Background: In May 2016, a full bench of the South Gauteng High Court handed down a judgment in favour of 69 mineworkers, who represent tens of thousands of former gold mineworkers and their dependents, in the certification proceeding for a class action. The mineworkers, represented by Richard Spoor Attorneys (Spoor), Abrahams Kiewitz Inc (Abrahams), and the Legal Resources Centre (LRC), sought certification of a class action aimed at seeking accountability from 32 gold mining houses for their failure to prevent and treat silicosis.
Sonke Gender Justice (Sonke) together with the Treatment Action Campaign (TAC), represented by SECTION 27 intervened as amici curae (friends of the court) and submitted evidence specifically on the gendered impact of the mining related lung diseases, including the unpaid care-giving provided by women and children in mine-sending communities and the ripple effects of having to dedicate time, money, and personal well-being to provide this care.
In its judgment, the full bench of the court reaffirmed the importance of class actions in guaranteeing access to justice to particularly vulnerable groups that would otherwise not be able to reach the courts. The court found that the class action was the only realistic option available to mineworkers and their dependents. Furthermore, the court’s ruling on transmissibility of judgment marked a significant development of the common law, as general damages may now be transmissible to surviving family members of deceased mineworkers. These family members primarily consist of women and children who are disproportionately affected by poverty and live in rural areas. Relying extensively on the submissions made by Sonke, the court made very strong statements about the requirement for the law to respond to the needs of the poor and vulnerable stating that the common law must keep “abreast of current social conditions and expectations.”
In June 2016, the gold mining companies applied for leave to appeal against the judgment. Their application was successful only insofar as it related to the transmissibility of damages, prompting the mines to petition the Supreme Court of Appeal (SCA) directly. The SCA in September granted the mining companies leave to appeal on all aspects of the certification granted by the South Gauteng High Court.
Sonke’s research and media advocacy: In recognition of the need for continued advocacy around the case, Sonke has undertaken to continue its efforts to keep the spotlight on the importance of ensuring that widows and other dependents are legally declared rightful recipients of compensation. Sonke is currently undertaking additional research on the impact silicosis has had on women in mine-sending communities with the aim of using the research findings as the basis for media advocacy leading up to and around the SCA processes. As of late, Sonke has published four articles on this subject.
In an opinion piece titled Silicosis case: thousands of women could lose out, Tanya Charles, published in GroundUp on 20 October 2016, describes how South Africa’s gold mining industry has benefited from the unseen and undervalued parallel work of the women and children in labour-sending communities where mineworkers come from, the effects thereof specifically in the context of unrelenting poverty. She sums it up by demonstrating the importance of the transmissibility clause of the judgment.
On the 21st of October 2016, GroundUp published an article by Patrick Godana, titled ‘The mine has finished him and he can die anytime’: The terrible toll of silicosis on miners families, in which he tells the story of the Jamela family based in Gquphu in Dutywa (in the Mbhashe municipality). Ntshontsholakhe Jamela worked in the mines for over 18 years and was sent home sick in 1991 with a lump sum of R68 000. The lump sum was mostly consumed by his health needs, leaving the family to survive on a government social grant and at times has to negotiate using that money to consult a private doctor at a cost way beyond their means.
In an article published by the Guardian on 25 October 2016, Dean Peacock and Emily Nagisa set out to highlight how important it is for the court of appeal to uphold the High Court’s ruling which will ensure that South Africa’s gold mining industry is accountable to women whose husbands died from silicosis.
Using testimony from women in rural Eastern Cape, they demonstrate the hardships of women taking care of their dying husbands. They argue that after a century of damage caused by the South African gold mining industry, it’s time for a just remedy. The article is titled Justice is long overdue for the widows of South African mineworkers.
Court case could force gold industry to pay out miners’ daughters and wives, published in the Mail and Guardian on 26 October 2016, was co-authored by Thabang Pooe and Dean Peacock. It contains a heart-breaking account of Nobomi Dlamini’s and her husband, Thamsanqa, struggle upon his return to rural Eastern Cape after 32 years of labour in South Africa’s gold mines. The article further sets out how the high court’s judgment on transmissibility of damages could ease the gendered harms imposed by the industry.
Next steps: Since September and up until late November, researchers from Sonke will be in communities in the Eastern Cape and Free State conducting further research on this aspect in order to use its findings to strengthen evidence of the impact of silicosis in these communities and to continue to ensure that during the preparation for the SCA these issues remain in the public domain.
FOR MORE INFORMATION CONTACT
Dean Peacock
Executive Director, Sonke Gender Justice
Tel: 021 423 7088
Email: dean@genderjustice.org.za
Patrick Godana
Governmnet and Media Manager, Sonke Gender Justice
Tel: 021 423 7088
Email: patrick@genderjustice.org.za
Thabang Pooe
Policy and Development Fellow, Sonke Gender Justice
Tel: 011 339 3589
Email: thabangp@genderjustice.org.za