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However, sight must not be lost of the fact that this case is different from the usual class action where numerous persons have the same or similar claim against a single defendant arising from a single wrong committed by the defendant. In this case numerous mineworkers have the same claim against one or more of the mining companies simultaneously, and while all their claims are attributable to a single cause, the harm nevertheless occurred at different times and in different circumstances.

The mining companies placed heavy emphasis on this latter fact in their opposition to the certification of the class action. In other words, all the silicosis mineworkers have a claim harm suffered at the hands of one or more of the mining companies attributable to a single cause, even though the harm they are alleged to have suffered may have occurred at different times, in different circumstances and in different mines.

At the same time all the TB suffering mineworkers claim that a major, if not sole, cause of their contraction of TB lies in their exposure to silica dust which was prevalent at the mines they worked in.

And, it would be presented by the same witnesses in each of the cases. On the contrary, if the class action were to be certified it would be presented only once. Hence, that constellation of evidence can only be presented in a class action trial. It is neither economical, nor in the case of any individual mineworker affordable, for him to bring it to his trial action were he to sue in his individual capacity.

The class action trial court will deal with all the evidence once and for all and will make a single finding on the issues arising from this evidence as opposed to many trial courts sitting and hearing the same evidence.

It has to be borne in mind that if individual trials were ever to be held and evidence repeatedly presented in each of the cases, the findings on each case remain case-specific and are not binding on any subsequent case, even though the subsequent case draws on much of the same evidence as the previous one.

It goes without saying that there is always the problem of different courts hearing the same evidence but coming to different conclusions or, to put it differently, making different and even mutually contradictory findings. This is as untenable as it is uneconomical. Thus, if jurisprudential coherence and integrity are to be maintained, which in the interests of the rule of law they must be, then the evidence can only be presented in a class action hearing.

In other words, the evidence is only truly digestible in a class action hearing. These, therefore, raise common issues or pose common questions best dealt with in a class action hearing. There the court held: The commonality requirement does not mean that an identical answer is necessary for all the members of the class, or even that the answer must benefit each of them to the same extent. It is enough that the answer to the question does not give rise to conflicting interests among the members.

Determining whether the common issues justify a class action may require the court to examine the significance of the common issues in relation to individual issues. In doing so, the court should remember that it may not always be possible for a representative party to plead the claims of each class member with the same particularity as would be required in an individual suit.

It need not be determinative of the final resolution of the case. It is sufficient that it allows the claims to move forward without duplication of the judicial analysis. This however does not preclude a class action suit. These defences would be determined once and would enjoy the status of finality. At the same time, the court would be saved the inconvenience of dealing with more than one case and hearing the same evidence on the same issue.

Thus, it would enhance judicial economy. Further, it would prevent the potential harm to judicial integrity caused by various courts hearing the same evidence and producing conflicting decisions from that evidence.

It is accordingly in the interests of justice that they be dealt with in a single class action hearing. There is no realistic alternative to class action. For them, it is said, it is class action or no action at all. Class action is the only realistic option open to the mineworkers and their dependants. It is the only way they would be able to realise their constitutional right of access to court bearing in mind that they are poor, lack the sophistication necessary to litigate individually, have no access to legal representatives and are continually battling the effects of two extremely debilitating diseases.

This is manifest in the following uncontested evidence of Spoor: It is not disputed that the majority of the class members are impoverished rural people, many of whom are in poor health, who are spread across the sub-continent and who have very limited access to the civil justice system. The very large proportion of class members who were migrant workers from Mozambique, Malawi, Lesotho and Swaziland, probably have no access to the South African justice system at all.

Litigating on behalf of claimants located in remote rural areas and in neighbouring countries is particularly difficult and expensive.

Communication is difficult and expensive. In many instances letters and notices must be delivered by hand, travel to and from these remote areas is slow, expensive and often unreliable. There are few if any local correspondent attorneys to rely upon and either the attorney must travel to see the client or vice versa.

A simple matter such as arranging for a medical examination can take days to organize and involve claimants travelling hundreds of kilometres. All of these costs must be borne by the client which is impossible , or they must be borne by the attorney. They do so without advancing an alternative option that will guarantee access to justice for the mineworkers. The mining companies argue, in the main, that the class action of the magnitude sought by the mineworkers will be unmanageable.

They also accuse them of doing all to escape justice. The mining companies failed to dispute the claim, or present credible evidence to doubt it. It was not disputed that the majority of mineworkers have little to no access to the South African justice system as they are all impoverished or indigent and are living in the rural areas of South Africa, Mozambique, Malawi, Lesotho and Swaziland, and are in poor health.

