Cape/Gencors asbestos mining & milling activity, South Africa

Description

In 1997, a group of five South Africans suffering from asbestos-related disease (ARD) brought suit against Cape PLC in the English High Court seeking compensation for their injuries from Cape’s asbestos mining and milling activity in South Africa. The plaintiffs, former Cape workers and individuals living in the vicinity of Cape’s operations, alleged that Cape exposed its workers to 30 times the British legal limit of asbestos dust without adequate protective gear and that asbestos related injuries were suffered by those living near Cape’s asbestos operations.

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Basic Data
NameCape/Gencors asbestos mining & milling activity, South Africa
CountrySouth Africa
SiteCape Town
Accuracy of LocationMEDIUM regional level
Source of Conflict
Type of Conflict (1st level)Mineral Ores and Building Materials Extraction
Type of Conflict (2nd level)Mineral processing
Mineral ore exploration
Specific CommoditiesAsbestos
Project Details and Actors
Type of PopulationUrban
Company Names or State EnterprisesCape PLC from United Kingdom
Gencor from United States of America
Environmental justice organisations and other supportersLeigh Day & Co., specialist law firm, http://www.leighday.co.uk/Home
The Conflict and the Mobilization
Intensity of Conflict (at highest level)LATENT (no visible organising at the moment)
When did the mobilization beginMobilization for reparations once impacts have been felt
Groups MobilizingIndustrial workers
Neighbours/citizens/communities
Forms of MobilizationLawsuits, court cases, judicial activism
Impacts
Health ImpactsVisible: Exposure to unknown or uncertain complex risks (radiation, etc…), Occupational disease and accidents
Potential: Deaths
Otherasbestos-related disease
Socio-economic ImpactsVisible: Violations of human rights
Potential: Lack of work security, labour absenteeism, firings, unemployment, Loss of livelihood
Outcome
Project StatusStopped
Pathways for conflict outcome / responseCompensation
Environmental improvements, rehabilitation/restoration of area
Project cancelled
Do you consider this as a success?Not Sure
Why? Explain briefly.After the claim was filed, Cape applied to stay these claims on forum non conveniens grounds, arguing that the case should be tried in South Africa. At the beginning of 1998, Cape’s application was granted by the trial court, but the Court of Appeals later reversed the lower court’s decision. In 1999, another 2000 claims were commenced against Cape in England for ARD based on Cape’s activity in South Africa. Cape reapplied to stay these new claims, in addition to those filed in 1997, and Cape’s application was granted. On appeal, the Court of Appeals affirmed the lower court’s ruling. The plaintiffs then appealed to the UK House of Lords, and in 2000 the Law Lords held that the case should be allowed to continue in the English High Court. The Law Lords found that South African courts would not be a viable alternative forum because legal aid in South Africa had been withdrawn for personal injury claims and no reasonable likelihood existed for the plaintiffs to acquire effective legal representation on a contingency fee basis for a case of such complexity. After the House of Lords decision, more claimants joined the case, and by 2001 there were approximately 7500 claimants. In 2001, Cape agreed to a £21 million out-of-court settlement with the plaintiffs, but the company encountered financial problems in August 2002 and did not meet the agreed settlement terms. Therefore, the litigation recommenced in September 2002, and Gencor Ltd. was joined as a defendant in the case. Gencor is a South African company which took over some of Cape’s South African asbestos operations when Cape left the country in 1979.

In 2003, the plaintiffs, Cape and Gencor reached a settlement agreement. There were three parts to the settlement. First, Gencor established and now administers a £35 million trust in South Africa (the trust is to compensate ARD victims in South Africa who were not represented by Leigh Day & Co.). Second, Cape settled with its 7500 claimants for £7.5 million. Third, Gencor settled with the 7500 claimants for approximately £3 million.

Generally, asbestos mining stopped in South Africa in the mid-1980s, but people are still being diagnosed with ARDs like mesothelioma and asbestosis on a regular basis, while many more continue to be at risk from unrehabilitated sites.
Sources and Materials
Legislations

UK House of Lords: Judgments - Schalk Willem Burger Lubbe (Suing as Administrator of the Estate of Rachel Jacoba Lubbe) and 4 Others and Cape Plc. and Related Appeals, 20 July 2000 [House of Lords decision]

References

Gill Nelson, Jill Murray and James Ian Phillips, The Risk of Asbestos Exposure in South African Diamond Mine Workers,
[click to view]

Mc Cullok, Beating the odds, the quest for justice...
[click to view]

J. C. Wagner, C. A. Sleggs, Paul Marchand, Diffuse Pleural Mesothelioma and Asbestos Exposure in the North Western Cape Province
[click to view]

Links

All links are provided in the Business & Human Rights Resource Centre webpage at:
[click to view]

World Asbestos Report
[click to view]

Action for Southern Africa: 'Cape Caves in on South African Asbestos Case', 13 Mar 2003

Cape PLC: Cape Annual Report 2003 [scroll to page 47, item 26(ii) for discussion of 2003 settlement]

Leigh Day & Co. (plaintiffs' counsel): South African Asbestos Victims Finally Get Their Money, 30 Jun 2003

Thompsons Solicitors (counsel for claimants suing Gencor): Landmark Settlement Brings Justice for Thousands of SA Former Asbestos Miners, 13 Mar 2003

Meta Information
ContributorIrene Pietropaoli
Last update08/04/2014
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