High Court dismissed class action certification
On 15 December 2023, the High Court of South Africa dismissed the claimants' application for certification of a class action.
In its judgment, the court recognised the multiple legal and factual flaws in the claim and deemed that it is not in the interests of justice for the class action to proceed. The Court’s judgment included the following conclusions:
"In this application the applicants seek permission to advance an untenable claim that would set a grave precedent. The precedent is that a business could be held liable half a century after its activities have ceased, to generations not yet born, as a result of being tested against future knowledge and standards unknown at the time.
"In addition, the applicants seek to have certified classes that are plainly (and grossly) overbroad geographically; they do not seriously dispute that the women class is mostly made up of prescribed claims; they rely on a conception of 'injury' that is legally incorrect and which renders the proposed classes vague and misleading; and they impermissibly ask this court to assert jurisdiction over an entirely foreign class on an opt-out basis.
"In addition to the absence of a prima facie case, which disposes of the application, the trial would be unmanageable if the class definitions were certified on the broad basis sought by the applicants. According to the applicants' version, the proposed classes would total between 131 000 and 142 000 people. Every one of these people would have to prove, amongst other things, in the second stage of the class action, that they suffer from a malady that can be caused by lead exposure; that the malady has, as a matter of fact, been caused by lead exposure, rather than, for example, genetics or malnutrition; and that their lead exposure is due to soil contamination by the Mine during the relevant period, rather than, for example, artisanal mining.
"An unmanageable class action is one that would take an extremely long time to be completed, if it is completed at all. The applicants effectively concede unmanageability. The applicants claim in argument that it would take ten years for their legal team merely to take instructions from every member of the proposed classes. If this is so, it would take much longer for a South African court to assess the claim of each class member in the second stage. It bears emphasis that an unmanageable class action is not only adverse to Anglo’s interests: It undermines the applicants’ access to justice.
"Under the circumstances it is proper and necessary to dismiss the certification application."
COSTS AWARDED IN FAVOUR OF AASA
Underlining the High Court’s dismissal of the class action application, the Court also ruled that the applicants must pay Anglo American’s costs incurred in responding to the application. The Court noted that the applicants’ law firms and their funders had procured insurance to cover such legal costs, so there would be no impact on potential claimants:
"In De Bruyn, Unterhalter J refused certification and awarded costs to the respondents on two bases: Firstly, that the applicants had failed to make out a triable issue, and secondly, because the case was funded by commercial litigation funders. Both reasons exist here.
"The applicants argue that an adverse costs order would have a chilling effect on class actions raising human rights. The argument falls to be rejected. The prospect of an adverse costs order has had no effect on the applicants' funders. They have procured insurance to pay for costs in the event of an adverse costs order and are litigating with gusto. Neither the applicants, nor their attorneys, nor their funders would pay an adverse costs order out of their own pockets.”