That being so, the vast majority of them who cannot sue individually would have to live with the fact that the law, with all its promises, affords them no remedy for the pain and suffering endured while battling the growth of fibrotic forests in their ever depleting lungs. If the legal system is inaccessible to them then the constitutional gift of a right of access to court, [42] is illusory.

It is only through access to courts and other independent tribunals that justiciable disputes can lawfully be adjudicated. This makes the right of access to courts one of cardinal importance in our constitutional democracy.

Access to court is an ingredient in the making of the rule of law. We know, too, access to courts is fundamental to the survival of our democratic order as well as for the protection of the Constitution itself. The mining companies failed to meet the challenge. For them there was only one route open to the mineworkers and that was individual trials for each and every mineworker who claims to have a cause of action.

No justifiable reason to materially limit or deny the mineworkers their right of access to court in this way was presented to us. This is the only avenue to realise the right of access to the courts which is guaranteed for them by the Constitution. Class action is the most appropriate way to resolve many of the disputes that arise in the case of each mineworker. In such a case it has to be in the interests of justice that a class action be certified. Articulated differently, once the determination on whether there are sufficient common issues to warrant a class action is made, the question of the most appropriate way to proceed would almost certainly fall away.

An answer was promised, but never provided. The fact of the matter is that they do not disown the possibility that they would bring evidence common to all the claims of the mineworkers whether in a class action or in numerous individual actions. At the same time, they are unable to say what process is best suited to entertain this evidence, or the common evidence the mineworkers intend to bring to a trial court. This is so even if the proposed class action only resolves some of the disputes between them.

Accordingly, we conclude that the proposed class action is the most appropriate way for this matter to proceed. The first stage will involve a hearing on all the common issues. The second stage will deal with all the individual issues. With this approach the first stage would not necessarily be a single proceeding and would take some time to complete. Should we sanction this, it would mean that the mineworkers would be required to issue two notices to the putative class members — an opt-out notice and an opt-in notice.

The opportunity to opt-out would only be available for a limited time-period. At the end of this period the total number of class members would not be known.

It is important to note that any mineworker who does not opt-out will be bound by the findings made by the court during the first stage. Should the mineworkers be blessed with any success at the first stage, they would then issue a second notice informing the mineworkers of the outcome of the first stage, and would offer each of them the opportunity to opt-in to the class action. Again, the time-period affording the individual mineworker this opportunity would be limited.

At the end of this period the total number of class members would be revealed. Any mineworker who fails or refuses to opt-in, will not be bound by the outcome of the second stage. He will still have the right to pursue his claims on his own without losing any of the benefits that would have accrued to him by virtue of the success es achieved by the mineworkers as a whole in the first stage.

The obvious attraction of this double-barrelled approach is that it ensures that the individual mineworkers are afforded the widest possible choice. AngloGold, like all the other mining companies, is adamant that there is not. It is important not to conflate the issue of commonality with the adoption of a bifurcated process. Once it is found that there are sufficient common issues to warrant a certification then the option of adopting either a single process or a bifurcated one presents itself.

The mineworkers have chosen the bifurcated process because they wish to take advantage of the benefits offered by both the opt-in and opt-out options. They claim that it affords the individual mineworker the widest choice possible when confronted with the question of whether to join the class action or not. And, to the extent that it achieves this, it serves the interests of justice.

The claim, in our view, has merit. This, they point out, would affect and may even be decisive in, their answer to the question on whether they should persist with their opposition or should settle the claims. The problem of not knowing the total number of class members exists in all class actions where the opt-out system is adopted. This is bound to be factored into the quantum awarded on any settlement amount that the parties may agree on should they choose not to pursue the litigation.

These are their former employees or dependants of their former employees. They have, or should have, records of these employees. This is amply demonstrated in the testimonies of the individual mineworkers and the testimonies of the dependants of deceased mineworkers quoted above.

In these circumstances, care must be taken not to exaggerate the problem of identifying the total number of actual mineworkers, or dependants of deceased mineworkers, until the litigation is finalised. The decision to settle the claims is dependent as much on their assessment of the strength of the case of the mineworkers as well as the strength of their defence. In the result, the problem of not knowing beforehand the actual number of mineworkers or dependants of deceased mineworkers is not weighty enough for us to refuse the certification of the proposed class action, or to refuse to sanction the adoption of a bifurcated process.

