1 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION Consolidated Case Number: 48226/12 Previous Case Numbers: 31324/12 31326/12 31327/12 (1) REPORTABLE: YES 48226/12 (2) OF INTEREST TO OTHER JUDGES: YES 08108/13 ___________________ _________________ DATE SIGNATURE In the matter between: BONGANI NKALA First Applicant SIPORONO PHAHLAM Second Applicant MAPHATSOE KOMPI Third Applicant THEMBEKILE MNAHENI Fourth Applicant MATONA MABEA Fifth Applicant MOKHOLOFU BOXWELL Sixth Applicant ALLOYS MNCEDI MSUTHU Seventh Applicant MYEKELWA MKENYANE Eighth Applicant MASIKO SOMI Ninth Applicant ZWELENDABA MGIDI Tenth Applicant MTHOBELI GANGATHA Eleventh Applicant LANDILE QEBULA Twelfth Applicant PHUMELELO SOLITASI SIYOCOLO Thirteenth Applicant 2 TEKEZA JOSEPH MDUKISA Fourteenth Applicant MICHAEL LITABE Fifteenth Applicant JOSEPH LEBONE Sixteenth Applicant LIPHAPANG AKIME LEBINA Seventeenth Applicant ZAMA GANGI Eighteenth Applicant MALUNGISA THOLE Nineteenth Applicant MONOKOA THOMAS LEPOTA Twentieth Applicant MZAWUBALEKWA DIYA Twenty-first Applicant MSEKELI MBUZIWENI Twenty-second Applicant ZANEYEZA NTLONI Twenty-third Applicant TOHLANG PAULOSI MAKO Twenty-fourth Applicant NANABEZI MGODUSWA Twenty-fifth Applicant THULENKHO KUSWANA Twenty-sixth Applicant MALEBURU REGINA LEBITSA Twenty-seventh Applicant MATAASO MABLE MAKONE Twenty-eighth Applicant MATSEKELO CISILIA MASUPHA Twenty-ninth Applicant MATIISETSO MASEIPATI JESENTA NONG Thirtieth Applicant BANGUMZI BENNET BALAKAZI Thirty-first Applicant WATU LIVINGSTON DALA Thirty-Second Applicant ZWELAKE DALA Thirty-Third Applicant DYAMARA JANUARY JIBHANA Thirty-Fourth Applicant MANTSO HENDRICK MOKOENA Thirty-Fifth Applicant MBIKANYE ALFRED SAWULE Thirty-Sixth Applicant ZONISELE JAN NKOMPELA Thirty-Seventh Applicant ISHMAEL TSIKWANE MOTLEKE Thirty-Eighth Applicant 3 THABO EDWIN NTSALA Thirty-Ninth Applicant MALEPA PUSO Fortieth Applicant NOEBE JARA TAU Forty-First Applicant ELIA MOTLALEPULA PHETANE Forty-Second Applicant MOTLALEPULA MOKOENA Forty-Third Applicant SEKHOBE LETSIE Forty-Fourth Applicant TSHEHLA SOLOMON HLALELE Forty-Fifth Applicant MONA ASHTON MELAO Forty-Sixth Applicant NKOSI SELATA SELATA Forty-Seventh Applicant EDGAR NTJANA NTJANA Forty-Eighth Applicant MAHOLA EMMANUEL SELIBO Forty-Ninth Applicant EZEKIEL MUTSANA MASUPHA Fiftieth Applicant MALEFETSAME MOHLAKASI Fifty-First Applicant MTHETHELELI NELSON SATU Fifty-Second Applicant VUYANI ELLIOT DAWUBE Fifty-Third Applicant MATELA HLABATHE Fifty-Fourth Applicant ZIMOSHILE BOZO Fifty-Fifth Applicant ZAMUKULUNGISA DYANTI Fifty-Sixth Applicant MALUSI BOVU Fifty-Seventh Applicant AGRIPPA DLISANI Fifty-Eighth Applicant MNCEDISI DLISANE Fifty-Ninth Applicant SIQHAMO HOYI Sixtieth Applicant LUVOKO MADINDALA Sixty-First Applicant MTUTUZELI MTSHANGE Sixty-Second Applicant MONDE MXESIBE Sixty-Third Applicant 4 MZWANELE BUNYONYO Sixty-Fourth Applicant MZIKAYISE NQOSE Sixty-Fifth Applicant BUZILE NYAKAZA Sixty-Sixth Applicant PATRICK SITWAYI Sixty-Seventh Applicant XOLISILE BUTU Sixty-Eighth Applicant ZOLISA JEJANA Sixty-Ninth Applicant And HARMONY GOLD MINING COMPANY LIMITED First Respondent (Registration number M1950/038232/06 First Respondent in case no. 48226/12 and First Respondent in case no. 31326/12) EVANDER GOLD MINES LIMITED (previously KINROSS MINES LIMITED) Second Respondent (Registration number M1963/006226/06 Second Respondent in case no. 48226/12 and Fifth Respondent in case no. 31326/12) LESLIE GOLD MINES LIMITED Third Respondent (Registration number 1959/001124/06 Third Respondent in case no. 48226/12) RANDFONTEIN ESTATES LIMITED Fourth Respondent (Registration number 1889/000251/06 Fourth Respondent in case no. 48226/12 and Sixth Respondent in case no. 31326/12) ARMGOLD/HARMONY FREEGOLD JOINT VENTURE (PROPRIETARY) LIMITED Fifth Respondent (Registration number 2001/029602/07 Fifth Respondent in case no. 48226/12 and Third Respondent in case no. 31326/12) AVGOLD LIMITED (previously TARGET EXPLORATION COMPANY LIMITED) Sixth Respondent (Registration number 1990/007025/06 Sixth Respondent in case no. 48226/12 and Fourth Respondent in case no. 31326/12) UNISEL GOLD MINES LIMITED Seventh Respondent (Registration number 1972/010604/06 5 Seventh Respondent in case no. 48226/12) LORAINE GOLD MINES LIMITED Eighth Respondent (Registration number 1950/039138/06 Eighth Respondent