Authored By: Nancy Mangenyu
Introduction
The case Various Parties obo Minors and Another v Anglo American South Africa is a landmark environmental and human rights lawsuit addressing corporate accountability for lead poisoning in Kabwe, Zambia.[1] It is significant because it tests whether South African courts can hold multinational corporations liable for transnational harm affecting vulnerable communities. This is one of the largest environmental class actions in Africa, raising questions about whether South African courts can certify claims for foreign victims. The case highlights the right to health, right to a clean environment, and access to justice for marginalized communities. It challenges the limits of liability for multinational corporations operating abroad. The outcome could set a precedent for cross-border class actions in South Africa, influencing global debates on corporate responsibility.
Facts of the case
The case was a class action by two classes of the residents of Kabwe (Zambia), namely children and women of bearing age, the applicants referred to as various parties Obo minors against the mining company Anglo American South African Limited as the respondent. It also involved Amnesty International, the South African Litigation Centre, the United Nations Special Rapporteur on Toxics and Human Rights, the United Nations Special Rapporteur on Extreme Poverty and Human Rights, the United Nations Special Rapporteur on the Rights of Persons with Disabilities, the United Nations Working Group on Business and Human Rights, the United Nations Working Group on Discrimination Against Women and Girls as amicus curiae. The applicants were represented by Mbuyisa Moleele (MM), with London law firm Leigh Day (LD) acting as consultants, in addition to a large team of counsel. Anglo’s team was similarly comprised, as it had retained the London-based Freshfields Bruckhaus Deringer (Freshfields), in addition to a large team from Webber Wentzel.
In the case, an estimated 140 000 children and women of child-bearing age in Kabwe, Zambia alleged that they had been poisoned by lead left behind by the Kabwe Mine, formerly known as the Broken Hill Mine (‘the Mine’), which was within the Anglo- American Group for almost 50 years. Lead poisoning can cause serious and often irreversible permanent damage to organs and the neurological system. A claim arising from environmental contamination of villages near the ‘Mine’ (formerly known as Broken Hill), in the District of Kabwe, Zambia was filed. Medical studies conducted over the past 54 years consistently showed massive levels of lead in a significant proportion of young children in Kabwe affecting generations of children. The Mine operated between 1906 and 1994 and is alleged to have been subject to management and technical advice on medical and environmental matters from AASA from 1925 until 1974. AASA, a South African wholly owned subsidiary of London-headquartered multinational mining company Anglo American PLC and held all the South African assets of the Group. The class action sought compensation for lead poisoning of these children and for women under 50 who had been poisoned and who had, or may become pregnant, in the future. The cost of remediation of homes and of future blood lead screening was also claimed.
In January 2023, an application for certification of the class action was heard over 10 days. A class action in South Africa is the only realistic and feasible means for the claimants to obtain access to justice. In December 2023 the court dismissed the application. The claimants considered that judgment to be fundamentally flawed and subsequently filed an application for leave to appeal. On 19 April 2024, the Johannesburg High Court granted permission to appeal the December judgment that had dismissed certification of the class action. In this decision to permit an appeal, Justice Leonie Windell stated 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 was still being developed in South Africa, and that there were current matters of law of public importance which directly implicated constitutional rights.
Legal Issues
Three central legal issues were identified. The first was the jurisdiction over foreign claimants, the applicants sought certification of a class action on an opt-out basis, including foreign peregrini (non-residents). The court held that South African courts cannot assert jurisdiction over foreign claimants unless they expressly submit to jurisdiction. This raised a fundamental question: whether South African courts can adjudicate transnational disputes involving harm suffered abroad.
The next issue to be discussed was the prescription and choice of law. The court applied Zambian limitation statutes, finding that many claims (particularly those of adult women) were time-barred. This issue highlighted the complexity of choice of law in cross-border litigation: should South African or Zambian law govern liability and limitation periods? The ruling emphasized that courts must respect foreign statutes of limitation when harm occurred outside South Africa.
Another legal issue that was discussed was the certification of the class action. The applicants failed to establish a prima facie case against Anglo American South Africa. The court stressed its duty to screen class actions to ensure they are in the interests of justice. There were problems that included the overbreadth of class definitions, that is, the mismatch between defined classes and triable issues. There were also concerns that the case would burden South African courts with what is essentially a Zambian dispute. Lastly, there was lack of sufficient evidence to justify certification.
Issues and Arguments
Applicant’s Arguments
In the applicants’ arguments, their main contention was that Anglo American South Africa (AASA) bore responsibility for the management of the Kabwe mine between 1925–1974, during which widespread lead contamination occurred. They contended that AASA owed a duty of care to the local community, particularly minors and women of childbearing age, and breached this duty by failing to prevent foreseeable harm. The legal provisions they relied on were the South African law of delict principles, which are negligence, duty of care, foreseeability and the constitutional rights such as the right to health and environment found in the South African Constitution.[2] The applicants cited precedents from Mukaddam v Pioneer Foods (2013)[3] and Children’s Resource Centre Trust v Pioneer Foods (2012),[4] which established the framework for class action certification in South Africa. They argued these precedents supported certification in the interests of justice. They urged a broad constitutional interpretation, emphasizing access to justice for vulnerable communities and the extraterritorial application of corporate accountability principles.