Suitability of class representatives, legal representatives and their fees. They include the following: The interests of the representative must not be in conflict with those of the members of the class. Some have unfortunately passed on. All the representatives are current and former employees of the mining companies, lawful representatives of estates of deceased mineworkers and dependants of the deceased mineworkers.

Some of the mining companies contend that they are not suitable class representatives and have made this an issue. The TB class representatives total over twenty five 25 , similarly based in various parts of South Africa and the sub-continent. They will facilitate access to and communicate with class members in their areas of reach as the litigation proceeds.

They fully appreciate that they owe a duty to all mineworkers as well as to the dependants of mineworkers to provide fair and adequate representation. The objection is based on two grounds. They say that this will result in no evidence being led relating to the conditions applicable to certain mines or certain jobs. This objection is unfounded. It is premised on the incorrect assumption that only the class representatives will give evidence in the class action.

There is no requirement that all the evidence in the action be given only by the appointed class representatives. On the contrary, it is anticipated that the evidence on the common issues at the first stage of the class action will be given by a number of mineworkers some of whom are not part of the group of representatives. There will also be evidence by numerous experts and their evidence will not be specific to a single mining company or even a group of mining companies.

The lack of a representative from each mine, therefore, has no bearing on the evidence to be led at the trial. The concern of these mining companies really only relates to the alternative prayer of the applicant mineworkers, which is that should this court refuse certification of a single class action it should certify a class action for each mining company.

It is unnecessary to deal with this objection in the light of the conclusion we reach in this case. In Canada and Australia, whilst there is no express requirement of typicality, Professor Mulheron suggests that the jurisprudence of those countries, in regard to commonality, makes that a requirement.

That question does not arise in South Africa, because s 38 c of the Constitution expressly contemplates a class action being pursued by 'anyone acting as a member of, or in the interest of , a…class'. Accordingly, while the appellants include individuals who may be typical of the class they are seeking to represent, the other appellants may permissibly act in the interest of the class.

There is no reason to differentiate in that regard between class actions based on infringement of rights protected under the Bill of Rights and other class actions. They allege that where, for example, conditions in one mine were more hazardous than in another, it would be in the interests of mineworkers who work on the latter to highlight the conditions on the former.

The question whether mine A breached its legal duties owed to its mineworkers is not affected by whether mine B did so. The breach of duties by one mining company is not determined by comparing conditions at one mine with conditions at another. It is no defence to a claim in delict that one defendant conducted itself worse or better than another.

The question of the relative conditions on different mines is even less relevant in the context of stage one of the class action, where evidence will be led on the common issues pertaining to the constitutional, statutory and common law duties of care of all the mining companies where evidence common to all of them will be received.

But this is no bar to certification of the class action nor is it a bar to the appointment of the applicants who bring the certification application as representatives of the class. There will inevitably be some trade-offs in a class action. However, the benefits of increased access to justice and judicial economy outweigh the inevitable trade-offs involved in aggregate litigation. They have expertise and experience in class action litigation.

The LRC has extensive experience in cases concerning public interests as well as cases involving large numbers of people.

There are nine counsel representing the mineworkers, five of whom are senior counsel. There cannot be any serious argument against their competence and professionalism. Further, any settlement agreement would, in any event, be subject to judicial approval. This is required under the contingency fee agreements concluded between the applicant mineworkers and the legal representatives, and in terms of provisions of the CFA. And, if deemed necessary, the trial court is at liberty to appoint a curator ad litem for the purposes of overseeing any settlement agreement on behalf of all, or part of, the class members.

It bears mentioning that the fee agreements have been submitted to the relevant Law Societies for their consideration and they, having considered the agreements, have recorded that they have no objection thereto. They have to be considered against the backdrop of four principled positions that have emerged. It is these amended agreements that they seek approval for.

It is appropriate at this stage to consider whether it is necessary to order amendments to the agreements as the class action has not yet commenced. Amendments can still be effected without offending the fundamental provisions of the CFA and its underlying principles. Amended pro forma contingency fees agreements have been presented for approval in terms of the amended paragraph 5. The agreements, therefore, comply with the provisions of the CFA. In those circumstances, the client would not be liable for any costs to the attorney.

The mineworkers entitlement to such costs remains unaffected. The services of counsel do not fall under the contingency fee arrangements unless counsel co-signs the agreement.

