An eight-day-long hearing, to consider whether to certify the class action being brought against Anglo American SA (Anglo) for alleged mismanagement causing widespread lead poisoning around the Kabwe mine, has concluded.
In what has been described as a “test case for ESG”, the conclusion of the hearing marks a significant moment, as the 140,000 affected women and children of Kabwe wait to hear if their case will proceed.
The hearing saw both sides of the legal proceedings present their arguments to Justice Leonie Windell of the Johannesburg High Court.
Lawyers for the claimants highlighted why the case is so significant : “…They [the claimants] hail from indigent families and indisputably fall within the most marginalised and vulnerable groups in modern society. They are “the wretched of the earth.” They have so very little and have largely been ignored. But for this class action, they would have remained voiceless and faceless, despite having suffered generations of lead poisoning.” said Advocate Grace Goedhart SC.
Meanwhile, Anglo attempted to prevent the case proceeding on the grounds that it had no case to answer. Anglo argued that it was not responsible for the massive lead contamination currently in the environment, blaming instead its successor ZCCM. This was despite the Claimants presenting robust evidence to show that at least 66 percent of the lead contamination present in the environment around the Kabwe mine was discharged between 1925 and 1974 when Kabwe was within the Anglo group.
Anglo published its position on the case on its website. However, its timeline omits key information about Anglo’s knowledge of severe massive lead poisoning in the community during its period of involvement with the Kabwe Mine. Indeed, the claimants’ lawyers presented evidence of investigation by three Kabwe mine doctors (Dr Clark, Dr Lawrence, and Dr Nicklin. – see further details in the background section below) who observed and reported on the problem of severe lead poisoning of children, including deaths of children, as from 1970 onwards and of the failure of the mine to implement remediation measures recommended by an eminent public health expert to reduce the risk of harm to the local community.
Regarding the question of negligence and whether the operations at Kabwe reflected industry standards of the time, the claimants’ Advocate Matthew Chaskalson SC asserted that “…we know that it is bad to kill children and to maim children, that is objectively bad, that we submit is sufficient, if you are running your mine in a way that has those results at any time in 20th century, we submit it can never be suggested that the standard of a mine owner, an acceptable standard of a mine owner and mine operator was one which was killing children in neighbouring townships..”
Intervening in the case, lawyers for a group of United Nations Special Rapporteurs and Working Groups, and for Amnesty International, submitted that there was a stark contradiction between Anglo’s attempt to deny the claimants access to justice with its endorsement of the United Nations Guiding Principles on Business & Human Rights and the commitment in the Anglo American Group Policy Human Rights that: “Where we have caused or contributed to adverse human rights impacts, we will contribute to their remediation as appropriate.”
Judgment, which will determine the next step of the proceedings, is expected in a few months’ time.
Recordings of each day of the hearing are available to watch at : https://mbmlaw.co.za/livestream/