Lawyers file more evidence against Anglo

SA legal firm Mbuyisa Moleele and UK counterpart Leigh Day have filed further evidence in the high court in Johannesburg in an attempt to convince it that Anglo American SA should face a class action case in this country for lead poisoning that took place in Kabwe, Zambia.

The contamination allegedly occurred at a now-defunct Zambian mine, and the two firms argue that Anglo American SA, which provided technical and other services to it, knew about the poisoning at the time.

The Zambian mine was nationalised in 1975.

High lead levels were observed in the area around the mine for decades. Lead in high doses, breathed in through mine dust or absorbed through water, can cause organ and brain damage as well as stunted intellectual development.

The two legal firms have filed new evidence arguing that Anglo SA knew in the 1970s that children around the mine were suffering from lead poisoning.

BLOOD TESTS

They say its own studies revealed it needed to do environmental rehabilitation, with a document describing “a longstanding attitude of disregard and neglect in the operation of the mine”. It also provided evidence of blood tests conducted in the 1970s identifying lead in the blood of children.

The firms, who began the legal case in 2020, want compensation for more than 100,000 women and children they say suffered from lead poisoning, as well as a cleanup operation to take place. But they must first receive approval from the court to file the class action.

SA class actions have to be certified by a judge.

Anglo is opposing the certification saying it has no case to answer as it did not own or manage the mine and that the damage worsened after 1974.

“Contamination is not acceptable anywhere. We have every sympathy for the people of Kabwe and their plight, but we intend to defend ourselves because we do not believe that we are responsible for the current situation,” Anglo said in a statement.

It is the first time a firm is asking a court in SA to certify a

class action against a South African company for alleged actions that took place outside SA. As Zambian courts do not allow class actions, Leigh Day, which is funding the action, has to fight the case in SA and target a South African firm that was involved in the mine rather than the Zambian government or the Zambian firms that owned it.

Partner at Leigh Day Richard Meeran told Business Day that Zambian law does not allow “contingency”, a practice in which lawyers take up cases without pay for years and later earn a portion of the settlement.

This allows citizens who cannot afford to engage in lengthy legal action to do so.

Leigh Day has won two cases in the UK supreme court against multinationals for actions elsewhere: against Shell in an oil pollution case in Nigeria, and one about environmental damage at a Zambian copper mine, which it says establishes a legal precedent that imposes a legal duty of care on multinational parent companies.

The funding for this action has been controversial with some reports that Leigh Day is being funded by a private equity firm in the UK which would later get a percentage of a payout if the case succeeds. Whether Anglo is responsible for the ongoing damage in the area and when the damage occurred to the area is a point of contention, which legal papers filed on Tuesday attempt to address.

“Anglo has consistently denied responsibility for the Kabwe tragedy. With this filing, we submit further strong evidence to demonstrate the inextricable link between Anglo’s operations and the ongoing contamination in Kabwe, supported by world-class expert witnesses and a wealth of evidence,” said Zanele Mbuyisa, partner at Mbuyisa Moleele.

MINE DOCTOR

It is argued in papers filed on Tuesday that a mine doctor in the 1970s identified lead poisoning in children from mine dust and that Anglo knew from tests it commissioned that the environment was contaminated.

No class action has been completed in court in SA, with some ongoing and others resulting in settlements out of court.

The most well-known class action in SA was a case on behalf of 17,000 former gold miners who contracted the lung disease silicosis from inhaling mining dust. The case — brought in 2012 by attorney Richard Spoor against 30 mining companies, including AngloGold Ashanti, Gold Fields and Harmony Gold — was settled out of court in 2018.

Leigh Day was involved in the silicosis case against Anglo American SA and Anglo Gold Ashanti. It also won a case against the insurer of mining company Gencor for 7,500 asbestos miners in SA, but the case was fought in UK courts.