The amended agreements nevertheless make provision for signature of counsel. It is a provision which was not necessary to include where it is expressly clear that counsel do not act on contingency. The first relates to premature termination of mandates. In terms of the agreements, if the mineworkers choose to terminate their mandates and the accompanying contingency agreements before the date on which judgment is given or the matter is settled, the mineworkers become liable for their pro rata portion of the fees incurred up to the date of termination.

ARM contends that this is inequitable. We do not agree. It is appropriate and equitable that a mineworker who terminates the mandate of the attorney should be liable for costs incurred up to date of such termination. By prematurely terminating the agreement, the mineworker effectively deprives Spoor and Abrahams of the opportunity of recovering their fees and disbursements from his or her award upon the successful conclusion of the case.

Yet, at the same time, his success would derive from the work of the attorneys. It is only fair that the attorneys should be entitled to recover their costs from the mineworker who terminates the agreement.

Furthermore, the class members are not subject to these arrangements, and need not pay any fees, should they opt-out at the beginning of the proceedings.

There is nothing inequitable or inappropriate in the provision in question. The concern does not arise if each class member is to be subject to only the Spoor or the Abrahams contingency fees agreement. There is no need for the mineworker to conclude two agreements, one with Spoor and one with Abrahams. Spoor and Abrahams acknowledge expressly that, if inadvertently a mineworker concluded a separate agreement with each of them they would not both be holding him to the agreement as this would be unlawful and in breach of the CFA.

Accordingly, this concern is misinformed. There is therefore no basis to hold them to the terms of those agreements. The mineworkers are the clients of Spoor and Abrahams. The consultants provide services to Spoor and Abrahams.

The cost of their services, quite rightly, are disbursements incurred by Spoor and Abrahams. However, any legitimate concerns regarding their fees are addressed by them and by Spoor and Abrahams in two ways. This is no different to a situation where the consultants were made a party to the contingency fee agreements and thus subject to the provisions of the CFA.

There can therefore be no legitimate concern of over-recovery by the attorneys from the capital awarded to or obtained by a mineworker. The mining companies oppose this. They claim that the notices are too complicated and inappropriate given that the large majority of the mineworkers are either illiterate or semi-literate. They, however, do not suggest any alternative wording for the notices.

It is really difficult to see how the notices can be simplified. They say what needs to be said and no more. They are neutral and objective. They avoid any ambiguity and they will be translated where necessary. They must be seen in context of the existence of the active network of trade union and community-based organisations and associations of former and current mineworkers that we referred to in this judgment.

The message in the notices will in all probability be carried with ease to the mineworkers should the process referred to in the order we make below be followed. If, for any reason, the process cannot be adhered to, or if the mineworkers and the mining companies jointly deem it necessary to augment the notices with an additional process es , then they are free to do so by agreement between themselves.

If, on the other hand, they are unable to do so then any party is free to call upon this court for further direction or even for an amendment of the order. They are designed to ensure that they are brought to the attention of the maximum number of mineworkers possible.

The counter-application is conditional upon this court certifying the class action. In that case, Harmony seeks an order directing the mineworkers to: It also wishes to know the identity of the mineworkers who wish to be included in the second phase. The documents and information that Harmony seeks may be obtained by it, once the action has commenced. It will obtain it by operation of the Uniform Rules of Court.

Harmony has not explained why it requires such information prior to the issuing of the class action and why the rules and procedures are not sufficient to safeguard any legitimate interest it may have in acquiring such information and documents. It is significant that none of the other mining companies seek this information in advance. It is a peculiarity of the opt-out process that the class action defendant s do not know the number and identity of the potential plaintiffs.

The identity of class members will be revealed at the opt-in stage. This however, does not deprive them of the opportunity to raise whatever defence they wish to raise. The defence can be raised at the appropriate stage and can also be brought by way of an amendment to the plea. There is neither a right nor a legitimate interest that Harmony seeks to enforce or protect that would justify the granting of the orders it seeks.

Accordingly, Harmony is not entitled to the relief it seeks at this stage. In order to make sense of this relief it is necessary to explore the historical roots and development of our law of delict regarding the transmissibility of claims for damages whether general or specific to the heirs or the estate of the deceased. To begin with it is necessary to have regard to the historical development of the concept of litis contestatio commencing with the early Roman law.

The in iure stage involved the assertion of a claim before the magistrate, while the in iudicio stage concerned the actual hearing and decision of the case by a judge or arbitrator. During the tenure of this system the two stages were effectively kept intact albeit in a modified form. The written formula was: Apart from defining the issue and issuing instructions in the formula to the judge, he was empowered to refuse the formula and if he did so the matter could not proceed. His discretion in this regard was wide.

