Inappropriately assessing appropriateness of class proceedings: Nkala v Harmony Gold Mining Company Ltd

Broodryk, Theo (2022-01-11)

Article

Nkala v Harmony Gold Mining Company Ltd (Treatment Action Campaign NPC and another as amici curiae)1 is the first South African mass personal injury class action. The latter is worth noting because a mass personal injury class action presents unique challenges compared to other types of class actions, such as consumer class proceedings. In a personal injury class action, the extent of the injuries and the quantum of damages suffered by each member are individual issues. One of the challenges present in mass personal injury class actions is that, if the class consists of a large number of victims and each victim is required to present oral evidence to prove his or her damages individually, the trial may take years to conclude, and some claimants could possibly pass away by the time the court delivers judgment. It would overburden proceedings and cause undue delay.2 These are some of the issues which, as will appear from this note, were influential in the court’s questionable approach to assessing appropriateness of class proceedings in Nkala. In Nkala, Bongani Nkala and 55 other individuals sought certification of a dispersed incident mass personal injury class action3 on behalf of mineworkers for damages arising from silicosis contracted by mineworkers through their employment on the mines.4 The South Gauteng High Court granted certification of the class action. This note considers the approach of the Court in Nkala in dealing with the issue of the appropriateness of class actions as a certification factor.5 It is argued that, contrary to the finding of Mojapelo DJP in Nkala, sufficient commonality does not necessarily render class proceedings appropriate. Although admittedly there is an overlap between the certification factors, to determine whether a class action is appropriate a court would need to consider other issues and not just whether a determination of commonality would advance the class action. It may be that there is sufficient commonality, but that class proceedings would nevertheless be otherwise inappropriate. The note concludes by finding that, notwithstanding the court’s erroneous approach to this issue, it nevertheless reached the correct conclusion in deciding the certify the class action.

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