Mining for justice

Mining for justice

The plight of silicosis-stricken miners is not new, and neither is the associated litigation. What is new, however, is the news that silicosis-related litigation in London appears to have come to a dead (no pun intended) end …

We previously discussed the long-running court battles concerning the occupational disease of silicosis, which is compounded by the question of tuberculosis. Several cases have been launched in South Africa against mining companies by former miners claiming compensation arising out of silicosis.

Silicosis is, of course, well known in South African mining history going back to the early 1900s. Dating back to that time, legislation was passed providing compensation for miners who contracted silicosis. More recently attempts have been made to claim additional compensation by way of civil actions. These were initially unsuccessful but a case taken to the constitutional court succeeded in establishing the principle that the workers’ compensation legislation does not preclude such an action.

In the September/October 2011 edition of SHEQ Management, we explained that an attempt would be made to have the matter heard in London and why such an attempt would be made. There have been several cases on this matter in the United Kingdom (UK). Matters like this usually consist of a series of cases (a sort of running battle) rather than a single showdown.

There was an earlier UK case with the same name before Justice Silber reported as 2012 EWHC 1969 QB. The London case is that of Vava and another versus Anglo American South Africa Limited 2013 EWHC 2131 QB. This case involved more than the claims from miners. It also contained what appeared to be a medical malpractice case, consolidated into one hearing. Both cases involved the same principles. The UK court has now delivered its ruling.

The question which the London court had to answer is simple enough: do the UK courts have jurisdiction to hear these matters? Suing for events which happened in one country in a different country usually involves a number of fundamental principles. The first is the principle of sovereignty, which holds as a rule because courts have jurisdiction only over their own territorial area, not other countries.

In terms of this principle UK courts should not entertain cases for events which occurred within another country such as South Africa. It appears that in the “global village” this fundamental principle is increasingly being forgotten. One need only think of the case of Mark Thatcher, who decided to plead guilty in South Africa to his alleged involvement in a supposed 2004 Equatorial Guinea coup attempt. (The supposed coup was obviously in another country.)

Another recent example is the attempt by President Obama to get President Putin to hand over Edward Snowden, the Prism whistle blower. The United States did not invoke any extradition agreement to achieve this objective. When it was thought that Snowden may have been on board the aircraft of President Evo Morales of Bolivia, the plane was diverted to Austria where it was searched. To this one can add the numerous cases of rendition where persons have been kidnapped in one country outside the rule of law and taken to another. In these matters there seems to be very little regard today for the principle of sovereignty, due process or the rule of law.

Second, there is a general principle of private international law. As a general rule courts are reluctant to entertain foreign cases unless it can be established that the party suing will not get justice in their home country.

It is unlikely that any UK court will conclude that miners will not get justice in South Africa via the South African courts. Without this private international law rule, cases will be launched all over the world and some countries may find their courts spending all their time dealing with what is to them an entirely foreign matter. The only reason they would be dealing with these cases would be the perceived benefit to the claimants and especially to their lawyers.

In the current case the private international law rule was not invoked since no argument was advanced that the miners would not receive justice in South Africa. A different route was followed. The claimants relied on the European Commission (EC) Regulation EC 44/2001 which allows actions to be heard inter alia where a company has its central administration which, in this case, is the UK.

The question thus hinged on the interpretation and application of the regulation with respect to the words “central administration”. Put simply, the question was: does Anglo American South Africa Ltd have London as the place of its central administration? As one can imagine, since it is an EC Regulation, it has been subject to a great deal of litigation and comment by academic writers. The lawyers and judge had their work cut-out for them having to review this volume of literature and apply it to the evidence presented to the court with regard to this case.

In an attempt to bring the UK litigation to an end, Anglo American decided to bring an application asking the court to declare that the UK courts have no jurisdiction to hear the matter. If this succeeded it would be the end of the London leg of the case. As indicated, such an application could have been brought in terms of the private international law principle that the miners would not receive justice in South Africa, but that was unlikely to succeed. The claimants opted rather to assert that the courts do have such jurisdiction by virtue of the EC Regulation.

On the face of it the link back to London is very tenuous indeed. None of the miners were employed by Anglo American plc, the London listed company. It was contended that the group’s administration is governed by policies formulated by the Group Management Committee, which included the safety management policies, thereby pointing to London as the central administration.

This turned out to be not very convincing. In the end the judge, Andrew Smith, was not at all persuaded. He concluded: “On any view, in my judgment, Anglo American SA has its central administration in South Africa and not in England, and the claimants do not have an arguable case to the contrary … I grant the defendants’ applications. Although it has no legal significance, I observe that this result means that these claims can be pursued in South Africa, the jurisdiction with which at least the claims in the Vava action really are connected and the English court is not obliged to assume jurisdiction over claims that have little, if anything, to do with this country.”

The final part “the English court is not obliged to assume jurisdiction over claims that have little, if anything, to do with this country”, is of significance. This statement is in line with the historical principle of sovereignty and the private international law position discussed above.

The matter now has to be resolved in the South African courts. If history is anything to go by the miners’ lawyers will be doing their utmost to convince the mines to establish a fund for the benefit of the victims of silicosis rather than obtaining a court judgment.

 


Legally Speaking is a regular column by Albert Mushai and Hugh-David Hutcheson, both in the school of Economics and Business Sciences, University of the Witwatersrand. Mushai holds a master’s degree from the City University, London, and was the head of the insurance department at the National University of Science and Technology in Zimbabwe before joining Wits University as a lecturer in insurance. Hutcheson holds a PhD from Wits and is a lecturer in insurance.

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