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20 January 2023 – UN Special Procedures intervene in toxic legacy class action concerning lead pollution in Kabwe, Zambia

    For Immediate Release

    20 January 2023

    UN Special Procedures intervene in toxic legacy class action concerning lead pollution in Kabwe, Zambia

    JOHANNESBURG — From this morning until 30 January, the South Gauteng High Court will hear arguments to determine whether the class action by the applicants of Kabwe District, Central Province, Zambia may be allowed to proceed in South Africa.

    On 25 November 2022, the South Gauteng High Court ordered that the UN Special Rapporteur on Toxics and Human Rights; Special Rapporteur on Extreme Poverty and Human Rights; Special Rapporteur on the Rights of Persons with Disabilities; as well as the UN Working Group on Business and Human Rights and the UN Working Group on Discrimination Against Women and Girls be admitted as amici curiae  (friends of the court) in an application to certify the class action against Anglo American South Africa by alleged victims of mining pollution in the Kabwe District, Central Province, Zambia. The admission of the United Nations Special Procedures was opposed by Anglo American South Africa. The Special Procedures are represented by the Legal Resources Centre.

    The applicants seek certification of a class action against Anglo American South Africa to claim damages from Anglo on behalf of two proposed classes that reside in the Kabwe district and have suffered injury as a result of exposure to lead. The applicants allege that Anglo, through its mining activities conducted in Kabwe during the period 1925 to 1974, caused and materially contributed to the ongoing harm suffered by children and women of child-bearing age in Kabwe due to their exposure to lead pollution deposited in the vicinity of the mine and its surrounds.

    Anglo denies causing the state of uncontrolled and polluted conditions in Kabwe and holds that it is not liable for any harm caused to the applicants, nor is it liable to remedy it. It alleges, amongst others, that Zambian Consolidated Copper Mines Limited (ZMCC) caused the failed state of the mine and concomitant environmental contamination in Kabwe and that ZMCC remains liable today for the rehabilitation and remediation of lead emissions in Kabwe.

    Lead is a cumulative toxicant that affects multiple body systems and is particularly harmful to young children. The World Health Organization (WHO) has identified it as one of 10 chemicals of major public health concern – needing action by member states – to protect the health of workers, children and women of reproductive age. According to the WHO, there is no level of exposure to lead that is known to be without harmful effects.

    Young children are especially vulnerable to the toxic effects of lead and can suffer profound and permanent adverse health effects and disabilities. Lead particularly affects the development of the brain and the nervous system. Pregnant women exposed to lead can result in harm to the foetus, and high levels of lead can cause miscarriage, stillbirth, premature birth and low birth weight. Lead also causes long-term harm in adults, including increased risk of high blood pressure and kidney damage.

    The South Gauteng High Court will consider arguments based on international human rights law including the Guiding Principles on Business and Human Rights which address adverse human rights impacts linked to business activity and highlight the importance of access to remedies in cases of violations.

    The UN Special Procedures will argue that Anglo made two elections: one, to commit itself to the Guiding Principles which requires businesses to promote access to justice in respect of human rights impacts and two, to oppose certification, which, if successful, would deny victims of human rights infringements access to justice. It is this type of inconsistent conduct on the part of Anglo which the UN Procedures submit should be considered as an additional factor that weighs in favour of certification in the interests of justice debate to be had before the certification court.

    They further seek to persuade the certification court to extend the principle established in the Njongi case, which states that certain litigants attract heightened duties in litigation. It will be argued that private parties such as Anglo can also attract heightened duties in litigation. Anglo’s election to commit itself to the Guiding Principles includes a commitment to support access to justice where human rights impacts have occurred. It also includes the commitment to co-operate in processes designed to establish whether there is culpability for those human rights impacts. Having elected to commit itself to these principles, Anglo must then bear a heightened duty when it considers whether to oppose certification.

    The UN Special Procedures seek ultimately to explain why Anglo’s election to abide by human rights principles has a necessary implication for the stance it took in the certification application. If the argument is accepted and Anglo’s stance is taken into account as an additional factor to weigh in the balance of what the interests of justice require, it is axiomatic that the argument will assist the certification court in its reasoning when deciding whether or not to allow certification.

    The lawsuit was filed in South Africa as Anglo’s head office is based in South Africa. For various reasons, this type of class action would be unfeasible if brought in Zambia.

