1 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL ...

156 Pages·2016·1.08 MB·English

by  Windell Leonie

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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION

Consolidated Case Number: 48226/12
Previous Case Numbers: 31324/12
31326/12
31327/12
(1) REPORTABLE: YES
48226/12
(2) OF INTEREST TO OTHER JUDGES: YES
08108/13

___________________ _________________
DATE SIGNATURE

In the matter between:

BONGANI NKALA First Applicant

SIPORONO PHAHLAM Second Applicant

MAPHATSOE KOMPI Third Applicant

THEMBEKILE MNAHENI Fourth Applicant

MATONA MABEA Fifth Applicant

MOKHOLOFU BOXWELL Sixth Applicant

ALLOYS MNCEDI MSUTHU Seventh Applicant

MYEKELWA MKENYANE Eighth Applicant

MASIKO SOMI Ninth Applicant

ZWELENDABA MGIDI Tenth Applicant

MTHOBELI GANGATHA Eleventh Applicant

LANDILE QEBULA Twelfth Applicant

PHUMELELO SOLITASI SIYOCOLO Thirteenth Applicant
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TEKEZA JOSEPH MDUKISA Fourteenth Applicant

MICHAEL LITABE Fifteenth Applicant

JOSEPH LEBONE Sixteenth Applicant

LIPHAPANG AKIME LEBINA Seventeenth Applicant

ZAMA GANGI Eighteenth Applicant

MALUNGISA THOLE Nineteenth Applicant

MONOKOA THOMAS LEPOTA Twentieth Applicant

MZAWUBALEKWA DIYA Twenty-first Applicant

MSEKELI MBUZIWENI Twenty-second Applicant

ZANEYEZA NTLONI Twenty-third Applicant

TOHLANG PAULOSI MAKO Twenty-fourth Applicant

NANABEZI MGODUSWA Twenty-fifth Applicant

THULENKHO KUSWANA Twenty-sixth Applicant

MALEBURU REGINA LEBITSA Twenty-seventh Applicant

MATAASO MABLE MAKONE Twenty-eighth Applicant

MATSEKELO CISILIA MASUPHA Twenty-ninth Applicant

MATIISETSO MASEIPATI JESENTA NONG Thirtieth Applicant

BANGUMZI BENNET BALAKAZI Thirty-first Applicant

WATU LIVINGSTON DALA Thirty-Second Applicant

ZWELAKE DALA Thirty-Third Applicant

DYAMARA JANUARY JIBHANA Thirty-Fourth Applicant

MANTSO HENDRICK MOKOENA Thirty-Fifth Applicant

MBIKANYE ALFRED SAWULE Thirty-Sixth Applicant

ZONISELE JAN NKOMPELA Thirty-Seventh Applicant

ISHMAEL TSIKWANE MOTLEKE Thirty-Eighth Applicant
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THABO EDWIN NTSALA Thirty-Ninth Applicant

