Case Law Database
Various parties obo minors v. Anglo-American South Africa Limited & Others (Children of Kabwe)
| Date of Application: | Tue, 20 Oct 2020 |
|---|---|
| Date of Decision: | Thu, 14 Dec 2023 |
| Decision Making Body: | High Court of South Africa |
| Law Applied: | Constitution of South Africa South African Children’s Act Zambian Law |
| Keywords: | Class action, business and human rights, right to health, right to healthy environment, access to justice |
| Full Case Details - Download Full Judgment (pdf) |
Various party's obo minors v Anglo-American South Africa Limited & Others
(2020/32777) [2023] ZAGPJHC 1474
Summary: Tens of thousands of children and women of child-bearing age in Kabwe, Zambia allege that they have been poisoned by lead left behind by the Kabwe Mine, formerly known as the Broken Hill Mine (‘the Mine’), which was within the Anglo- American Group for almost 50 years. Lead poisoning can cause serious and often irreversible permanent damage to organs and the neurological system.
South African Attorneys, Mbuyisa Moleele Attorneys ('MM'), in collaboration with UK-based human rights lawyers Leigh Day, have filed a lead poisoning class action lawsuit against Anglo American South Africa Limited ('AASA') on behalf of a class of an estimated 140,000 Zambian children and women of childbearing age.
The claim arises from environmental contamination of villages in close proximity to the 'Mine' (formerly known as Broken Hill), in the District of Kabwe, Zambia.
Medical studies conducted over the past 54 years have consistently shown massive levels of lead in a significant proportion of young children in Kabwe. Generations of children have been affected. The Mine operated between 1906 and 1994 and is alleged to have been subject to management and technical advice on medical and environmental matters from AASA from 1925 until 1974.
AASA is a South African wholly-owned subsidiary of London-headquartered multinational mining company Anglo American PLC and holds all the South African assets of the Group.
The class action seeks compensation for lead poisoning of these children and for women under 50 who have been poisoned and who have, or may become pregnant, in the future. The cost of remediation of homes and of future blood lead screening is also claimed.
The application is brought by 12 representative Claimants on behalf of:
- Children (under 18) who live in Kabwe District who have suffered injury from lead exposure; and
- Women who have lived in Kabwe District and have suffered injury from lead exposure that significantly increases adverse health risks during pregnancy to themselves and their unborn children.
In January 2023, an application for certification of the class action was heard over 10 days. A class action in South Africa is the only realistic and feasible means for the claimants to obtain access to justice. In December 2023 the Court dismissed the application. The Claimants consider that judgment to be fundamentally flawed and subsequently filed an application for leave to appeal.
On 19 April 2024, the Johannesburg High Court granted permission to appeal the December judgment that had dismissed certification of the class action. In this decision to permit an appeal, Justice Leonie Windell stated that an appeal against her earlier judgment had ‘reasonable prospects of success on at least one ground of appeal’ and that there were ‘compelling reasons to grant the appeal, as class action law is still being developed in South Africa’, and that ‘there are current matters of law of public importance which directly implicate constitutional rights’. The Kabwe Claimants will now take their case against AASA before the Supreme Court of Appeal of South Africa later this year.
By taking legal action in South Africa, the victims will benefit from South African class action procedure as well as, attorneys and counsel experienced in running complex class action litigation against multinationals.
An application for leave to appeal the decision not to certify a class will be heard in 2025.
Summary provided courtesy of the Children of Kabwe.
Court documents:
Related CRC articles
- 3. Right to have child’s/children’s best interests taken as primary consideration in all matters affecting them (CRC Article 3)
- 4. States will take measures for the implementation of the CRC (CRC Article 4)
- 6. Right to life, survival and development (CRC Article 6)
- 12. Right to express views freely and have these taken into account (CRC Article 12)
- 19. Right to protection from violence, abuse and neglect (CRC Article 19)
- 24. Right to health, healthcare, and a healthy environment (CRC Article 24)
- 27. Right to an adequate standard of living (CRC Article 27)
- 39. Right to recovery from trauma and reintegration (CRC Article 39)
- 43. Procedural CRC provisions (CRC Articles 43-54)
Judgment:
The court refers to its position as the guardian of the best interests of the child.
Founding affidavit:
The applicants argue that the respondents had a duty to protect the affected persons’ health and the health of the environment.