    [ENDS]

    Issued by the Legal Resources Centre

    Media Enquiries:

    Cell: 068 584 2442 / Email: thabo@lrc.org.za

     

    13 December 2022 – Leave to appeal granted – applicants confident in Supreme Court win to save the Wild Coast

      For immediate release

      Leave to appeal granted – applicants confident in Supreme Court win to save the Wild Coast

      GqeberhaThis morning, the Eastern Cape High Court handed down judgment granting Shell, Impact Africa and the Minister of Mineral Resources and Energy leave to appeal to the Supreme Court of Appeal.

      This follows the leave to appeal hearing which took place on 28 November 2022 in which they appealed the historic judgment of the Makhanda High Court, handed down on 1 September 2022, which found that the exploration right granted by the Minister under the  Mineral and Petroleum Resources Development Act (MPRDA) to allow Shell to conduct seismic surveys off the ecologically sensitive Wild Coast of South Africa, was unlawful.

      In its judgment today, the court found that, while it could see no prospects of success for the appeal, it would grant leave to appeal because issues of such public importance should be heard before the higher courts. It also reiterated that the leave to appeal is granted for the entire judgment.

      The applicants who took the matter to court, including Wild Coast communities, Sustaining the Wild Coast, All Rise, Natural Justice and Greenpeace Africa, remain confident in a higher court ruling in their favour.

      In the Makhanda High Court, the main issues that we argued related to an exploration right granted to Impact Africa and Shell which would allow them to conduct seismic testing off the coastline – which the applicants argued was unlawful because of lack of meaningful public participation, lack of consideration of the cultural rights of communities and because an environmental impact assessment should have been conducted.

      On appeal, Shell, Impact Africa and the Minister of Mineral Resources brought two preliminary issues: the delay by the communities and NGO partners in the bringing of the review and whether the communities and the NGO partners should have pursued an internal appeal to the Minister prior to approaching the Court – as is required by the Promotion of Administrative Justice Act (PAJA). They also argued that they followed the letter of the law in consulting with the public, and cannot be held to higher standards than that.

      The court found that both applications “lacked reasonable prospects of success”. However, the court agreed with the parties that the significant importance of the matter justified a higher court hearing the issues.

      The communities and NGO partners also sought leave to cross-appeal the court’s decision not to consider whether Shell and Impact Africa required an Environmental Authorisation prior to commencing their seismic survey. This is because a declarator will provide clarity on the scope and nature of the obligations under the National Environmental Management Act (NEMA), as well as the MPRDA, which will then give effect to Section 24 of the Constitution.

      The cross-appeal has also been granted.

      We expect the Supreme Court of Appeal to grant us a court date next year in which the arguments will be placed before them.

      “Shell is trying to appeal against the planet and humanity, as if the environment and the people who safeguard it, have no right to be protected. The climate crisis is of great importance, they cannot make excuses any longer. We are ready to continue this fight.” Nonhle Mbuthuma, Amadiba Crisis Committee 

      “This case is a matter of life and death for coastal communities whose livelihoods depend on the ocean. This is also about a global fight against climate change. We cannot allow profiteering to drive us and our plant to extinction.”  Sinegugu Zukulu, Sustaining the Wild Coast.

      “We are not surprised by the outcome today – the court granted the leave to appeal on the basis of public importance. This case is critical for setting important judicial precedents relating to oil and gas exploration. This case deals with what constitutes meaningful public participation, and the importance of considering impacts of oil and gas developments relating to climate change, cultural heritage, and the interests of the whole marine community. We are strong on the merits and welcome the Supreme Court of Appeal’s consideration of this matter.” Melissa Groenink-Groves, Attorney at Natural Justice

      “Greenpeace Africa is not deterred by the court’s decision to grant Shell leave to appeal. The outcome of this case will have far-reaching impacts on the livelihoods of local communities and the survival of biodiverse ecosystems, and we will continue to support the Wild Coast communities’ resistance against Shell and pursue the legal avenue to stop Shell. We must do everything we can to undo the destructive colonial legacy of extractivism, until we live in a world where people and the planet come before the profits of toxic fossil fuel companies.”  Melita Steele, Greenpeace Africa Programme Director

