Certifying a Class Action

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Class actions can occur when a group a people have the same or similar injuries which were as a result of the same action or product, and this group of people jointly sue the alleged wrongdoer in one lawsuit.

A class action represents a paradigmatic shift in the South African legal process in order to benefit the poor and vulnerable. The class action process is part of the equity developed law and is designed to assist in situations where the parties are so numerous that it would be almost impossible to bring them all before the Court in one hearing.

Nkala and Others v Harmony Gold Mining Company Limited and Others

On Friday, 3 May 2016, the High Court of South Africa, Gauteng Local Division, Johannesburg handed down the landmark judgment in the case of Nkala and Others v Harmony Gold Mining Company Limited and Others1.

This case relates to the attempts made by mineworkers, as well as the dependents of mineworkers, deceased and alive, seeking to obtain compensation for having contracted silicosis or tuberculosis (“TB”) allegedly as a result of working underground in the mines. The mineworkers, as well as the dependents, sought to bring a class action on behalf of current and past underground mineworkers who contracted silicosis or TB, while they were employed by the various companies operating in the gold mining industry (“the Defendants”).
The mineworkers sought an order for certification of one consolidated class action comprising of two classes, namely a silicosis class and a TB class, against the Defendants. It was the Plaintiffs’ proposal that the single class action proceed in two stages; stage one during which issues common to both classes shall be determined and stage two during which individual issues will be determined.  

Certification and consolidation of the class action

The Court was unconvinced by the arguments made by the Defendants, in that the class action should not be certified (endorsed) because it inherently bears scope for conflict of interest between mineworkers who want to enter into a settlement and those who don’t. The Court held that it is in the interests of justice that they be dealt with in a single class action hearing as opposed to separate hearings.

Notwithstanding the above and regarding the certification of the class action, the Court held that certification is not dependent on each mineworker’s case being fully and finally determined. As long as it can be shown that the determination of the common issues will substantially advance the cases of the individual mineworkers, a certification of the intended class action is justified and will be in the interests of justice.

The Court is of the view that the institution of hundreds of thousands of separate individual hearings is not more appropriate than the proposed class action, in order to resolve the various disputes between the Plaintiffs and the Defendants. This is so even if the proposed class action only resolves a portion of the disputes between the parties. Accordingly, it was concluded that the proposed class action is the most appropriate way for this matter to proceed.

Significance of the Judgment

When the mineworkers raised that the Common Law rule contravenes Section 9 of the Constitution of the Republic of South Africa, 108 of 1996, in that it arbitrarily differentiates between plaintiffs who died pre-litis contestatio (before the closing of Court proceedings) from plaintiffs who died post-litis contestatio (after the closing of Court proceedings). The Court subsequently held that the Common Law rule, that precludes the transmissibility of general damages pre-litis constestatio, should be developed as follows: a plaintiff who commenced civil proceedings for general damages but who died (whether arising from harm caused by a wrongful act or omission of a person or otherwise), and whose claim is yet to reach the stage of litis contestatio – and who would have been entitled to continue the action and recover general damages if he/she had still been alive – will be entitled to continue with such action notwithstanding his/her death. Furthermore, the person or entity 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 despite the death of the plaintiff.

The Court then had to deal with the issue of at which stage in the litigation process the general damages claimed by the mineworkers would be transmissible to their deceased estates. The Court was of the view that failure to recognise the claims for general damages as having commenced from the date that the class action application was certified, would produce an unfair and unjust result for the heirs of the mineworkers who succumbed to their illnesses after the certification application was launched but before the summons was issued in the class action. Accordingly, it was held that the only way justice can prevail is if the declaratory order sought by the mineworkers is granted.

Liability of the mining companies

The liability of each mining company will be determined at the second stage of the proceedings, when all the mineworkers and all the dependants of deceased mineworkers have stated their claims. At that stage, the claims will be pared against the respective mining company(ies) alleged to have not put suitable measures in place to protect the mine workers from contracting these alleged dust-caused illnesses. Hence, each mining company will be held responsible for its own actions or unlawful omissions. 


The finding of the Gauteng Local Division in Johannesburg is historic, and allows for the largest ever class action in the country to proceed.

This judgment has also been a step in the right direction as it has made it possible for the numerous miners who contracted silicosis or TB on South Africa’s gold mines to claim compensation against the mining companies. The Court’s ruling is also important for it has developed the Common Law rule that precludes the transmissibility of general damages pre-litis constestatio, thereby allowing the dependants of the mineworkers to proceed with the claim for damages despite the fact the mineworkers (who brought the initial claim against the mining companies) have subsequently died.


Dominique Lloyd
Associate at Schindlers Attorneys
Phone: +27 (0) 11 448 9664

Nonhlanhla Mtshali
Candidate Attorney at Schindlers Attorneys
Phone: +27 (0) 11 448 9719

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