DRDGOLD Limited and Another v Nkala and Others

The respondents (69 mineworkers) launched a consolidated application in the High Court for certification of a class action against 32 mining companies, including the appellants. The proposed class action concerned claims by underground gold mineworkers who contracted silicosis and/or pulmonary tuberculosis as a result of alleged negligent exposure to harmful silica dust over several decades. The application sought certification of two classes (silicosis class and tuberculosis class) with a two-stage process: stage one to determine common issues and stage two for individual claims. The respondents also sought a declaratory order regarding the transmissibility of claims for general damages in class actions where claimants died before litis contestatio. The High Court, sitting as a court of first instance with three judges, granted the certification as sought. The majority also granted a broad declarator on transmissibility of general damages claims, going beyond what was requested (making it of general application rather than confined to class actions). Several mining companies applied for leave to appeal. The court a quo granted leave to appeal against the declarator but refused leave regarding certification. This court subsequently granted leave to appeal against the certification as well. Following a settlement agreement in 2018 (approved in 2019), the certification remained applicable only to six mining companies (including the two appellants) and seven mines. The tuberculosis class claims against appellants were withdrawn. At the SCA hearing, the court requested parties to address the appealability of both orders.

• Whether the Supreme Court of Appeal has jurisdiction to hear an appeal from the High Court sitting as a court of first instance in this matter
• What constitutes a 'decision' for purposes of section 16(1) of the Superior Courts Act 10 of 2013
• Whether an order certifying a class action constitutes an appealable decision
• Whether a declaratory order regarding transmissibility of general damages claims constitutes an appealable decision
• Whether the interests of justice require that orders lacking the general attributes for appealability should nevertheless be regarded as appealable decisions

The matter was struck from the roll with costs, including the costs of three counsel to be borne by the appellants.

The binding legal principles established are: (1) The Supreme Court of Appeal's jurisdiction to hear appeals is derived only from the Constitution and statute, not from inherent powers under section 173 of the Constitution. (2) Under section 16(1) of the Superior Courts Act 10 of 2013, there are two jurisdictional requirements for an appeal from the High Court sitting as court of first instance: (a) the necessary leave to appeal must have been granted, and (b) the order must constitute a 'decision'. Both requirements must be satisfied. (3) The meaning of 'decision' in section 16(1) of the Superior Courts Act is the same as 'judgment or order' and 'decision' under the repealed Supreme Court Act 59 of 1959. (4) A 'decision' generally has three attributes (the Zweni test): (a) finality in effect and not susceptible to alteration by the court of first instance; (b) definitiveness of the parties' rights; and (c) disposal of at least a substantial portion of the relief claimed in the main proceedings. (5) An order that does not meet all three Zweni attributes may nevertheless qualify as an appealable decision if: (a) it has a final and definitive effect on the proceedings, or (b) the interests of justice require it to be regarded as appealable. (6) What the interests of justice require depends on the facts and circumstances of each case, but an important consideration is whether the appeal would lead to a just and expeditious determination of the real or major dispute between the parties. (7) A class action certification order, being a procedural device that is susceptible to alteration, not definitive of rights, and not dispositive of relief claimed in the main proceedings, does not constitute an appealable decision where procedural mechanisms are available to address any prejudice to parties during the trial. (8) Where an order's construction and applicability remain uncertain until later stages of proceedings, and where entertaining an appeal would delay resolution to the detriment of poor and vulnerable litigants, the interests of justice do not qualify such order as an appealable decision.

The court made several non-binding observations: (1) It noted that the legislature is presumed to know the law and gave no indication of an intention to depart from the well-established meaning of 'decision' when enacting the Superior Courts Act. (2) The court observed that 'adjustability to meet the procedural challenges of a class action is an essential quality of a certification order.' (3) The court commented that the declarator granted by the court a quo was broader than what the respondents had requested, going beyond class actions to be of general application, and that its legal sustainability 'may in due course be challenged' in other matters. (4) The court noted that section 17(1)(c) of the Superior Courts Act (requiring that where a decision does not dispose of all issues, the appeal must lead to just and prompt resolution of real issues) serves a dual purpose: both as a requirement for granting leave to appeal and as a consideration in determining whether it is in the interests of justice to regard an order as an appealable 'decision' under section 16(1). (5) The court commented that it is 'necessarily implicit in s 17(1) that the judge or judges concerned have to consider whether or not the order sought to be appealed against is appealable, that is whether it qualifies as a "decision"' before considering whether to grant leave to appeal. (6) The court observed that given the nature and history of the matter, 'it is not inconceivable that the declarator may turn out to have no material impact' due to various factors including potential settlement. (7) The court noted that by and large the potential class members are 'poor and vulnerable people' and that the application was launched more than ten years ago, expressing concern about further delay.

This judgment provides authoritative guidance on the jurisdictional requirements for appeals to the Supreme Court of Appeal from the High Court sitting as a court of first instance under the Superior Courts Act 10 of 2013. It confirms that 'decision' in section 16(1) has the same meaning as under the repealed Supreme Court Act, applying the Zweni test and its subsequent development. The judgment clarifies that both the required leave to appeal and the existence of an appealable 'decision' are jurisdictional prerequisites that must be satisfied for the SCA to have jurisdiction. Importantly, it demonstrates the court's commitment to avoiding piecemeal appeals and emphasizes that what constitutes an appealable decision must be determined with reference to whether an appeal would lead to a just and expeditious resolution of the real issues between the parties. In the context of class actions, the judgment establishes that certification orders, being procedural devices susceptible to alteration and not dispositive of substantive rights, are generally not immediately appealable. This promotes efficiency in class action litigation by preventing fragmentation of proceedings. The judgment also reflects the court's sensitivity to the position of vulnerable litigants and the importance of expedition in matters affecting poor and vulnerable people, here potential class members who are former mineworkers suffering from occupational diseases. It demonstrates how the 'interests of justice' consideration in determining appealability must take into account not only the immediate parties' interests but also broader considerations of access to justice and the effective resolution of claims by vulnerable litigants.