      “We are delighted that the Eastern Cape High Court has found that the appeals had no reasonable prospects of success and has only granted leave to appeal to enable the Supreme Court of Appeal to  pronounce on these important issues. We are confident that the SCA will uphold the landmark judgment of the full court of the Eastern Cape High Court and establish important precedents that bind all divisions of the High Court.  It is particularly important that the SCA uphold the rights of both the public, and those most directly affected, to participate in decisions regarding new fossil fuel projects and ensures that no offshore exploration or drilling is authorised in the absence of a full consideration of the climate change implications, the potential impacts on marine species and people who depend on coastal environments, and a consideration of whether or not these projects are necessary and desirable.” Cormac Cullinan, Cullinan & Associates

      “Given the novelty and significance of the judgment and its extraordinary importance for communities around the country that bear the brunt of extractivism and climate change, it is in the public interest for the Supreme Court of Appeal to rule on the matter. The battle for our clients continues.” Wilmien Wicomb, Legal Resources Centre

      ENDS

      08 December 2022 – LRC welcomes investigation into alleged ring of predatory teachers

        08 December 2022

        LRC welcomes investigation into alleged ring of predatory teachers

        The Legal Resources Centre welcomes the investigation launched by the South African Police Service (SAPS) into an alleged ring of predatory teachers and other staff members at elite schools across the country. The investigation comes in the wake of the podcast ‘My Only Story’ identifying a number of sports coaches who groom and abuse pupil at elite schools.

        Educator and other school staff sexual misconduct have wide-ranging consequences for learners’ physical and psychological well-being, school performance and attendance. Schools are meant to be places of safety for learners. Instead, they have become one of the places where learners are most vulnerable to abuse. The sexual abuse of pupils goes far beyond sports coaches at elite schools; it happens in school across the board and in all provinces.

        South Africa has a comprehensive legislative framework that seeks to protect pupils and place obligations on educators and other school staff members from sexual misconduct. However, school staff members often decide not to report instances of sexual misconduct against pupils to SAPS, district education offices, and the South African Council of Educators (SACE), despite this being mandatory. Teachers, school staff members, and parents are obligated to report any reasonable belief that a child has been abused. Pupils often do not feel safe to report sexual abuse by staff members due to fear of not being believed or as a result of thinking that the perpetrator will not be punished.

        If you are a learner who has experienced or think you have experienced sexual abuse, or if you are a concerned parent or educator, the Legal Resources Centre can assist you. For assistance or more information, please contact Charlene Kreuser at charlene@lrc.org.za.

        28 November 2022 – Save the Wild Coast: Shell Appeal and Cross Appeal heard, judgment reserved

          Gqeberha Today, the Eastern Cape High Court reserved judgment in the leave to appeal application from the Minister of Mineral Resources and Energy, Impact Africa and Shell. They seek to appeal the historic judgment of the Makhanda High Court, which was handed down on 1 September 2022, and found that the exploration right granted by the Minister to allow Shell to conduct seismic surveys off the ecologically sensitive Wild Coast of South Africa was unlawful.

          The Wild Coast communities, Sustaining the Wild Coast, All Rise, Natural Justice and Greenpeace Africa, also sought leave to cross-appeal the court’s decision not to consider whether Shell and Impact Africa required an Environmental Authorisation prior to commencing their seismic survey. This is because a declarator will provide clarity on the scope and nature of the obligations under the National Environmental Management Act (NEMA), as well as the Mineral and Petroleum Resources Development Act (MPRDA), which will then give effect to Section 24 of the Constitution.

          In the September judgment, the court declined to rule on the declarator as the court found it unnecessary since the exploration right was set aside. Prior to today’s hearing, the parties agreed that the matter is of immense public interest and amounts to a “compelling reason” why leave to appeal should be granted. However, argument focused on whether the high court should refuse to grant leave to appeal on two preliminary issues which if successful, would require the Supreme Court of Appeal (SCA) to uphold the granting of the exploration right without considering the merits of whether or not it should have been granted, as well as a third issue relating to the required standard of consultation.

          The two preliminary issues were the delay in the bringing of the review and whether the communities and the NGO partners should have pursued an internal appeal to the Minister prior to approaching the court as is required by the Promotion of Administrative Justice Act (PAJA).

          On whether there was an unreasonable delay in instituting the litigation: The high court had found that the communities and their NGO partners had instituted action soon after becoming aware that the exploration right had been granted and the seismic survey was about to commence.

