tohlang Paolosi Mako, Mr Mahala Emmanuel Seliba,
Mr Malefatsane
Mohlakasi, Mr Mthethelele Nelson Satu, Mr Myekelwa Mkenyane, Mr
Patrick Sitwayi, Mr Zwelakhe Dala, Mr Vuyani Dwadube,
Mr Matela
Hlabathe, Mr Siqhamo Richard Hoyi and Mr Buzile Nyakaza. Regretfully,
by the time this judgment is delivered and by the
time the agreement
is made operative (assuming it is approved and the conditions
precedent thereto are met) many more deaths among
the class members
(including the class representatives) are likely to ensue. Further,
there are two class representatives whose
whereabouts are unknown and
one who has withdrawn from the case altogether. Respectively, they
are Mr Noebejara Tau, Mr Malusi
Bovu and Mr Phumelelo Solitasi
Siyocolo.
[9]
Finally, before dealing with the merits of the application it bears
mentioning that not all the companies that were respondents
in the
certification application have joined in the settlement. Some of them
(the non-settling companies) intend to pursue the
pending appeal.
These non-settling companies are: DRDGold Limited (DRDGold), East
Rand Propriety 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.
[10]
The rule
nisi
was served on the non-settling companies. In
terms of paragraph 5 of the rule
nisi
they were invited to
participate in the proceedings on the return day. None of them
exercised the right to participate and thus
the hearing proceeded
without any input from them. However, Malan Scholes Attorneys, acting
on behalf of DRDGold and ERPM, wrote
a letter to the attorneys for
the class representatives stating that their clients had no legal
interest in the material aspects
of the rule
nisi
and would
like to avoid an adverse costs order by not appearing on the return
day. In their letter, the attorneys raised some concerns
about the
application for approval and what they believe would be the
consequences of this Court granting part of the relief sought.
More
on this issue, too, will be said later.
The agreement, the Trust
and the trustees
[11]
At heart, the agreement is aimed at compensating the class members
who suffered harm over many decades while in the employ
of one or
more of the settling companies. This much is acknowledged in the
agreement itself. In what essentially is a preamble
to the agreement
the following is recorded:
"The Parties
recognise the need to address issues associated with past, present
and future compensation for Silicosis and Tuberculosis
in the South
African gold mining industry, and settle the Settled Claims fully and
finally."
[12]
It was concluded on 3 May 2018, after three years of intensive
negotiations. The settling companies' liability for the compensation
is unlimited. For the moment, they have agreed to collectively
furnish a security of R5bn which will be paid to a trust to be
established to administer the claims of all claimants.
[13]
The agreement is subject to the fulfilment or waiver of a number of
suspensive conditions, the key ones being: (i) that the
agreement is
made an unconditional order of this Court; (ii) no more than 2000
class members have opted out of the settlement;
and (iii) the Trust
Deed is lodged with the Master and letters of authority are issued by
the Master to the first trustees. Any
condition waived will be
regarded as fulfilled. The compensation paid to a claimant is in full
and final settlement of all claims
the claimant may have against any
of the settling companies. And, should the claimant pursue a claim
against a third party which
may require a settling company to bear a
proportion of the claim against the third party, the claimant shall
adjust his/her claim
so that the settling company is absolved of all
responsibility. Further, should the claimant's case continue against
the non-settling
companies, the claimant will not pursue any claim
against the settling companies.
[14]
In terms of the agreement an independent trust, called Tshiamiso -
which means
"to make good'
- (the Trust), is to be
established by the settling companies to manage the implementation of
the agreement. The Trust is integral
to the agreement. Its object is:
"to
give effect to the [agreement] and provide Benefits to Eligible
Claimants (being the beneficiaries to the trust) in the
amounts and
upon the terms set out in this Trust Deed. The activities of the
Trust shall be directed at, and the Trust Fund shall
be used in
pursuit of, the Trust Object."
[15]
Understandably, the Trust Deed (the Deed) is comprehensive. It
attends to issues that are central to the agreement. In terms
of the
Deed, the Trust is responsible for locating the claimants, processing
their claims and compensating (consistent with terminology
common to
Trusts in general, the Deed refers to this as "Benefit"
because the eligible claimants are the beneficiaries
of the Trust,
but I prefer to use the term compensate) the eligible claimants,
which includes dependants of deceased class members.
The Deed spells
out the basis upon which the class members shall qualify for
compensation. The Deed also allows for the Trust to
remain in
existence for a period of twelve years only, for it is envisaged that
in that time the Trust would have processed all
the claims, after
which the reason for its existence would cease.
[16]
A claimant only has to fill in a standard claim form, which the Trust
shall provide. The Trust shall bear the full cost of
processing the
claim, which includes any medical examination the claimant may be
asked to undergo. The Trust has to appoint claims
lodgement officers
who are to be available to assist claimants with their claims.
Consequently, the Trust has been structured in
a manner that obviates
the need for legal representation in the submitting and processing of
claims. This, we were told, was included
in order to avoid diluting
the amount ultimately received by the claimant.
