A full bench of the High Court granted an order, and ancilliary relief, establishing a class for the purpose of instituting a legal mining class action against various gold mining companies in respect of mineworkers who have contracted silicosis and who work, or have worked, on those mines after 12 March 1965.
Nkala v Harmony Gold Mining Co Ltd (48226/12, 31324/12, 31326/12, 31327/12, 48226/12, 08108/13) [2016] ZAGPJHC 97 ; [2016] JOL 35895 (HC) (13 May 2016) per Mojapelo DJP and Vally J [Windell J dissenting on one aspect only].
Excerpts without footnotes
[24] The Roman-Dutch legal system, on which the development of South African law was based, was imported onto these shores sometime during or after the 1650s. That it is resilient is demonstrated by the fact that it still constitutes a substantial part of our law despite the numerous political, economic and social changes this country has historically undergone. However, it had no experience of class actions and therefore had no lessons to offer in this regard. Nevertheless, by the 1990s, when the Constitution of the Republic of South Africa, Act 200 of 1993 (“the Interim Constitution”) was adopted as the supreme law of the land, class action had, because of its utility, become an integral and regular part of many modern legal systems. South African law found itself having to confront the utility of the class action process.
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[104] We have to assume, for present purposes, that the mining companies violated their constitutional, statutory and common law rights as at this stage the mineworkers have made out a prima facie case in this regard. That being so, the vast majority of them who cannot sue individually would have to live with the fact that the law, with all its promises, affords them no remedy for the pain and suffering endured while battling the growth of fibrotic forests in their ever depleting lungs. If the legal system is inaccessible to them then the constitutional gift of a right of access to court, is illusory. It is only through access to courts and other independent tribunals that justiciable disputes can lawfully be adjudicated. This makes the right of access to courts one of cardinal importance in our constitutional democracy. If access to court is denied to them because the court refuses to allow them to follow a particular process, such as class action when no other is available, then the rule of law, in our view, is ruptured. Access to court is an ingredient in the making of the rule of law.
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[115] Accordingly, in our view, the institution of hundreds of thousands of separate individual hearings is not more appropriate than the proposed class action to resolve the disputes between the mineworkers and the mining companies. This is so even if the proposed class action only resolves some of the disputes between them. Accordingly, we conclude that the proposed class action is the most appropriate way for this matter to proceed.
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[182] The learning and experience of the Roman law was neither lost nor dispensed with upon the collapse of the Roman Empire. Instead, it was adopted by other legal systems that followed, not least the Roman-Dutch system that came many centuries later. The concept of litis contestatio, the rule prohibiting the transmissibility of certain types of claims as well as its exception was embraced by the Roman-Dutch law without more. This is recorded in a case reported in 1880 dealing with a claim brought in terms of the actio iniuriarum, namely Executors of Meyer v Gericke, which was a claim for damages incurred as a result of a defamation. There the court observed:
“This case raises for the first time so far as reported cases go, the important question, at what stage of an action for defamation or other personal injury the death of one of the parties puts an end to the action. It is admitted on both sides that such an action cannot be instituted after the death of the person who was guilty of the defamation or other injury, or after the death of the person defamed or injured. It is further admitted that such an action, even if instituted during the lifetime of both parties, cannot be continued after the death of either party unless the stage known as litis constestatio has been reached. The authorities fully support these admissions. It would indeed appear from a passage in Grotius (Introduction, 3, 35, 5) that that eminent writer was of opinion that the heirs of the party committing an injury are only liable if case sentence has been pronounced against the party in his lifetime, but Groenewegen, in his note to that passage, enlarges the liability of the heirs, by extending it to those cases in which, as he expresses it in the vernacular, “de zake voldongen is.” This expression appears to be the Dutch equivalent for the litis contestatio of the Romans, for Groenewegen quotes a case decide in the Supreme Court of Friesland on the 22nd of May, 1604, where it was held that no action for personal injury can be brought against the heirs of the guilty party unless the litis contestatio had taken place in his lifetime.”
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[191] To summarise. The reasoning underlying the rule – that the claim for general damages is not transmissible to her estate – is that the general damages are personal to the claimant: neither the dependant(s) nor the estate, suffer any loss or damage from the pain and suffering, the loss of amenities of life and the disfigurement endured by the deceased during her lifetime. Therefore, they can have no claim for the bodily injuries suffered by the deceased. In other words, the claim for general damages abated upon the death of the deceased. They have not abated though if the stage of litis contestatio was reached before her death. The position of the common law, therefore, is this: if such a claim is brought and pleadings are closed then the claim is transmissible to the deceased claimant’s estate, but if they are not then the claim is not. The fact of the matter is that the common law has failed to keep pace with the procedural developments harvested over the centuries, which have been collated in the rules of court regarding pleadings and amendments thereto.
