Khadija Magardie In a landmark judgement, Britain’s highest court has given 3 000 South African litigants the go-ahead to sue United Kingdom asbestos company Cape Plc in the UK.
The litigants are all suffering from various asbestos-related illnesses which they contracted while working for Cape, which pulled out of South Africa in the 1970s.
The House of Lords decision that the plaintiffs can sue in Britain gives them the chance of much higher damages. The ruling brings to an end a marathon battle by the plaintiffs’ lawyers to have the case heard in the UK – as opposed to in South Africa.
The claimants’ London solicitor, Richard Meeran of Leigh, Day & Co, described the ruling as “a victory for justice. It signals a new era both in terms of the legal accountability of multinationals and the protection of human rights by the English courts.” Meeran said Cape could have to pay out “tens of millions of pounds” in compensation. He declined to specify further the amount on the grounds that the damages would depend on the severity of each individual’s disability. The panel of five law lords – who included two South African-born jurists, Lord Hoffman and Lord Steyn – was unanimous in its ruling. Cape Plc, once the largest asbestos producer in the world, is accused of engaging in harmful mining practices at its Northern Province and Northern Cape mines during the 1940s through to the early 1970s. Thousands of workers on the mines developed serious and even fatal diseases – but none was compensated by Cape. Cape has argued the case should be fought in South Africa on the grounds that it is the most natural jurisdiction. The law lords’ decision overturns an earlier appeal court ruling that public interest would be best served if the case were heard in South Africa. This week’s ruling will enable the South African litigants to get their cases to trial immediately. Marianne Felix, an occupational health therapist with the South African National Centre for Occupational Health, said the judgement had less to do with monetary compensation than with recognition that companies like Cape Plc had acted “immorally”. Felix, who has been extensively involved with the cases since the very first lawsuit in 1997, said she was “relieved” that the case would go before the British courts, but added that “the work would now begin”. “There has to be infrastructure to ensure that people cannot exploit one another, and if they do, then it must backfire on them – like it did on Cape Plc,” said Felix.
Meeran said the court had decided that the trial could not be funded in South Africa. He added that the plaintiffs would have access to legal aid in Britain. During the hearing, the plaintiffs presented evidence of the chaos and impecuniousness of the South African legal aid system. Meeran first had contact with the claimants after being approached by the National Union of Mineworkers in 1995. A representative from another firm that will represent litigants in the British courts, Malcolm Lyons, said that most South African attorneys have informed the litigants that they would not take the case on a contingency fee basis in South Africa because the trial was “too big and expensive”.
“It has now become clear that there is no funding for these cases in South Africa,” the law firm said, adding that the plaintiffs had argued that if the case was heard in South Africa there “simply would be no trial”. One lawyer said the decision means that Cape could be liable for the massive costs incurred bringing the plaintiffs and witnesses to trial in Britain.
Earlier this year Minister of Justice and Constitutional Development Penuell Maduna and chief state law adviser Enver Daniels petitioned the House of Lords for leave to intervene in the pending appeal proceedings. The South African government argued it was in the public interest that the case be heard in the UK, and that the case would place excessive strain on the South Africa legal aid system. The Ministry of Justice has welcomed the judgement, calling it “a victory – not only for the litigants, but for the whole country”. Maduna said the government might join the case to sue Cape for damage done to the environment by its asbestos mines. Paul Setsetse, a representative of the justice ministry, said the ruling highlighted the need for accountability on the part of multinational companies operating in developing countries. “For a democratic society like ours, it is important that we address the injustices of the past, where people were allowed to get away with denying people’s right to a clean environment and health care,” he said. He added that the ruling would also set a precedent, in terms of blocking companies like Cape from doing bad business in developing countries, and later denying responsibility. Lawyers acting on behalf of the litigants agreed the cause raised the question of whether a parent company in Britain can be held liable for harm suffered by employees of its subsidiaries in a developing country. Leigh Day said the decision would ease the progress of other cases against asbestos producers who had operated in Zimbabwe, Swaziland and India.