Anglo American South Africa Limited v Kabwe and 12 Others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: L Windell J
• Judgment Date: 26 October 2021
• Court: Gauteng Local Division, Johannesburg
• Docket Number: 2020/32777
• Citation: 2022 JDR 2294 (GJ)

Windell J:

INTRODUCTION:

[1]

Before this court are two interlocutory applications. In the first, the extension application, the applicant, Anglo American South Africa Limited ("Anglo"), sought an order extending the time for the filing of its answering affidavit in an application to certify a class action against Anglo ("the certification application"). In the second, the compelling application, Anglo sought to compel the respondents to disclose certain documents referred to in their founding affidavit, supporting affidavits and annexures, pursuant to Rule 35(12), alternatively Rule 35(13) and (14), alternatively in terms of the court's power to regulate and protect its own process in section 173 of the Constitution.

[2]

The proposed class action is exceptional. The respondents intend to claim damages in tort from Anglo on behalf of children and women of child-bearing age who reside in the Kabwe district in Zambia, due to alleged lead pollution from the Kabwe Mine, which operated in the town of Kabwe from 1906 to 1994. Kabwe, previously known as "Broken Hill", has some of the highest levels of lead pollution in the world. The cause of action is based upon Anglo's alleged involvement in the affairs of the mine between 1925 and 1974, thus starting and ending 97 and 47 years ago respectively. All the respondents (who are the intended class representatives and the applicants in the certification application) and the estimated 100 000 people comprising the proposed classes, reside in Kabwe and the cause of action is said to be governed by Zambian law.

[3]

Not only is the proposed class action itself a novelty in the South African jurisprudential landscape, but so too is the estimated costs and funding model. The Zambian clients are represented primarily by Leigh Day Solicitors ("Leigh Day") who are based in the United Kingdom ("UK") and, secondarily, by South African attorneys

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Mbuyisa Moleele Attorneys ("MM Attorneys") as well as several counsel. The primary role of the UK solicitors is evident from the "Budget Summary" annexed to the respondents' answering affidavit, which indicates that their fees are projected to exceed the combined total of the South African attorneys' and counsels' fees by over 270%. All parties to the funding scheme (bar MM Attorneys) are located outside of South Africa and thus not subject to this court's jurisdiction. Unlike other funding agreements in previous class actions in South Africa, the funding for this matter is not furnished through a foreign law firm. The proposed class action is funded by a third- party funder, Kabwe Finance Limited ("Kabwe Finance") which is registered in the UK. Kabwe Finance is a majority-owned subsidiary of Augusta Cayman Limited (a Cayman Islands company) and is managed by Augusta Ventures Limited ("AVL"). It was established solely to fund the proposed class action and is funded through investment vehicles managed by Bybrook Capital LLP ("Bybrook"), a UK-based fund manager. Anglo avers that, despite the respondents' averment that the funding scheme is "comprehensively addressed in the founding papers" it is not clear who the ultimate source of the funding is, but only that it is channelled through Bybrook's subsidiaries registered in Luxemburg.

[4]

MM Attorneys estimate that the costs of the class action will be approximately R95 million "to trial". The respondents allege that Kabwe Finance will pay for all budgeted disbursements and 62% of the budgeted legal and consulting fees of MM Attorneys, South African counsel and Leigh Day, with the remaining 38% of the budgeted and unbudgeted fees and costs to be contingent on a successful outcome in the litigation. Legal fees, consulting fees and disbursements to be paid by Kabwe Finance are paid in terms of a "Case Budget". On a "successful outcome" in the litigation (as variously defined in the respective agreements which the respondents have thus far disclosed)

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Kabwe Finance is entitled to a return on its investment (a "Funder's Return"), being 25% of any award which the class may receive plus all taxed costs (except for unbudgeted costs which accrue to the lawyers). Kabwe Finance has taken "after-the- event" ("ATE") insurance with International General Insurance Co (UK) Ltd ("IGI"), ostensibly to meet an adverse costs order if the litigation is unsuccessful.

