A group of UN experts and a leading human rights organisation will apply today to play a role in court proceedings that could result in a judge approving a large-scale class action lawsuit against the London-based mining company Anglo American.
The lawsuit, filed in October 2020, accuses the company of negligence over its alleged failure to prevent widespread lead poisoning in the Zambian town of Kabwe, where its South African subsidiary is alleged to have played a key role in the running of a large mine from 1925 until 1974.
An estimated 140,000 children and women of child-bearing age living in Kabwe are represented in the case, one of Africa’s largest class action cases.
Their lawyers – from the South African firm Mbuyisa Moleele and the UK-based Leigh Day – argue people in Kabwe are likely to have suffered lead poisoning “as a result of pollution caused by Anglo”, calling the situation a “public environmental health disaster”.
Anglo American opposes the “opportunistic” and “implausible” lawsuit, saying it does not believe it is responsible for the contamination at Kabwe and that a case against it would be a waste of time and money.
A judge will decide whether or not to certify the lawsuit after a hearing at the Johannesburg high court in January. Today, at the same court, a group of UN special rapporteurs and the organisation Human Rights Watch (HRW) will apply to become “amici curiae” in the case, a role that would allow them to set out legal arguments and recommendations to the judge.
In a written affidavit, Marcos Orellana, the UN special rapporteur on toxics and human rights, argues that issues raised by the lawsuit “fall squarely” within the remits of him and his colleagues, who, he says, “are singularly well placed to assist the court”. The other UN experts include two further special rapporteurs and two working groups.
In the past, another UN expert has referred to Kabwe as one of the world’s most notorious “sacrifice zones”, where local people are left to suffer the consequences of pollution they did not cause.
Orellana says the UN experts would argue that Anglo American’s opposition to the class action is “entirely incompatible” with the company’s “professed commitment” to a set of corporate responsibility guidelines introduced by the UN in 2011.
“Anglo should not be permitted to obtain the commercial and public relations benefits for its brand of espousing commitment to the guiding principles, while in the same breath opposing the certification of this class action,” writes Orellana.
“It cannot both claim to be committed to respecting the rule of law and remediating the adverse impacts of its business activities, while at the same time actively resist the certification of a class action in circumstances in which doing so will effectively deny the prospective class members any prospect of litigating their claims.”
For its part, HRW has said it wants to “clarify the context” of its 2019 report on Kabwe, which Anglo American has cited as evidence for why it has no case to answer. HRW accuses the company of relying on “selective parts” of the report, saying it “in no way exculpates [Anglo] for liability for the violations identified”.
Anglo American has opposed both the applications, arguing they would bring nothing new or relevant, but it has consented to Amnesty International and the Southern African Litigation Centre being made amici curiae.
A spokesperson said Orellana’s argument about the UN’s guiding principles was “unhelpful as they do not apply retrospectively”.
“Reference to these principles also relies on the claimants’ incorrect view of Anglo American’s involvement at Kabwe mine – essentially seeking to hold only Anglo American liable for a mine that we did not own or operate,” they added.
The spokesperson said the company was only ever a shareholder of the company that operated the mine, while “a number of Zambian entities” had run it after 1974, a period which “this opportunistic claim completely fails to take into account”.
“Our reputation as a responsible company is being held to ransom, and we, therefore, have little option but to defend ourselves against the allegations – we simply don’t believe we are responsible for the situation,” the spokesperson said.
