After 36 years of working in South Africa’s gold mines, Makhelelise Montsi, 57, is a broken man. He speaks in a whisper, stopping frequently to catch his breath. Despite the silica dust that permeated the mines, Montsi, a native of Lesotho, says he was never warned of the dust’s dangers and never wore a protective mask. “No one ever told us we needed them,” he says.
Montsi, who was sent home in 2003 by his last employer, Gold Fields Limited, after coughing fits made work difficult, is one of an estimated half a million sickened gold miners who may be eligible to join a groundbreaking South African silicosis class action filed in August against three of the nation’s major gold producers. With an estimated quarter to a third of former southern African miners said to have silicosis or other occupational lung diseases, potential damages could run into the billions of dollars.
Plaintiffs in the proposed class allege that the companies—Gold Fields, Harmony Gold Mining Company Limited, and AngloGold Ashanti Limited—did far too little to protect mine workers from harm, though the risks of dust exposure have been known for a century, and technology to monitor and reduce exposure has been widely available for several decades.
Behind the South African plaintiffs are two U.S. plaintiffs firms, Hausfeld LLP and Motley Rice. The firms are separately funding parallel cases and providing advice and support to the South African lawyers advancing the claims. Montsi and nearly 10,000 former miners, mostly from Lesotho, have signed retainers with a white solo practitioner, Richard Spoor. He began his career in-house at Gold Fields, but subsequently became the bête noire of the country’s mining industry. Spoor is backed by Motley Rice. He obtained an unprecedented $154 million out-of-court settlement in a similar claim involving thousands of asbestos miners sickened with asbestosis.
And last year, arguing before 11 judges, Spoor won a landmark Constitutional Court ruling on behalf of a retired gold miner named Thembekile Mankayi. In that ruling, the court held for the first time that sickened miners could sue their employers for damages. Previously, they had been restricted by archaic mining laws that barred such suits and limited payouts to a few thousand dollars.
Similarly, some 3,000 former mine workers, mostly from the Eastern Cape province once known as the Transkei, have signed retainers with Charles Abrahams, a public interest lawyer of mixed race who came of age during the country’s political upheavals and spent time in political detention as a youth. Hausfeld is backing Abrahams’s effort; the investment, says Hausfeld’s Richard Lewis, is “substantial.”
Hausfeld’s ties to Abrahams go back a decade; he is a South African consultant on the U.S. firm’s long-running multibillion-dollar Alien Tort Statute claim in federal district court in Manhattan, Khulumani v. Barclays. That litigation seeks compensation for South African victims of apartheid from companies that did business in South Africa during that period.
Initially, Abrahams and Spoor teamed up for the Mankayi claim. But by the time the Constitutional Court issued its ruling in March 2011, Spoor and Abrahams had gone their separate ways. Now Abrahams is the first out of the gate, lodging preliminary applications known as attorney affidavits against each defendant on August 21.
In the application, filed in the South Gauteng High Court (the trial court with jurisdiction over Johannesburg), Abrahams is asking for a declaratory judgment on classwide liability, citing Canadian class action procedures as a model. If the request is granted, he wants the court to set up a process whereby individual mine workers can opt into the claim. Potential claimants come from the backwaters of South Africa as well as neighboring countries—Lesotho, Malawi, Swaziland, Mozambique, and Botswana—that have long supplied migratory labor to the mines.
Abrahams faces an uphill battle just to get to certification. Only a handful of class actions have ever been brought, and none have been certified. South African law does not spell out how certification may occur or how the action should be handled. Moreover, the right to class actions, though enshrined in South Africa’s 1996 constitution, is guaranteed only in claims where the bill of rights has allegedly been violated. Here, most of the harm alleged occurred before the constitution came into force. The strongest claims involve common law and statutory breaches. Plaintiffs are asking the court to use its discretion to develop the common law, taking into account the larger interest of access to justice.
At press time Spoor’s team was preparing to file a similar claim by the end of September. The American Lawyer met his team and some of his new clients during a trip to Lesotho in June. In addition to Spoor, the team includes a former Constitutional Court clerk and three Lesotho-based paralegals. Radio announcements pitched toward prospective plaintiffs were broadcast this past spring in the tiny landlocked nation. They generated enormous interest, with as many as 100 retired mine workers a day signing on to the case at recruitment events. Many had walked or ridden several hours from remote villages to attend. After a presentation, miners signed or affixed thumbprints to retainer and contingency fee agreements and other consent forms. The templates, in English, were provided by Motley Rice, but were adapted to the Lesotho environment, where many claimants are illiterate, and have no telephone, email, or even a standard mailing address.
Over the summer, Spoor and Abrahams collected work and medical records for potential named plaintiffs, efforts complicated by the fact that many miners, treated in mine-run clinics and then shipped home, were never given copies of their diagnoses.
Meanwhile, a fourth mining defendant, Anglo American South Africa Limited, is fighting similar litigation in the U.K. High Court. Richard Meeran, of U.K. plaintiffs firm Leigh Day & Co., filed a representative action on behalf of 1,500 former Anglo miners in September 2011. At press time both sides were engaged in a fierce battle over jurisdiction; Meeran claims that the company is centrally administered in London, where parent company Anglo American plc is based, giving U.K. courts the right to hear the claims. The South African unit, for its part, argues that it is run out of its Johannesburg office. In late July, a judge ordered the company to produce documents that will shed light on where decisions are being made. (Hausfeld filed a parallel mass action claim notice against Anglo on behalf of forme miners in mid-August.)
In early September, Harmony, AngloGold, and Gold Fields filed notices in Johannesburg individually that each intends to fight certification; spokesmen reached at the three companies said they had no further comment. But on the basis of Anglo American’s defense in the U.K. action, the companies are likely to assert that they followed South African laws and instituted adequate safety procedures. For the South Africa litigation, AngloGold is relying on William Le Roux of Brink Cohen Le Roux, Gold Fields is looking to Jeffrey Kron at Norton Rose, and Harmony has tapped Bell Dewar.
If South African judges reject certification, there are fallback plans. With hundreds of complete histories already collected, says Lewis, lawyers could file an avalanche of individual claims in South Africa under the new legal path opened up by the Mankayi decision. But whether the sickest miners like Montsi will see a payoff in their lifetime is anyone’s guess.