What are the widows and children entitled to?

Vabaza Zide’s widow, Nowelile. He died without being compensated
Vabaza Zide’s widow, Nowelile. He died without being compensated

A major part of the class certification judgment last month was a piece of common law development meant to massively increase the entitlement to damages from mining companies for widows and children of ­deceased mine workers.

It came as a surprise to everyone involved and could have huge ramifications for all other personal injury claims involving a claimant who dies.

All the mines are attacking this part of the judgment in their appeals against the class action, but it is unclear just how meaningful it would turn out to be in this case.

The case would most likely end in an settlement, not a court order on damages, so the widows’ claims would not have relied on the legal rules, said the mine workers’ lawyer, Richard Spoor.

There is no rand-and-cent claim before the courts yet, but when it comes, it will consist of legally distinct categories: lost earnings, medical expenses and “general damages”, such as pain and suffering and loss of quality of life.

General damages are not inheritable, so when a mine worker dies and his dependants join the class action, they cannot sue for it – or for future medical expenses.

That would make widows’ claims before a court far smaller than for living mine workers.

The law as it stood before the judgment meant that the total claim against the mines was constantly falling as mine workers die and their general damage claims die with them.

Now the claims of those who die, and have died since 2012, are kept intact.

The common law only allows general damages claims to keep going after death if the court case has already reached a certain point.

In legalese, it is called litis contestatio – the point where pleadings are finished.

Judge Phineas Mojapelo called this cutoff arbitrary and unjust, and instead ruled that the real cutoff should be August 2012, when the court application for a class action was first filed.

He shifted the rule, but also implicitly criticised its very existence.

Mojapelo couched the decision as a way to compensate the dependants of a mine worker for the burden of care they would have borne. That is not something that could normally form part of general damages.

This still doesn’t mean that widows of workers who died before the application can claim general damages.

“I respect that the industry has a legitimate interest in challenging the transmissibility issue,” Spoor said.

“It is completely novel and new. I don’t think it makes a huge difference [to our case].”

Most of the claimants were old, and the dependants of those who had already died would have a hard time proving they had silicosis, said Spoor.

“So not many widows will have a claim. It will be a small class. The intention was to have them benefit, but we were not necessarily going to label it ‘general damages’. [The judgment] now gives that a legal justification.”

Despite the mines publically favouring a settlement, they have strongly attacked this part of the judgment.

Anglo American SA said “the learned judges should have held that such care workers would not necessarily have any legal entitlement to ... the deceased’s claim for general damages”.

According to AngloGold, the court “erred in finding that the deceased’s heirs would lose ... claims which they never had”.

Gold Fields likewise argued that “caregivers and families should have no claim to amounts in respect of such personal damages [general damages]”.

The practical effect of keeping general damages claims alive was illustrated by the original silicosis case in 2004, which made the class action possible.

In that case, Mankayi vs AngloGold, a silicotic mine worker sued his former employer for R2.6 million. Of that, half was for future medical expenses, which a ­widow would not get.

Another R500 000 was for general damages. In effect, that claim would have fallen by 72% if Mankayi’s widow pursued it after his death.

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