[17]
The trustees are obliged to establish a fraud protection programme
that should protect both the Trust and the claimants. They
are also
obliged to establish a financial literacy programme that must assist
the claimants with the compensation received by them.
[18]
A Trust Advisory Committee is to be established by the trustees soon
after they take office. This committee is to be comprised
of
representatives from government, trade unions, community leaders,
non-governmental organisations and any other body or entity
appointed
at the discretion of the trustees. The task of this committee is to
meet twice a year and to
"advise, give input to, and raise
concerns with"
trustees about matters relating to the Trust.
[19]
The Trust shall be managed by no less than five and no more than
seven trustees. The persons who have presently been nominated
to
serve as trustees are: Mr Abraham Joseph van Vuuren, Ms Kgomotso
Mmathuto Molebatsi, Mr Michael Edward Murray, Dr Sophie
Kisting-Cairncross,
Ms Janet Love, Dr Malcolm Barry Kistnasamy (Dr
Kistnasamy) and Professor May Hermanus. Collectively they constitute
a talent to
be reckoned with. They have extensive experience in the
legal, medical and engineering disciplines. Each of them has
admirable
qualifications, experience and a proven track record
showing, amongst others, the possession of a mature temperament
necessary
for constructive participation in the affairs of the Trust
so that the object of the Trust is achieved with optimal efficiency.
Their willingness to act as trustees inspires confidence that the
Trust will be properly managed and that the claimants will receive
fair treatment from the. inception to the conclusion of their claims.
Apart from their fiduciary duties to the Trust the trustees
are
required to: (i) administer the trust funds in the interests of the
eligible claimants; (ii) establish the processes, infrastructure
and
personnel necessary for the operations of the Trust, which includes
locating the claimants, properly processing the claims,
arranging and
paying for medical examinations of claimants (except the claimants
who are dependants); and, (iii) ensure that the
compensation due to
an eligible claimant is paid without undue delay. To this end they
have a duty of care towards the claimants.
It is important that they
remain rooted in this duty at all times. It is a duty that must be
carried out
uberimae fidei
(in utmost good faith), bearing in
mind that they will be acting under the authority of this Court's
order.
The persons who qualify
as eligible claimants
[20]
Not every mineworker who contracted silicosis or TB qualifies as a
claimant. Should a mineworker not qualify as a claimant,
his
dependant(s), too, would not qualify. There are four classes of
mineworkers and their dependants that qualify for compensation.
They
are:
[20.1]
Classes 1 and
3:
Persons who:
(i) as at the effective date are
undertaking or prior to that undertook risk work;
(ii) on or before the effective date
have or will contract silicosis or will have been exposed to silica
dust or have or will have
contracted TB;
(iii) who undertake or will have
undertaken risk work on the mines of the settling companies after 12
March 1965;
(iv) who have not settled their claims
previously (these persons are named in Schedule D of the Deed)
[20.2]
Classes 2 and
4:
The dependants of all
mineworkers falling into classes 1 and 3
[21]
The settling companies and the class representatives have agreed to
adopt a wider definition of risk work so that a greater
number of
claimants may be eligible than was catered for during the
certification proceedings. Previously risk work was restricted
to
underground mineworkers and their dependants. But they have come to
realise that this definition of risk work is too narrow.
They all
agree that surface workers too were exposed to excessive levels of
silica dust. Hence, their new definition includes all
risk work as
defined by the Occupational Diseases in the Mines and Works Act, 78
of 1973 (ODIMWA). In terms of that definition
all underground work
and certain surface work where there is potential exposure to
excessive silica dust constitute risk work.
In effect, the parties
have extended the definition of class members as contained in the
certification order. Importantly though,
this extension does not
alter the certification order. That order is in place, albeit
suspended pending the appeal. It can only
be altered by the appeal
court, or, if the appeal fails and the matter is remitted to this
Court, by way of an amendment utilising
the provisions of rule 28 of
the Uniform Rules of Court.
The compensation amounts
[22]
The compensation to be paid to an eligible claimant is determined by
a number of factors. These have been categorised according
to the
degree of harm suffered by the claimant. Firstly, the harm is
distinguished by reference to whether it is silicosis or TB-based.
Secondly, the harm referred to in each of those two categories is
divided into further categories depending on its intensity. The
categories of harm endured and the concomitant compensation levels
are:
[22.1]
the Silicosis
category
(a) Silicosis class 1: a claimant who
suffers mild lung function impairment will receive R70 000.00;
(b) Silicosis class 2: a claimant who
suffers moderate lung function impairment will receive R150 000.00;
(c) Silicosis class 3: a claimant who
suffers serious lung function impairment will receive R250 000.00.
