9. SIGNIFICACE OF THE RESEARCH
4.6 Contemporary effective redress through silicosis class action suit (case): lesson
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socio-economic right is further qualified by the catchphrase used in section 26(2) and section 27(2) of the Constitution that obliges the State to take only equitable steps
“within its available resources”.385
In terms of Soobramoney case, the obligation imposed by section 26 and 27 on the State regarding health care, housing and social security will depend on the availability of the State resources and their purpose.
The justiciability of the socio-economic right is further restricted by the qualification that they are available on to extent to which Sate resources permits.386 On the other hand, in TAC case it was indicated that the more State resources become available more must be done in realisation of the socio-economic right. Thus, the State may not be held liable for failing to realise a particular socio-economic right if its resources are not available or are not adequate to realise that specific right.387Since health is a constitutional fundamental right recognised as socio-economic right. A more determined government effort, together with the health sector and mining companies are therefore expected to deal with the significance of health as a socio-economic right in South Africa.388
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work-related respirational infections.389 He further stated that this trend in diamond and platinum mines is clear evidence that mine workers are exposed to an environment that is harmful to their health and likely to contract “asbestos-related diseases” in diamond mines and silicosis in platinum mines.390 The cotemporary redress of the health and safety would perceives current and former mine workers who are suffering from mine-related diseases an opportunity to claim for compensation against any mine company through the class action suit.
What does class action entails? A class action suit entails a joint legal action where a group of people or persons are endorsed or authorised by competent court of law to bring or proceed with an application for damages in single civil proceeding, since class action excludes criminal proceedings. 391 The class action was originally initiated in our law in terms of section 38 of the Constitution which states that any person or group of people alleging that their right in the Bill of Rights have been violated may approach a competent court of law for any relief they sought to achieve.392
In Ferreira v Levin393, the Court was asked to determine whether an examinee in a liquidation enquiry could challenge a provision of the Companies Act of the ground of fair trial rights afforded to the accused person. The answer that was provided to the question was the interpretation of section 7(4) of the interim Constitution. Ackerman J stated that section 7(4)(a) of the interim Constitution (the equivalent of paragraph of section 38 of the 1996 Constitution) imposed a qualification on the ability of the categories of persons defined in section 7(4)(b) to approach the court. In this case the majority of the Court has differed with the approach made by Ackermann J. Thus, majority of the Court held that as long as a court has jurisdiction to provide a relief sought, applicants would have the locus standi if:
389Nelson G Occupational respiratory diseases in the South African mining industry, 2013; 6:
10.3402/gha.v6i0.19520 available https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3556678/ retrieved 22 July 2017.
390 Ibid (note 389 above).
391Smith ID& Alison Brown A, Arnold & Porter, The International Comparative Legal Guide to: Class
& Group Actions 2016 available at
https://www.cliffedekkerhofmeyr.com/export/sites/cdh/en/news/press-releases/downloads/The-
International-Comparative-Legal-Guide-to-Class-Group-Actions-2016-Edition.pdf retrieved 22 July 2017.
392Constitution of the Republic of South Africa, 1996.
393Ferreira v Levin (CCT5/95) [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (6 December 1995).
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• There is an allegation that a right in the Bill of Rights has been infringed or threatened and;
• The applicants can demonstrate, with reference to the categories listed in section 38(a) to (e) that there is sufficient interest in obtaining the relief they seek394
Similarly, is a matter of fact that our courts have played a very big role in the development of class action in South Africa.395 This was replicated by the recent landmark decision of Nkala v Harmony Gold Mining Company Limited396, in this case applicants instituted an application on behalf of current and former mineworkers who are suffering from silicosis and TB, as well as acting on behalf of the dependant s of those miners who died as a result of silicosis and TB during their employment in the mine.397
The applicants also request the court to make an order for certification of one of joined action consisting of twofold classes, that is a “silicosis class and a TB class” against mining companies.398 They made a proposal that the “potential class members may range from between 17 000 and 500 000 members, the bulk of which belong to the silicosis class”.399 The majority of them would fall within the silicosis class.400
The Court made an order that a group of current and former underground miners who are suffering from silicosis, and the dependants of those underground miners whose life has been lost as a result of silicosis pandemic (whether or not accompanied by any other disease) constitute a class action.401 Therefore, court decided to grant the case a class action certification on the basis that there was similar evidence and it would also be more economical. Judge Mojapelo concluded by saying “Class action was also designed to protect a defendant from facing multiple actions. It enhances
394Currie I & De Waal J The Bill of Rights handbook (5thed 2005) Claremont: Juta & Co Ltd.
395Pansegrouw M Far-Reaching Judgment of the Recent Silicosis Class Action Case,2016 available at https://www.werksmans.com/wp-content/uploads/2016/08/061416-Silicosis-Class-Action-Case.pdf retrieved 22 July 2017.
396Nkala v Harmony Gold Mining Company Limited 2016 JDR 0881 (GJ)
397Ibid para 5.
398 Ibid para 6.
399Pansegrouw M Far-Reaching Judgment of the Recent Silicosis Class Action Case,2016 available at https://www.werksmans.com/wp-content/uploads/2016/08/061416-Silicosis-Class-Action-Case.pdf retrieved 22 July 2017.
400Nkala v Harmony Gold Mining Company Limited, para7.
401Nkala v Harmony Gold Mining Company Limited 2016 JDR 0881 (GJ), para 230.
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judicial economy and protects courts from having to consider the same evidence on the same issues. On the other hand‚ class action allows a single finding on issues which bind everyone.”402
The landmark judgment by the Court gives effect to Occupational Diseases in Mines and Works Act (ODMWA), which provides for remedial process such as compensation for occupational lung diseases suffered by current and former miners only and Compensation for Occupational Injuries and Diseases Act (COIDA), which covers occupational injuries and diseases in all industries as well as those from the mining sector that are not covered by ODMWA; for example, noise-induced hearing loss. The decision of the Court is a warning to mining companies that do not comply with the transformation statutes and policies put in place that non-compliance will be meted with severe consequences. It also gives the former miners the opportunity to challenge any matter that relate to mine-related diseases contracted during their employment, as well as compensation thereof.