Of importance, for the moment at least, is that the stage of litis contestatio was reached when the formula was obtained or delivered by the plaintiff to the defendant. In sum, the stage of litis contestatio was reached once the parties had identified their respective cases the plaintiff stated the basis of his claim, the defendant identified his defence and the praetor issued the instruction to the iudex. Once the stage of litis contestatio was reached, there was no turning back for either party.

They were bound by the terms set out in the formula and had to prove their respective cases on those terms alone. If either party was not able to do so, he would lose his case.

The effects of litis contestatio were accordingly of great importance. The parties were not able to alter or amend the formula, and the judge was bound to determine the matter solely on the basis of what was stated in the formula. In general, claims in rem could be transmitted, while those in personam could not. Thus, for example, a claim for an iniuriarum actio iniuriarum — a claim for relief pursuant to a wrongful and intentional damage to personality was not transmissible to or against the heirs.

However, there was an exception to this rule. Instead, it was adopted by other legal systems that followed, not least the Roman-Dutch system that came many centuries later. The concept of litis contestatio, the rule prohibiting the transmissibility of certain types of claims as well as its exception was embraced by the Roman-Dutch law without more.

This is recorded in a case reported in dealing with a claim brought in terms of the actio iniuriarum , [63] namely Executors of Meyer v Gericke , [64] which was a claim for damages incurred as a result of a defamation.

There the court observed: It is admitted on both sides that such an action cannot be instituted after the death of the person who was guilty of the defamation or other injury, or after the death of the person defamed or injured. It is further admitted that such an action, even if instituted during the lifetime of both parties, cannot be continued after the death of either party unless the stage known as litis constestatio has been reached.

The authorities fully support these admissions. The outcome was a result of a pure and simple application of the rule established in the Roman law. Bearing in mind that the Roman system of intervention by a praetor in the first stage of a case was not followed in the Roman-Dutch system, the court there held that in the Roman-Dutch system the stage of litis contestatio would be reached when pleadings were closed.

The full-court there took the view that as the rule as well as the exception to the rule was embedded into the fabric of our common law by the Roman-Dutch authorities all that was needed in the case before them was one of application of the rule or its exception to the facts before them. Hence, the court found: And it cannot possibly set up such a case, because a personal action for libel cannot be ceded.

It perishes on the death of the person libelled, and it does not even pass to his heirs unless the action had been commenced before his death and had reached the stage of litis contestatio. That was so decided in Meyer's Executors v Gericke , Foord 14 , in accordance with the weight of Roman-Dutch authority.

The position to date, therefore, remains unchanged from that expressed in in Executors of Meyer. As a result, the position of our modern common law, as well as that of the early Roman-Dutch law is really a facsimile of the early Roman law.

However, social, economic and legal conditions that prevail today are very different from those that prevailed during the tenure of the early Roman law. One of the most important expressions of that difference is to be found in answer to the question as to when the stage of litis contestatio is reached. We know that in the Roman law it was when the praetor issued the formula and in the early Roman-Dutch law which was implanted, without more, into our modern common law the stage was reached when pleadings were closed.

But the issue as to when pleadings are closed in our present legal system is a lot more complicated than it ever was under both the Roman law or the early Roman-Dutch law and this is an issue that is of immense significance in this case. Hence, the transplantation of the rule and its exception into our law produced its own complications and challenges.

A claim for non-patrimonial damages, also referred to as general damages, is a claim for the personal injury sustained in the form of pain and suffering, loss of amenities of life and for disfigurement.

But this claim does not fall within the scope of the lex Aquilia. Any element of attachment or affection for the thing damaged was rigorously excluded. And this principle was fully recognised by the law of Holland. As pointed out by Professor de Villiers the compensation recoverable under the Lex Aquilia was only for patrimonial damages, that is, loss in respect of property, business or prospective gains. He draws attention to the clear cut distinction between actions of injuria where intent was of the essence and actions founded on culpa alone.

In the former case compensation might be awarded by way of satisfaction for injured feelings. In the latter all that could be claimed was patrimonial damage, which had to be explicitly and specifically proved. The difference between the two forms of relief is emphasised by Voet, who states that where one and the same act gives ground for both actions, the receiving of satisfaction for the injuria does not bar the claim for patrimonial loss resulting from the culpa. The award of compensation for physical pain caused to a person injured through negligence, which was recognised by the law of Holland, constitutes a notable exception to the rule in question.

