Mungo Soggot
A legal and political battle looms over the rights of South Africans suffering from asbestos-related diseases to claim compensation from British asbestos companies in United Kingdom courts.
The claims promise a transformation of the lives of thousands of South African workers. But their lawsuits could be thwarted by legislation in Britain outlawing such litigation.
The Mail & Guardian is in possession of correspondence that shows Britain’s lord chancellor is contemplating legislation to disallow foreign workers from lodging claims in British courts.
The lord chancellor argues such litigation has “no real connection with England”. He also says it could encourage multinational companies to move out of Britain and has invited debate on the matter.
The main targets of the lawsuits are Cape, once the largest asbestos producer in the world, and Turner & Newall. Both companies pulled out of South Africa years ago, providing South Africans with the opportunity to sue them in the British courts.
Many of these companies’ mines have not been rehabilitated, posing a potentially lethal threat to the workers and families left behind. The roads to some of the abandoned mines remain strewn with asbestos.
The UK’s highest court, the House of Lords, is currently considering a petition from Cape to hear its appeal against a ruling in a British court that allowed South African asbestos victims to sue Cape in Britain. For a variety of reasons, awards for damages in such cases in the UK tend to be substantially higher than in South Africa.
In South Africa, a Johannesburg law firm specialising in personal injury cases, Malcolm Lyons & Munro, has set up a string of offices near old asbestos mines to process claims. The firm is currently processing about 500 claims from one of the worst-hit towns in the country, Mafefe in the Northern Province, and from Prieska in the Northern Cape.
The chief of Mafefe, Setlamarago Thobejane, says most of the elderly inhabitants of the 20 000-strong town are afflicted with asbestos-related diseases. He says about 80% of the houses in Mafefe, once a base for several British asbestos mines, are built with asbestos, and there are still no warning signs near asbestos dumps.
Thobejane says that until the late 1980s, residents had no idea of the dangers of asbestos and used the dumped asbestos rubble as “normal soil”. He says the Department of Minerals and Energy has started rehabilitating the mines, but points out that an even greater threat is posed by the asbestos dust on the roads to Mafefe.
South Africans are generally unaware of the dangers of asbestos. The government held the first national asbestos summit this week to debate the dangers of the substance as it emerged that public buildings such as the railway station in Cape Town are sprayed with asbestos. A representative for the Department of Housing said the department did endorse the use of asbestos in low-cost housing projects providing it was “treated”.
South Africa used to be the world’s third-largest asbestos producer and generated about 97% of the world’s “blue” asbestos, considered the most lethal. South Africa has one asbestos producer left and imports from Zimbabwe.
Asbestosis and mesothelioma – a rare form of lung cancer principally associated with asbestos – are slow-developing, so the effects of the hazard are only now becoming fully apparent. Turner & Newall took out insurance of 500-million in 1996 to protect themselves against insurance claims.
A number of test cases have established the willingness of the British courts to hear compensation claims founded in foreign countries. Last year the House of Lords ruled that an employee of Rio Tinto Zinc could sue the mining corporation for work-related throat cancer he contracted on one of their mines in Namibia. The plaintiff was able to fund the case from English legal aid. It was this case that prompted the lord chancellor to investigate providing UK-based companies with immunity from such claims.
Richard Meeran, a London attorney who has been involved in several South African asbestos cases, said that Cape had settled about 1 000 claims and had never gone to court on an asbestos suit.
Meeran said in a recent article: “The asbestos mined in South Africa has caused a chain of injuries worldwide: asbestos miners and millers, people involved in transportation … stevedores, shipworkers, workers at the factories in South Africa, the UK and the United States, as well as people living in the vicinity of these operations.”