Nairobi-based APA Insurance is seeking to expand its business to micro insurance, which targets low-income people and has been largely under-penetrated ... in Kenya where two-thirds of its nearly 55 million population is mired in poverty.
The UN special rapporteurs, along with Human Rights Watch, are seeking leave to be allowed to argue in favour of the class action proceeding.
The hearing which will decide whether they are allowed to do so will be held on 11 November, Richard Meeran, lead counsel at the Leigh Day law firm, tells The Africa Report.
The high court in Johannesburg will sit between 20 January and 31 January to decide whether to allow the class action to proceed.
Special rapporteurs are UN-appointed independent experts who are given responsibility for monitoring specific human rights. A group made up of special rapporteurs on toxics, extreme poverty, physical and mental health, disability rights, business and human rights, and discrimination against women is making the application.
The class action, which is being paid for by the Augusta Ventures litigation fund was filed in October 2020 and is estimated to represent more than 100,000 people.
The claim arises from the contamination of villages close to the Kabwe lead mine, formerly known as Broken Hill. Medical studies over the past 45 years have shown higher-than-usual levels of lead in a significant proportion of young children in Kabwe.
Human Rights Watch has said more than one-third of Kabwe’s population of 76,000 now live in lead-contaminated areas.
- Lead is stable and does not easily corrode. Once released into the environment it usually stays there and does not degrade.
- The heads of argument presented by the plaintiffs say that Kabwe is one of the world’s most lead-polluted places.
- “Kabwe residents have been exposed to lead since birth and continue to be exposed chronically in a highly contaminated environment,” with consequences including brain damage to children, the heads of argument state.
Anglo American South Africa was a shareholder in the mine between 1925 and nationalisation in 1974. Anglo American denies that it ever operated the mine and says employee health was not its responsibility.
The company also argues that there was a deterioration of operating standards after nationalisation in 1974 and that air pollution control devices that had been put in place were not properly used.
The case is being presented in South Africa because that is where Anglo America is domiciled, Meeran says.
It would not be feasible for the case to be heard in Zambia because lawyers there can’t operate on a “no win, no fee” basis, he says.
Unlike Zambia, South Africa allows class actions to be brought by representatives of the group without the whole group needing to be consulted, he adds.
The case will be considered on the basis of Zambian law as that is the jurisdiction where the harm was suffered.
Meeran expects the move to work in favour of the plaintiffs as Zambian law follows English law. He cites the precedent of the UK Supreme Court decision in 2019 in the Vedanta versus Lungowe case.
- The court found that Zambians could pursue a claim for environmental pollution against Vedanta Resources, and that a parent company may owe a duty of care to persons harmed by the actions or omissions of a foreign subsidiary.
- Even if the class action is accepted in January, the case would remain years from coming to court.
- Meeran says it’s in the interests of the impoverished claimants to be compensated as soon as possible through an out-of-court settlement.
- This could also address clean-up costs and implementing a blood screening system to detect high lead levels in Kabwe, he adds.
Neither Anglo American’s image nor the inhabitants of Kabwe stand to benefit from a protracted legal stalemate.
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