THE IMPLICATIONS OF CORPORATE SOCIAL RESPONSIBILITY NOT JUST BEING ABSTRACT: THE SILICOSIS JUDGMENT

CORPORATE SOCIAL RESPONSIBILITY CANNOT BE MERELY VIEWED AS A CORPORATE TERM INCLUDED IN COMPANIES ANNUAL REPORT IN ORDER TO DRIVE THE STOCK PRICE UP AND ENTICE SHAREHOLDERS. IT SHOULD BE UNDERSTOOD AS A PRACTICAL NECESSITY WHEREIN CORPORATION UNDERSTAND THAT THEY HAVE A DUTY NOT ONLY TO ENSURE THE SAFETY OF THEIR EMPLOYEES WHICH IS PARAMOUNT BUT TO ENSURE THE WELL BEING OF THE COMMUNITY AT LARGE. MINING COMPANIES ESPECIALLY MUST TAKE HEED TO THIS

1. Case Name and Citation

Nkala and Others v Harmony Gold Mining Co Ltd and Others (Gauteng Local Division, Consolidated Case No. 48226/12; 13 May 2016). With the growth of gold sales across globe came the death out of countless of people as an expense of the growth of the economy due to south africa gold rush.

Since the inception of humanity, or should i say, since my inception as a human being, mega corporations have elected production and profit over health and safety of its employees. Materials, number on a bank account and everything which does not matter have been choosen by these mega corporation over the natural, rich life of a human being. I respect this class action because it involved humans sayings enough is enough, you corporations are killing us and you corporations are killing our fathers. Please stop now. We have asked on numerous occasions to stop, commission where even formed which said stop, you action or inaction is causing people to die. These companies never listened which brought us today to discussing the class action law suit in this matter. The judgment to this class action was two fold, the first which we are discussing is the certification judgment and the second one is the settlement being made an order of court

2. Facts of the Case

Here is what happened:

Over sixty former and current underground gold mineworkers and four widows (the “applicants”) launched five separate certification applications against nearly thirty gold-mining companies (the “respondents”), later consolidated. Now essentially in South African class actions, a certification application is brought to court wherein the court accepts/approves the going ahead of the class action. The applicants in this case sought a certification of the class action from the court so that they can have strength in numbers to go after the Goliaths.

The mineworkers and the dependents of those who have since died allege that long-term exposure to respirable silica dust underground caused silicosis and substantially increased the risk of pulmonary tuberculosis (TB). Many have already died.

They seek to certify a single class action divided into two classes (silicosis and TB), to be tried in two stages:

• Stage 1 (common issues): duty of care, breach, causation principles, common evidence on dust control;

• Stage 2 (individual issues): proving membership, quantum of damages.

The applicants propose an opt-out procedure for Stage 1 and an opt-in procedure for Stage 2. Meaning that in stage 1 where the common issues are decided, involving everyone who is determined to be a member of a class, these persons are included by default. They may opt in in stage 2 if they feel they would want their individual claims to be decided within the action.

Ofcourse, greed, the might powerful human emotion plays a big role as Harmony Gold and others opposed on grounds of commonality, manageability and procedural complexity. Harmony also brought a conditional counter-application for premature disclosure of plaintiffs’ details. These multi-billion dollar corporation make astounding profits every year and the life of a human is that worthless than they not willing to admit wrongdoing and take accountability for the pain and loss they have cause. Instead they expand their billions, which by the way where made by the mine workers to the fight the mine workers just asking for justice just asking for reparation from the companies who they have given their lives for.

3. Key Legal Issues

1. Certification prerequisites for a class action under South African law (numerosity, commonality, suitability of representatives, interests of justice).

2. Definition and manageability of two overlapping classes (silicosis and TB).

3. Appropriateness of a bifurcated opt-out/opt-in process.

4. Suitability of proposed representatives, their legal teams and contingency-fee arrangements.

5. Proper form and distribution of class-action notices.

6. Whether general damages (pain and suffering, loss of amenities) are transmissible to an estate if a class member dies before litis contestatio.

7. Judicial development of common law to accommodate transmissibility consistent with constitutional rights.

4. Relevant Laws and Statutes

• Constitution of the Republic of South Africa, 1996– s 34 (access to courts)– s 38(c) (standing for groups)– s 173 (courts’ inherent power to regulate process and develop common law)– Bill of Rights (rights to dignity [s 10], bodily integrity [s 12], environment [s 24], etc.)• Uniform Rules of Court– Rule 16A (class actions)– Rule 28–29 (pleadings, litis contestatio)• Contingency Fees Act 66 of 1997• Prescription Act 68 of 1969 (interruption of prescription)• Mines and Works Act 27 of 1956; Occupational Diseases in Mines and Works Act 78 of 1973; Mine Health and Safety Act 29 of 1996• Key case law on class actions:– Permanent Secretary, Dept of Welfare v Ngxuza (2001) 4 SA 1184 (SCA)– Children’s Resources Centre Trust v Pioneer Foods (2013) 2 SA 213 (SCA)– Mukkadam v Pioneer Foods (2013) 5 SA 89 (CC)

5. Analysis: Application of Law to Facts

1. On the Certification prerequisites: looking at Class Definitions & Commonality  

   
   

   Classes objectively defined by medical diagnosis (silicosis/TB), length of service (≥2 years), specific mines (Annexure A), dates. The class action member were identified throught objective means such as medical diagnosis. The respondent objected on the grounds that medical diagnosis are subjective and therefore the class definition is based on a objective standard. Althought medical diagnosis is based on an experts finding, its far fetched to say that due to that, its subjective. These findings are based on facts and therefore can be regarded as objective. The dudes need to chill with the fishing.