          Advocate Nick Ferreira (representing Natural Justice and Greenpeace Africa) pointed out that even though the parties had all agreed that the case raised issues of significant public importance, the court was still required to consider whether or not the delay argument had any prospects of success.

          Regarding consultation, Advocate Chris Loxton SC for Impact Africa conceded that Impact Africa, “could have done better” by publishing notices in isiXhosa and not just in English and Afrikaans, but that they had complied with the regulations. Furthermore, he argued that actions taken in 2013 should not be judged against today’s standards, as the standards have changed.

          The Minister, Shell and Impact Africa all argued that the SCA might differ from the high court and if it decided that the public participation process, and notifications published were adequate, it might conclude that the case should not be heard because it was not instituted within 180 days of the date on which the public ought reasonably to have become aware of the granting of the exploration right.

          Advocate Nikki Stein (representing the Wild Coast communities) emphasised that the community applicants are distinguishable from the general public as they have recognised customary fishing rights and are dependent on their surrounding environment to sustain themselves and make a living. Additionally, the community applicants have spiritual beliefs and cultural connections to the ocean — this of course gives them a specific interest in Shell’s survey, but despite this they were not given adequate notice of the survey.

          The second issue was whether or not an internal appeal to Minister Mantashe should have been made before instituting proceedings in the high court (i.e. whether the applicants had complied with their duty to exhaust internal remedies before going to court). The high court had found that it was unnecessary to have appealed to Minister Mantashe because he had made public statements that gave rise to a reasonable apprehension of bias.

          Advocate Ferreira pointed out the Minister had not contested this finding and that only Shell was persisting in the argument that an appeal to the Minister should have been made. Furthermore, the Minister made the decision to oppose the interdict which was sought by the community applicants and their NGO partners, when he could have simply abided by the decision of the court.

          Judgment has been reserved and we expect to receive the court’s reasons on whether the appeal should be granted by the end of the year.

          ENDS

          Notes to editors:

          Livestream recording
          Read latest press release and find court papers here
          Learn more about the issues and parties in this case here
          Watch a post-judgment webinar with clients and attorneys
          For more info refer back to NJ’s fact sheet
          To help fund a united legal front to protect people and the planet, donate here 
          UN SG on fossil fuels
          IPCC warns against fossil fuels
          Save the Wild Coast documentary to be launched in 2023.

          Counsel: 

          Counsel for Applicants 1-7: Tembeka Ngcukaitobi SC; Emma Webber; Nikki Stein. Instructing Attorneys: Legal Resources Centre and Richard Spoor Inc.
          Counsel for Applicants 8-9: Nick Ferreira and Cingashe Tabata. Instructing Attorneys: Cullinan & Associates Inc.
          Counsel for the Minister of the Department of Mineral Resources: Albert Beyleveld SC and Avian Barnett. Instructing Attorneys: State Attorney.
          Counsel for the Minister of the Department of Forestry, Fisheries and the Environment: Jennifer Williams. Instructing Attorneys: State Attorney.
          Counsel for Shell: Adrian Friedman and Sarah Pudifin-Jones. Instructing Attorneys: Shepstone & Wylie Inc.
          Counsel for Impact Africa: Chris Loxton SC, Adiel Nacerodien, Peggy Schoeman. Instructing Attorneys: Cliffe Dekker Hofmeyr Inc.

          Applicants and respondents:

          SUSTAINING THE WILD COAST NPC First applicant
          MASHONA WETU DLAMINI Second applicant
          DWESA-CWEBE COMMUNAL PROPERTY ASSOCIATION Third applicant
          NTSINDISO NONGCAVU Fourth applicant
          SAZISE MAXWELL PEKAYO Fifth applicant
          CAMERON THORPE Sixth applicant
          ALL RISE ATTORNEYS FOR CLIMATE AND THE ENVIRONMENT NPC Seventh applicant
          NATURAL JUSTICE Eighth applicant
          GREENPEACE ENVIRONMENTAL ORGANISATION Ninth applicant
          MINISTER OF MINERAL RESOURCES AND ENERGY First respondent
          MINISTER OF ENVIRONMENT, FORESTRY AND FISHERIES Second respondent
          SHELL EXPLORATION AND PRODUCTION SOUTH AFRICA BV Third respondent
          IMPACT AFRICA LIMITED Fourth respondent
          BG INTERNATIONAL LIMITED Fifth respondent

          12 November 2022 – Historic Shell judgment on appeal

            GQEBERHA — On Monday 28 November in the Gqeberha High Court, the Minister of Mineral Resources and Energy, Impact Africa and Shell (the appellants) will argue why they should be granted leave to appeal the Makhanda High Court judgment of 1 September 2022, which found that the authorisation by the Minister to allow Shell to conduct seismic surveys off the ecologically sensitive Wild Coast of South Africa was unlawful.