Over and above this a claimant
falling into this category could
receive a sum of R500 000.00 at the discretion of the trustees if he
has·:
(i)
at least 10 years cumulative employment undertaking risk work on one
of the mines of a settling company during the qualifying
period; and,
(ii)
one of the following disease processes:
(aa) progressive massive
fibrosis and is aged less than 50 years;
(bb) lung cancer;
(cc)
cor pulmonale;
or
(dd) progressive massive
fibrosis involving the lungs or oesophagus;
(d) dependants of claimants falling
into the silicosis class will in certain cases also qualify for
compensation. The dependants
are sub-divided into two categories:
(i)
a dependant of a person who died during the period between 12 March
1965 and the date when the agreement becomes operative,
and in
respect of whom the Medical Certification Pa el has determined that
silicosis was the primary cause of death, will be compensated
in the
amount of R100 000.00. Such a dependant is referred to as a Dependant
Silicosis Category A (Category A);
(ii)
a dependant of a person who died during the period between 12 March
1965 and the date when the agreement becomes operative
but who falls
outside Category A, but in respect of whom the Medical Certification
Panel has determined that the deceased had silicosis
class 2 or class
3, will be compensated in the amount of R70 000.00.
[22.2]
The TB category
(a) if the claimant undertook risk
work at one of the mines of a settling company for at least two years
between 1 March 1994 and
the date when the agreement becomes
operative and who was diagnosed as having TB while employed or within
a year of leaving his
employ will receive:
(i)
R50 000.00 if the lung impairment caused by the TB is defined
as "first degree";
(ii)
R100 000.00 if the lung function impairment caused by the TB
is defined as "second degree";
(iii)
the following amounts if the claimant undertook risk work
between 1 March 1965 and 28 February 1994 at one of the mines of a
settling
company for a cumulative period of at least two years and
who was issued with the TB certificate under the provisions of ODIMWA
while employed or within one year of leaving employment
(aa) R10 000.00 if the TB certificate
does not disclose the degree of lung impairment;
(bb) R50 000.00 if the TB
certificate discloses that the degree of lung impairment was "first
degree";
(cc) R100 000.00 if the
TB certificate discloses that the degree of lung impairment was
"second degree";
(b) a dependant of the TB claimant
will receive R100 OOO.OD if the claimant who was deceased before the
agreement becomes operative
but who worked at a mine of a settling
company for two or more cumulative years undertaking risk work and
whose death, which must
have occurred during his employment or within
one year of him leaving employment, according to the Medical
Certification Panel
was primarily caused by TB.
[23]
Any claimant who passes away, but was living when the agreement
became operative and who had submitted a claim which was not
finalised at the time of his/her death, will be treated as a living
claimant and the full compensation due to him/her will be paid
to the
claimant's estate.
[24]
From the third anniversary of the operative date, the amount of
compensation will be adjusted each year by the Consumer Price
Index
for the preceding year.
[25]
The compensation scheme does not cater for the situation where a
successful claimant suffers from a progression of the disease.
Once
the claimant accepts the compensation and is paid, the claimant has
no further claims against any of the settling companies.
The
compensation, in other words, is a once off lump sum payment.
[26]
A fact that cannot be overlooked is that there are a number of hoops
through which each claimant has to go before s/he receives
the
compensation due to him/her. To begin with all claimants have to
prove that they worked at one of the qualifying mines.
[4]
Given the paucity of the records kept by them, this may prove to be a
challenging affair. It is a notorious fact that most mineworkers
were
only provided with a sheet of paper acknowledging their employment at
a particular mine. Their employment was always for a
year. The next
year they would be re-recruited by the same employment agency - TEBA
- but could be placed at a different mine from
the one they were
previously employed at. Even in the best of circumstances, these
mineworkers were unable to keep proper, let
alone meticulous, records
of which mine they worked in from time to time. The magnitude of the
problem is aptly captured in an
averment in the affidavit of the
independent expert witness Dr Deborah Jean Budlender (Dr Budlender),
where she points out how
difficult a task it is to locate
ex-mineworkers because of
"poor
record keeping by the mining industry in the 1970s and the 1980s,
lack of tax numbers, service records and standard identity
documents,
language barriers, use of different names for employment and other
purposes, distances and lack of awareness of their
rights on the part
of ex-mineworkers and their dependants".
Dependants
are likely to confront as much if not more of a difficulty in proving
the employment status of their bereaved loved ones
who died of
silicosis or TB related illnesses. The same would apply to their
medical records where the claimants were, understandably,
more
concerned with restoring their health than keeping records of their
medical conditions.
[27]
In such circumstances it is not just incumbent upon but crucial that
the trustees do everything possible to assist the claimants
with
their claims. No effort should be spared to ensure that every
eligible claimant or his dependants receive the compensation
that is
due to them. That is what is required of trustees by the object of
the Trust.
[5]
The trustees sitting in conscience, as they no doubt will, should
have little difficulty in ensuring that no eligible claimant
ls
wrongly denied the compensation they are entitled to: the focus
should be on paying rather than refusing the compensation. The
problem of fraudulent claims should, with minimal effort, be easily
detected. In my view only in cases where fraud can be established
should the respective claim be rejected.
Does the agreement serve
the interests of justice?