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The common law is dynamic, fluid and ever-changing
[193] It is no revelation to say that to remain purposeful and to retain its moral authority the common law should whenever necessary change to meet changing facts and circumstances. This has long been accepted and, as we will shortly show, been applied by our courts. As knowledge or ideas change, and as political, social and economic life progresses, develops and advances with time so should the law. Indeed, on more than one occasion it has done so. This approach is not alien to the Roman or the Roman-Dutch legal systems. It is embedded in the very fabric of the two legal systems. It is on this principled basis that the common law has retained its utility and its moral authority. The principle is also not exclusive to the Roman or Roman-Dutch legal systems. Innes CJ reminded us of this principle and articulated its premise in these terms:
“There come times in the growth of every living system of law when old practice and ancient formulae must be modified in order to keep in touch with the expansion of legal ideas, and to keep pace with the requirements of changing conditions. And it is for the Courts to decide when the modifications, which time has proved to be desirable, are of a nature to be effected by judicial decision, and when they are so important or so radical that they should be left to the Legislature.”
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The constitutional imperative to develop the common law
[199] In South Africa this responsibility to reform and refocus the common law in order to keep it “abreast of current social conditions and expectations” is entrenched in the Constitution, with the added obligation that the judges do so in a manner that it is consistent with, and gives expression to, the rights articulated in the Bill of Rights. Sub-sections 8(3) and 39(2) of the Constitution explicitly enjoins the court to develop the common law to the extent that it is necessary to make it consistent with the values enshrined in the Constitution, especially those explicitly mentioned in the Bill of Rights. Thus, it is the constitutionally imposed duty of this court to develop the common law in order to harmonise it with the Bill of Rights. The development must reflect the “spirit, purport and objects of the Bill of Rights”. We are duty-bound to develop the common law so that it does not “deviate” from the “spirit, purport and objects of the Bill of Rights”. It is a duty we cannot abdicate.
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[215] In the light of these circumstances and bearing in mind the injunctions of sub-sections 8(3) and 39(2) of the Constitution, it is our view that the common law has to be developed to allow for the claim for general damages to be transmissible to the estate or executor of a deceased mineworker, even though the stage of litis contestatio had not been reached at the time of his death. Also, the development is necessary in the light of the court’s general duty to do justice by the persons affected by its orders.
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[220] In conclusion, we hold that the common law should be developed as follows:
- A plaintiff who had commenced suing for general damages but who has died whether arising from harm caused by a wrongful act or omission of a person or otherwise, and whose claim has yet to reach the stage of litis contestatio, and who would but for his/her death be entitled to maintain the action and recover the general damages in respect thereof, will be entitled to continue with such action notwithstanding his/her death; and,
- The person who would have been liable for the general damages if the death of a plaintiff had not ensued remains liable for the said general damages notwithstanding the death of the plaintiff so harmed;
- Such action shall be for the benefit of the estate of the person whose death had been so caused;
- A defendant who dies while an action against him has commenced for general damages arising from harm caused by his wrongful act or omission and whose case has yet to reach the stage of litis contestatio remains liable for the said general damages notwithstanding his death, and the estate of the defendant shall continue to bear the liability despite the death of the defendant.
[221] This we find is the only way to cure the common law of the arbitrariness, irrationality and unreasonableness that presently plagues it.
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The Order
[230] The order of the court is as follows:
- It is declared that the following group of persons constitutes a class:
1.1 Current and former underground mineworkers who have contracted silicosis, and the dependants of underground mineworkers who died of silicosis (whether or not accompanied by any other disease) –
1.1.1 where such mineworkers work or have worked on one or more of the gold mines listed on the attached “Annexure A”, after 12 March 1965;
1.1.2 whose claims are not among the claims which, by agreement, are to be determined by arbitration in the matter of Blom and Others v Anglo American South Africa Limited; and
1.1.3 who are not named plaintiffs in the action instituted in the United Kingdom against Anglo American South Africa Limited under case numbers HQ11X03245, HQ11X03246, HQ12X02667 and HQ12X05544 (the silicosis class).
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