            The leave to appeal application will be challenged by coastal communities and fishers (including the Amadiba and Dwesa-Cwebe communities and small-scale fishers from Hobeni, Port St Johns and the Kei Mouth), Sustaining the Wild Coast, All Rise, Natural Justice and Greenpeace Africa, represented by the Legal Resources Centre, Richard Spoor Attorneys and Cullinan & Associates.

            On 1 September 2022, the Makhanda High Court handed down judgment in part B of the legal challenge to Shell’s seismic surveys off the Wild Coast of South Africa, which put a stop to the planned seismic surveys and found that the process through which the decision to grant an exploration right was made, was procedurally unfair on several grounds including failure to consider the communities’ spiritual and cultural rights, their right to food, the potential climate change implications, and more.

            The ruling, which caught international attention, was considered a huge victory for the communities along the wild coast, their civil society partners, and the planet.

            The authorisation for the exploration right was granted by the Minister on the basis of an Environmental Management Programme (EMPr) developed by Impact Africa in 2013 in terms of the Mineral and Petroleum Resources Development Act (MPRDA). Impact Africa did not undertake an environmental impact assessment, or obtain an environmental authorisation in terms of the National Environmental Management Act (NEMA) before it commenced the survey.

            The decision to provide authorisation was set aside as there was no consultation with the affected communities who live on the coastline and who depend on the ocean to sustain their livelihoods. Further, the court held that consultation with traditional leaders, and not with wider communities, was insufficient to be considered meaningful engagement.

            Additional grounds for the court’s decision included the Minister’s failure to take into account climate change and the desirability for oil and gas development in South Africa, given the climate emergency we find ourselves in. The court further held that the Minister’s failure to consider the Integrated Coastal Management Act, climate change and the cultural rights and spiritual beliefs of the affected coastal communities, constituted a failure by the Minister to consider all relevant factors when making the decision to provide authorisation.

            Shell, Impact Africa and the Minister have now applied for leave to appeal. 

            This will be heard in the Gqeberha High Court on Monday, 28 November 2022.

            Application for leave to appeal

            Shell, Impact Africa and Minster Mantashe are applying for leave to appeal against the entire judgment.

            In order for leave to appeal to be granted, an appellant needs to satisfy the following criteria:

            That there is a reasonable chance of success; or
            There is a compelling reason as to why the appeal should be heard.

            Shell, Impact and the Minister are seeking to appeal the judgment on the following grounds:

            The failure by the communities and their partners to exhaust their internal remedies which would have required lodging an appeal with the Minister, as is required under the Promotion of Administrative Justice Act (PAJA) prior to approaching a court.
            The applicants were unduly delayed in bringing the application for review, and were therefore out of time in terms of PAJA.
            The consultation process carried out was not flawed and complied with the requirements under the MPRDA.
            The court erred in its findings in taking into account considerations such as the precautionary principle.
            The harm to the applicants spiritual and cultural rights are of no bearing in a review.

            In response, the communities and their partners believe that the Makhanda High Court was correct in ruling that the applicants did not need to exhaust their internal remedies, given the public statements made by the Minister referring to them as “apartheid and colonialism of a special type” arising from their opposition to oil and gas exploration.

            The applicants also submitted that there was no undue delay, as they were only made aware of the seismic survey in November 2021. The communities live in areas where newspapers advertising the survey did not circulate and they were not involved in the defective consultation process whereby traditional leaders were consulted.

            The Court considered the expert evidence submitted by the applicants that not enough is known about the cumulative impacts of seismic surveys, and consequently found that the Minister should have applied the precautionary principle. The communities and their partners agree that the precautionary principle should have been considered when granting the authorisation.

