Since 2003 Leigh Day has worked to secure compensation for thousands of South African gold miners who are suffering from silicosis and silico-tuberculosis caused by excessive exposure to dust.
To that end litigation has been pursued against Anglo American South Africa Ltd (AASA), which is owned by London-based multinational mining giant, Anglo American plc, and Anglogold Ashanti Limited (AngloGold).
President Steyn Litigation
In 2004, 23 silicosis test cases were instituted in South Africa against AASA on behalf of former miners who had been employed on AASA’s President Steyn Mine. It was alleged that AASA was liable because:
- it negligently controlled the mine, in particular regarding silicosis and dust prevention; and
- it negligently advised the mine pursuant to advisory and technical service agreements between AASA and the mine, in particular regarding silicosis and dust prevention.
The claims were due to be arbitrated in February 2014. However, in September 2013, the 23 claims were settled by AASA, in what was the first settlement of silicosis claims in South African history. The claimants’ case was very strong and they were confident of winning. Nevertheless settlement was in the claimants’ best interests: of the 23 claimants, seven had died during the course of the litigation and the health of others is very fragile. Awaiting a conclusion of the arbitration would have delayed payment of compensation by at least another year. In these test cases Leigh Day worked together with the South African Legal Resources Centre and Legal Aid South Africa.
In September 2011, Leigh Day instituted a mass claim against AASA in the UK High Court on behalf of silicosis sufferers who worked on the whole range of AASA mines.
The claim was instituted in England rather than South Africa primarily because:
- general damages are likely to be significantly higher in the UK; and
- the UK legal system has well-developed procedures for dealing with mass claims, which mean that the litigation process is likely to be much speedier in England than South Africa.
Under European Union law, courts have jurisdiction over defendants domiciled in their jurisdiction. The domicile of company includes the location of its “central administration”. The claimants contended they were able to bring the claim in England as AASA's central administration is in London where AASA's now parent company, Anglo American plc, and the Group are headquartered. AASA disputed jurisdiction. In July 2012, following a contested hearing, AASA was ordered to provide disclosure of certain categories documents relating to its central administration.
In July 2013, the High Court upheld AASA’s challenge against jurisdiction. An appeal by the claimants was dismissed by the UK Court of Appeal.
Group litigation against AASA and AngloGold
Following the jurisdictional defeat in the UK, the litigation was switched to South Africa. Leigh Day and South African attorney, Zanele Mbuyisa of Mbuyisa Neale Attorneys brought cases against AASA and AngloGold on behalf of 4,365 former gold miners, and relatives of deceased gold miners, who claimed that they had developed silicosis and silico-tuberculosis from working in the company’s mines.
These claims were instituted in 2012 and are completely separate from the silicosis class action proceedings that are currently awaiting a decision on certification from the Johannesburg High Court.
The case against AngloGold was initially brought on behalf of 31 miners who were employed on Vaal Reefs, a mining complex that was previously within the Anglo American group. Vaal Reefs was owned and operated by Vaal Reefs Exploration & Mining Company Ltd, which changed its name to AngloGold in 1998 and then to AngloGold Ashanti in 2004. AngloGold was therefore the direct employer of the claimants.
The 31 claims had been in a state of suspension for 18 months due to objections filed by AngloGold. A hearing to deal with the objections was repeatedly postponed and did not occur until October 2013. Judgment was finally handed down in April 2014, with South Gauteng High Court judge, Justice Francis, dismissing AngloGold’s objections to the claims as "ill-founded". Tragically, two of the original 31 claimants died in the intervening period.
This case was due to proceed to arbitration in April 2016. However, on 4th March 2016, a landmark settlement
was reached with AASA and AngloGold. The overall value of the settlement is estimated to be more than R500 million (£23 million).
Welcoming the settlement, Zanele Mbuyisa said:
"The epidemic of silicosis and TB has caused widespread suffering and misery for ex-miners, their families and communities. Sick ex-miners have effectively been left on the scrap heap by the mines and thousands of silicosis victims must have died uncompensated during a period when the industry should have been well aware of their predicament and its cause.
“A six week trial had been scheduled in April 2016. Based on the evidence amassed and the powerful support from an array of eminent experts we were confident of winning. However continuing with the litigation, rather than settling, would have meant a further substantial delay in receipt of compensation, which the claimants and their families cannot afford.”
from Leigh Day said:
“This settlement is a triumph for justice and accountability. It will bring much needed financial relief to the victims and their families. This settlement scheme provides a model and, we hope, the necessary impetus for an industry-wide settlement for all gold mining silicosis victims.”