in case no. 48226/12) WINKELHAAK MINES LIMITED Ninth Respondent (Registration number 1955/003606/06 Ninth Respondent in case no. 48226/12) BRACKEN MINES LIMITED Tenth Respondent (Registration number 1959/001126/06 Tenth Respondent in case no. 48226/12) ANGLOGOLD ASHANTI LIMITED (previously VAAL REEFS EXPLORATION AND MINING COMPANY LIMITED) Eleventh Respondent (Registration number 1944/017354/06 Eleventh Respondent in case no. 48226/12 and Respondent in case no. 31327/12) FREE STATE CONSOLIDATED GOLD MINES (OPERATIONS) LIMITED Twelfth Respondent (Registration number 1937/009266/06 Twelfth Respondent in case no. 48226/12) GOLD FIELDS LIMITED (previously EAST DRIEFONTEIN GOLD MINING COMPANY LIMITED AND DRIEFONTEIN CONSOLIDATED LIMITED) Thirteenth Respondent (Registration number 1968/004880/06 Thirteenth Respondent in case no. 48226/12 and First Respondent in case no. 31324/12) GOLD FIELDS OPERATIONS LIMITED (previously WESTERN AREAS GOLD MINING COMPANY LIMITED) Fourteenth Respondent (Registration number 1959/0032096/06 Fourteenth Respondent in case no. 48226/12 and Sixth Respondent in case no. 31324/12) NEWSHELF 899 (PROPRIETARY) LIMITED Fifteenth Respondent (Registration number 2007/019941/07 Fifteenth Respondent in case no. 48226/12 and Fourth Respondent in case no. 31324/12) BEATRIX MINES LIMITED Sixteenth Respondent (Registration number 1977/002138/06 Sixteenth Respondent in case no. 48226/12) FARWORKS/682 LIMITED (previously KLOOF GOLD MINING COMPANY LIMITED) Seventeenth Respondent 6 (Registration number M1964/004462/06 Seventeenth Respondent in case no. 48226/12) DRIEFONTEIN CONSOLIDATED (PROPRIETARY) LIMITED Eighteenth Respondent (Registration number 1993/002956/07 Eighteenth Respondent in case no. 48226/12) GFI MINING SOUTH AFRICA (PROPRIETARY) LIMITED Nineteenth Respondent (Registration number M2002/031431/07 Nineteenth Respondent in case no. 48226/12 and Third Respondent in case no. 31324/12) VILLAGE MAIN REEF LIMITED Twentieth Respondent (Registration number M1943/005703/06 Twentieth Respondent in case no. 48226/12) BUFFELSFONTEIN GOLD MINES LIMITED Twenty-first Respondent (Registration number M1995/0100726/06 Twenty-first Respondent in case no. 48226/12) BLYVOORUITZICHT GOLD MINING COMPANY LIMITED Twenty-second Respondent (Registration number M1937/009743/06 Twenty-second Respondent in case no. 48226/12) DOORNFONTEIN GOLD MINING COMPANY LIMITED Twenty-third Respondent (Registration number M1947/024709/06 Twenty-third Respondent in case no. 48226/12) SIMMER AND JACK MINES LIMITED Twenty-fourth Respondent (Registration number 1924/007778/06 Twenty-fourth Respondent in case no. 48226/12) DRDGOLD LIMITED Twenty-fifth Respondent (Registration number 1895/00926/06 Twenty-fifth Respondent in case no. 48226/12) EAST RAND PROPRIETARY MINES LIMITED Twenty-sixth Respondent (Registration number M1893/000773/06 Twenty-sixth Respondent in case no. 48226/12) ANGLO AMERICAN SOUTH AFRICA LIMITED Twenty-seventh Respondent (Registration number 1917/005309/06 Twenty-seventh Respondent in case no. 48226/12) AFRICAN RAINBOW MINERALS (previously ANGLOVAAL MINING LIMITED) Twenty-eighth Respondent (Registration number 1933/004580/06 7 Twenty-eighth Respondent in case no. 48226/12) RANDGOLD AND EXPLORATION COMPANY LIMITED Twenty-ninth Respondent (Registration number 1992/005642/06 Twenty-ninth Respondent in case no. 48226/12) GFL MINING SERVICES LIMITED Thirtieth Respondent (Registration number 1997/019961/06 Second Respondent in case no. 31324/12) GFI JOINT VENTURE HOLDINGS (PROPRIETARY) LIMITED Thirty-first Respondent (Registration number 1998/023354/07 Fifth Respondent in case no. 31324/12) AFRICAN RAINBOW MINERALS GOLD LIMITED Thirty-second Respondent (Registration Number 1997/015869/06 Second Respondent in case no. 31326/12) And THE TREATMENT ACTION CAMPAIGN NPC and SONKE GENDER JUSTICE NPC Amicus curiae Index Paragraph Number INTRODUCTION Background [1] The Application [5] Legal representatives and consolidation of application [9] Silicosis [12] Pulmonary Tuberculosis [17] AMICI CURIAE [19] CLASS ACTION IN SOUTH AFRICAN LAW [24] THE CERTIFICATION OF A CLASS ACTION [35] THE MINEWORKERS’ CAUSE OF ACTION The class definitions [40] 8 The classes are objectively determinable [42] The scope of the definition of the two classes [51] Claim is one in delict [57] Alleged breach of