[28]
For this Court to imprint its stamp of approval onto the agreement it
has to be satisfied that the agreement serves the interests
of
justice. To decide whether it does so a number of considerations have
to be taken into account. They are many and varied.
[28]
One consideration that has to be confronted is whether the amount of
compensation to be paid to the claimants is commensurate
with the
harm they have each suffered. In countries where class actions and
settlements of class suits have historically been more
prominent than
ours, courts, when required to give their imprimatur to settlement
agreements, have scrutinised them by asking whether
such settlement
agreements are
"fair,
reasonable and adequate"
from
the perspective of the class members. This is because an agreement
binds all class members - except those who have opted out
- without
most of them having a say in the settlement. The certification
judgment in explaining why it was necessary to order that
any
settlement reached by the parties was not valid until approved by
this Court was so that this Court could satisfy itself that
any
agreement reached was
"fair,
reasonable and adequate and that it protects the interests of the
class(es)".
[6]
This is no doubt in the
interests of justice.
[30]
The question of whether the agreement as a whole and the compensation
in particular is fair, reasonable and adequate is an
intractable one,
the answer to which many eminently reasonable people may well
enthusiastically hold profoundly differing opinions.
However, as soon
as one asks the question one is smothered with the contentions (a)
that it is the only agreement they have concluded
and (b) absent the
agreement the
lis
would continue for many years to come, with
many of them dying in the meanwhile and with no guarantee of success.
Both contentions
are potent, but in my judgment they are neither
individually nor collectively decisive.
[31]
The contentions were emphasised on more than one occasion during the
presentation of oral submissions. We were told that the
agreement
must be respected for (a) it is what the parties settled for, and (b)
it is the factual that should be contrasted with
the counterfactual
of no settlement at all, which if it became a reality, the claimants,
who have suffered so much, would be worse
off.
[32]
As for the first, it is encased in classical liberal theory which,
though analytically useful at times, does not always encompass
the
lived reality of everyday practical life. Factoring the latter into
the equation is necessary for justice to prevail. After
all, justice
is located in everyday practical life. The class representatives have
unanimously voiced their support for the agreement.
They, we were
told, have taken note of what many of the eligible claimants feel and
think about the compensation amounts, and they
report that every one
of the eligible claimants they contacted support the agreement. This
is not surprising as the evidence before
us (endorsed by a wealth of
sociological learning) shows beyond a shadow of doubt that the
claimants are poor, weak, powerless,
struggling to cope with the
pain-inducing fibrotic forests in their chests and weary. Worse, as
testified in the founding affidavit
of Mr Richard Spoor (Mr Spoor),
they are dying at an alarming rate. To them the amounts offered in
the agreement will no doubt
be entrancing.
[33]
As for the second, it is a mode of thought engendered in the field of
Psychology and is not without its problems. A counterfactual
is a
claim or a hypotheses that is contrary to the facts. It is often
relied upon to assess the impact of an action. The concept
is
regularly employed by practitioners in the field of competition law.
While it can be useful it has to be noted that more often
than not it
invokes fear rather than impelling rational thought. On the contrary,
it may imperil rational thought and therefore
does not always produce
a just outcome. This is because the comparative counterfactual chosen
is often the bleakest one, the one
that bears the most pessimistic
outcome. In this case, it is the fear of no settlement at all. It is
to be compared to the benefit
of at least some compensation for
claimants who, all agree, deserve to be compensated. No settlement
carries with it the risk of
many dying long before their cases are
finalised. While there is no joy in that scenario it nevertheless
cannot be allowed to deter
the Court from performing its duty to see
justice prevail.
[34]
Thus, the two contentions notwithstanding, it is the duty of this
Court to ensure that the agreement serves the interests of
justice.
To this end it is necessary to scrutinise the agreement
dispassionately and objectively. Anything less is at risk of
transforming the court into a registry of contractual obligations and
that is not in the interests of justice
[7]
.
The court's
"institutional
interests"
should not
be subordinated
"to the
wishes of the parties"
[8]
[35]
Hence, it is the duty of this Court to ensure that the agreement does
not violate the Constitution, is not unlawful, immoral
or
unconscionable. If it fails this test then this Court has no
alternative but to refuse approval thereto. At the same time an
unconstitutional, unlawful, immoral or unconscionable settlement
agreement is unlikely to pass the fairness, reasonableness and
adequacy test. There are, as well, other considerations that are
equally important. These relate, amongst others, to the method
for
applying for compensation by the claimants, the cost of the
application for compensation, the fees charged by the legal
representatives
of the class(es) and last but not least the general
public interest. In short, while the agreement reflects what the
parties agreed
to, and while there is no joy in the comparative
counterfactual relied upon by counsel, neither of them can be allowed
to deter
the Court from performing its duty to see justice prevail.
[36]
For justice to prevail the compensation must bear some resemblance to
the harm suffered. It must also not be too high, for
it would be
irresponsible to impose compensation awards that are so burdensome on
the settling companies and which thereby result
in their destruction.
