Another corporate story that has recently made headlines is a second unsolicited bid from Australian mining giant BHP for the operations of South African industry peer Anglo American.(Chris Ratcliffe/Bloomberg via Getty Images)
Anglo American won a bid in the high court on Tuesday to extend the timing of its responding affidavit in what could be a class action suit against the South African operations of the multinational mining giant.
A team of lawyers in South Africa and London are representing 13 claimants on behalf of 100 000 women and children poisoned by the world’s biggest lead mine in Kabwe, Zambia. The lawsuit was filed in October last year.
Mbuyisa Moleele, a Johannesburg-based law firm, and Leigh Day, a leading international law firm specialising in human rights and mass environmental tort claims, have brought the lawsuit against Anglo American South Africa alleging corporate human rights abuses resulting in multigenerational lead poisoning of children and women in Kabwe.
This is the second time that Anglo American has received an extension to respond to the case and the company is expected to argue that it is not responsible for the poisoning because it did not own the mine after nationalisation in 1974.
The court will have to rule whether there are legitimate grounds for a class action suit.
The company has argued that the lawyers launching the case have failed to hand over all the documentation it needs to respond to the case, but lawyers for the claimants said some of the documents were part of a similar case against Anglo American and AngloGold for failing to protect their workers from silicosis.
“Anglo American believes that it has the right to access and review the same relevant documentation as Mbuyisa Moleele and Leigh Day, in addition to any other relevant documentation that it believes exists, a belief confirmed by the emerging confirmation of the highly selective nature of the claims and the flawed assumptions that underpin the entirety of the claims,” the company told the Mail & Guardian this week.
It was incorrect to conflate responsibility on Zambia Broken Hill Development Company with Anglo American, it said. “With Anglo American not owning or operating the mine, we do not have such records — medical or otherwise — relating to the operation of the mine. Operational information was transferred.”
The latest developments come as the two legal firms representing the claimants released the testimony of a new key witness, who they expect will strengthen its case against the company.
Ian Lawrence worked as a medical officer with the Zambia Broken Hill Development Company from 1969 until the early 1970s and was stationed in Kabwe.
His evidence indicates that Anglo knew of the lead poisoning as early as 1970 “and crucially counters Anglo’s argument that it bears no responsibility for the lead poisoning”, the lawyers stated in their papers this week.
“Mine management were certainly aware of the risk of lead poisoning to their employees; the blood levels of all staff were checked regularly,” Lawrence’s supplementary affidavit reads.
Soon after his arrival at the mine, he became “deeply concerned” by the number of deaths among children under the age of five, particularly those between one and three in the township where employees lived. He was aware that the township was downwind of the mine.
The difference in the number of deaths between mine children and local children was reasonably significant, “so much so that I could not understand why no one else had raised the issue or carried out an investigation”.
About 500 samples were taken over several weeks of children under five attending the township clinic. “Sometime in early 1970 … I received the results of the analysis. Virtually all were in excess of 40 micrograms of lead to 100 millilitres of blood and many were in excess of 100 micrograms. My recollection is that the highest level was 403 micrograms of lead to 100 millilitres of blood,” his affidavit reads.
The high levels convinced him “that the problem was very serious”.
He prepared a report containing a summary of the findings of the blood level analysis, which he submitted to the mine’s chief medical officer. Anglo commissioned two people from Manchester University in the United Kingdom to investigate the veracity of Lawrence’s claims and produce a report of their findings.
In 1971, prompted by the deaths of eight Kabwe children from suspected lead poisoning, ARL Clark, a doctor on the mine, followed Lawrence’s investigation with an MD thesis. Between 1973 and 1974, he surveyed the blood lead levels of children in Kabwe, finding these to be up to 20 times the limit set by the United States Centre for Disease Control.
While Anglo American has argued that the mine operator was the Zambia Broken Hill Development Company, Leigh Day partner Richard Meeran countered that this misses the point.
“Anglo’s liability does not depend on the degree of its shareholding but rather on its involvement in managing, controlling, supervising and providing advice regarding technical and medical aspects of the Kabwe mine, and of its alleged failures in this regard. There are very clear English law principles that have been developed on the liability of multinational parent companies, like Anglo American South Africa.”