duties by the mining companies [58] The evidence common to every individual mineworker’s case which the mineworkers intend to bring to the class actions [61] The claim against parent companies [71] Common questions of law [72] The claims of dependants [74] Issues concerning Pulmonary Tuberculosis [75] Are there conflicts of interests on the common issues? [77] The common issues in the class actions may not finally determine each mineworker’s case [84] Conclusion on commonality [90] There is no realistic alternative to class action [100] Class action is the most appropriate way to resolve many of the disputes that arise in the case of each mineworker [109] The Bifurcated process [116] Suitability of class representatives, legal Representatives and their fees Introduction [126] Suitability of Class Representatives [129] Suitability of Legal Representatives [143] Legal Representatives and their Fees [147] The Notices [167] THE CONDITIONAL COUNTER-APPLICATION OF HARMONY [169] 9 TRANSMISSIBILITY OF GENERAL DAMAGES [176] The Roman law [177] The Roman-Dutch law and the modern-day South African common law [182] The common law is dynamic, fluid and ever-changing [193] The constitutional imperative to develop the common law [199] The position in the UK, Australia and the USA [205] Should this matter be decided by the trial court? [210] Conclusion on transmissibility [211] CONCLUSION [223] COSTS [228] THE ORDER [230] JUDGMENT OF WINDELL J [231] ___________________________________________________________________ Judgment ___________________________________________________________________ Mojapelo DJP et Vally J INTRODUCTION Background [1] Gold mining began on the Witwatersrand in 1886. It has grown over the years spreading to other parts of the country (significantly the Free State). In due course it became a significant contributor to the growth of the gross domestic product of South Africa and rewarded handsomely those who invested in it. The South African currency was for a long time based to a large extent on the value of this internationally sought precious metal. As this case demonstrates, simultaneous with that growth, the industry 10 left in its trail tens of thousands, if not hundreds of thousands, of current and former underground mineworkers who suffered from debilitating and incurable silicosis and pulmonary tuberculosis (TB). Many mineworkers also died from the diseases. [2] Soon after the commencement of gold mining the risk of underground mineworkers being adversely affected by exposure to silica dust and thus suffering from silicosis, which was initially called “phthisis”, became manifest. There are other occupational lung diseases in the industry, but silicosis and to a lesser extent TB are the two that are of concern in this case. [3] From as early as 1902 several Commissions of Enquiry (“Commissions”) were appointed by the government to investigate the causes and prevalence of silicosis. These Commissions found the inhalation of excessive silica dust to be the sole cause of silicosis. The Commissions recommended that dust control and dust elimination measures be introduced. 1 There were other studies and investigations, including some by the mining industry itself, which made similar findings. These developments sketch and lay down a wide carpet of information that became available and accessible to those involved in the gold mining industry. [4] This case is about the attempts by the mineworkers employed in the gold mining industry and their dependants to obtain compensation as a result of the mineworkers having contracted silicosis or TB. 1 See for instance the 1902 Weldon Miners’ Phthisis Commission; South African Native Affairs Commission of 1903 (Report: 1903 – 1905), 1994 Leon Commission, Commission of Inquiry into Safety and Health in the Mining Industry; Several parliamentary select committees (at least ten) and state industry reports also looked at the incidence of silicosis in the gold mining industry. Several legislative interventions and regulations were promulgated (not less than fifteen Acts of Parliament between 1912 and 1946 followed by the Occupational Diseases in Mines and Works Act 78 of 1973 (“ODIMWA”). Occupational lung diseases (including silicosis) have also been the subject of several national and international conferences and studies.