'We'll defend ourselves', says Anglo as Zambian lead poisoning class action intensifies

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The offices of Anglo American in Marshalltown, Johannesburg.
The offices of Anglo American in Marshalltown, Johannesburg.
Chris Ratcliffe/Bloomberg via Getty Images
  • Human rights lawyers have submitted further expert evidence to support their claims against Anglo American.
  • The diversified miner stands accused of causing lead poisoning in the Kabwe district of Zambia.
  • A hearing into certifying the matter as a class action is expected to be heard this year still.

Human rights lawyers have filed further evidence with the South Gauteng High Court in Johannesburg to bolster their case against Anglo American, which stands accused of causing widespread lead poisoning to communities around the Kabwe mine, with devastating consequence for human health.

The latest evidence filed by human rights law firms Mbuyisa Moleele and Leigh Day, which includes reports from renowned medical and environmental experts, shows there are high levels of lead in the blood of thousands of children living in the vicinity of the Kabwe mine, which has been ongoing for generations and will have caused the cognitive impairment of a large proportion of the population. It further lays much of the blame at the feet of Anglo American.

Kabwe is Zambia's oldest mine. The resource, which primarily contains zinc and lead, was discovered in 1902 and reached full-scale production in 1906. In 1974, the Zambia Consolidated Copper Mines (ZCCM) assumed majority ownership and control of the mine. The operation closed in 1994 after 88 years of continuous production.

The law firms have approached the Johannesburg High Court for permission to proceed with a class action in South Africa. The case is brought on behalf of 100 000 community members who are believed to have been poisoned by lead.  

Blood lead levels of 10ug/dl (micrograms of lead per deciliter of whole blood) can cause cognitive impairment and behavioural problems. Nine out of 12 representative plaintiffs have blood lead levels exceeding 45ug/dl, the level at which chelation therapy intervention for lead poisoning - a process to flush metals and minerals from the bloodstream – is medically required. Two of the plaintiffs have blood lead levels exceeding 100 ug/dl.

'No level of lead in blood is safe'

In response to Anglo's medical experts, who have downplayed the impact of certain blood lead levels, the claimants say international bodies recognise that no level of lead in the bloodstream is considered safe.

Further, the "extraordinarily high and sustained blood lead concentrations" - experienced by the plaintiffs who reside in Kabwe District - has had a detrimental impact on their overall health, but especially in poorer birth outcomes, diminished cognitive abilities, and behavioural problems.

Anglo and its experts claim there were reasons, unrelated to the company's activities, for the lead to be present in the environment. It also accused ZCCM of recklessness and negligence in operating the mine after 1974.

The expert testimony put forward in this week's replying papers however conclude that the present lead contamination of the soil and dust and in the blood of the communities in Kabwe District emanated mainly from the Kabwe lead smelter and waste dumps prior to 1974.

An earlier affidavit filed with the court also contained testimony from Ian Lawrence, a doctor at the Kabwe mine from 1969 until the early 1970s, who said Anglo knew of widespread severe lead poisoning in Kabwe as early as 1970.

Zanele Mbuyisa, partner at Mbuyisa Moleele, said the latest filing submits further strong evidence to demonstrate the inextricable link between Anglo’s operations and the ongoing contamination in Kabwe. "This is in stark contrast to Anglo’s untenable lines of argument, which attempt to pin the blame on anyone but themselves," she said.

Richard Meeran, partner and head of the international department at Leigh Day, told Fin24 the evidence shows Anglo has been aware for decades of the scale and severity of lead poisoning to the children of Kabwe and yet it has done nothing to alleviate their suffering.

Before a class action may be instituted, the potential plaintiffs must obtain permission from a court, resulting in the certification of the class.

Anglo has opposed the class action. A hearing to decide the matter is expected to take place later this year.

Compensation sought

The class action would seek compensation for children, as well as for girls and women with lead poisoning who have or may become pregnant in the future. Also sought is blood lead screening for children and pregnant women in Kabwe and clean up and remediation of the area to ensure the health of future generations of children and pregnant women is not jeopardised. 

Small children particularly are affected by ingestion of lead and lead poisoning, as are girls and women who have had children or may become pregnant in the future. The medical evidence shows that women who have had significant exposure [to lead] as small children, that lead will have been absorbed into their bones and can be or will be released into the blood during pregnancy. Then it can affect the pregnant woman herself in the form of, for example, pre-eclampsia. And it also crosses the placenta to the unborn child," said Meeran.

"These are not controversial things to say. This is pretty well established that this happens."

Asked what kind of price could be placed on the harm suffered, Meeran was unable to say.

"If you have 100 000 people who have suffered lead poisoning, to various degrees, then that's obviously a very substantial claim," he said, adding: "It's a scandal."

The human rights lawyers say the matter should be heard in Johannesburg, not just because this is Anglo American's South African domicile, but also because such a case could not be brought in Zambia. Zambian law does not allow for class actions and lawyers there are also not allowed to represent clients on a contingency fee basis.

'We're not responsible'

Sibusiso Tshabalala, spokesperson for Anglo in South Africa, told Fin24 that while the group sympathises with the people of Kabwe and their plight, "we do intend to defend ourselves because we do not believe that we are responsible for the current situation". 

Anglo argued that the mine operator was Zambia Broken Hill Development Company, and Anglo only provided certain services to the mine. Further, Tshabalala said, there are several factual errors in Dr Lawrence’s recollections, "perhaps not surprisingly given the passage of time and his own admission that he is not certain of many details".

Also, Anglo said, the mine was nationalised in the early 1970s and was operated by several Zambian entities for 20 years until closure. "The claim fails to take into account this period, as well as the role of a number of parties in the post-closure management of the mine site during the 27 years since 1994". 

Anglo said ZCCM’s own records show there was a significant deterioration of operating standards post-1974 and that the period post-1989 "most likely represents the worst period of lead pollution, in the history of the Kabwe Mine".

Particularly misleading, Tshabalala said, is the assertion that there is a linear correlation between volumes of lead produced over time and contamination.

"We believe that this assertion is fundamentally flawed, because of the implementation over time of improving technologies to reduce emissions, and the apparent subsequent failure to maintain the efficacy of some of those technologies post nationalisation," he said.

Meeran said Anglo American South Africa’s liability arises from its alleged management, control and oversight of technical and medical aspects of the Kabwe operations, and the advice that it gave to the mine in this regard.

Developments in English law have established the principles that would impose a legal duty of care on a multinational parent company in such circumstances and consequently, he said, ownership or operation of the Kabwe mine is irrelevant to the claim.

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