The founding affidavit details how by virtue of Anglo’s involvement in the mine’s affairs and its knowledge of the harms, Anglo assumed a duty of care to protect existing and future generations of residents of Kabwe against the risks of lead pollution arising from the mine’s operations.
“In breach of this duty, Anglo failed to take reasonable steps to deal with, prevent and remediate lead pollution of the Kabwe environment,” it states.
Meeran said: “You have a lead mine – one of the world’s largest lead mines – in close proximity to a population of people and it doesn’t occur to you, an expert organisation like Anglo American, that there could be a problem of lead poisoning in the community. When you’ve already identified the problem among your own workers … Wasn’t it obvious that was going to happen?”
Anglo American SA said there are a number of factual errors in Lawrence’s statement, “perhaps not surprisingly given the passage of time and his own admission that he is not certain of many details. These errors include the fact that certain individuals that he names were not, in fact, employed by Anglo American.
To this, Meeran said Anglo had the documents to prove who was employed by its organisation. “They must produce them.”
The claimants’ lawyers state how Kabwe has some of the highest levels of lead pollution in the world, with the source being the mine, which operated in the town from 1906 until 1994. Between 1925 and 1974, Anglo was the parent company and head office of the Anglo Group that operated, managed and advised the mine, and was the “de facto controlling entity” of the operations of the group, it stated.
Anglo’s involvement coincided with the highest levels of lead production at the mine and in this period, “a broadly commensurate percentage of the total lead pollution currently present in the Kabwe environment was generated by the mine”.
Anglo ought to be liable for damages in a class action, the founding affidavit said. “The public environmental health disaster left behind by Anglo means that there are more than 100 000 children and women of child-bearing age in Kabwe who are likely to have suffered lead poisoning as a result of lead pollution caused by Anglo in Kabwe.”
The company told the M&G: “Of course we are concerned about the contamination at Kabwe and any suffering that comes from it. Contamination is not acceptable anywhere. So we have every sympathy for the people of Kabwe and their plight, but we do intend to defend ourselves because we do not believe that we are responsible for the current situation.”
In its replying affidavit, Anglo’s attorney Nick Alp, of Webber Wentzel, contends that on its own analysis, Zambian Consolidated Copper Mines (ZCCM), “at least part of the period in which it was responsible for the mine’s operations and processes represents the worst period of lead pollution in the history of the Kabwe mine”.
The “glaring omission” in the claimants’ case, “is any consideration of whether the lead pollution may be as a result of ZCCM’s operations in the 20 years after Anglo’s alleged involvement with the mine ended, or in the subsequent 20 years following failed and inadequate remediation efforts, which on the respondents’ version, continue to this day.”
To this, Meeran responded: “Of course, Anglo is contending that this is all ZCCM’s fault, that the contamination and lead exposure, which these communities have obviously been exposed to, is the responsibility of ZCCM or the Zambian government. What we say to that is it just doesn’t add up.
“Looking in particular at Dr Lawrence’s statements, and the thesis of Clark, which followed Lawrence, what is patently clear is that before ZCCM came on the scene there was a problem of serious environmental lead contamination in Kabwe and widespread lead poisoning of the Kabwe community, particularly children.
“Those were the circumstances before ZCCM did anything. And now Anglo would have everyone believe that all that contamination that arose during their operations is of no consequence anymore, even though they didn’t clean it up. And no one else appears to have done so,” he said.
“If you look at the levels of lead in the blood of children today, which is indicated in published studies from the past few years and detailed in the claimants’ case, you’re looking at comparably appalling blood lead levels. But somehow all the lead that was produced and that contaminated the environment, during the period when Anglo were involved with the mine is no longer of importance?”
This, Meeran said, seemed to be Anglo’s argument but it “doesn’t wash at all”.
“Our experts are quite clear that the bulk of the lead production was during the period of Anglo’s involvement … and that the current situation is predominantly substantially due to Anglo’s period of operations.”
Anglo will file its answering affidavit by 31 August.
[/membership]