[37]
In this case the compensation amounts each eligible claimant would
each receive are not insubstantial, while the sum total
of the amount
to be paid to all of them is certainly sizeable. It is expected to be
in the range of R5bn but could be more. The
settling companies cannot
be accused of failing to appreciate the gravity of the harm the
claimants have suffered. Given the nature
of compensation in a class
action - where the amount paid to a claimant is likely to be on the
basis of one size fits all - it
would be wrong to seek the perfect
amount to be awarded to each claimant. Such a task would be an
exercise in futility. All that
can be achieved is a sum that bears a
close resemblance to the harm suffered. Mr Spoor informed us that the
"settlement
is
not intended to, and indeed could
never, make full redress for the loss and the harm suffered by the
gold mineworkers, their families
and communities over 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."
This is incontrovertible. After all, as the
German philosopher, Immanuel Kant, noted:
"Out of the crooked
timber of humanity no straight thing was ever made".
[38]
After carefully scrutinising the compensation amounts for the various
categories two respectable independent experts, Dr Budlender
and Dr
Kistnasamy (who will also serve as a trustee) opine that they are
fair, reasonable and adequate considering comparative
awards granted
in the field of occupational health and safety. Dr Kistnasamy holds
the office of Compensation Commissioner for
Occupational Diseases.
Both Drs Budlender and Kistnasamy commend the agreement. Further, and
importantly, they both provide extensive
evidence to show that the
agreement is in the public interest. Another independent party, the
South African Catholic Bishop's Conference,
commends the agreement.
[39]
The manner in which the agreement was concluded provides some insight
as to its fairness, reasonableness and adequacy. A settlement
agreement concluded by way of collusion between the settling parties
would fail the test. In the present case extensive, difficult,
detailed and protracted negotiations took place before the agreement
was concluded. These were conducted at arms-length. A number
of
stakeholders consisting of the trade unions operating in the mining
sector, non governmental organisations such as Section
27,
church-based organisations, the National Institute for Occupational
Health, the Chamber of Mines, the non-settling companies,
and
government bodies (including those of the Southern African States)
were consulted before the agreement was concluded. All of
their
concerns were taken note of. Salient features of the agreement were
brought to their attention and none of them objected
to it. The rule
nisi
was extensively advertised and no third party has
objected to it. There has been no pressure from the legal
representatives and
the funders of the litigation, Motley Rice LLC
(Motley Rice) and Hausfield LLP (Hausfield) on the class
representatives to conclude
the agreement.
[40]
All these factors not only enhance the status of the agreement - in
that it is not just another private agreement between the
settling
parties - but, crucially, show that the parties were sensitive to a
variety of opinions before they concluded the agreement.
The opinions
canvassed focused on almost every aspect of the agreement including,
amongst others, the definition of risk work,
the processes to be
applied to determine the eligibility of claimants, the steps to be
taken to locate eligible claimants, the
amounts of compensation to be
paid to the various categories of claimants, the method of payment
and the assistance to be given
to the claimants post the payments.
Where possible the opinions were incorporated into the agreement.
[41]
The amount of money set aside for the administration of the agreement
is a staggering R804m. There is no doubt that locating
claimants,
processing their claims, which will involve assisting them with
locating relevant documents, conducting health tests,
etc., and
assisting the successful claimants with financial matters, is a very
costly affair. The eligible claimants reside all
over the Southern
African Region. Locating them and ensuring that they undergo medical
examinations will, no doubt, prove to be
very challenging. It could
well cost in the region of R804m over the twelve year period. By
agreeing to this spend the parties
have certainly not been
irresponsible. Nevertheless, the fact that the cost is bound to be
very high is a discomforting one. It
would be logical to assume that
such a high cost has had an impact on the amount of compensation to
be paid to eligible claimants.
[42]
The legal representatives and the funders of the litigation have
filed detailed affidavits explaining every minute aspect of
the fees
they have charged and the expenses they have incurred. They have
provided details of these, almost to the last cent. A
careful
scrutiny of them demonstrates meticulous record keeping on their part
as well as a scrupulous regard for avoiding unnecessary
costs.
Disbursements were kept as close as possible to the absolute minimum.
[43]
The fees charged fall within the limits set by this Court in the
certification judgment. They are by no means excessive or
prohibitive. If anything the fees charged by Richard Spoor
Incorporated (RSI) in general, and in particular by Mr Spoor himself,
are on the low-end. These constituted a significant part of the
overall fees because of the leading role played by RSI in this
litigation. In fact, RSI did not charge for each and every hour it
put into the matter. It is further necessary to record that
one
counsel, Mr Gilbert Marcus SC acted
pro bono
and another one,
Mr Geoff Budlender SC, charged so little that he may well have not
recovered his own expenses. In the same vein
the funders, who because
of their specialised knowledge and experience played a leading
advisory role in the litigation, charged
what can only be regarded as
very reasonable fees. A further noteworthy fact is that the fees
charged by the settling companies'
legal representatives were never
disclosed to this Court, but I harbour no doubt that they were
substantial.