   
   

   On commonality, this was a no brainer as all members are gathered against the respondents to bring a action founded on delict. The Court found sufficient common evidence (Chamber of Mines reports, specialist studies, Commissions dating back to 1902) and common questions of law (duty, breach, causation, prescription interruption, constitutional obligations). Essentially this "prerequisite" of commonality is met due to the finding that the mining industry, mining giants joined in this class action knew of the breach of duty in ensuring that their employeed are safe and guarded against being exposed to contracting such life altering diseases. The court cited that they acted in concert due to the fact that they were all aware of their duties and failed to act in accordance to that duty, more accurately ommitted to act in accordance to their duties. So their negligence is common in all the respondents actions/ommission. These dudes knew that their employees are dying due to their gross negligence and still kept the industry status quo in turning a blind eye to the impact of not having measures in place to protect the employees against harms just because you trying to save a buck and maximise profits. MXM

2. Numerosity & Manageability  

   Potential 17 000–500 000 members justified an opt-out class action.

   Common issues (e.g. hydro-engineering controls, dust monitoring, statutory compliance) can be litigated once for all.

   Court stipulated that the large size of the class members cannot defeat certification where the commonality in issues exists.

3. Bifurcated Opt-Out/Opt-In Process  

   Stage 1: opt-out deadline bound all who remain. Court authorized notices via national press, radio, unions, legal‐aid centers.

   Stage 2: opt-in for individual claims once common issues decided.

4. Representatives & Counsel  

   Over 60 class representatives geographically dispersed; suitable to liaise with thousands of members.

   Abrahams, Spoor, LRC certified as counsel, with support from Motley Rice and Hausfield (US). Court approved contingency fees (≤25% of recovery or double standard fee, whichever is less), subject to court taxation.

   Big respect to the work, dedication and professionalism exhibited by the legal practitioners in faciliating this action. Their litigation in this is what i regard as a masterclass in legal practice. Justice being achieved through the coming together of skills and competence of different legal masters. The true representation of the Avengers being assemble in the legal fraternity

5. Counter-Application by Harmony

   Here is the thing about thinking money solves everything, everything is taken as a game of monopoly. By making a counter application, the respondent "played a game of law" wherein instead of reflecting on their wrongdoings and contributing to the achievement of justice, they sought to frustrate by requesting that members be names, requesting all the fee agreement entered into with the attorneys and requested the list of all those who opt in and opted out.

   The court dismissed: pre-service discovery of plaintiffs’ identities not justified prior to commencement of Stage 2.

6. Transmissibility of General Damages  

   Common law bars pre-litis contestatio transmission of non-patrimonial loss. Court held this unjust, unconstitutional (violating equality, dignity, access, and children’s best-interests rights), and developed the law:

   Claims for general damages commence on certification application date (Aug 2012) and survive the death of any class member before litis contestatio, benefiting the estate;

   Wrongdoers’ estates remain liable pre-litis contestatio.

   How the court dealt with the issue of transmissability is such that, it encouraged me in believing that the judicial system still has. That the claws of the court are capable of reaching and grabbing injustice by the balls and turning lemon into an interpretation that is in line with the spirits, purport and object of the bill of rights. The courts explaining how baring those who die prior to litis contestatio is contrary to the constitution because it amounts to arbitrary discrimination was masterclass in adjudicating. Because why should my death that is causes by a greedy individual be grounds that i dont deserve restitution.

6. Conclusion Reached by the Court

The class action was certified as requested: two defined classes, bifurcated process, opt-out/opt-in mechanism, notices approved.Abrahams, Spoor and LRC were appointed as class counsel; representatives approved; contingency costs framework authorized.

Harmony’s counter-application dismissed.

Common law developed to allow transmissibility of general damages in class actions for deaths occurring pre-litis contestatio, effective from the certification application date (Aug 2012).

Costs awarded jointly against respondents, including four senior and five junior counsel.

7. Minority Judgment (Windell J)

Key Points & Reasoning  – Scope of Development: Agreed that transmissibility rule is outdated in class actions, but confined development only to class actions.

General Applicability: Held that extending transmissibility to all pre-litis contestatio claims (outside class actions) has far-reaching, unexamined implications (e.g., Road Accident Fund, cession law) and lacks detailed argument or comparative policy analysis.

Incremental Approach: Emphasized judicial restraint—common law must evolve “incrementally” and fact-driven; full-scale reform beyond class actions should await legislative or fuller judicial consideration.

Outcome of Dissent  – Would allow pre-litis contestatio general damages to survive only for certified class actions, thereby avoiding uncertain wider consequences in other fields of delict.

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