Silicosis: the battle begins

2014-06-08 15:00

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Big mining companies ask court not to allow a class action lawsuit – not because there’s no case, but because it may be too ‘gargantuan’ to handle

Gold mining companies, past and present, have filed thousands of pages of court papers in their bid to stop the historic class action by former mine workers suffering from silicosis.

The mines are not only arguing against the class action on legal principles, but allege it would be virtually impossible for the South Gauteng High Court to manage a case this “gargantuan”.

Some of the companies have squarely taken aim at the lawyers who are trying to represent the mine workers, alleging questionable motives and legal tactics designed to maximise fees, even if it complicates the case.

At this point, mines are only arguing against the certification of a class action, not the actual questions of liability and damages.

The class action aims to cover practically all gold miners since the 1950s, potentially resulting in billions of rands in claims against dozens of mining companies. Most notable among the respondents are Anglo American SA, AngloGold Ashanti, Gold Fields and Harmony.

The different companies are taking very different approaches, owing in part to their very different liabilities.

AngloGold Ashanti, for instance, has only existed in its own right since being divested by Anglo American in 1998 and faces far fewer claims than Anglo itself or Gold Fields, which ran the country’s largest mines near Carletonville for half a century.

Anglo says the scale of the class action envisaged “boggles the imagination”. In its papers, it estimates the “gargantuan litigation” would require more than 50 lawyers representing mines and mine workers in a case “no viable legal proceeding could ever accommodate”.

Gold Fields and others are arguing that the kinds of evidence they will argue would be on an individual basis, interrogating the minutiae of possible dust exposures and alleged instances of negligence for thousands of people spanning a 60-year period.

The mines are fundamentally fighting for the idea that there could be a collective case for collective damages.

The mine workers’ lawyers are ultimately aiming at a resolution similar to the settlement with asbestos mines more than a decade ago. Then the former Gencor paid millions into a fund that still exists and which sick ex-miners can approach for compensation.

Counterattack

One thrust of the gold mines’ defence is to attack the motives of the well-known human rights lawyers representing mine workers and their US backers.

Three separate class action cases were combined last year after most of the lawyers buried their differences.

These are Richard Spoor, Charles Abrahams from Abrahams Kiewitz Attorneys and the Legal Resource Centre (LRC). Spoor is backed by US firm Motley Rice, while Abrahams has another American celebrity lawyer, Charles Hausmann, in his corner.

The team of Leigh Day, a UK law firm, comprising Richard Meeran and his local partner Zanele Mbuyisa used to work with the LRC, but have gone their own way by filing thousands of separate cases, not as a class action.

Gold Fields in particular has questioned the fee contracts of the various legal teams, especially after the consolidation of the three class actions. The company has filed copies of the legal teams’ fee agreements as part of the papers and claims these contain clauses that are “highly questionable”.

Gold Fields has also said it will ensure the US firms backing the miners’ lawyers join the case – to argue for them to carry the formidable costs if the case fails.

Other cases

It emerged this week that another team of lawyers have separately filed thousands of individual silicosis cases against Anglo and AngloGold, mostly in March this year.

Leigh Day, working with local firm Garratt Mbuyisa Neale, have filed 4?335 claims for a total of R7.6?billion against Anglo in Gauteng. They also filed 1?204 claims against AngloGold for R2.1?billion.

These cases were mostly filed after Leigh Day parted ways with the LRC late last year when the LRC opted to join up with Spoor and Abrahams in a single class action.

Earlier, Meeran had also lodged 4?202 claims against Anglo in the UK.

The past and present divisions between the lawyers have given the mines ammunition. Anglo accused Meeran of “unashamedly cherry-picking” jurisdictions “in order to maximise the damages claim and the amount of success fees”.

Spoor has also lodged one case separately from the class action, involving only one individual mine worker claiming R25?million from Harmony and Gold Fields.

Anglo has used this to argue that even the most vocal supporter of the class action route clearly thinks there are other ways to handle silicosis claims.

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