Respondent’s Arguments
To counter the applicant’s argument, Anglo American denied operational responsibility, arguing it was only a shareholder and not directly involved in mine management. They contended that liability could not extend decades after their involvement ended. The respondent also argued that Zambian law governed the dispute, including limitation statutes, which rendered most claims prescribed. They emphasized that South African courts lacked jurisdiction over foreign claimants who had not submitted to jurisdiction. Anglo American distinguished Mukaddam[5] and Children’s Resource Centre[6], noting those cases involved South African claimants and domestic harm, unlike the present transnational dispute. They defended their position by asserting that responsibility for remediation lay with the Zambian government and subsequent operators, not Anglo American. They argued that certification would unfairly burden South African courts with foreign disputes. This clash of arguments framed the case as a test of corporate accountability across borders, jurisdictional limits, and the scope of class action law in South Africa.
Court’s Reason and Analysis
The court interpreted relevant statutes and constitutional provisions narrowly. While petitioners invoked the right to a healthy environment, the court emphasized that the harm occurred in Zambia, making Zambian law the applicable framework.[7] It applied Zambian limitation statutes, holding that many claims were prescribed. The court also interpreted South African class action principles under Children’s Resource Centre Trust v Pioneer Foods (2012)[8] and Mukaddam v Pioneer Foods (2013)[9], stressing that certification must serve the “interests of justice” and cannot extend jurisdiction to foreign claimants without consent. The court in Children’s Resource Centre Trust noted that while certification is possible, it requires a prima facie case and manageable class definition.[10] In Mukaddam it was reinforced that certification is discretionary and must balance access to justice with judicial efficiency.[11]
The court distinguished these precedents, noting they involved domestic harm and South African claimants, unlike the present transnational dispute. They accepted the respondent’s arguments on jurisdiction and prescription. The court agreed that South African courts cannot exercise jurisdiction over foreign claimants who have not submitted, and that Zambian limitation laws barred many claims. They rejected the petitioners’ broad reliance on constitutional rights and corporate accountability. The court found insufficient evidence linking Anglo American directly to operational negligence and rejected the argument that constitutional provisions could override foreign limitation statutes.
The court balanced access to justice for vulnerable communities against judicial efficiency and jurisdictional limits. While sympathetic to the plight of Kabwe residents, it prioritized legal certainty, respect for foreign law, and manageable litigation. The ruling underscored that South African courts cannot become forums for global environmental disputes without clear jurisdictional grounds. In essence, the judgment reaffirmed the limits of South African class action law in transnational corporate accountability cases, while clarifying the interplay between constitutional rights, foreign statutes, and judicial discretion.
Outcome
The court ruled that South African courts cannot exercise jurisdiction over foreign claimants (peregrini) unless they voluntarily submit. Thus, the class action could not include Zambian residents who had not submitted to jurisdiction. The court applied Zambian limitation statutes, holding that many claims were prescribed (time-barred), particularly those of adult women and denied certification of the class action, finding that the applicants failed to establish a prima facie case against Anglo American South Africa and that the proposed class definition was overly broad. The appeal was dismissed, no relief was granted to the petitioners and the court emphasized that proceeding would not serve the interests of justice, given jurisdictional and evidentiary shortcomings.
Critical analysis
The judgment clarified the limits of South African jurisdiction in transnational class actions. It confirmed that foreign claimants (peregrini) cannot be automatically included unless they submit to jurisdiction and reinforced that foreign limitation statutes apply when harm occurs abroad, even if constitutional rights are invoked domestically. South African courts cannot serve as global forums for corporate accountability disputes without clear jurisdictional grounds. The consequences are that victims of environmental harm abroad face hurdles in accessing South African courts. The Kabwe residents’ claims were barred, leaving them to pursue remedies in Zambia.
Conclusion
The judgment in Various Parties obo Minors and Another v Anglo American South Africa clarified the limits of South African courts in handling transnational class actions.[12] It established that jurisdiction cannot extend to foreign claimants without consent, and foreign limitation statutes must be respected. The key takeaway is that certification of class actions requires a prima facie case, manageable class definition, and clear jurisdictional grounds. Its lasting impact lies in restricting South Africa’s role as a forum for global corporate accountability. Future implications include unresolved questions about access to justice for victims of cross-border harm and potential legislative reform.
This landmark case firmly defined the boundaries of corporate liability in transnational environmental disputes, shaping the trajectory of class action law in South Africa.
Reference(S):
[1] V arious Parties obo Minors and Another v Anglo American South Africa [2023] ZAGPJHC 121 (GJ).
[2] Constitution of the Republic of South Africa, 1996, s 24.
[3] Mukaddam v Pioneer Foods (Pty) Ltd [2013] ZACC 23, 2013 (5) SA 89 (CC).
[4] Children’s Resource Centre Trust v Pioneer Foods (Pty) Ltd [2012] ZACC 32, 2013 (2) SA 213 (CC).
[5] Mukaddam v Pioneer Foods (Pty) Ltd [2013] ZACC 23, 2013 (5) SA 89 (CC).
[6] Children’s Resource Centre Trust v Pioneer Foods (Pty) Ltd [2012] ZACC 32, 2013 (2) SA 213 (CC).
[7] Constitution of the Republic of South Africa, 1996, s 24.
[8] Children’s Resource Centre Trust v Pioneer Foods (Pty) Ltd [2012] ZACC 32, 2013 (2) SA 213 (CC).
[9] Mukaddam v Pioneer Foods (Pty) Ltd [2013] ZACC 23, 2013 (5) SA 89 (CC).
[10] Children’s Resource Centre Trust v Pioneer Foods (Pty) Ltd [2012] ZACC 32, 2013 (2) SA 213 (CC).
[11] Mukaddam v Pioneer Foods (Pty) Ltd [2013] ZACC 23, 2013 (5) SA 89 (CC).
[12] Various Parties obo Minors and Another v Anglo American South Africa [2023] ZAGPJHC 121 (GJ).