            The appellants contend that the Court was wrong to consider the impact to the applicant communities’ spiritual and cultural rights and livelihoods in the granting of the exploration right. This is a misdirection of the law and unduly dismissive of the constitutionally-protected rights of the applicants. The Court was correct in ruling that the Minister, when deciding to award the exploration right to Shell, would have benefitted from a more holistic approach, including taking into account the cultural rights and spiritual beliefs of the applicants.

            The Cross Appeal

            The communities and their partners believe that the appeal against the judgment of the Makhanda High Court has no prospects of success, however the case does raise important issues which are of great public interest.

            Whilst the judgment was a positive one for the communities and their partners, the court declined to make a ruling on the declaratory relief which the coastal community applicants had sought. In this case, a declarator was sought stating that Shell needed an environmental authorisation, as required under NEMA, before commencing with the seismic survey. Shell had argued that, because the exploration right was granted prior to the December 2014 enactment of NEMA’s listed activities requiring environmental authorisation for exploration activities, they did not need an environmental authorisation and their environmental management programme was sufficient, despite the renewal of the exploration right taking place after the enactment of NEMA’s listed activities.

            The Court declined to rule on the declarator as they had set aside the exploration right and, therefore, had concluded that the applicants had obtained a substantial part of their relief. However, the applicants believe that the declarator plays an important role in the advancement and protection of constitutional rights. It will set higher standards for consultation with communities and provide for a full consideration of all the impacts of seismic exploration on the environment, as well as people’s livelihoods and human rights.

            In the judgment, the court recognised the centrality of this case to Section 24 of the Constitution which provides for the right to a healthy environment. The court further recognised the need to strike a balance between the right to a healthy environment and socio-economic development. The applicants believe the declaratory relief sought goes to the heart of this balancing exercise. This is because it will provide clarity on the scope and nature of the obligations under NEMA as well as the MPRDA, which will then give effect to Section 24 of the Constitution.

            ENDS

            09 November 2022 – Mining companies appeal historic silicosis settlement

              For Immediate Release

              09 November 2022

              Mining companies appeal historic silicosis settlement

              BLOEMFONTEIN — On Friday, 11 November 2022, the Supreme Court of Appeal (SCA) will hear an appeal against the 2016 decision of the Johannesburg High Court to certify an unprecedented class action against the majority of gold mining companies in South Africa. The class action was brought to pursue damages against the respondent gold mining companies on behalf of mineworkers who suffer from silicosis and tuberculosis because of their prolonged exposure to excessive levels of silica dust while working on the gold mines. The appeal is brought by DRDGold (DRD) and East Rand Proprietary Mines Limited (ERPM).

              Represented by Richard Spoor Incorporated, the Legal Resources Centre and Abrahams Kiewitz Attorneys, the mineworkers argue that the gold mining companies, as their employers, failed for generations to enact proper measures to protect them from the very serious risks associated with the inhalation of silica dust – while profiting from this continued exposure.

              In the appeal, the SCA is called upon to determine two key issues which are likely to create ground-breaking precedent. First, whether the high court erred in its decision to certify the class action against the appellants, DRD and ERPM. As DRD did not operate mines for the full duration of the class period, and ERPM went through a liquidation process in 1999, the SCA will undoubtedly canvass complex issues including the principle of commonality in class action proceedings in South Africa and the effect of liquidation on personal injury claims.

              Second, the SCA must decide whether the high court was incorrect in its decision to develop the common law to allow for the transmissibility of general damages to the deceased estates of claimants who pass away after the launch of the proceedings but before the close of pleadings. Should the high court’s decision be reversed in this respect, the widows and other family members of the mineworkers who have succumbed to their disease would have no means to bring any general damages claim against the gold mining companies despite the untimely and distressing death of their loved ones. This will disproportionately impact women and children as dependents of the deceased mineworkers.

              DRD and ERPM are the only mining companies that have persisted in litigating this matter. Their decision is unfortunate as these companies have been active in the South African gold mining industry from as early as the 1890s and are, therefore, long-standing parties to the historical wrongs giving rise to the class action. In contrast, 19 of the other respondent mining companies reached a historic settlement with the affected mineworkers in 2018. This settlement amounted to an uncapped R5 billion in compensation to be administered and paid to the qualifying mineworkers by the Tshiamiso Trust. Sibanye-Stillwater, the majority shareholder of DRD at present, was party to this settlement agreement.

