Nkala and Others v Harmony Gold Mining Co Ltd and Others

• Jurisdiction: South Africa
• Citation: 2016 (5) SA 240 (GJ)

Nkala and Others v Harmony Gold Mining Co Ltd and Others
2016 (5) SA 240 (GJ)

2016 (5) SA p240

Citation	2016 (5) SA 240 (GJ)
Case No	48226/12
Court	Gauteng Local Division, Johannesburg
Judge	Mojapelo DJP, Vally J and Windell J
Heard	October 12 - 23, 2015
Judgment	May 13, 2016
Counsel	WH Trengrove SC (with GJ Marcus SC, G Budlender SC, AC Dodson SC, S Budlender, M le Roux, J Brickhill, N Ferreira and J Bleazard) for the applicants.; CDA Loxton SC (with AE Franklin SC, RM Pearse and L Sisilana) for the 1st – 10th and 32nd respondents (Harmony).; SA Cilliers SC (with DM Fine SC, IB Currie and KD Iles) for the 11th and 12th respondents (AngloGold Ashanti).; JJ Gauntlett SC (with WHG van der Linde SC, IP Green, DA Turner and FB Pelser) for the 13th – 19th, 30th and 31st respondents (Gold Fields).; DN Unterhalter SC (with AD Stein) for the 20th and 21st respondents (Village Main Reef).; BE Leech SC (with MA Wesley and RA Carvalheira) for the 25th and 26th respondents (DRD Gold).; MD Kuper SC (with M du P van der Nest SC, AC Cockrell SC, KS McLean and DJ Smit) for the 27th respondent (Anglo American).; T Beckerling SC (with I Goodman and K Hofmeyr) for the 28th respondent (ARM).; M Chaskalson SC (with A Hassim and J Berger) for the amici curiae.

Flynote : Sleutelwoorde B

Practice — Class action — Certification — Respondents claiming certification should be refused on basis of class definition being overbroad, resulting in unmanageability of class action — Where issues and evidence uniform or C applicable to each class member's claim, concerns of manageability or overbreadth of class action not arising.

Practice — Class action — Certification — Requirement of commonality of issues amongst class members' claims — Granting of certification not depending on each class member's case being fully and finally determined once D common issues determined in favour of class — As long as applicants showing that determination of common issues allowing cases of individual class members to move forward without duplication of judicial analysis, certification of intended class action would be justified and in interests of justice.

E Practice — Class action — Certification — Whether required where Bill of Rights violation claimed to have taken place.

Practice — Class action — Certification — Requirement that class action most suitable means to determine class members' claims — Whether certification only warranted where factual and legal issues common to all class F members outweighing non-common issues.

Damages — Bodily injuries — Claim for general damages — Plaintiff dying after having instituted claim and before litis contestatio — Common law developed — Claim for general damages transmitted to deceased's estate.

G Damages — Bodily injuries — Claim for general damages — Death of defendant after plaintiff's having instituted claim and before litis contestatio — Common law developed — Deceased's estate remaining liable for general damages.

Delict — Action for damages — Bodily injuries — Claim for general damages — H Plaintiff dying after having instituted claim and before litis contestatio — Common law developed — Claim for general damages transmitted to deceased's estate.

Delict — Action for damages — Bodily injuries — Claim for general damages — Death of defendant after plaintiff's having instituted claim and before litis contestatio — Common law developed — Deceased's estate remaining I liable for general damages.

Headnote : Kopnota

The growth of the gold-mining industry has been characterised by a high incidence of occupational lung diseases amongst underground mineworkers. This particular case concerned the plight of J under-ground mineworkers — present and past — afflicted with silicosis and

