Unsafe mining practices and smelting operations that span over a century has left children and pregnant women vulnerable to lead poisoning.
Agonising stomach pain, loss of appetite for days on end and debilitating headaches are some of the suspected symptoms of lead exposure children in Kabwe, Zambia, ranked by the Blacksmith Institute as one of the world’s most polluted places, are struggling with.
Their stories form the foundation of a class action bid against Anglo American South Africa over its historic involvement with the Kabwe mine, where unsafe lead mining and smelting operations spanning the course of almost a century have left the land and its people exposed to dangerously high levels of lead.
Even now, almost 30 years after the mine finally closed in 1994, the contamination remains.
YEARS IN THE MAKING
In 2019, lawyers from Johannesburg firm Mbuyisa Moleele and London-based Leigh Day, acting on behalf of 10 children and two now-young women, announced plans to bring a class action bid against Anglo, which was invested in the mine between 1925 and 1974.
Anglo denies responsibility, though, saying it had an “indirect minority shareholding (of ±10%) in the company that operated the mine” but never owned or operated it.
If successful, this bid would pave the way for as many as 140,000 lead exposure victims to potentially be able to claim damages from the mining giant.
The case was brought in South Africa because of Anglo’s head offices in the country. The lawyers have also said this is the only way to secure justice for the community because Zambian law doesn’t provide for the type of “opt-out” class action they have proposed (where all potential claimants are included unless they opt out) nor for contingency fee arrangements or third-party funding.
Before they can bring a class action, the applicants have to secure the court’s permission or certification.
The certification hearing got under way in the high court in Johannesburg this month and was expected to wrap up this week.
FINANCIAL COMPENSATION FOR SERIOUS HEALTH CONCERNS
The proposed class action is aimed at securing financial compensation for children and women of child bearing age who were in Kabwe during their early childhoods and have elevated blood lead levels.
Children and pregnant women are particularly vulnerable to the effects of the toxic metal in Kabwe, which the legal team behind the case explained in the court papers:
“[Children] live and play in dusty backyards and streets, coating them in lead-contaminated dirt. When they touch their faces and mouths, they ingest large quantities of lead. Their growing bodies and brains absorb more of this lead than adults do, causing irreparable brain damage. In extreme cases, lead poisoning can kill children.
“When girls grow up and fall pregnant, the lead stored in their bones as young children is released back into their bloodstream, poisoning them and their unborn children”.
The papers painted a bleak picture of children in Kabwe’s plights.
Parents detailed their first-hand experiences with a range of suspected physical symptoms.
They also mentioned behavioral problems like aggression, as well as developmental delays and learning difficulties.
Medical experts who examined the children said the most probable cause was the elevated levels of lead in their blood. And not only did they say some of the damage done was likely irreversible, but also that these children were at risk of developing further adverse effects as time went on.
Lawyers for the children represented have argued Anglo’s actions “both caused and materially contributed to the ongoing harm” suffered by them.
But the company has denied this.
The case against Anglo is that during between 1925 and 1974, in which the mine produced 66% of its total lead output, the company was “directly involved” in the mine’s affairs.
Anglo, itself, described the situation in Kabwe as an “environmental disaster” in its arguments before the court. But it put the blame at the feet of the state-owned Zambia Consolidated Copper Mines Limited (ZCCM), which ran the mine from 1974 until its closure.
It has also said that because 66% of all the lead was produced during the period it was involved doesn’t mean 66% of all the lead pollution was its fault.
It argued ZCCM operated in “a grossly negligent and reckless fashion” and that under its watch there were several years during which there was inadequate emission control, and lead pollution “increased markedly”.
Ariella Scher is an attorney with the Center for Applied Legal Studies and represents Amnesty International and the Southern Africa Litigation Center, which are amici curiae (friends of the court) in the certification application.
She said they considered this an “incredibly novel” case and that it could set a precedent for holding corporations registered in South Africa liable for their activities in other states.
“In South African courts and law, nothing like this has ever been attempted. A corporation that’s registered in South Africa – we then call South Africa its home state – has never been sued for its actions in a foreign state – so here, Zambia.. we call it the host state,” she said.
Scher also said that to their knowledge, this was the first case of its kind to be brought in the global south.
Their submissions were intended to assist the court in deciding whether to certify the class action.
Scher said they looked at international human rights law and instruments that enshrined a right to remedy and recognised a duty on the state “to ensure corporations registered in their jurisdictions are operating appropriately”, as well as on the corporations themselves.
By: Bernadette Wicks
For more information visit: ewn.co.za