[44]
On the whole the role of the legal representatives of the classes and
especially that of Mr Spoor, Mr Abraham Kiewitz of Abraham
Kiewitz
Attorneys (AK), and the funders of the litigation, Motley Rice and
Hausfield, can only be characterised as commendable.
Between them,
RSI and AK took approximately 38 OOO instructions from class members.
These class members reside all over Southern
Africa. Locating and
reaching them is no easy task. RSI conducted extensive legal and
medical research necessary to launch the
cases of the class members.
As at the date of the filing of the founding affidavit Motley Rice
advanced R49m to RSI and Hausfield
advanced R50m to AK to cover
litigation costs without any guarantee that they would recover
anything in return from the litigation.
These legal representatives
and their funders cannot be accused of exploiting the class members
or the situation the class members
find themselves in. Absent their
hard work and the dogged persistence of some of them the
ex-mineworkers and their families would
not have received the justice
of being compensated for the harm they have endured and in many cases
continue to endure.
[45]
To conclude. For a court to approve a settlement agreement in a class
action it must be satisfied that the interests of justice
are served
by the approval. For an agreement to pass muster it must at least:
a.
not breach any
constitutional principle, be otherwise unlawful or immoral
[9]
;
b.
be concluded at arms-length and the settling parties must be
free of all forms of duress;
c.
provide for a comprehensive system of compensation that can be
assessed objectively;
d.
ensure that an application for compensation, the assessment
thereof and its outcome is readily and easily accessible to all the
class members;
e.
ensure that the cost of the application, if borne by a
claimant, is not so burdensome as to make the compensation
meaningless;
f.
ensure that all potential claimants as defined by the
certification order are covered;
g.
ensure that the claimant who proves his/her claim is
compensated as soon as the claim is proven;
h.
ensure the amount of compensation is neither too high nor too
low; and,
i.
ensure that the cost of implementing the agreement is
justifiable;
j.
ensure that the fees of the legal representatives engaged by
the class representatives are fair and reasonable; and
k.
generally be in the public interest.
[46]
The above is not an exhaustive list of important considerations to be
taken into account. In this country the law in this area
is still in
its infancy. As it evolves other considerations may in time emerge.
[47]
In my view, the agreement meets the requirements set out above.
The attitude of the
non-settling companies, DRDGold and ERPM
[48]
As mentioned earlier, DRDGold and ERPM's attorneys, in a letter to
the attorneys of the class representatives, stated that
they avoided
participating in these proceedings because their clients wished to
avoid an adverse costs order as anticipated in
paragraph 4.4 of the
rule
nisi.
The said
clause provides that the parties
"opposing
the grant of the relief on the return day''
could
be directed to pay the costs of the application. I say
"could"
as the granting of a costs order always
remains a matter that lies within the discretion of the court. That
much is trite. Paragraph
5 of the rule
nisi
provides for
"(m)embers
of the Settlement Classes and other interested parties"
to
"participate in the hearing on the return
day, and may address the Court on the reasonableness, fairness and
adequacy''
of the agreement. Any interested
party who took advantage of this invitation to participate in the
hearing by addressing the issue
of the
"reasonableness,
fairness and adequacy''
of the relief sought
would have been free to contend that the relief sought is not
appropriate. It could have done so and placed
on record that it was
not opposing the relief sought. The two are not mutually exclusive.
By participating and holding on to their
contention it would simply
be assisting the Court with useful submissions whilst leaving the
matter in the hands of the Court.
In such a case, the probability of
it attracting an adverse costs order is, in my view, almost nil,
especially as the matter concerns
issues that are novel to South
African law. In short, DRDGold could have participated in the hearing
without opposing it and could
still have raised their concerns about
approving all or part of the agreement. Their argument could have
carried the day. Their
failure to do so is a result of an election on
their part, one they were fully conscious of - as Malan Scholes say
in their letter,
their clients' rights remain
"strictly
reserved, notwithstanding our client's failure
to
participate in or to oppose
the
settlement application"
(underlining
added). Given their recognition that participation in the hearing is
not the same as opposing the relief sought, their
election to decline
the invitation accorded to them by paragraph 5 of the rule
nisi
is not easily comprehensible.
[49]
In any event, DRDGold and ERPM placed on record that they intend to
pursue the appeal to finality. On this understanding they
raise a
number of issues. Firstly, they intend to place any new facts arising
from the present matter before the SCA. They also
intend to raise
issues that will require the SCA to scrutinise the agreement and in
particular consider whether the agreement could
be approved by this
Court, as anticipated in the rule
nisi,
given that the
certification order of this Court is presently suspended. In these
circumstances, it is their contention that "(i)t
is
not
competent for
[this Court] -
whether under the auspices of the
settlement application or at all
-
to attempt to vary or
revisit an order that presently has no legal effect. In these
circumstances,
[this Court]
may not have the requisite
jurisdiction to grant the relief sought in paragraph 4.3 of the rule
nisi."
