South African silicosis
As early as 2006, Hausfeld lawyers and South African law firm Abrahams Kiewitz began to work on pioneering legal strategies to obtain justice and compensation for current and former mineworkers who worked on South African goldmines, the pillar of the South African state.
Gold mining in South Africa dates back to the late 19th century. Some occupational disease experts observed that the epidemic of lung disease (i.e. silicosis and tuberculosis) in this workforce over this 100-year period was the worst occupational disease epidemic in history.
Action
In 2012, Hausfeld and Abrahams Kiewitz boldly brought the first class action case on behalf of many gold miners who suffered lung disease from their work in the mines dating back to the 1960’s (conservative estimates range in the tens of thousands) against most of the South African gold mining industry - 32 domestic and international gold mining companies.
The team brought the case using a combination of new law created by the post-Apartheid South African Constitution (which created protections of life, health and dignity for all citizens, as well as establishing a class action as a Constitutional procedural right), and traditional negligence law.
Based on extensive archival research in South African libraries and other historical materials, the team alleged that the health and safety protections and practices for miners seen around the world, were not being applied in South Africa. An international team of doctors and health scientists reviewed the available studies and examined some of the miners, suffering either silicosis or tuberculosis, who were still alive. Based on this expert work, the lawyers were able to allege that both the silicosis and tuberculosis were caused by unsafe mining conditions, not just the disease of silicosis itself, which the industry had previously admitted was a disease caused by mining.
After 4 years of intense preparation, the matter was heard before a South African court in 2015 to argue class certification. In 2016, the court certified the class that was pled by Hausfeld and Abrahams Kiewitz to include miners who suffered from silicosis and tuberculosis. The certification was set forth in a unanimous 3 judge opinion that was 170 pages long. The miners and their families succeeded on all fundamental issues. There had never been a certification of such an enormous class of workers against an entire industry in the history of South African jurisprudence, nor in any other legal system. The unanimous judicial panel explained certification was appropriate on the merits of the rule, but also necessary to give meaning to the fundamental principles of access to the courts and the rule of law.
"[T] he the vast majority of them who cannot sue individually would have to live with the fact that the law, with all its promises, offers them no remedy for the pain and suffering endured while battling the growth of fibrotic forests in their depleting lungs. If the legal system is inaccessible to them then the constitutional gift of a right to access the court is illusory.”
Outcome
After the resounding and powerful certification decision, a complicated and multiparty negotiation began which resulted in a global settlement for many historical silicosis and tuberculosis victims in most South African gold mines. The victims have access to a settlement trust approved by the court to provide examinations where needed and administer compensation based on a diagnosis of silicosis or tuberculosis. Sadly, many members of the class have died from these diseases since they worked in the mines, but the settlement provides compensation and a long-awaited measure of justice to the living miners and the families of the deceased.
For Hausfeld, the case was an opportunity to make a difference in the lives of thousands of South Africans who had no chance of achieving compensation without this case, and it was an honor to be able to work for such goals with co–counsel, and South African civil society organizations.
The court described the role of the miners' counsel: “Absent their hard work and the dogged persistence of some of them, the ex-mineworkers and their families would not have received the justice of being compensated for the harm they have endured and in many cases continue to endure. ”
Hausfeld continues today to work with counsel and civil society in South African on issues of social justice. Hausfeld has been recognized for this work in the arena of international human rights by the Financial Times (2016) and the Global Law Experts organization (2019).
