Mount Pleasant — Ambitious litigation that could potentially bring groundbreaking change to the legal landscape in South Africa and achieve justice for tens of thousands of laborers has been filed. Plaintiffs' law firm Motley Rice was retained to consult on the litigation by human rights lawyer Richard Spoor to take on the leading global gold producers.
On Dec. 21, 2012, in Johannesburg's South Gauteng High Court, Spoor filed a motion requesting class certification for more than 15,000 prospective class members—all gold mine workers diagnosed with silicosis and dependents of deceased miners who ultimately died after contracting this often fatal disease.
"If approved as a class action, the suit would be an unprecedented means of recovery for the country. Very few class actions have been brought in South Africa, and none have been filed for sick workers. Approval would ensure meaningful access to justice for thousands of indigent and rural workers who are dying from this incurable disease," said Motley Rice human rights attorney Michael Elsner.
Such bold legal action was, until recently, not possible. The Constitutional Court of South Africa issued a landmark ruling in March 2011 in another of Spoor's cases, Mankayi v. AngloGold Ashanti Limited.
That case was filed by now-deceased gold miner Thebekile Mankayi against AngloGold Ashanti Limited, the operator of the Vaal Reefs mine in which Mankayi contracted silicosis and tuberculosis. Mankayi had been given a limited payout for his injuries under the terms of South Africa's Occupational Diseases in Mines and Works Act (ODIMWA), but he filed suit under common law for his full loss of wages, damages and medical expenses. The Constitutional Court's decision, which overruled the previous decisions of both the High Court and the Supreme Court of Appeals, affirmed injured workers' rights to sue employers for fair compensation. This ruling broke new legal ground not only for workers' rights but also for the South African legal system and public health.
"This motion seeking class certification is the first step in paving the way for fair recovery and justice for these victims and the implementation of long-term reforms for future generations of South Africans," Elsner added. "Mr. Mankayi did not live to see the tremendous impact that his efforts made. However, we hope that his persistence and that of other miners will enable today's mine workers, widows and children to live to see an end to the epidemic that has plagued their society for so long."
The litigation alleges that the 30 named South African gold mining companies, that owned or operated 78 different gold mines from 1965 to the present, knew of the dangers posed to miners by silica dust for more than a century and alleges 12 specific forms of neglect and endangerment, including willfully ignoring and/or failing to execute almost all of the recommended steps mandated in regulations and legislation designed to protect the miners from silica dust. The proposed class representatives, along with Spoor and Elsner, believe the defendants and their executive members could have prevented what has often been referred to as an epidemic had they taken effective measures to prevent the exposure of miners to harmful quantities of dust, which the papers claim they had both the knowledge and resources to do. The litigation alleges that the mining industry has been able to repeatedly profit, over decades, at the expense of employees' health. The miners are predominantly from South Africa and several other surrounding countries historically known for supplying migratory labor to the mine industry.
"I could see, taste and smell dust while I worked underground, particularly after blasting took place during a shift and we were not evacuated from the mine … I cough heavily all the time and I have constant chest pains. Apart from no longer being able to provide for my family, I am no longer able to partake in community activities. I feel depressed and alone," said Mokholofu Boxwell, a former gold mine worker living in Butha-Buthe, Lesotho. Boxwell is a proposed class representative in the litigation who worked in four different mines throughout a 23-year period and has been diagnosed with silicosis.
"Since the 1960s and 70s when they first took on the large asbestos companies, Motley Rice attorneys have been on the cutting edge of complex litigation involving occupational disease, workers' rights and corporate accountability," said Spoor. "This background and a reputation for effective management of class action litigation made Motley Rice the best choice for serving as advisors."
Whether fighting Big Tobacco in the 90s, representing victims of terror since Sept. 11, 2001, working to bankrupt terrorism, or, most recently, serving on the Plaintiffs' Steering Committee and leading the Deepwater Horizon oil spill settlement negotiations with British Petroleum, Motley Rice's experience in and out of the courtroom is undeniable."
Building upon their experience in occupational disease and consumer fraud, Motley Rice attorneys have continued their efforts to hold responsible national and international corporations and organizations that willfully and knowingly harm people, representing clients from throughout the world. The firm's attorneys have been selected to lead federal and state medical device and drug litigation and securities and consumer fraud cases. Since 2010, they have held leadership roles representing alleged nuclear contamination victims and people and businesses harmed by the Deepwater Horizon oil spill in the Gulf of Mexico region. They also stood by victims' families after the 9/11 attacks for nearly a decade in a massive investigation into the alleged airline and aviation security failures of 9/11—resolving the final individual suit in 2011. Motley Rice attorneys are actively litigating in U.S. courts on behalf of terrorism victims worldwide seeking to disrupt the financing of terrorism.
"With our attorneys' experience advocating for our clients in complex, multi-party litigation, we felt compelled to join forces with Richard and are hopeful that our experiences may strengthen the application," said Elsner. "During my travels to South Africa, I have seen firsthand the devastation the silicosis epidemic has had on people and families, as well as the country as a whole. Securing long-term safety reforms will ensure a healthier future for generations of gold miners."
Silicosis is caused by breathing crystalline silica dust, which is a common mineral also known as quartz. When inhaled, it damages lung tissue and results in scarring or fibrosis, which reduces lung function.
Many mining processes, such as blasting, drilling, handling and transporting rock containing quartz, can generate crystalline silica dust. The most usual complication of silicosis, and a frequent cause of death, is tuberculosis. Those individuals with silicosis are three times more likely to develop tuberculosis, which is already at epidemic levels in South Africa. Silicosis is irreversible, progressive and incurable.
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