MALEPA PUSO Fortieth Applicant

NOEBE JARA TAU Forty-First Applicant

ELIA MOTLALEPULA PHETANE Forty-Second Applicant

MOTLALEPULA MOKOENA Forty-Third Applicant

SEKHOBE LETSIE Forty-Fourth Applicant

TSHEHLA SOLOMON HLALELE Forty-Fifth Applicant

MONA ASHTON MELAO Forty-Sixth Applicant

NKOSI SELATA SELATA Forty-Seventh Applicant

EDGAR NTJANA NTJANA Forty-Eighth Applicant

MAHOLA EMMANUEL SELIBO Forty-Ninth Applicant

EZEKIEL MUTSANA MASUPHA Fiftieth Applicant

MALEFETSAME MOHLAKASI Fifty-First Applicant

MTHETHELELI NELSON SATU Fifty-Second Applicant

VUYANI ELLIOT DAWUBE Fifty-Third Applicant

MATELA HLABATHE Fifty-Fourth Applicant

ZIMOSHILE BOZO Fifty-Fifth Applicant

ZAMUKULUNGISA DYANTI Fifty-Sixth Applicant

MALUSI BOVU Fifty-Seventh Applicant

AGRIPPA DLISANI Fifty-Eighth Applicant

MNCEDISI DLISANE Fifty-Ninth Applicant

SIQHAMO HOYI Sixtieth Applicant

LUVOKO MADINDALA Sixty-First Applicant

MTUTUZELI MTSHANGE Sixty-Second Applicant

MONDE MXESIBE Sixty-Third Applicant
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MZWANELE BUNYONYO Sixty-Fourth Applicant

MZIKAYISE NQOSE Sixty-Fifth Applicant

BUZILE NYAKAZA Sixty-Sixth Applicant

PATRICK SITWAYI Sixty-Seventh Applicant

XOLISILE BUTU Sixty-Eighth Applicant

ZOLISA JEJANA Sixty-Ninth Applicant

And

HARMONY GOLD MINING COMPANY LIMITED First Respondent
(Registration number M1950/038232/06
First Respondent in case no. 48226/12 and First
Respondent in case no. 31326/12)

EVANDER GOLD MINES LIMITED (previously
KINROSS MINES LIMITED) Second Respondent
(Registration number M1963/006226/06
Second Respondent in case no. 48226/12 and Fifth
Respondent in case no. 31326/12)

LESLIE GOLD MINES LIMITED Third Respondent
(Registration number 1959/001124/06
Third Respondent in case no. 48226/12)

RANDFONTEIN ESTATES LIMITED Fourth Respondent
(Registration number 1889/000251/06
Fourth Respondent in case no. 48226/12 and Sixth
Respondent in case no. 31326/12)
ARMGOLD/HARMONY FREEGOLD JOINT VENTURE
(PROPRIETARY) LIMITED Fifth Respondent
(Registration number 2001/029602/07
Fifth Respondent in case no. 48226/12 and Third
Respondent in case no. 31326/12)

AVGOLD LIMITED (previously TARGET
EXPLORATION COMPANY LIMITED) Sixth Respondent
(Registration number 1990/007025/06
Sixth Respondent in case no. 48226/12 and Fourth
Respondent in case no. 31326/12)

UNISEL GOLD MINES LIMITED Seventh Respondent
(Registration number 1972/010604/06
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Seventh Respondent in case no. 48226/12)

LORAINE GOLD MINES LIMITED Eighth Respondent
(Registration number 1950/039138/06
Eighth Respondent in case no. 48226/12)

WINKELHAAK MINES LIMITED Ninth Respondent
(Registration number 1955/003606/06
Ninth Respondent in case no. 48226/12)

BRACKEN MINES LIMITED Tenth Respondent
(Registration number 1959/001126/06
Tenth Respondent in case no. 48226/12)

ANGLOGOLD ASHANTI LIMITED (previously
VAAL REEFS EXPLORATION AND MINING COMPANY
LIMITED) Eleventh Respondent
(Registration number 1944/017354/06
Eleventh Respondent in case no. 48226/12
and Respondent in case no. 31327/12)

FREE STATE CONSOLIDATED GOLD MINES
(OPERATIONS) LIMITED Twelfth Respondent
(Registration number 1937/009266/06
Twelfth Respondent in case no. 48226/12)

GOLD FIELDS LIMITED (previously EAST
DRIEFONTEIN GOLD MINING COMPANY LIMITED
AND DRIEFONTEIN CONSOLIDATED LIMITED) Thirteenth Respondent
(Registration number 1968/004880/06
Thirteenth Respondent in case no. 48226/12
and First Respondent in case no. 31324/12)
GOLD FIELDS OPERATIONS LIMITED
(previously WESTERN AREAS
GOLD MINING COMPANY LIMITED) Fourteenth Respondent
(Registration number 1959/0032096/06
Fourteenth Respondent in case no. 48226/12
and Sixth Respondent in case no. 31324/12)

