South Africa: Litigated vs Negotiated Solutions - the Silicosis Class-Action Example


Over the past five years, a settlement was negotiated between the parties to the South African silicosis class action which the High Court recently approved of as 'reasonable, adequate and fair'. The settlement received considerable media coverage and was consistently referred to as a 'compromise'. This characterisation raises interesting questions about the value of this negotiated outcome and about negotiated outcomes in general.

I would argue that the settlement which was achieved was not only a reasonable, adequate, and fair compromise, but was even better than the best that the parties could have achieved in litigation.

If the case had been litigated to the end it would have taken ten to fifteen years and successful claimants would have received various amounts of damages, provided they were still alive, and provided the company or companies against whom they were successful were still in existence. To recover the awarded amount, the claimants would have needed the assistance of a lawyer, whose fees would probably have significantly eroded the amount awarded to them.

To have succeeded in the litigation, a claimant would have to have been medically examined in advance of commencing the action, in order to prove the existence of a viable...

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