On 24 and 25 August, the South Gauteng High Court will hear argument in the application by Sonke Gender Justice (Sonke) and the Treatment Action Campaign (TAC) to intervene as amici curiae (“friends of the court”) in Nkala and others v Harmony Gold and others, a class action against South African gold mines.
“For decades gold mines have treated their workers as inferior human beings and shown a shocking disregard for the health of these workers,” says Anele Yawa, General Secretary of the TAC.
“The exploitation of mostly poor black workers mirrors the apartheid and colonialist exploitation of workers that we have seen throughout the continent. That even in post-apartheid South Africa the rights of mine workers are routinely violated is a national disgrace.”
The case is a significant milestone in the process for the legal certification of a class action, which in itself is an important mechanism for access to justice. It is also important because the case concerns silicosis and tuberculosis in mines and the appropriate relief to be sought. The class action, if successful, would be the largest ever in South Africa and have widespread ramifications for mineworkers, their families and the gold mining industry.
The gold mining industry has for decades failed to comply with obligations to treat and prevent lung disease amongst mineworkers and has thus caused mineworkers to develop tuberculosis (TB) and silicosis, an incurable and often fatal condition. Due in part to the failures of the gold mining industry, the TB and silicosis pandemics in Southern Africa have exploded to the point of public health emergencies.
Affected mineworkers have initiated a class action against 32 gold mining companies, collectively the entire South African gold mining industry, to claim compensation for their illnesses. If successful, the class of affected mineworkers could include hundreds of thousands of people.
Sonke and the TAC have applied to intervene as amici curiae in order to raise important legal arguments and present evidence that otherwise would not be before the court. In so doing, they would contribute to the court’s understanding of the law on class actions, the role of class actions in facilitating access to justice for vulnerable people and the consequences for such people of a failure to certify the class.
If successful, TAC and Sonke will be permitted to participate in the hearing in October. The perspective and arguments of TAC and Sonke are vital to a full understanding of the case and could shift the debate and focus in the case significantly.
“In short, we want to put the Constitution on the table in this case,” says Yawa. “When considering this matter the court must take into account the Constitutionally guaranteed rights we all have to access healthcare, to bodily integrity and to dignity. Just like Constitutional considerations swayed the balance in the famous PMA case in 2001, we believe it may change this case as well – and thus at least provide some justice for the shameful exploitation of black lives in South African mines.”
Sonke and TAC also seek to introduce evidence of the negative impact the gold mining industry’s neglect has had on labour-sending communities and particularly on women in rural areas. When miners are unable to work, they return to their rural homes to be cared for by their wives, sisters or other, almost always female, relatives.
On 24 and 25 August, TAC will picket at the South Gauteng High Court to demonstrate that we are appalled by the mining industry’s neglect of basic human rights, including miners’ right to health and the right to dignity of those living in labour-sending communities such as those in the Eastern Cape.
TAC will also picket at the offices of the Teba miners recruitment agency at Idutywa and Lusikisiki in the Eastern Cape on 24 August. Many of the affected miners over the years have come from these areas.
Media contacts for Johannesburg:
Media contacts for Eastern Cape:
- Noloyiso Ntamehlo (TAC Eastern Cape): 083 4871 814
- Zukile Madikizela (At Lusikisiki picket): 073 345 1488
- Vuyokazi Matiso (At Idutywa picket): 073 636 1373
Background to certification class action
From 12 to 23 October 2015, the South Gauteng High Court will hear argument as to whether the class should be “certified” and, therefore, permitted to proceed as a class action. It is the view of Sonke and theTAC that should the court decline to certify the class it would effectively leave thousands of people without access to justice – unable to access the compensation due to them because they do not have the resources to access courts through any other means except a class action.
The applicants in the certification application are represented by Richard Spoor Attorneys, Abrahams Kiewitz Inc and Legal Resources Centre.
Below are links to some of the key legal documents:
Amici Applicants Heads of Argument
Amici Application Founding Affidavit Anele Yawa
Amici Application Supporting Affidavit Dean Peacock
Amici Application Supporting Affidavit Anand Grover
Amici Application Supporting Affidavit Francis Wilson
Gold Fields Heads of Argument
Harmony Heads of Argument
Amici Application Replying Affidavit