Australian multinational mining company BHP has confirmed that it made a buyout proposal to Anglo American. (Chris Ratcliffe/Bloomberg via Getty Images)
The high court in Johannesburg has ruled that a group of United Nations experts can intervene in a dispute over the authorisation of a class action lawsuit against Anglo American South Africa on behalf of victims of lead poisoning in Kabwe, Zambia.
Last week, the court ordered that the UN’s Special Rapporteur on Toxics and Human Rights; Special Rapporteur on Extreme Poverty and Human Rights; Special Rapporteur on the Rights of Persons with Disabilities; as well as the UN Working Group on Business and Human Rights and the UN Working Group on Discrimination Against Women and Girls be admitted as amici curiae — friends of the court — in an application to certify the class action.
Mbuyisa Moleele Attorneys, a Johannesburg-based law firm and Leigh Day, an international law firm specialising in human rights and mass environmental tort claims, are representing 13 claimants on behalf of 140 000 children and women of child-bearing age who were allegedly victims of environmental contamination by Anglo’s mine in Kabwe. They filed the class action lawsuit against Anglo in October 2020.
Zanele Mbuyisa, the director of Mbuyisa Moleele, and Richard Meeran, partner at Leigh Day, welcomed the court’s judgment. “Corporate legal accountability and access to justice for the Kabwe lead poisoning victims has been outstanding for generations and is of paramount importance,” they said.
Kabwe is one of the most lead-polluted sites in the world, where studies over the past 45 years have shown high levels of lead in a significant proportion of young children in Kabwe. Generations of children have been affected, including from lead encephalopathy (brain damage from lead) and death from lead poisoning.
Ongoing harm
The applicants allege that Anglo, through its activities at a mine in Kabwe during from1925 to 1974, both caused and materially contributed to the ongoing harm suffered by children and women of child-bearing age in Kabwe as a result of their exposure to the lead pollution in the vicinity of the mine and its surrounds.
The judgment noted how Anglo, in its court papers, has stated that it did not cause the present state of uncontrolled and polluted conditions in Kabwe and that it is not liable for any harm caused to the applicants by the current state, nor is it liable to remedy it.
Anglo alleges, among others, that Zambian Consolidated Copper Mines Limited, the state-owned entity to which the mine was transferred in 1974, caused the failed state of the mine and concomitant environmental contamination in Kabwe and that ZMCC remains liable today for the rehabilitation and remediation of lead emissions in Kabwe.
Denied access to justice
In a written affidavit, Marcos Orellana, the UN Special Rapporteur on Toxics and Human Rights, said the human rights impacts of the lead pollution in Zambia are “extensive and fall squarely” within the mandates of its special procedures.
He cited Anglo’s stated commitment to a set of international standards for corporate conduct, the UN Guiding Principles on Business and Human Rights (UNGPs).
“Anglo has publicly and repeatedly professed its commitment to the guiding principles. Those principles commit Anglo, among other things, to address adverse human rights impacts, which it through its business endeavours may have caused,” Orellana said.
Anglo has elected to oppose certification “and to throw its considerable resources into that opposition, seemingly in an effort to cut the litigation off before it begins”.
Orellana said that If Anglo succeeds in its opposition, people will be denied any access to justice, because they cannot pursue their claims in Zambia and in the absence of a class action procedure, individual claimants will be unable to pursue their claims in South Africa.
Anglo does not dispute this, he said. “It opposes certification of the class action knowing, and accepting, that if it succeeds in its opposition, the result will be that the prospective class members will have no prospect of advancing their case for a remedy before a court of law.”
Orellana said this approach to the certification is incompatible with Anglo’s professed commitment to the guiding principles. “Anglo should not be permitted to obtain the commercial and public relations benefits for its brand of espousing commitment to the guiding principles while in the same breath opposing the certification of this class action.”
‘Liability belongs elsewhere’
Anglo had opposed the applications on the grounds that the submissions were not new, helpful or relevant. Amnesty International and the Southern Africa Litigation Centre have already been admitted as friends of the court.
Anglo also argued that it was not subject to the United Nations Guiding Principles on Business and Human Rights during the relevant period, only committing itself to the UNGPs when they were adopted in 2011.
Sibusiso Tshabalala, Anglo’s spokesperson, said it noted the court’s decision allowing the group of UN Special Rapporteurs to become amici curiae. “This is in addition to the joining of Amnesty International earlier this year, which we consented to in line with the interests of justice.
“We believe that any liability in relation to the Kabwe site belongs elsewhere — being with the actual owners and operators of the site, those who operated the site to ever deteriorating standards post-nationalisation 50 years ago and, indeed, those who continue to conduct extensive industrial scale activity there to this day, as has been stated in several indisputable documents.”
He said Anglo believed contamination was not acceptable anywhere and had sympathy for the people of Kabwe, but the company intended to defend itself because it couldn’t be held accountable or responsible for the current situation.
A certification hearing will be held at the high court in Johannesburg in January next year to decide whether it is in the interests of justice for the case to proceed as a class action.
[/membership]