Between 3-4 November 2025, the South African Supreme Court of Appeal (SCA) heard a certification appeal in the case of Kabwe and Others v Anglo American South Africa. 

The Appellants are seeking justice for 140,000 women and children in Kabwe, Zambia harmed by lead pollution from the Kabwe Lead Mine, which was within the Anglo American Group between 1925 and 1974. A previous attempt to certify the class action was dismissed in December 2023. 

DAY 1 – MONDAY 3 NOVEMBER 2025  

Appellants argue for a class action certification:    

On the first day, the Appellants argued that the 2023 decision of the High Court was fundamentally flawed, and that failure to correct it would amount to a denial of justice to an indigent community who is paying the price for Anglo’s racially segregated colonial era attitudes towards the local community that it vowed to support.  

• The denial of justice would be on a massive scale. Gilbert Marcus SC, counsel for the Appellants explained that by refusing leave, “The door would likely be closed to well over 100,000 potential claimants.” 

• Denial would close the door to a largely vulnerable and impoverished group: He added “The vast majority of these potential claimants are severely impoverished, a fact acknowledged by Anglo.”  

The court hears evidence that there was more than a triable case against Anglo:  

Following the refusal by Justice Windell in the Johannesburg High Court, the Appellants needed to demonstrate that they have a triable case on the key issues. These issues included whether Anglo could have foreseen the harm, whether it knew of the dangers and whether it materially contributed to the harm suffered by the classes.  

1. Anglo knew about the dangers of lead to the local community and knew or should have known of the dangers to future communities in Kabwe 

Gilbert Marcus SC, counsel for the Appellants argued that:  

“Knowledge of lead’s harmful effects and the tools for monitoring and investigating the impact of lead on surrounding mining communities were already well-developed and readily available.” 

“[Expert evidence acknowledges that] the longevity of lead, for decades or even centuries, accepted by 1960s, early 70s, knew of harmful effects of lead in neighbouring communities. “  

“[This is] undisputed evidence of experts, that a miner, a reasonable defendant, taking the ordinary reasonable steps required, would unquestionably have known the dangers at the time.” 

“Anglo could not [have] walk[ed] away without being aware that the pollution would persist indefinitely unless they followed the recommendations given to them by Lane and King, to get rid of the topsoil entirely. [Anglo’s own documents show that they did not do this because it] was too expensive.” 

2. Anglo failed to prevent or remediate the lead pollution that it caused:  

Gilbert Marcus SC argued that: 

“The entire district is polluted, and the most likely source is lead from the mine, majority of it [66% according to experts] was discharged under Anglo’s watch”  

Despite warnings from a medical doctor and an expert that lead pollution was “so severe that […] it was necessary to relocate the township, Anglo told them it was too expensive and likely to cause panic”. Studies by the same doctor and expert “showed that children in Kabwe were registering BLLs far in excess of the reference values that were applicable at the time. […] Even by the lower thresholds of the day, Anglo would have known that it had a catastrophe on its hands.”  

“A well-resourced mining house in Anglo’s position, exercising commonsense and reasonableness, would have monitored and investigated lead pollution in Broken Hill, Zambia using the readily available tools and methods that were common knowledge from the 1890s. […] [Instead,] Anglo failed to conduct any investigations for more than 45 years, until 1970, without any explanation” 

“[T]here is no evidence that Anglo warned the population of danger.” 

He reminded the court that the Appellants argue that Anglo was negligent on at least five different grounds, including that it “failed to investigate”, “failed to minimise lead pollution”, “failed to remediate the Kabwe environment” and failed to “notify or warn Kabwe residents and the authorities of the danger it had created and its deliberate attempt to conceal those dangers”  

Anglo continues to argue that the harms to current generations of Kabwe residents were not reasonably foreseeable due to the lax or absent lead pollution standards of the day.   

3. Certification should not be treated as a mini trial: 

The Appellants told the court that Anglo has sought to turn what ought to be a preliminary step into a mini trial, which favours corporate actors with extensive financial resources. This approach, they said, denies thousands of women and children access to the courts to have their case heard at a full trial.  

Mr Mchonachie, one of the counsel team for the Appellants stated: “[Anglo have] turned the case into mini trial, insisted the court address reams of documentation […] ignoring the [legal] threshold and very real access to justice concerns posed by [the United Nations and others].” 

The Amici argued that justice demands accountability: 

Kate Hofmeyr SC, representing the UN Special Rapporteurs and Procedures (UN Amici) argued that Anglo’s resistance to the class action is in direct contradiction with its commitments under the UN Guiding Principles on Business & Human Rights and its own policies, which demand that companies involved in harm should facilitate access to justice. She argued that these commitments weighed in favour of certifying the class on access to justice grounds. 

Responding to Justice Dambuza, who asked what was meant by “involvement”, she responded: 

“[Anglo] operated a mine in Zambia for over 50 years, extracted lead and zinc sulphates, built their empire from that mineral exploitation, knew they were releasing lead fumes and dust, knew that lead was highly toxic, knew that once lead contaminates soil it would remain for decades, even centuries, knew that their successor failed dismally. Knew women and children were impacted.” 

She continued by criticising Anglo’s resistance to the class action and alleged misuse of the class action procedure, in particular the thousands of pages and days of hearings devoted to this preliminary step, noting that “[There is a] real danger that if hearing is expensive and time consuming it will be used by a richer party to wear down a poorer party.” 

She argued that “when you have bound yourself [by UN Guidelines and company policies] you should not stand in the way of the Appellant’s access to the court.” 

DAY 2 – TUESDAY 4 NOVEMBER 2025  

Anglo American South Africa presents its defence:   

On the second day, Anglo American South Africa addressed the Appellants’ arguments and presented its case as to why the class action should not proceed. The company’s legal team argued that responsibility for the mass lead poisoning lies with ZCCM, the state-owned company that took over the mine in 1974, emphasising that “ZCCM have been aware of the potential for soil and lead contamination since 1975.” 

Justice Dambuza challenged these assertions, asking: “If these [lead poisoning] concerns were expressed by experts at the time, why would Anglo consider it unnecessary to follow up on those concerns expressed?” 

Anglo responded that while it had some knowledge of lead contamination, its understanding was limited by what was considered ‘acceptable’ at the time, based on prevailing scientific knowledge. 

Matthew Chaskalson SC, arguing for the Appellants, stated: “If you establish the risk is material, children are being poisoned, dying, you investigate. You put in place measures to ensure you don’t compound the problem; you clean up toxic mess you created. Anglo failed to discharge these obligations; as a result, today’s Kabwe community has been left with a poisonous legacy.”  

Chris McConnachie, also representing the Appellants, added: “It is telling that the time between now and when Anglo left in 1974 is the same amount of time that Anglo was in Kabwe. It had 50 years of knowledge of how the environment was being affected. Even had it been ignorant of the dangers, scope, and spread, it had no reasonable basis to be negligent.”  

In response to Anglo’s impactions that it was the wrong defendant, Mr McConnachie added: “Under our law, a litigant is entitled to pursue a wrongdoer. It is not a defence to say someone else is also responsible. Anglo cannot hide behind ZCCM, particularly not at certification.” 

WHAT HAPPENS NEXT? 

Following the two-day hearing the Appellants will now have to wait several months before a decision is handed down by the Supreme Court of Appeal, which is expected between February and June 2026.  

– ENDS – 

Contact details: 

For further information, please contact: Kabwe@Portland-Communications.com.