Paragraph 4.3 of the rule
nisi
provides that
"(t)he
class actions that were certified by this Court are
terminated as against'
the settling companies once the agreement
becomes operative. I have a grave difficulty in understanding why an
order to the effect
that the class action against the settling
companies is terminated upon the agreement becoming operative is: (a)
a variation or
re-visitation of the certification order; and (b) a
matter that falls outside the jurisdiction of this Court. DRDGold and
ERPM
as noted above did not deem it necessary to attend the hearing
and assist this Court in understanding their claim, nor did they
deem
it necessary to make written submissions in this regard. This was
most unfortunate as it deprived this Court from interrogating
their
submission even if only for purposes of comprehending it. And it is
not possible to determine from the Malan Scholes' letter
what exactly
they had in mind.
[50]
They further contend that this Court is not jurisdictionally
empowered to grant the relief sought as it would constitute "a
setting aside"
of
a
''judgment in rem".
Their argument it seems is
that only the SCA is entitled to entertain this application for
approval of the agreement, for the approval
application is nothing
short of an application to set aside the certification judgment,
which, they say, is a judgment in
rem.
They do not explain their
contention. They simply make reference to the Constitutional Court's
(CC) judgment in
Airports
Company South
Africa
[10]
and then assert that this Court lacks the jurisdiction to entertain
the application.
[51]
In
Airports Company South Africa
the appellant (ACSA) invited
bidders to tender for what essentially was a lease agreement allowing
for the operation of duty-free
shops at three international airports.
Three companies participated in the bid: Big Five, Flemingo and
Tourvest. Big Five was awarded
the tender. ACSA was on the verge of
signing a lease agreement with Big Five but was not able to do so
because Flemingo challenged
the lawfulness of the award. Flemingo
succeeded before Phatudi Jin having the award set aside for being
unlawful. This required
ACSA to re-run the tender process. However,
Big Five appealed. ACSA elected not to participate in the appeal. It
filed a notice
to abide. The appeal court heard the argument and
reserved judgment, but before it could deliver the judgment Big Five
and Flemingo
(which participated in the appeal) concluded a
settlement agreement which resolved the dispute between themselves.
The settlement
agreement though contained the following sub-clauses:
"3.1 [Flemingo]
abandons the order of Phatudi J...
3.3 [Flemingo] hereby
withdraws in its entirety the [proceedings before Phatudi J] on the
basis of and having the effect that [those]
proceedings were never
instituted ...
3.8 Upon signature of
this agreement ... [Flemingo] acknowledges that ACSA is free and can
now implement the award of its tender
to [Big Five] without
limitation or restriction and without any challenge thereto by
[Flemingo]."
[52]
The appeal court was requested to make the settlement agreement an
order of court. It agreed. It furnished no reasons for doing
so. ACSA
elected to continue to re-run the tender process as per the order of
Phatudi J. Big Five applied to the High Court to
compel ACSA to abide
by the decision of the appeal court by concluding the intended lease
agreement with itself. ACSA opposed the
application on the grounds
that, despite its decision not to oppose the appeal against the order
of Phatudi J, it was not bound
by the appeal court's order even
though that order contained the three sub-paragraphs quoted in [51]
above. ACSA contended that
the order of the appeal court was contrary
to the precepts of the Constitution, the law as well as public
policy. At this point
it bears noting that everyone agreed that the
Phatudi J order was an order
in rem.
Tourvest which was cited
as a respondent made common cause with ACSA. The contentions of ACSA
found favour with the High Court,
per Hughes J, who refused the
application. Big Five appealed to the SCA. The SCA found that ACSA
was bound by the appeal court's
order. That order had the effect of
setting aside the Phatudi J order for that is exactly what the
parties intended with the settlement
agreement. On that logic the SCA
had overturned the order of Hughes J and ordered ACSA to sign the
intended lease agreement with
Big Five. The majority judgment of the
CC disagreed with the SCA. According to it, the SCA erred in its
conclusion, because the
appeal court could not set aside a judgment
or order
in rem
without giving reasons. Moreover, a judgment
or order
in rem
cannot be set aside by a settlement agreement.
As the appeal court merely adopted the settlement agreement it did
not have the effect
of an appeal judgment that set aside the judgment
and order of Phatudi J. Had it, after considering the merits, given a
reasoned
judgment as to why it believed Phatudi J's judgment and
order could not stand, the situation would have been different. On
the
issue of the three sub-paragraphs quoted in [51] above it noted
that they merely record that Flemingo abandoned the judgment and
order of Phatudi J and withdrew from the proceedings. The abandonment
of the judgment and order did not result in them being set
aside -
parties do not have the power to set aside a judgment and order. As
for the withdrawal from the proceedings, if that meant
withdrawal
from the proceedings before Phatudi J it would be meaningless as the
judgment remains extant. Accordingly, it reversed
the order of the
SCA and reinstated the order of Hughes J.
[53]
DRDGold and ERPM's case is that the order sought in paragraph 4.3 of
the notice of motion is a call for the reversing or setting
aside of
the certification order, which they say is an order
in
rem.