NEWSHELF 899 (PROPRIETARY) LIMITED Fifteenth Respondent
(Registration number 2007/019941/07
Fifteenth Respondent in case no. 48226/12
and Fourth Respondent in case no. 31324/12)

BEATRIX MINES LIMITED Sixteenth Respondent
(Registration number 1977/002138/06
Sixteenth Respondent in case no. 48226/12)

FARWORKS/682 LIMITED (previously
KLOOF GOLD MINING COMPANY LIMITED) Seventeenth Respondent
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(Registration number M1964/004462/06
Seventeenth Respondent in case no. 48226/12)

DRIEFONTEIN CONSOLIDATED (PROPRIETARY)
LIMITED Eighteenth Respondent
(Registration number 1993/002956/07
Eighteenth Respondent in case no. 48226/12)

GFI MINING SOUTH AFRICA (PROPRIETARY)
LIMITED Nineteenth Respondent
(Registration number M2002/031431/07
Nineteenth Respondent in case no. 48226/12
and Third Respondent in case no. 31324/12)

VILLAGE MAIN REEF LIMITED Twentieth Respondent
(Registration number M1943/005703/06
Twentieth Respondent in case no. 48226/12)

BUFFELSFONTEIN GOLD MINES LIMITED Twenty-first Respondent
(Registration number M1995/0100726/06
Twenty-first Respondent in case no. 48226/12)

BLYVOORUITZICHT GOLD MINING COMPANY
LIMITED Twenty-second Respondent
(Registration number M1937/009743/06
Twenty-second Respondent in case no. 48226/12)

DOORNFONTEIN GOLD MINING COMPANY LIMITED Twenty-third Respondent
(Registration number M1947/024709/06
Twenty-third Respondent in case no. 48226/12)

SIMMER AND JACK MINES LIMITED Twenty-fourth Respondent
(Registration number 1924/007778/06
Twenty-fourth Respondent in case no. 48226/12)

DRDGOLD LIMITED Twenty-fifth Respondent
(Registration number 1895/00926/06
Twenty-fifth Respondent in case no. 48226/12)

EAST RAND PROPRIETARY MINES LIMITED Twenty-sixth Respondent
(Registration number M1893/000773/06
Twenty-sixth Respondent in case no. 48226/12)

ANGLO AMERICAN SOUTH AFRICA LIMITED Twenty-seventh Respondent
(Registration number 1917/005309/06
Twenty-seventh Respondent in case no. 48226/12)

AFRICAN RAINBOW MINERALS (previously
ANGLOVAAL MINING LIMITED) Twenty-eighth Respondent
(Registration number 1933/004580/06
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Twenty-eighth Respondent in case no. 48226/12)

RANDGOLD AND EXPLORATION COMPANY
LIMITED Twenty-ninth Respondent
(Registration number 1992/005642/06
Twenty-ninth Respondent in case no. 48226/12)

GFL MINING SERVICES LIMITED Thirtieth Respondent
(Registration number 1997/019961/06
Second Respondent in case no. 31324/12)

GFI JOINT VENTURE HOLDINGS (PROPRIETARY)
LIMITED Thirty-first Respondent
(Registration number 1998/023354/07
Fifth Respondent in case no. 31324/12)

AFRICAN RAINBOW MINERALS GOLD LIMITED Thirty-second Respondent
(Registration Number 1997/015869/06
Second Respondent in case no. 31326/12)

And

THE TREATMENT ACTION CAMPAIGN NPC and
SONKE GENDER JUSTICE NPC Amicus curiae
Index
Paragraph Number
INTRODUCTION

Background [1]

The Application [5]

Legal representatives and consolidation of application [9]

Silicosis [12]

Pulmonary Tuberculosis [17]

AMICI CURIAE [19]

CLASS ACTION IN SOUTH AFRICAN LAW [24]

THE CERTIFICATION OF A CLASS ACTION [35]

