Starting 20 January, a court in South Africa will begin certification hearings for a class action lawsuit that would see 140,000 Zambian citizens take on the South African subsidiary of London-based mining company Anglo American plc.
The lawsuit alleges that the company failed to prevent massive amounts of lead pollution that has poisoned generations of pregnant women and children(between 1924-1974) when it was closely involved in operations at the mine in Kabwe, northern Zambia.
Based on requests from the region, UK-based human rights and solidarity organisations have written to key investors in Anglo American to highlight the case. They are concerned that the company, in its attempts to oppose the case, is interfering with the right of the applicants to access justice.
The lawsuit
South African attorneys, Mbuyisa Moleele Attorneys, in collaboration with London-based human rights lawyers, Leigh Day, have filed a lead poisoning class action lawsuit against Anglo American South Africa Limited (“AASA”). The case is being brought by 13 claimants on behalf of some 140,000 Zambian people including women of childbearing age who have suffered injury from lead exposure or who face increased adverse health risks during pregnancy to themselves and their unborn children.
The class action seeks compensation for lead poisoning of children and for women under 50 who have been poisoned who have, or may become pregnant, in the near future, while the contaminated soil remains a risk. The cost of remediation of homes and of future blood lead screening is also claimed. It is hoped that the class action will lead to (a) the establishment of a blood lead level (“BLL”) screening system for children and pregnant women in Kabwe, and (b) clean up and remediation of the area to ensure the health of future generations of children and pregnant women is not jeopardised.
From 20th to 30th January 2023, the Johannesburg High Court will be making the decision on whether to certify the case. Should certification be granted, the class action will be able to be heard.
Anglo American plc is opposing the lawsuit, a stance which appears to put it in conflict with the UN General Principles on Business and Human Rights. As a company that actively promotes its commitment to Human Rights and its role as a “responsible mining company”, standing in the way of a community’s right to access justice is questionable.
Background
Kabwe, Zambia was home to a lead mining and smelting operation for almost 90 years, starting in 1906 while the country was under colonial British rule. As a result of the mine’s operation, the Kabwe region is now one of the most lead-polluted sites in the world, with some areas containing lead soil levels of over 3000 mg/kg (the US EPA limit is 400 mg/kg). Medical studies conducted over the past 45 years have consistently shown massive levels of lead in a significant proportion of young children in Kabwe. Lead poisoning can cause a range of problems including severe brain damage, neurodevelopmental issues, kidney damage and a heightened risk of pregnancy loss. Children under the age of 5 are at particularly high risk.
The lawsuit alleges that AASA controlled the mine during its most productive years between 1925 and 1974, and that during that time failings in the management of safety and technical aspects of the mine resulted in massive lead pollution of the local area. This then caused lead poisoning to local residents over the subsequent decades – a risk that Anglo American ought to have foreseen and acted to prevent.
To date, Anglo-American does not appear to have done anything to ensure or facilitate the clean-up of the lead contamination.
The Coalition
Action for Southern Africa (ACTSA), Corporate Justice Coalition (CJC), London Mining Network and Rights and Accountability in Development (RAID) have come together to bring the case to the attention of shareholders, calling for them to recognize the applicants’ right to justice through certification of their case to be heard in the Johannesburg High Court.
“ACTSA’s support for the community affected by the Kabwe mine operations stems from our well-known position on the legacies of colonialism and apartheid in the region. Like the cases of silicosis and TB at Anglo-American and other mines in the region affecting millions of miners and causing premature deaths, we consider that a basic right exists for redress and acknowledgement for damage created by mining operations and investments in such, regardless of time passed….The reason for the development of ESG and UNGP standards is precisely to mitigate the power imbalances between corporations, governments and communities when natural resources are being extracted or utilised in ways which present challenges to human rights. ACTSA sees this imbalance in the Kabwe case. The right to examine the context of corporate liability for damage to the Kabwe community should be a given, under those standards. We are concerned that, in this situation, Anglo-American’s decision to resist certification of a class action that would provide access to court to test and seek judgement for any redress, fails to meet those standards.” Chitra Karve, Chair ACTSA
“The legacy of harm done in the Kabwe region by lead mining is a serious injustice. Generations of children have been negatively affected because of the greed of those who made a profit from the extraction and smelting of lead without ensuring that proper safety standards were met. The proposed class action lawsuit against Anglo American South Africa is an attempt to address that injustice and to hold one of the giants of global extractivism to account for its past actions. It is our hope at London Mining Network that Anglo American will do the right thing and not oppose the certification of a case that would allow some 140,000 people to seek redress for harm done to them and their communities. Anglo American is very pleased with its public image as a responsible company and a good choice for ethical investment. The company’s handling of this case will be very telling as to how far that public image matches reality.” Richard Solly, London Mining Network Co-Ordinator
“The communities affected by the Kabwe mining operations have suffered the impacts of corporate abuse of their human rights for far too long. The efforts of London-based Anglo American to resist this class action lawsuit underline the urgent need to hold companies liable for harms committed at home or abroad by their subsidiaries, contractors and suppliers, to ensure access to justice for victims and to put an end to such grave abuses going unchecked.” Evie Clarke, Policy Officer of the Corporate Justice Coalition
“The toxic legacy of Anglo American’s lead mine in Kabwe still blights the lives of those who live there, requiring not just clean-up but also remedy and justice. Alleviating the ongoing suffering of Kabwe’s children, and its future generations, requires Anglo American’s leadership and engagement, not its evasion and obstruction. Anglo American should not oppose this certification hearing, nor needlessly drag those harmed by its operations through lengthy court proceedings, but instead it should do the right thing and ensure remedy is provided.” Anneke Van Woudenberg, Executive Director of corporate watchdog, RAID.