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Hausfeld’s Efforts To Correct South African Injustices May Very Well Be Heading For Success

Related Lawyers: Richard S. Lewis
Related Practice Areas: Antitrust / Competition

Hausfeld LLP (“Hausfeld”) has participated in innovative litigation relating to injustices that have been ongoing in South Africa for over a decade. Hausfeld has been assisting the local South African firm Abrahams Kiewitz in efforts towards bringing economic justice to those marginalized by large corporate actors in the region. 

After a first suit involving business issues brought against twenty banks and corporations that did business in South Africa, Hausfeld has been assisting Abrahams Kiewitz in that firm’s efforts to expand consumer class action jurisprudence in South Africa.  The first two cases were: Children’s Resource Centre Trust & Others v Pioneer Food (Pty) Ltd and Others; and Mukaddam and Others v Pioneer Food (Pty) Ltd and Others, which involved price fixing claims against four of the leading bread production companies in South Africa. The first was brought by the Children’s Resource Centre Trust on behalf of consumers of bread. The second, Mukaddam, was brought on behalf of resellers of bread. While that case was dismissed, Children’s Resource Center Trust, brought on behalf of a consumer class, remains ongoing, although it is currently tied up in an interlocutory matter that will be heard later this year by the Constitutional Court, the nation’s highest court.

More significantly, Hausfeld is assisting Abrahams Kiewitz in the prosecution of a groundbreaking class action seeking compensation for a class of former South African goldminers who suffer from the occupational lung diseases silicosis and tuberculosis due to the poorly controlled exposure of silica dust in the underground work place. The class period reaches back to 1965. The suit also seeks damages for a class of the dependents of miners who have died from silicosis and/or tuberculosis. The case, Bongani Nkala and Sixty-Eight Others v Harmony Gold Mining Company and Thirty-One Others, Case 48226/12, High Court of South Africa Gauteng Local Division, Johannesburg (“Nkaka”), targets nearly the entire South African gold mining industry. Specifically, it names 32 different mining entities on behalf of 69 named class representatives who have suffered from or died from silicosis and /or tuberculosis. The South African Constitution contains a right to a class action for “a member of, or [a person acting] in the interest of a group or class of persons seeking to remedy a breach of a fundamental right.” Further the Constitutional Court has found that the right of bodily integrity under Section 12 of the Constitution includes protection from occupational disease suffered by miners. Mankayi v Anglogold Ahsanti Ltd, 2011 (3) SA 237 (CC).

The Constitutional Court and the highest Appellate court have ruled that Section 173 of the Constitution authorizes class actions under a court’s authority to protect and regulate its own processes and to develop the common law in the interests of justice.” In Nkala, the ongoing case against 32 mining entities, the High Court three judge panel conducted a 10 day class certification hearing in October of 2015 and has reserved judgment, which is anticipated shortly.

At the Nkala class certification hearing, the plaintiffs argued that the class met the criteria for class certification set forth in the leading appellate decision, Mukaddam v Pioneer Foods, 2013 (5) SA 89 (CC), in which it was ruled that the overriding consideration in determining whether a class should be certified is “ the interests of justice. “ A lower court had identified other “requirements” for certification ( objective class definition, prima facie case of a triable issue, commonality , ascertainable and allocable damages, causation, adequacy and superiority). However, the appellate court declared that while these factors may be taken into account, none is a necessary condition beyond the interests of justice. Mukaddam, para 34- 37. Plaintiffs further argued that the Class members, which in that case number in the hundreds of thousands, are spread throughout Southern Africa, and typically are very poor, sick and elderly and also lack access to legal and medical resources. In such a situation, a class action is the only viable mechanism for the interests of justice to be achieved. Counsel for the defendants argued that the class lacked commonality, and that individual trials was a superior alternative.

In addition to the named class representatives that Abrahams Kiewitz represents in the Nkala case, the firm also has signed legal agreements with several thousand claimants throughout Southern Africa. Abrahams Kiewitz interfaces with local NGOs that assist the firm in locating these former mine workers or the dependents of deceased miners. Most of these claimants reside in the Eastern Cape region of South Africa or Swaziland. The Eastern Cape has a historical legacy of being both the main source of labor for the mining industry of South Africa and also the most under-funded and socially neglected province both during and after the apartheid era.

Nearly all of the claimants represented by Abrahams Kiewitz were recruited into the mining industry at a very young age, some as young as 16 years of age, and worked in the industry until they were medically “retrenched,” meaning they were dismissed due to an occupational disease such as silicosis or tuberculosis. Once retrenched, the lives of these miners become extremely difficult. Many of them are unable to find work due to their poor lung conditions, caused by their employment in the mining sector. They then become an economic burden on their family and community, and further increase the economic suffering in their region. Miners are also forced to rely on an abysmally equipped state funded health care system to meet their extremely demanding health care needs. The lives of the dependents of deceased mine workers are similarly bleak. These families are forced to carry on without a primary income earner, and are also injured by the fact that often spouses are forced to care permanently for the former miners until their deaths, thus leaving families with no real income.

There is much at stake in this lawsuit for the former gold mine workers and the dependents of the deceased in the Southern African region. If the class is certified, the lawsuit would become the biggest case ever in South Africa as well as the African continent as a whole. It is the first time that the South African mining industry has been challenged en-masse by its former employees. If class certification is ultimately denied, it would realistically foreclose most causes of action due to the financial constraints imposed by this type of litigation. Simply put, many of these miners live in extreme poverty and cannot afford to deviate any of their income to this type of litigation. Realistically speaking, the class action mechanism is the only viable means for achieving any compensation and sense of justice for hundreds of thousands of affected miners in the region, and the dependents of those who have died. Hausfeld’s longstanding commitment to this case in the face of extreme adversity from the defendants demonstrates the firm’s dedication to fighting for causes that bring justice to some of the most historically disadvantaged people in recent history.