The certification of class action status to current and former gold mineworkers suffering from silicosis and tuberculosis against over 30 historic and current gold mining companies in South Africa potentially opens the door for similar litigation across several sectors, including coal and manganese.

Law firm Fasken Martineau partner Paul Fouché explains that there is common ground between the sectors in so far as miners have contracted lung diseases by inhaling the dust at mining operations.

He points out that cases of pneumoconiosis, commonly known as black lung disease, caused by the inhalation of coal dust, have been well documented over a number of years, particularly in the northern hemisphere.

Further, a peer-reviewed research paper by Dr David Stanton, which was published in the occupational health journal Occupational Health Southern Africa last year, states that the possibility of class action litigation against South African coal mining companies is being investigated, and there could be future class action litigation against manganese mining companies.

Fouché points out that the pursuit of class action certification largely depends on the number of plaintiffs forming part of the class, as well as the ability to prove the common suffering shared among the plaintiffs.

Meanwhile, he notes that, while the silicosis case is unprecedented in terms of scale and complexity, it would not have been possible if the Constitutional Court had not ruled in favour of plaintiff and former AngloGold Ashanti miner Thembekile Mankayi against his former employer for contracting silicosis while working at the company’s Vaal Reefs mine.

In the Mankayi case, the Constitutional Court held that mineworkers who have contracted a compensatable disease, such as silicosis, under the Occupational Diseases in Mines and Works Act (ODMWA), are not precluded from claiming damages from their employer, as is the case for employees who have contracted occupational diseases which are compensatable under the Compensation for Occupational Injuries and Diseases Act (Coida).

That matter was first heard in the Witwatersrand High Court, which ruled in favour of AngloGold Ashanti in June 2009. In March 2010, the matter was taken to the Supreme Court of Appeal, in Bloemfontein, which upheld the lower court’s judgment. The case was subsequently taken to the Constitutional Court, which overturned both decisions, ruling in favour of Mankayi in March 2011.

Mankayi had died of lung disease in February 2011.

“This case made it possible for workers suffering from lung disease to sue their employers for civil damages,” Fasken Martineau senior associate Neil Searle points out.

He adds that, before the Mankayi case, employees who were entitled to compensation under the ODMWA were effectively in the same legal position as employees entitled to compensation under Coida in that both were prohibited from claiming additional damages from their employer through a civil lawsuit.

“The Mankayi case . . . changed the preclusion under Section 35 of Coida such that it no longer applies to employees with claims for compensation arising from occupational diseases contracted in mines under the ODMWA. This, in turn, opened the door for the silicosis class action litigation,” Fouché explains.