UK-based law firm Leigh Day says the South African High Court will, from January 20, hear arguments in an application to certify a class action lawsuit against diversified miner Anglo American over the alleged lead poisoning of community members near the Kabwe mine, in Zambia.
Anglo was invested in the Kabwe mine between 1925 and 1974, through an indirect minority shareholding of about 10% in the company that operated the mine, Zambia Broken Hill Development Company, which later became ZCCM, before the mine nationalised in 1974 and subsequently closed in 1994.
Leigh Day says the mine has left severe lead pollution and serious human rights concerns in its wake and that the site still contains millions of tons of waste, with lead dust from uncovered waste dumps continuing to blow over to nearby residential areas.
The High Court will determine whether the case, which is being brought by 12 representative plaintiffs on behalf of the class, can proceed as a class action.
The plaintiffs claim that Anglo’s involvement in the mine on a management and technical advice level, rather than the precise level of its investment of shareholding, is relevant to legal liability. However, Anglo affirms at no stage did it own or operate the mine, and only provided certain technical services to the mine up to 1974.
The plaintiffs allege that about 140 000 women and children have suffered lead poisoning, which continues to cause brain damage and risks of death, among other risks, to the affected individuals.
The plaintiffs are asking the court to certify a class action against Anglo on behalf of two proposed classes: children under the age of 18 who reside in the Kabwe district and who have suffered injury as a result of alleged lead exposure, as well as children under the age of seven who have lived in Kabwe for at least two years; and women over the age of 18 and under the age of 50, who have resided in the Kabwe district for at least two years and have suffered injury as a result of alleged lead exposure.
Explaining why the case is being heard in South Africa, the law firm explains that Zambian law does not permit opt-out class action legal representation on a contingency basis.
Consequently, the claimants’ Zambian legal expert has concluded that “the vast majority of claimants would not be able to receive effective legal representation” in Zambia.
Anglo is resident in South Africa and, therefore, under well-established parent company law, the claimants argue, the case is within the jurisdiction of the High Court.
Anglo maintains it is not correct for the claimants to attempt to attribute legal responsibility to Anglo for the current situation in Kabwe, particularly because Anglo has never owned nor operated the mine. The company says it has been unwavering in its commitment to ensuring that it builds its reputation as a responsible mining company.
Moreover, Anglo says the claimants have neglected to mention that numerous companies and artisanal miners in and around Kabwe have undertaken uncontrolled mining and processing activity in the last 50 years, as well as that during the period of Anglo's involvement at the mine, the operator at the time, the Zambian government, employed appropriate and reasonable air pollution control technologies as they became available. These technologies may have subsequently deteriorated owing to a lack of investment.
In State-owned Zambian miner ZCCM’s own words (per a 1996 report issued by the company), the period following the collapse of emission control mechanisms following nationalisation “most likely represents the worst period of lead pollution, in the history of the Kabwe Mine”. Indeed, and in 1989, ZCCM resolved to settle out of court any legal cases brought against it, because – again, its own words – it was “culpable from [an operations] point of view”. ZCCM recorded, at the same time, its knowledge that the problem would persist even if the plant were closed, for 20 to 30 years hence, Anglo explains.
Additionally, Anglo explains the site was not remediated upon closure of the mine 20 years after its nationalisation, as was required from ZCCM as the operator of the mine and owner of all historic liabilities.