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Zambian lead poisoning claimants granted leave to appeal against Anglo American

Vaseline

On Friday, April 19, the Johannesburg High Court granted permission to appeal an earlier ruling refusing class action certification for 140,000 women and children in Kabwe, Zambia.

On Friday, April 19, in a crucial step towards achieving justice for the children and women claiming lead poisoning caused by a former Anglo-American lead mining operation in Kabwe, Zambia, the Johannesburg High Court granted permission to appeal against a previous judgment rejecting certification. of the class action.

In granting permission, Judge Leonie Wendell found that an appeal against her earlier judgment had “reasonable prospects of success on at least one ground of appeal” and that there were “compelling reasons to allow the appeal as class action law still is being developed in South Africa. Africa’, and that ‘there are current legal issues of public interest that directly concern constitutional rights’. The Kabwe plaintiffs will take their case against Anglo-American South Africa (“AASA”) to the High Court of South Africa later this year.

This is a major step forward in the long-standing lead poisoning class action claim against AASA, a wholly owned subsidiary of London-based Anglo American Plc. The December verdict effectively blocked access to justice for the people of Kabwe.

Kabwe was an Anglo-American mine from 1925 to 1974. The evidence presented to the court by the plaintiffs in support of this claim is clear. From the early 1970s onwards, children were falling ill and dying from lead poisoning, and many of them suffered from massive blood lead levels.

The class action was filed in South Africa because it would not have been possible for the plaintiffs to access justice in Zambia. Amnesty International and a number of United Nations agencies intervened at the certification hearing to argue that Anglo American’s opposition to the class action violated the UN Guiding Principles on Business and Human Rights, Anglo American’s own human rights policy and publicly human rights obligations made.

The Kabwe claimants are represented by law firm Mbuyisa Moleele Advocaten, with Leigh Day acting as advisers. In a joint statement, Leigh Day partner Richard Meeran and Mbuyisa Moleele founder Zanele Mbuyisa said:

“Anglo American argues that it adhered to standards that were acceptable in the 1970s and therefore should not be held responsible. These arguments indicate a shocking indifference on the part of Anglo American to the enormous and ongoing damage caused to generations of Kabwe communities by its activities. This is a worrying attitude from a company that claims to be “reimagining mining to improve people’s lives” through its Future Start Mining initiative. It also stands in stark contrast to the human rights principles that Anglo American claims to adhere to, as set out in their group policy.

BACKGROUND:

  • In a 126-page judgment delivered in late December 2023, Justice Windell of the Johannesburg High Court ruled that a claim against Anglo American South Africa (AASA) over widespread lead poisoning in Kabwe, Zambia, could not proceed as a class action.
  • The claim is against AASA, the Johannesburg-based former parent company at the headquarters of the Anglo American Group.
  • It is alleged that before 1974, AASA was aware of widespread lead contamination and lead poisoning in the environment, including the deaths of local children, and failed to heed expert advice to remediate the area or relocate operations before the mine was transferred. 1974 to a Zambian state-owned company, ZCCM, which operated the mine until 1994.
  • Based on their expert evidence, the claimants argue that the longevity of lead in the environment was known as early as the 1950s and therefore the risk to future generations should have been anticipated thereafter.
  • Anglo American claims that ZCCM and Anglo’s predecessors at the mine (from 1916-1925) are responsible for the contamination and lead poisoning, and that Anglo bears no responsibility. The claimants disagree, pointing out that Anglo’s involvement in the mine coincided with the highest levels of lead production and that Anglo was made aware of the risk of lead poisoning to the local community as early as 1969. This is supported by the evidence of Dr. Clark, Dr. Lawrence and Dr. Nicklin, showing that children around the mine were already suffering from severe lead poisoning and that soil in local areas was heavily contaminated with lead from the mine.
  • Anglo American has also stated that it bears no responsibility for the situation at Kabwe as it was not the owner/operator of the mine, but only a small investor. However, claimants argue that this argument is not legally relevant. Zambian law adopts English common law and English law imposes a duty of care where there was actual involvement of the parent company in key functions of the subsidiary that are relevant to the damage. The degree of share ownership, ownership and/or operation of the mine is not the problem from a legal perspective.
  • Anglo American claims it operated the mine to the best standards at the time. But in the early 1970s, three of the mine’s own doctors reported the deaths of several local children from lead poisoning and the widespread mass poisoning of local children with lead from the mine. 1971 recommendations from international experts to reduce environmental hazards were not implemented.
  • The class action was listed as a contingent liability in Anglo American’s 2022 financial results and was recently reinstated in their 2023 results.
  • During the certification hearing in January 2023, several UN agencies and human rights groups intervened as Amici Curiae, arguing that the class action should proceed to ensure the Kabwe victims had access to justice.
  • The interveners included:
    • Amnesty International;
    • UN Special Rapporteurs on Toxic Substances and Human Rights, Extreme Poverty and Human Rights; i.e. the rights of persons with disabilities; And
    • The UN Working Groups on Business and Human Rights and Discrimination against Women and Girls.
  • FYI: In Flint, Michigan, approximately 99,000 residents were exposed to lead between April 2014 and October 2015 when the drinking water source was switched from the Detroit Water Authority to the Flint Water System. After five years of litigation, the court-approved settlement was worth $626 million (£467 million) for the victims in Flint.
  • The number of victims and average blood levels found among Kabwe residents far exceed even the highest number of registered claimants in the Flint case. Some children in Kabwe have even been found to have BLLs as high as 100 µg/dl, which are potentially fatal levels, while levels in Flint’s children range from 2.33 µg/dl in 2006 to 1.15 µg/dl in 2016 .