On standing (access to justice – art 4 & 39 & gen com 27):
[287] The fact that the class representatives are predominantly children, represented or assisted by their parents, should not in any way be seen as an impediment to these proceedings. In terms of section 14 of the Children’s Act ... read with section 28(2) of the Constitution and applicable international instruments; “every child has the right to bring, and to be assisted in bringing, a matter to court, provided that matter falls within the jurisdiction of that court”.
[318] “... In particular this class action would support their right to access to court in terms of section 34 of the South African Constitution, the best interests of the children in terms of section 28(2) of the Constitution, and the associated rights of the children under domestic and international law to pursue legal action in courts that have jurisdiction.”
[288] “All of the class representatives under the age of 18 are represented or assisted in bringing these proceedings by a parent or guardian. Their parents and guardians have been advised on, and accept their special responsibilities, to participate in these proceedings and to give instructions on the best interests of the class and on the best interests of the children.”
[289] “Where the children are of such an age, maturity and stage of development as to be able to participate and express their views, they too have been consulted and advised fully on the nature of these proceedings, their rights, and their responsibilities.”
Amici
The first and second amici rely on the following rights in the SA Constitution:
- Right to dignity
- Right to bodily and psychological integrity
- Right to an environment that is not harmful to one’s health or well-being
- Right to access to courts
They relate to articles 4, 6, 19, 24, 27, and 39.
Cited CRC articles
- 12. Right to express views freely and have these taken into account (CRC Article 12)
- 39. Right to recovery from trauma and reintegration (CRC Article 39)
- 43. Procedural CRC provisions (CRC Articles 43-54)
Judgment & Founding affidavit
No CRC citation.
Applicant’s heads of argument
Par 535 on standing and best interests.
Amici submissions:
The 1st and 2nd amici rely directly on article 12 and 39. See par 25. They also refer to the Committee’s recommendations on extraterritorial obligations to various states. See par 52:
[52] “The UN Committee on the Rights of the Child has also repeatedly called on home states to establish and implement regulations and administrative measures to ensure that companies respect human rights, particularly the rights of the child, in their operations abroad, and to provide for appropriate oversight, monitoring and accountability mechanisms.”
Involvement of children in hearings
- Written presentation
The 1st to 12th applicants are mothers representing their minor children. The 13th applicant is 21 and represents herself. The applicants submitted supporting affidavits. They set out the (mainly) health related circumstances of the child. The child is not directly involved / quoted.
Intergenerational rights
Judgment:
[157] “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. 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.”
[339] 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.
Applicant’s heads of argument:
[10] “Years may have passed since Anglo left Kabwe, but the toxic legacy of the Mine’s operations remain. Lead is a long-lasting, inter-generational poison.”
Future generations
Judgment
The court considers whether the respondents had knowledge of potential harm to future generations. See para 131 – 132.
The court dismisses the application for class recognition because it includes a duty of care to current and future generations, for which there is no precedent. See par 149.
Founding affidavit
[31] “By virtue of its involvement in the mine’s affairs and its knowledge of the harms ... Anglo assumed a duty of care to protect existing and future generations of residents of Kabwe against the risks of lead pollution arising from the mine’s operations.”
The applicants argue that the respondents had knowledge of potential harm to future generations. See para 184.
Applicant’s heads of argument
[39.6] “The fact that future generations would fall ill from exposure to lead pollution in the Kabwe environment was manifestly foreseeable and was, in fact, foreseen.”
Outcome of decision for the applicants
- Decision pending
The children’s acpplication to have a class declared for the purpose of claiming damages against the respondent was dismissed but will be heard on appeal.
Did outcome of decision develop the law
- No
The initial application was dismissed but is being appealed to the Supreme Court of Appeal.
Involvement of NGO/law firm in application
South Africa
United Kindgom
Amnesty International (amicus curiae).
The Southern African Litigation Centre (amicus curiae).
The UN Special Rapporteur on toxics and human rights (amicus curiae).
The UN Special Rapporteur on extreme poverty and human rights (amicus curiae).
The UN Special Rapporteur on the rights of persons with disabilities (amicus curiae).
The UN Working Group on business and human rights (amicus curiae).
The UN Working Group on discrimination against women and girls (amicus curiae).
Centre for Child Law (prospective amicus curiae)
South Africa
Available information on how children got involved in the litigation
Age range of litigants
- 0-7
- 8-12
- 13-17
- 18-25
Number of children or youth involved
13