THE MINEWORKERS’ CAUSE OF ACTION

The class definitions [40]
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The classes are objectively determinable [42]

The scope of the definition of the two classes [51]

Claim is one in delict [57]

Alleged breach of duties by the mining companies [58]

The evidence common to every individual mineworker’s
case which the mineworkers intend to bring to the class actions [61]

The claim against parent companies [71]

Common questions of law [72]

The claims of dependants [74]
Issues concerning Pulmonary Tuberculosis [75]

Are there conflicts of interests on the common issues? [77]

The common issues in the class actions may not finally
determine each mineworker’s case [84]
Conclusion on commonality [90]

There is no realistic alternative to class action [100]

Class action is the most appropriate way to
resolve many of the disputes that arise in the
case of each mineworker [109]

The Bifurcated process [116]

Suitability of class representatives, legal
Representatives and their fees

Introduction [126]

Suitability of Class Representatives [129]
Suitability of Legal Representatives [143]

Legal Representatives and their Fees [147]

The Notices [167]

THE CONDITIONAL COUNTER-APPLICATION OF HARMONY [169]
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TRANSMISSIBILITY OF GENERAL DAMAGES [176]

The Roman law [177]

The Roman-Dutch law and the
modern-day South African common law [182]

The common law is dynamic, fluid and ever-changing [193]

The constitutional imperative to develop the common law [199]

The position in the UK, Australia and the USA [205]
Should this matter be decided by the trial court? [210]

Conclusion on transmissibility [211]

CONCLUSION [223]

COSTS [228]

THE ORDER [230]

JUDGMENT OF WINDELL J [231]
___________________________________________________________________

Judgment
___________________________________________________________________

Mojapelo DJP et Vally J
INTRODUCTION
Background

[1] Gold mining began on the Witwatersrand in 1886. It has grown over the years
spreading to other parts of the country (significantly the Free State). In due course it
became a significant contributor to the growth of the gross domestic product of South
Africa and rewarded handsomely those who invested in it. The South African currency
was for a long time based to a large extent on the value of this internationally sought
precious metal. As this case demonstrates, simultaneous with that growth, the industry
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left in its trail tens of thousands, if not hundreds of thousands, of current and former
underground mineworkers who suffered from debilitating and incurable silicosis and
pulmonary tuberculosis (TB). Many mineworkers also died from the diseases.

[2] Soon after the commencement of gold mining the risk of underground
mineworkers being adversely affected by exposure to silica dust and thus suffering from
silicosis, which was initially called “phthisis”, became manifest. There are other
occupational lung diseases in the industry, but silicosis and to a lesser extent TB are the
two that are of concern in this case.

[3] From as early as 1902 several Commissions of Enquiry (“Commissions”) were
appointed by the government to investigate the causes and prevalence of silicosis.
These Commissions found the inhalation of excessive silica dust to be the sole cause of
silicosis. The Commissions recommended that dust control and dust elimination
measures be introduced. 1 There were other studies and investigations, including some
by the mining industry itself, which made similar findings. These developments sketch
and lay down a wide carpet of information that became available and accessible to
those involved in the gold mining industry.

[4] This case is about the attempts by the mineworkers employed in the gold mining
industry and their dependants to obtain compensation as a result of the mineworkers
having contracted silicosis or TB.

1 See for instance the 1902 Weldon Miners’ Phthisis Commission; South African Native Affairs
Commission of 1903 (Report: 1903 – 1905), 1994 Leon Commission, Commission of Inquiry into Safety
and Health in the Mining Industry; Several parliamentary select committees (at least ten) and state
industry reports also looked at the incidence of silicosis in the gold mining industry. Several legislative
interventions and regulations were promulgated (not less than fifteen Acts of Parliament between 1912
and 1946 followed by the Occupational Diseases in Mines and Works Act 78 of 1973 (“ODIMWA”).
Occupational lung diseases (including silicosis) have also been the subject of several national and
international conferences and studies.