The proposed class action lawsuit on behalf of about 140,000 Zambian children and women against Anglo American South Africa has moved to the Supreme Court of Appeal after the High Court, Johannesburg, earlier dismissed the class action certification.

The high court earlier, however, granted the parties leave to appeal its judgment before the SCA.

The Centre for Child Law in Pretoria, together with legal scholars from the Oxford Human Rights Hub, were among those who appeared in the case as a friend of the court.

The legal challenge concerns mining operations carried out in Kabwe, north of the Zambian capital Lusaka, by mining company Anglo-American. It is claimed that these were in such close proximity to residents that they caused significant soil contamination and poisoned the population, especially young children.

It is also contended 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 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 American 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 has expressed sympathy for the people of Kabwe, the pollution the town experiences, and any harm that may have come from it. However, it argues that it is not responsible for the lead pollution as it only had a minority stake in the mine between 1925 and 1974.

It blamed the Zambia Broken Hill Development Company Limited (ZBHDC), today known as ZCCM. It alleges, among others, that 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.

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 high court dismissed the certification of the class action in December 2023. One of the reasons was that the class action would be “unmanageable” in that it would take a long time to be completed.

The court at the time said: “It bears emphasis that an unmanageable class action is not only adverse to Anglo’s interests: It undermines the applicants’ access to justice”.

It was meanwhile on Tuesday argued by the Centre for Child Law that the high court erred in its consideration of the interests of justice in deciding whether to certify the class, and in so doing failed to take into account the best interests of the child.

The best interests of the child, and the rights to equality, a safe environment, and access to court have a direct bearing on class actions, especially those intended to vindicate the rights of children affected by environmental harm, it said.

zelda.venter@inl.co.za

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