Since the Roman-Dutch authorities provided for this claim, the law is required to do its best by placing a monetary value in the quest of providing satisfaction, or solace, to the plaintiff. It does so by granting the plaintiff a once-off solatium as compensation, or reparation for the wrong suffered.

However, the dependants of the deceased claimant can pursue claims for loss of support and actual diminution of their patrimony resulting from the wrongful conduct of the defendant, and which wrongful conduct caused the death of their breadwinner. For the dependant s this would include loss of support due to the death of the breadwinner as well as medical and funeral expenses incurred by that dependant s. For the estate it would only cover damage to property as well as medical and funeral expenses incurred by the deceased and the estate: The executor can recover the funeral expenses of the deceased; the reason for that is less clear, but the rule is an ancient one and is, no doubt, based on the fact that the burial of the deceased is an expense necessarily defrayed by the executor.

Neither can sue for any personal injury such as pain and suffering, loss of amenities of life or disfigurement general damages the deceased suffered prior to his death. In such a case, the law allows for the claim for such general damages to be transmitted to the estate. In such a case, so goes the logic, the executor of the estate has merely stepped into the shoes of the deceased.

She has not acquired a claim in her own right. However, the issue as to when the stage of litis contestatio is reached in the modern day law is a complicated one. It is reached when pleadings are closed.

But this is no simple matter. Guidance as to when pleadings are closed can be found in Rule 29 of the Uniform Rules of Court. It advises that pleadings are closed if all parties to the case have joined issue and there are no longer any new or further pleadings, or the time period for the filing of a replication has expired, or the parties have agreed in writing that the pleadings have closed and have filed their agreement with the registrar of the court, or the court, on application, has declared that the pleadings are closed.

At that point the pleadings are treated as being closed and the proceedings are said to have reached the stage of litis contestatio. In everyday practice, they are normally closed as soon as the period for the filing of the replication has expired, for at that stage the issues have become identified and parties are able to commence preparation for battle. However, it is important to bear in mind that, as annoying as it can be, the law often places a caveat to its pronouncements.

In this case it is this: Amendments to pleadings can be brought by any party any time before judgment is delivered. Furthermore, in our law even when the defendant fails to adhere to the time periods afforded to him to identify his defence he is always given the opportunity to seek condonation for his failure to adhere to those time periods.

It follows that in our legal system it takes much longer for the stage of litis contestatio to be reached. Further, unlike the old Roman legal process, which consisted of two stages in iure and in iudicio or apud indicem ours is a single process which can be a long drawn-out affair. In the Roman legal system the arrival of the stage of litis contestatio was a simple and straightforward matter. As we show above, the arrival of the stage of litis contestatio now is anything but a simple and straight forward matter.

The procedural developments that have taken place in our modern law have ensured that our legal process is significantly distinct and different from that which prevailed during the Roman times.

A difference of fundamental significance is that in our law pleadings can be re-opened at any stage before judgment. This means that it can never be said with absolute certainty in any case that the stage of litis contestatio has been reached at a specific time. Accordingly, the probability of a plaintiff dying before pleadings are closed is significantly higher in our system than it ever was in the Roman legal and the early Roman-Dutch law systems.

The reasoning underlying the rule — that the claim for general damages is not transmissible to her estate - is that the general damages are personal to the claimant: Therefore, they can have no claim for the bodily injuries suffered by the deceased. In other words, the claim for general damages abated upon the death of the deceased. They have not abated though if the stage of litis contestatio was reached before her death. The position of the common law, therefore, is this: The fact of the matter is that the common law has failed to keep pace with the procedural developments harvested over the centuries, which have been collated in the rules of court regarding pleadings and amendments thereto.

They claim that it has the potential to cause immense injustice, and will certainly cause immense injustice to them and their heirs in this case.

They also claim that the common law infringes various provisions in the Bill of Rights. They ask that it be developed in such a manner as to allow them to transmit any claim for general damages that accrued as at the date of the launch of the certification application to the estate of any mineworker who passes on after that date, even though his case is a long way from reaching the stage of litis contestatio. All the mining companies are opposed to this court developing the common law in the manner suggested by the mineworkers.

Apart from two respondents, Harmony and AngloGold, all the mining companies contend that this court should not develop the common law at all.

Harmony and AngloGold contend that in the event this court authorises the class action, it should leave this issue for the trial court to determine. They proffer no sound reason as to why that court is in a better position than this one to finalise the issue. This has long been accepted and, as we will shortly show, been applied by our courts. As knowledge or ideas change, and as political, social and economic life progresses, develops and advances with time so should the law.

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