The Johannesburg High Court on April 19 granted permission to appeal an earlier ruling denying class action certification for 140 000 women and children in Kabwe, Zambia, who allege they have suffered the effects of lead poisoning as a result of a mine formerly owned by Anglo American in the country.

In granting permission, Justice Leonie Wendell found 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”.

In a 126-page judgment delivered in late December 2023, Wendell ruled that a claim against Anglo American South Africa (AASA) over widespread lead poisoning across Kabwe, Zambia, could not proceed as a class action.  

The class action was filed in South Africa as it would not have been possible for the claimants to obtain access to justice in Zambia, law firm Leigh Day, which is a consultant on the matter, says.

Following the permission to appeal the December decision, the Kabwe claimants will now take their case against AASA before the Supreme Court of Appeal of South Africa later this year.

Leigh Day describes this as a “major step forward” in the longstanding lead poisoning class action claim against AASA, a wholly-owned subsidiary of London-headquartered Anglo American.

“The December judgment effectively blocked access to justice for the people of Kabwe,” it avers.  

Kabwe was owned and operated by Anglo American from 1925 to 1974.

Leigh Day emphasises that the evidence submitted to the court by the claimants in support of this claim is clear.

From the early 1970s, reports by the mine doctors showed that several children had died of lead poisoning from the mine, and a high proportion of children in the local communities were suffering from massive blood lead levels, the law firm states.

Experts for the claimants also contend that the stability of lead in the environment was well known by the 1960s and that the risk of lead poisoning to future generations should have been foreseen by Anglo American if the environment was not cleaned up, the firm adds.

The claimants allege that, on economic grounds, Anglo American failed to heed advice from international experts in 1970 that the topsoil should be replaced.

However, Anglo American argues that it adhered to standards that were acceptable in the 1970s, that the risks to future generations were not foreseeable and that the company is therefore not liable to current inhabitants of Kabwe.

Amnesty International and a number of United Nations (UN) agencies intervened at the certification hearing to argue that Anglo American’s opposition to the class action was contrary to the UN Guiding Principles on Business and Human Rights, Anglo American’s own human rights policy and publicly stated human rights commitments.  

The Kabwe claimants are represented by law firm Mbuyisa Moleele Attorneys with Leigh Day acting as consultants.

In a separate statement, Anglo American says it has noted the decision.

“The High Court dismissed the certification application in December 2023 after almost a year of deliberation, clearly highlighting the claim’s multiple legal and factual flaws and deeming it not in the interest of justice for the class action to proceed,” the company states. 

It adds that the grant of the right to appeal is simply a recognition by the High Court that an appeal to another Court is a viable option for the claimants to follow in the South African legal process.

Anglo American posits that this does not undermine the High Court decision that dismissed the application in December 2023.

The company says it will oppose any appeal that may follow.

“As Anglo American has stated throughout, it has every sympathy for the situation in Kabwe, but is not responsible for it. Anglo American has stated from the outset that this claim is entirely misconceived,” the company posits.