They claim to draw
valuable support for their contention from the reasoning of the CC in
Airports Company South
Africa
[11]
However, based on the
exposition of that case in [51] and [52] above I am of the opinion
that its
ratio
has
no bearing on the one before us.
[54]
The certification order recognised and allowed for the
lis
(in
the form of a class action) between the mining companies (settling
and non-settling ones) and the class members to proceed.
The settling
companies and the class members who accept the agreement have decided
that they wish to put an end to the lis. Accordingly,
paragraph 4.3,
we know, effectively declares that the
lis
between the
settling companies and class members who bind themselves to the
agreement is ended. It says nothing of the
lis
between the
non-settling companies and all the class members. Whether the
paragraph is included in the order of Court matters not
at all for
the
lis
between the non-settling companies and the class
members. That
lis
continues. The recognition of the fact is
embodied in what I would call the preamble and in clause 2.12 of the
agreement, where
it is explicitly pronounced that:
Preamble:
"This Agreement is
made and entered into by and between, among others, the [settling
companies], the Claimants' Attorneys and
the Class Representatives.
This Agreement sets out the terms upon which, and the conditions
subject to which, the Parties will:
…
b. settle the Settled
Claims fully and finally,
with the Class Action
Litigation terminating as against the [settling companies], and only
continuing [with] the [non-settling companies]
[which] are not
parties to this Agreement."
"Clause 2.12:
Without unreasonable
delay after the Effective Date, each [settling company] which
appealed [the certification order] shall withdraw
its appeal
instituted in the SCA... The provisions of this clause 2.12 does not
impose any obligation on any of the [settling 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 party to this
Agreement."
[55]
Hence, should the appeal by the non-settling companies against the
certification order succeed that
lis
may or may not (depending
on the order of the appellate court) come to a close. Should the
appeal fail, the
lis
between the class members and the non
settling companies as defined in the certification order would remain
pending and the
law would have to take its course. Furthermore, and
importantly, any class member that opts-out of the agreement is
entitled to
pursue his/her case against the settling companies. On
this understanding of the legal status of the matter (which I
presume, DRDGold,
ERPM and Malan Scholes do not dispute as they have
said nothing to the contrary), this Court would not be either setting
aside,
amending or reversing the certification order. On this logic,
whether that order is an order
in rem
or not is of no moment.
I am, therefore, at a loss as to why it falls outside the
jurisdiction of this Court to grant paragraph
4.3 of the notice of
motion: the logic underlying the assertion simply eludes me. And,
again, the refusal of DRDGold, ERPM and
even Malan Scholes to
participate in the hearing despite raising their concerns in a letter
to the applicants' attorneys has not
been helpful.
[56]
In my view, DRDGold's, ERPM's and Malan Scholes' failure to
participate in the hearing either through written submissions alone
or through written and oral submissions was an unnecessary loss of an
opportunity. DRDGold and ERPM were invited to participate.
Their
attorneys Malan Scholes has been involved in this matter since its
inception. If any of them had any doubts or concerns about
any
aspects of the application they should have penned a letter to the
Deputy-Judge President wherein they could seek clarification,
assistance or simply record their position. Instead, they wrote a
letter to the applicants' attorneys wherein they explicitly stated
that they will take the matter up with the SCA. Why they did not deem
it necessary to take up their concerns with this Court is
never
explained. In this regard I do not find their fear of attracting an
adverse costs order to be explanation, for as I say above
the danger
of a costs order does not attach to their participation. Their
approach is regrettable.
Conclusion
[57]
For the reasons set out above I hold that the order as proposed
should be granted. It is the only principled and pragmatic
thing to
do.
___________________
Vally
J
Gauteng
High Court
Johannesburg
Local Division
[1]
The suspension of the order follows by operation of
s 18(1)
of the
Superior Courts Act No 10 of 2013
[2]
The reference to class member must, depending on the context of the
message conveyed in a particular sentence or paragraph, be
read to
include a dependant of a class member. To draw the distinction each
time is, I believe, unnecessary. Thus, at times the
term class
member would be referring to a claimant.
[3]
Rachael Mulheron, The Class Action in Common Law Legal Systems: A
Comparative Perspective, (2004, Oxford) at 390 391
[4]
Dependants of deceased claimants will have to prove that their
spouses or parents who owed them a duty of care worked on a
qualifying mine during the qualifying period.
[5]
The object of the trust is quoted in (14) above
[6]
Nkala and Others v Harmony Gold Mining Companies Limited and Others
2016 (5) SA 240
(GJ) at [39]
[7]
See Mansell v Mansel
1953 (3} SA 716
(N) at 7218 - F; Thutha v
Thutha 2008 (3) SA 494 (TkH).
[8]
Ex Parle Le Grange and Another In re: Le Grange v Le Grange [2013]
ECGHC 75 at [47]
[9]
Eke v Parsons
2016 (3) SA 37
(CC) at [26]
[10]
Airports Company South Africa v Big Five Duty Free (Ply) Ltd and
others 2019 (2) BCLR 1165 (CC)
[11]
n 10