THE EXTENSION APPLICATION:

[5]

In the extension application, Anglo sought an order extending the time for the filing of its answering affidavit in the certification application until end August 2021, alternatively, it sought condonation for the late filing of its affidavit. On the day of the hearing this court granted an order (with reasons to follow) and allowed Anglo to file its answering affidavit on 31 August 2021.

[6]

Anglo brings the extension/condonation application in terms of Uniform Rule 27. It is trite that remedies provided in this Rule "cannot be had for the mere asking" and require demonstration of "good cause". What is more, the explanation given must be reasonable. The respondents contended that Anglo had breached the rules and agreed deadlines; that it had failed to properly explain its failures; and that the extension application was an abuse of process.

[7]

The primary reason for granting the extension was because it was in the interests of justice to do so. [1] Anglo had filed a comprehensive and detailed affidavit explaining the reasons for the extension application. The facts giving rise to the proposed class action pertain to events at the mine which occurred as far back as nearly 100 years ago. Anglo's alleged involvement in the mine started in 1925 and came to an end in

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1974 by which time it had been nationalised by the Zambian Government. The case is premised on extensive historical, technical and factual allegations, mostly contained in records in an archive in Zambia, where effective access has been difficult and hampered by COVID-19. The respondents rely on extensive expert evidence which needs to be evaluated and responded to, which equally requires access to information primarily in Zambia. The founding papers exceed 2 600 pages filed in 13 lever-arch files, which include eight reports from experts. The respondents and their legal representatives have spent at least 3 years preparing the application and investigations and other work into the case goes back more than 17 years before it was launched.

[8]

Taking into consideration the nature of the relief sought, the extent and cause of the delay, the effect of the delay on the administration of justice and other litigants, the reasonableness of the explanation for the delay, and the importance of the issue to be raised in the intended class action, Anglo's application for a four-month extension to file its answering papers, was reasonable in context. The interests of justice required that Anglo be provided a proper opportunity to answer the respondents' case on certification, and the opposition to its extension application was not justified.

THE APPLICATION TO COMPEL:

[9]

Anglo launched this application, to compel the production of 11 categories of documents. With respect to five categories of documents, the respondents have either now produced the requested information or have provided explanations why they cannot do so. Anglo persists in seeking six categories of documents to be produced, all of which relate largely to the respondents' proposed funding scheme in the class action. They are:

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1. The copies of the "Class Member Retainer" or "Client Funding Agreement" as signed by persons purporting to be or to represent class members (prayer 1.1);

2. The Funding Application (prayer 1.4);

3. The Case Budget (prayer 1.5);

4. The full, unredacted ATE Insurance Policy (prayer 1.8).

5. The reports as specified in the March 2020 and December 2020 Consultancy Agreements between MM Attorneys and Leigh Day. (prayers 1.10 and 1.11 respectively) .

[10]

It is common cause between the parties that the court, in assessing whether the interests of justice favour the certification of the class action, will take into account several issues. They are, including amongst others, whether the class representatives are adequately funded to run the litigation; whether there exists any conflict of interest between the class members, the class representatives, the legal representatives and the funder, Kabwe Finance; the extent to which the class representatives and class members exercise control over the litigation; and whether Kabwe Finance (and others) are in a position to exert undue influence over the litigation. [2]

[11]

Anglo submits that the documents sought are relevant to determine the central issues in the certification proceedings. This includes the appropriateness and adequacy of the funding of the litigation, including Kabwe Finance's understanding of the risks and benefits attendant upon the funding arrangement. It is submitted that the documents will, inter alia, show whether Kabwe Finance's return on investment -25% of the claims plus all budgeted costs and disbursements - is a reasonable ex ante reward for the risk assumed and who is in control of the litigation and whether Kabwe

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Finance, incentivised by profit, may be able to take over and control litigation for their own benefit at the risk of the respondents and proposed classes. It is submitted that the respondent's proposed class action significantly exceeds the anticipated complexity and cost of a typical class action due to the several extraordinary features, which Anglo says should "raise serious questions regarding the interests of justice in the certification application".

[12]

The respondents contend that Anglo's requests for the relevant documents are abusive and a mere delaying tactic as...