Our position on the Kabwe legal claim

Introduction

On 23 August 2019, Leigh Day and Mbuyisa Moleele – UK and South Africa-based law firms respectively – announced an intention to bring a class action lawsuit against Anglo American South Africa (AASA) on behalf of claimants in Kabwe, a town located in central Zambia. Kabwe is a vibrant industrial town with a population of over 200,000, with a long history of lead and zinc extraction that continues to this day given the prevalence of the metals in the area.

The class action certification-application was filed on 20 October 2020 in the Gauteng Division of the High Court of South Africa. Law firms Leigh Day and Mbuyisa Moleele were seeking compensation for persons suffering from lead poisoning, alleging AASA is responsible.

We have every sympathy for the people of Kabwe, the pollution the town experiences and any harm that may have come from it. Contamination is not acceptable anywhere.

These allegations date back to more than 50 years ago between 1925 and 1974 when AASA was involved in the Kabwe mine via an indirect minority shareholding (of ±10%) in the company that operated the mine: Zambia Broken Hill Development Company Limited (ZBHDC), today known as ZCCM. AASA provided certain technical services to the mine, but at no stage owned or operated the mine.

The mine was nationalised in 1971 and operated by ZCCM and its predecessor companies for 20 years to 1994, when it was closed. Subsequent to closure, uncontrolled mining, processing activity and unabated pollution from numerous other mineral processing and smelting operations and artisanal miners in Kabwe has continued to the present day. It is clear that the Kabwe mine site was not remediated upon closure of the mine in 1994, some 20 years post nationalisation, despite ZCCM acknowledging responsibility for all historic liabilities relating to Kabwe mine following nationalisation.

An attempt is being made to hold AASA liable for a mine we have never owned nor operated and for pollution and harm that others have caused and freely acknowledged as their responsibility. We do not believe it is correct for the claimants to attempt to attribute legal responsibility to AASA for the current situation in Kabwe.

We strongly encourage careful consideration of the commercial motives of law firms and their funders in bringing a case like this, in singling out AASA as part of a major reputable mining company while completely ignoring the evidence and clear culpability of the actual responsible parties.

Court dismissed the certification for a class action

On 15 December 2023 the High Court of South Africa dismissed the claimants' application for certification of a class action and ruled that the applicants must pay Anglo American’s costs incurred in responding to the application. The Court noted that the applicants’ law firms and their funders had procured insurance to cover such legal costs, so there would be no impact on potential claimants.

In its judgment, the court recognised the multiple legal and factual flaws in the claim and deemed that it is not in the interests of justice for the class action to proceed.

These paragraphs are from the conclusion of the judgment:

"In addition to the absence of a prima facie case, which disposes of the application, the trial would be unmanageable if the class definitions were certified on the broad basis sought by the applicants. According to the applicants' version, the proposed classes would total between 131 000 and 142 000 people. Every one of these people would have to prove, amongst other things, in the second stage of the class action, that they suffer from a malady that can be caused by lead exposure; that the malady has, as a matter of fact, been caused by lead exposure, rather than, for example, genetics or malnutrition; and that their lead exposure is due to soil contamination by the Mine during the relevant period, rather than, for example, artisanal mining.

"An unmanageable class action is one that would take an extremely long time to be completed, if it is completed at all. The applicants effectively concede unmanageability. The applicants claim in argument that it would take ten years for their legal team merely to take instructions from every member of the proposed classes. If this is so, it would take much longer for a South African court to assess the claim of each class member in the second stage. It bears emphasis that an unmanageable class action is not only adverse to Anglo’s interests: It undermines the applicants’ access to justice.

"In addition, the applicants seek to have certified classes that are plainly (and grossly) overbroad geographically; they do not seriously dispute that the women class is mostly made up of prescribed claims; they rely on a conception of 'injury' that is legally incorrect and which renders the proposed classes vague and misleading; and they impermissibly ask this court to assert jurisdiction over an entirely foreign class on an opt-out basis.

"In this application the applicant seek permission to advance an untenable claim that would set a grave precedent. The precedent is that a business could be held liable half a century after its activities have ceased, to generations not yet born, as a result of being tested against future knowledge and standards unknown at the time.

"Under the circumstances it is proper and necessary to dismiss the certification application."

COSTS OF THE CERTIFICATION HEARING

"In De Bruyn, Unterhalter J refused certification and awarded costs to the respondents on two bases: Firstly, that the applicants had failed to make out a triable issue, and secondly, because the case was funded by commercial litigation funders. Both reasons exist here.

"The applicants argue that an adverse costs order would have a chilling effect on class actions raising human rights. The argument falls to be rejected. The prospect of an adverse costs order has had no effect on the applicants' funders. They have procured insurance to pay for costs in the event of an adverse costs order and are litigating with gusto. Neither the applicants, nor their attorneys, nor their funders would pay an adverse costs order out of their own pockets.

"In the result the following order is made:

"The application is dismissed with costs including the costs of three senior and three junior counsel."