• The Gauteng High Court in Johannesburg has found no basis for a “factually hopeless” lead poisoning class action against Anglo American.
• It has refused to certify a class action against the company over lead poisoning linked to the Kabwe mine in Zambia, in which the company had owned a stake between 1926 and 1974.
• In a 126-page ruling, Judge Leonie Windell found the class action suit that these plaintiffs intended to pursue – which their lawyers say could involve as many as 142 000 plaintiffs – sought to advance “an untenable claim that would set a grave precedent”.
• For more financial news, go to the News24 Business front page.

The Gauteng High Court in Johannesburg found there was no legal or factual basis to show that Anglo American South Africa could be held liable for lead poisoning linked to a Zambian mine it had held a stake in – and refused to certify a class action suit against it.

In a 126-page ruling, Judge Leonie Windell found that the 12 Zambian child and women plaintiffs who had sought to bring a class action against Anglo over the lead poisoning they had suffered while living in the mining town of Kabwe – which allegedly affected as many as 142 000 people – had failed to make out a “prima facie case on the facts” or “an arguable case on the law”.

The judge said the plaintiffs had not disputed Anglo’s evidence that it had held a stake in the Kabwe mine between 1926 and 1974, before the toxic qualities of lead were fully known or understood, and had operated the mine with “emissions controls that were state-of-the-art for their time”. Windell further pointed out that the plaintiffs’ own expert had recognised that these controls were “highly efficient, often approaching 99% even for the smallest particles”.

She said the plaintiffs were seeking permission “to advance an untenable claim that would set a grave precedent” by pursuing a case that fatally suffered from “hindsight bias”.

“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.” 

“To establish that Anglo owed a duty of care 50 years and more ago to the proposed class members currently living in the Kabwe district, this court must be satisfied that there is prima facie evidence to find that between almost 100 and nearly 50 years ago, Anglo must have foreseen that the current community, not the historical community, would suffer harm from lead released into the environment by the Mine during the relevant period,” the judge said.

She added that the plaintiffs could not “meaningfully contest” Anglo’s evidence that it had no say in the Kabwe mine’s operations after it was nationalised by the Zambian government in 1974 and taken over by state-owned Zambia Consolidated Copper Mines (ZCCM).

“For this reason, Anglo’s alleged acts and omissions during the period between 1926 and 1974 represent the highwater mark for the applicants’ case,” she said.

“Following that, ZCCM admittedly ran down the mine by failing to invest in skills and maintenance. From at least 1985 to 1994, it operated the smelter plant with inadequate (and, for the most part, no) emissions control. During this period, all measures of lead pollution, including community blood lead levels, skyrocketed. After the mine’s closure, ZCCM neglected its remediation obligations, which is typically an integral component of a mine’s life cycle.”

Anglo had contended the class action that the Kabwe plaintiffs had pursued against it should actually have been directed at the ZCCM – an argument that it appears Windell has largely accepted.

“The applicants’ case is further bereft of any specification of what Anglo is said to have done wrong, because they fail to say what the reasonable miner in Anglo’s shoes would have done differently to prevent or minimise lead emissions at the time,” she added.

“They have not cited any precedent in which an alleged historical polluter was held liable in tort for negligence because it owed a duty of care to those who had not yet been born at the time it allegedly polluted,” Windell said.

“I agree with counsel for Anglo that the limited legal precedents available indicate that establishing such an intergenerational duty of care is untenable, as damage to subsequent generations and decades into the future could not have been foreseen. Therefore, the harm now contended for by the applicants was not foreseeable at the relevant time, nor were the proposed classes, the majority of whom had not yet been born.”

Australian report

The judge also rejected the plaintiffs’ argument that the 1893 Broken Hill Report, which documented the outcomes of a New South Wales commission inquiry into lead poisoning in children, showed that Anglo American must have been aware of the health risks associated with lead smelting and mining at the time of its involvement with the Kabwe mine.

“The report purportedly presented substantial evidence of lead poisoning in the neighbouring communities of Broken Hill, Australia, attributed to the emission of fumes from the lead smelters which were ‘injurious to the general population’. The commission noted that ‘the kind of poisoning to be expected among both classes (workers and townspeople) is almost exclusively of the chronic sort’,” she said.

The Kabwe plaintiffs argued that “initial evidence” suggested that the mine in Zambia had direct contact with Broken Hill, Australia and ought to have been aware of the report.

“However, Anglo was only established in 1917,” Windell countered.

“There is not any evidence that the report came to the attention of Anglo at any point (including between 1925 and 1974). The applicants do not explain how an entity, established 24 years after the report was published, located in a different country and on a different continent, and in an age of basic forms of communication technology, came to know of this report. In these circumstances, it cannot be suggested that Anglo had knowledge of the harms set out in the report.”

Notwithstanding whether Anglo was made aware of the report, she added, “a cursory examination of the entire document (not just the excerpts cited by the applicants) indicates that the applicants have exaggerated the significance of the report to support their position”.

“Consequently, it cannot be argued that knowledge of the report equates to knowledge of the risk of harm to the historical Kabwe community,” Windell found.

‘Securing justice’

Anglo has welcomed the decision.

“We have stated from the outset that this claim is entirely misconceived and it is clear that the court recognized its multiple legal and factual flaws,” it said in a statement.

The law firms representing the plaintiffs, Mbuyisa Moleele and Leigh Day, say they will seek to appeal the ruling.

“We are extremely disappointed by the judgment, which we consider to be fundamentally flawed,” Zanele Mbuyisa, a founding partner of Mbuyisa Moleele, said in a statement. “We remain committed to securing justice for the 140 000 women and children affected by lead poisoning in Kabwe and the communities have made their intention to appeal very clear.”