Pretoria - Several UN bodies obtained permission from the Gauteng High Court, Johannesburg on Friday to be admitted as a friend of the court in a class action lawsuit against Anglo American South Africa (AA) over alleged health problems caused by lead mines in central Zambia.
At this stage the court ruled that four international organisations – including the UN Special Rapporteur on Toxins and Human Rights and the UN body concerned with the rights of people with disabilities – may participate in the main application to be heard later to assist the court.
The legal challenge, filed in South Africa, alleges that mining operations carried out in Kabwe, north of the Zambian capital Lusaka, by multinational mining company Anglo-American, were in such close proximity to residents that they caused significant soil contamination and poisoned the population, especially young children.
They further contend that in villages in and around Kabwe, both children and adults living in the shadow of the old lead mine have experienced heightened health issues due to the high levels of lead in the area’s topsoil and water supplies.
The suit, filed against Anglo America’s South African subsidiary, represents 180 000 women and children in Kabwe with 13 plaintiffs representing the case.
The applicants allege that Anglo, through its mining activities conducted at the mine in Kabwe during the period 1925 to 1974, both caused and materially contributed to the ongoing harm suffered by the children and women of child-bearing age in Kabwe as a result of their exposure to lead pollution.
Anglo avers that it did not cause the present state of uncontrolled and polluted conditions in Kabwe and that it is not liable for any harm caused to the applicants by the current state, nor is it liable to remedy it.
It alleges, among others, that Zambian Consolidated Copper Mines Limited (ZCCM) caused the failed state of the mine and concomitant environmental contamination in Kabwe and that ZCCM remains liable today for the rehabilitation and remediation of lead emissions in Kabwe.
Human Rights Watch, one of the bodies who applied for leave to intervene as a friend of the court, saw their application turned down on Friday.
Judge Avrille Maier-Trawley said she could not find that this body could contribute to the main proceedings.
In 2019, Human Rights Watch published a report entitled “We have to be worried – the impact of lead contamination on children’s rights in Kabwe, Zambia” (the Human Rights Watch report).
It said Anglo-American relied on this report to sustain its argument that it was not responsible for the harms caused to the applicants. It said that Anglo-American’s reliance on its research was misplaced.
The judge said there was no need for this organisation to be part of the proceedings as the court, which will later hear the main application, will read the report and form its own view as to what it says.
While AA also opposed the joinder of the other UN bodies as friends of the court, its lawyer, Steven Budlender SC, conceded that the UN bodies’ submissions, as expounded upon during oral argument in court, were new in the sense that they had not hitherto been raised or canvassed by any of the parties in the certification proceedings.
AA, however, persisted in its opposition to the admission of the UN bodies as friends of the court on the basis that their submissions were neither relevant nor helpful.
The UN bodies argued that they could be helpful as they could highlight the rights of victims of human rights violations to have access to justice and the right to a remedy.
They further submitted that certain guiding principles committed AA, among others, to respect the rule of law and to address adverse human rights impacts, which it may have caused or contributed to through its business endeavours.
Judge Maier-Trawley said: “What the UN bodies seek to do before the certification court is to distil the legal significance of Anglo’s commitments to the guiding principles as a factor to be weighed in the balance when determining where the interests of justice lie.
“Seen from this perspective, the requirement, namely, that submissions by an amicus (friend of the court) must be new and that ‘new contentions are those that may materially affect the outcome of the case’ has in my view been met by the UN bodies. This is so because it is an argument which, if found to be persuasive, may tilt the scale in favour of certification.”
Pretoria News