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)
The Johannesburg high court has given claimants from Kabwe, Zambia, who are seeking compensation for alleged lead poisoning by Anglo American, the go-ahead to appeal an earlier ruling that threw out their class action certification.
Mbuyisa Moleele Attorneys, a Johannesburg law firm and its consultants, Leigh Day, an international law firm specialising in human rights and mass environmental tort claims, are representing 12 claimants on behalf of 140 000 children and women of childbearing 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.
Kabwe was an Anglo American mine from 1925 to 1974. It is one of the most lead-polluted sites in the world, where studies over the past 45 years have shown high levels of the heavy metal in a significant proportion of young children. Generations of children have been affected, including lead encephalopathy (brain damage) and death from lead poisoning.
Last week, in granting permission, Justice Leonie Windell found that an appeal against her earlier judgment in December had “reasonable prospects of success on at least one ground of appeal”. Windell found that there are “compelling reasons” to grant the appeal, as class action law is still being developed in South Africa. She said “there are current matters of law of public importance which directly implicate constitutional rights”.
In her 126-page judgment delivered in December, Windell ruled that a claim against Anglo American South Africa over the widespread lead poisoning across Kabwe could not proceed as a class action. She found that, in addition to the absence of a prima facie case, which disposes of the application, the trial would be unmanageable if the class definitions were certified on the broad basis sought by the applicants.
“According to the applicants’ version, the proposed classes would total between 131 000 and 142 000 people. Every one of these people would have to prove, among other things, in the second stage of the class action, that they suffer from a malady that can be caused by lead exposure; that the malady has, as a matter of fact, been caused by lead exposure, rather than, for example, genetics or malnutrition; and that their lead exposure is due to soil contamination by the mine during the relevant period, rather than, for example, artisanal mining.”
The Kabwe claimants will take their case against Anglo American South Africa before the supreme court of appeal later this year.
Major step forward
The applicants allege that Anglo, through its activities at a mine in Kabwe during from 1925 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.
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 that Zambian Consolidated Copper Mines Limited (ZMCC), 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 the lead emissions.
The claimants’ legal representatives have hailed the appeal decision as a “major step forward” in the longstanding lead poisoning class action claim against Anglo American South Africa, noting that the December judgment effectively blocked access to justice for the people of Kabwe.
“The evidence submitted to the court by the claimants in support of this claim is clear. From the early 1970s, reports by the mine doctors showed that several children had died of lead poisoning from the mine and a high proportion of children in the local communities were suffering from massive blood lead levels,” the firms said.
Experts for the claimants also contend that the stability of lead in the environment was well known by the 1960s and that the risk of lead poisoning to future generations should have been foreseen by Anglo American if the environment was cleaned up. The claimants allege that, on economic grounds, Anglo American failed to heed advice from international experts in 1970 that the topsoil should be replaced.
The class action was filed in South Africa as it would not have been possible for the claimants to obtain access to justice in Zambia.
In a joint statement, Leigh Day partner Richard Meeran, and Mbuyisa Molele founding partner Zanele Mbuyisa, said: “Anglo American’s arguments refuting its responsibility indicate a shocking indifference to the tremendous and ongoing harm caused to generations of the Kabwe communities by its operations.
“This is a concerning stance from a company that claims to be ‘re-imagining mining to improve people’s lives’ through its Future Start Mining initiative. It is also in stark contrast to the human rights principles to which Anglo American claims to subscribe, as set out in their group policies.”
Misconceived claim
In noting the appeal decision, the company said it opposed any appeal relating to the “misconceived” Kabwe claim.
“The high court dismissed the certification application in December 2023 after almost a year of deliberation, clearly highlighting the claim’s multiple legal and factual flaws and deeming it not in the interest of justice for the class action to proceed.”
It said that the grant of the right to appeal is simply a recognition by the high court that an appeal to another court is a viable option for the claimants to follow in the South African legal process.
It does not undermine the high court decision that dismissed the application in December last year, it said.
“Anglo American will oppose any appeal that may follow,” the company said. “As Anglo American has stated throughout, it has every sympathy for the situation in Kabwe, but is not responsible for it. Anglo American has stated from the outset that this claim is entirely misconceived.”