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The claimants have not been able to bring legal action until now. The reason that they can now do so is thanks to the development of class action litigation in the South African courts, the securing of litigation funding for the communities and the positive developments in parent company liability under English law that it is possible to make this application for certification of the proposed class action.

The class action is on behalf of (a) children (under 18) in Kabwe who are the worst affected and have the most exposure (b) girls and women who have or may become pregnant whose lead exposure gives rise to a risk of serious health problems to the mother during pregnancy and lead poisoning of the unborn child.

There is incontrovertible evidence of massive lead contamination of soil in Kabwe. By way of example, the US EPA limit is 400mg/Kg of soil in play areas. In Kasanda (one of the most affected communities) the soil level is over 3000 mg/kg

Lead enters the body when ingested or inhaled and young children are particularly affected by lead, due to their habit of hand-to-mouth and object-to-mouth contact as well as crawling and poor hand-washing, their greater rates of absorption of lead, and because their brains and bodies are still developing.

Even low levels of exposure to lead can lead to reduced IQ, behavioural problems, hearing impairment and developmental toxicity in children. Nearly all of the children in the most affected villages around Kabwe have BLL above 10μg/dl, the level at which urgent action is required to reduce exposure. Worse still various studies have found that in the most affected townships of Kabwe around half of the children up to 5 years old have BLL higher than 45μg/dl, the threshold above which medical antidote treatment, such as chelation therapy, is required. In addition to the reduced IQ and behavioural problems children with the highest BLL are at risk of Kidney damage, Severe brain damage (encephalopathy), severe anaemia and even death.

The recognised risks associated with lead exposure include:

• Reduced life expectancy and risk of premature death; Severe brain damage (encephalopathy);
  
• Neurodevelopmental effects in childhood, including but not limited to impaired and/ or diminished language development, arithmetic and reading ability, impaired short-term memory and reduced IQ, attention deficit disorder and behavioural problems; Kidney damage; Impaired liver function; Anaemia; Peripheral neuropathy;
• Gastrointestinal symptoms, including nausea, vomiting, loss of appetite, weight loss, severe stomach cramps and constipation; and
• Dementia; Male infertility; Damage to haemopoiesis (decreased haemoglobin synthesis) Reduced vitamin D metabolism; Hypertension; Ischaemic heart disease; Impaired nerve function; Increased level of erythrocyte protoporphyrin; Decreased calcium homeostasis; Hearing impairment; Decreased growth; and Impaired peripheral nerve function.

Chelation therapy is recommended for BLLs from 45µg/dL and above. However, the damage caused by lead poisoning may be permanent even if the child/resident’s exposure to lead is subsequently reduced. The scientific consensus is that there is no safe level of lead in the blood and, even at very low Blood Lead Levels (BLL) (US CDC recommended limit is 5ug/dl) lead causes neurodevelopmental and clinical and sub-clinical effects, some of which are irreversible. Chronicity of exposure has an exacerbating effect.

Once lead is in the body, it may be absorbed into the blood and then deposited in organs and bones. In this way, lead can accumulate in the body over time. Even if a child’s exposure is decreased, lead will continue to be released into bloodstream, albeit at lower concentrations than at the time of initial exposure.

Lead is also released during pregnancy. It is known to cross the placenta without being stopped, resulting in the unborn child being supplied the same concentration of lead as the mother. Not only is the baby exposed but lead causes pregnant women to have a higher risk of pre-eclampsia. According to the US CDC (2010), lead readily crosses the placenta by passive diffusion and has been measured in the foetal brain as early as the end of the first trimester.

Lead in soil is immobile once it is deposited, and consequently will stay in the environment for many decades or even centuries. Once the local environment becomes contaminated with lead, this will be highly persistent on human timescales and there is overwhelming evidence that the lead production activities at Kabwe led to widespread contamination of the local environment which persists to the present day.

The Mine is alleged to have been within AASA group control from 1925 until 1974, during which time it was one of the most productive mines in the region.

It is alleged that AASA is liable because it played a key role in controlling, managing, supervising and advising on the technical, medical and safety aspects of the operations of the mine, deficiencies which resulted in heavy contamination of the local environment with lead, which then poisoned the local community over a period of decades and several generations.

It is alleged that the risk of such harm to the community was, or ought to have been, foreseen at the time by AASA and that AASA failed to take any or any adequate steps to minimise the risk of harm to the community. Neither, even to this date, has Anglo American done anything to clean up, or facilitate the clean-up, of the ongoing lead exposure of the Kabwe community.

No. The case is against AASA not the Zambian government or the Mine's subsequent owners, Zambia Consolidated Copper Mines ('ZCCM'). According to the claimants’ experts, most of the lead that is currently in the local environment, in a form that poses a risk to the community, is likely to have been deposited between 1925 and 1974 i.e. during the period of AASA’s alleged involvement with the Mine. AASA is a highly profitable corporation which benefitted financially from its operations in Kabwe.

In 1974 AASA handed over to ZCCM, a Zambian state-owned company, a mine and operating system that was already inherently dangerous to local residents.

Anglo has stated that it does not bear responsibility for the situation in Kabwe because it was not the owner/operator of the mine, rather, it was only a minor investor. However, this argument is not legally relevant. Zambian law adopts English common law and English law imposes a duty of care where there was actual involvement by the parent company in key functions of the subsidiary relevant to the harm. The degree of shareholding, ownership and/or operation of the mine is not the issue. The claim against Anglo is based on its negligent management, control, supervision and advice given in relation to specific aspects of the Kabwe operation (particularly concerning control and monitoring of lead emissions and lead poisoning), deficiencies in which resulted in environmental lead contamination of a nature and magnitude that Anglo knew, or ought to have known, presented a significant risk of lead poisoning of the local community.

A claim framed in this manner is consistent with the principles laid down by the UK Supreme Court in the in the case of Lungowe v Vedanta.

In addition, the owner operator Zambian Broken Hill Development Corporation and Anglo American Corporation (Central Africa) Limited), Anglo American group companies that sat below AASA in the Group hierarchy, were both liquidated many years ago, and therefore cannot be sued. Anglo American's attempt to avoid responsibility by claiming it was only a minor investor and not the owner or operator should also be viewed in this context.

The case is led by Mbuyisa Moleele Attorneys in collaboration with Leigh Day.

Mbuyisa Moleele is a Johannesburg-based law firm led by Zanele Mbuyisa, and Leigh Day is a leading international law firm specialising in human rights and environmental claims. The firm has a long and successful history running class actions against multinationals for claimants in developing countries and, in particular, for individuals in Africa.

Richard Meeran, a Partner at Leigh Day, and Zanele Mbuyisa worked together on the Cape Plc case 20 years ago and on the silicosis litigation in the South African courts from 2003 to 2016. Including including on the cases of Chakalane & Ors v Anglo American & Qubeka & Ors v Anglo Gold in which Zanele was the Plaintiffs’ attorney.

The Claimants have external litigation funding from Augusta Ventures, one of the UK’s largest litigation funding organisations. Augusta Ventures is covering the experts’ fees and a substantial proportion of the legal costs, and it would not be possible for the Claimants, who are from impoverished communities to bring a case without external funding.

Under the funding arrangement, the funder will receive 25% of the damages. Mbuyisa Moleele and Leigh Day are being paid 62% of their budgeted fees by the funder. The firms will receive the 38% balance of their budgeted fees if the case succeeds.

If you have any information related to this case, we would be delighted to hear from you. Please contact: Zanele Mbuyisa on zanele@mbmlaw.co.za or Richard Meeran on rmeeran@leighday.co.uk