2016 (5) SA p241

pulmonary tuberculosis. [*] The applicants in this matter sought the A certification of a single class action — which they intended to institute against a number of mining companies — comprising two separate and distinct classes: (a) a silicosis class; and (b) a TB class. The silicosis class was defined as being made up of current and former underground mineworkers who had contracted silicosis, as well as the dependants of underground mineworkers who had died of silicosis, where such B mineworkers worked or had worked, after 12 March 1965, on one or more specified gold mines. The TB class was comprised of current and former underground mineworkers who had contracted TB, as well as the dependants of deceased mineworkers who had died of TB, where such mineworkers worked or had worked, after 12 March 1965, for at least two years on one or more specified gold mines. Basing their claim on delict, C the applicants alleged that the mining companies which were cited as respondents unlawfully exposed the mineworkers to excessive levels of harmful silica dust, and breached their legal duties — imposed by common law, statutory law and the Constitution — to ensure the safety of the mineworkers' living and work spaces. It was alleged that such conduct resulted in the mineworkers' contracting silicosis or TB. A two-stage D approach to proceedings was proposed: during the first stage, issues common to both classes would be determined, and, during the second, issues specific to individual members of the classes. Potential class members would be granted an opportunity to opt out of the class action in respect of the first stage of proceedings; in respect of the second stage, class members were required to opt in if they wished to take further part E in proceedings.

Whether certification should be granted

The decision as to whether or not to grant certification had to be made on the basis of where the interests of justice lay. Guiding factors were set out in Children's Resource Centre Trust and Others v Pioneer Food (Pty) Ltd and Others 2013 (2) SA 213 (SCA) ([2012] ZASCA 182) paras 26 and 28. F Of particular concern in this matter was whether (a) the two classes were objectively ascertainable; (b) there were sufficient issues common to the relief claimed by all the potential members of the classes; and (c) a class action was the most appropriate means of determining the issues raised in the claims of the class members. (Paragraphs [31] – [32] at 256D – 257B.) G

In respect of (a), the court held that, given their clear and unambiguous definition, the two classes were objectively and definitively ascertainable. The mining companies argued that the class definition was overbroad, particularly in light of the lengthy duration of the class period (stretching from March 1965), which would give rise to problems of manageability for the trial court. Apart from disagreeing that a lengthy time period automatically H translated into an overbroad definition, the court held that, once it was established that there were issues or evidence that was either uniform or applicable to every mineworker's claim, the concerns of unmanageability or

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A overbreadth of the class definition did not feature. The fact that the sizes of the two classes might be very large did not make the class definition overbroad or the class-action trial unmanageable. (Paragraphs [45] and [51] – [56] at 260D – E and 261H – 263E.)

In respect of (b), the court held that there were legal and factual issues pertaining to the elements of the applicants' delictual action which could be dealt with B as part of a class action where a finding on them would be applicable to the case of each and every mineworker. In particular, there was evidence pertaining to breach of duties of care, as well as fault, on the part of the mining companies that was applicable to each and every mineworker's case. (Paragraphs [57], [70] and [72] at 263F – 264A, 276B – C and 276J – 277E.)

The court acknowledged that the present case differed from the usual class-action C suit where a number of persons had the same, or a similar, claim against a single defendant arising from a single wrong. Here numerous mineworkers had the same claim against one or more respondent mining company simultaneously, and, while all their claims were attributable to a single cause, the harm occurred at different times and in different circumstances. The determination of the common issues in favour of the mineworkers would not finalise each mineworker's D case (or that of his dependants). The court held, however, that this was no bar to the certification of the class action. A certification was not dependent on each class member's case being fully and finally determined once the common issues were determined in favour of the class. As long as it could be shown that determination of the common issues would allow the cases of the individual class members to move forward without duplication of the E judicial analysis, a certification of the intended class action would be justified and would be in the interests of justice. This was the case here. (Paragraphs [49], [89], [90], [96], [97] and [99] at 261D, 282C – E, 282F – H, 284E, 284F and 284H.)

As to (c), the court held that the class action was the only realistic option through which most mineworkers, or their dependants, could assert their claims F effectively against the mining companies and realise the right of access to courts guaranteed to them by the Constitution. This was in view of the fact that the majority of the class members were poor, lived in rural areas and the mineworkers were in ill health. (Paragraphs [103] and [108] at 285I and 287C.)

The mining companies raised the point that a class action would only be appropriate G if the factual and legal issues common to all the class members outweighed the non-common issues. In response the court pointed out that the requirements laid down in the Children's Trust case were no more than factors to be considered by the court in its...