              While many of the mineworkers have successfully made and received their claims from the Tshiamiso Trust, only those who worked on the mines owned by DRD and ERPM do not qualify to claim from this trust and must wait for the lengthy appeal, and possible trial process, to be completed. This is a devastating reality for many previous DRD and ERPM employees, and their families, as they continue to contend with the financial burden of their illnesses, including ongoing medical monitoring and treatment, with little to no support. The seriousness of this situation is further illustrated by the fact that many of the class plaintiffs who were appointed to represent the interests of the DRD and ERPM mineworkers in the class action have sadly passed away in the six years this appeal has been pending, and new class representatives will have to be appointed once the action is permitted to continue. As this process has unfolded, many are left feeling frustrated and certain that their pursuit of justice may fall foul to a game of running out the clock.

              For more information about this case or media queries, kindly contact:

              Legal Resources Centre:     Cell: 068 584 2442/Email: thabo@lrc.org.za

              Richard Spoor Inc:                Cell: 082 851 6103/Email: george@rsinc.co.za

              Cell: 083 627 1722/Email: richard@rsinc.co.za

               

              7 November 2022 – Our tribute to Sydney Kentridge: A founding trustee, a centurion, a colossus and a dear friend

                Superlatives are common in tributes to Sydney Kentridge. He certainly was one of the finest lawyers of his generation. Much has been written about his involvement in some of the most important cases in the legal struggle against the apartheid regime. His courtroom skills and his commitment to justice and the rule of law were an inspiration to generations of lawyers and all of us at the LRC were in awe of him.

                Sydney represented the best face of the profession. The understated elegance of his delivery of argument was emphatic in its impact and usually in its outcome. In an age when there are too many self-proclaimed, rather than universally acclaimed geniuses, Sydney’s imposing courtroom presence is sorely missed. He did not require theatrics, nor did he resort to tantrum throwing or breast-beating. His forensic skills were enough. His use of language and law were a joy to behold.

                Morris Zimmerman, one of the first lawyers to offer his services to the LRC and a mentor to generations of LRC lawyers repeatedly told the story of how his firm had despatched numbers of briefs to counsel, asking whether the revocation of a passport by the responsible Minister could be challenged in a court of law. To present day lawyers the answer seems obvious. Not so in 1949. Sydney was the only counsel who answered in the affirmative. The case that proved him right was Sachs v Donges NO 1950 (2) SA 365 (A), where he and D B Molteno were led by Snitcher KC.

                Sydney was courageous and resolute in taking the legal fight to the apartheid regime in some of the most high-profile cases of his time. That courage and his example inspired lawyers at the LRC. He served as a model, to show that even under the most egregious conditions challenge was possible, necessary, and indeed a moral duty. And that it could be accomplished with expertise and finesse.

                At a time when legal giants abounded, Sydney was a giant amongst giants and was universally admired.

                Sydney’s agreement to serve as a founding trustee of the LRC provided impetus to its establishment and helped greatly in establishing the credibility of the LRC in the legal world.  Together with other notables, he provided protection against the dark powers of the security apparatus of the apartheid government.

                The synergy between Arthur Chaskalson and Sydney was vital in the legal struggle against apartheid and in the establishment and continued existence of the LRC. Sydney’s stature allowed his beloved Felicia, who was instrumental in the formation of the LRC, to employ her considerable skills to persuade charitable foundations and others to make donations to the LRC to enable it to launch legal challenges. His presence, and the efforts of Arthur, Felicia, and others, were vital in obtaining support for the LRC from the Bar and the attorneys’ profession.

                Sydney and Felicia were friends of the LRC in every sense. They hosted many fundraising dinners at their home in Houghton. Every year we would have our end of year functions in their garden. Sydney was a generous and charming host. He was readily available when we needed advice and when his schedule allowed, a presence in court. When we gathered at his home his devotion to Felicia and his family was obvious and heart-warming. As was his dedication to the mission of the LRC.

                When the Constitutional era beckoned, Sydney at an LRC occasion delivered a speech in which he was adamant that the LRC would continue to be a necessary instrument to ensure social justice in a new South Africa. He was clearly passionate in making that call. And he was right.

                Sydney has just passed a hundred years of life, through which he was witness to social upheaval, the effects of injustice imposed by social engineering and of incredible change.

                Through all of that he maintained a steadfastness to being the best lawyer he could be and to being our friend and supporter.

                We salute you, Sydney! You will always be one of the best parts of our institutional memory.

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