Cape/Gencor lawsuits (re So. Africa)

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.  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found that South African courts would not be a viable alternative forum because legal aid in South Africa had been withdrawn for personal injury claims and no reasonable likelihood existed for the plaintiffs to acquire effective legal representation on a contingency fee basis for a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.

 

- [PDF] “Cape plc: South African Mineworkers' Quest for Justice”, Richard Meeran [counsel for plaintiffs], International Journal of Occupational Environmental Health, Jul/Sep 2003

- 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

 

- 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]

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Article
30 September 2007

Anglo being sued for R20m [So. Africa]

Author: Eleanor Momberg, Independent Online [So. Africa]

Former gold miners suffering from [silicosis] want their former employers to compensate them for pain and suffering. [A] case was brought by 10 former miners against the Anglo American Corporation in the Johannesburg High Court...No date has yet been set for the trial....The miners charge that [Anglo American] knew that levels of silica underground were often at such high levels that they posed a material risk to miners, and that preventive measures and required standards were consistently ignored, flouted or denied....Anglo American would not comment on the matter. [also refers to the Cape / Gencor lawsuits]

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Article
1 December 2006

[PDF] Extraterritorial Jurisdiction as a tool for improving the Human Rights Accountability of Transnational Corporations

Author: Professor Olivier de Schutter, Catholic Univ. of Louvain & College of Europe

This report was prepared...as the background paper to the seminar...[held] on 3-4 November 2006 within the mandate of prof. J. Ruggie, the Special Representative to the UN Secretary General on the issue of human rights and transnational corporations and other enterprises... This paper examines under which conditions States may – or should – exercise extraterritorial jurisdiction in order to improve the accountability of transnational corporations domiciled under their jurisdiction for human rights abuses they commit overseas. [refers to human rights lawsuits against Chevron, RTZ, Cape PLC]

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Article
31 August 2006

Why all companies should address human rights (and how the Business & Human Rights Resource Centre can help)

Author: Christopher Avery, Annabel Short, Gregory Tzeutschler Regaignon - Business & Human Rights Resource Centre

[this chapter appears in the the ICCA Handbook on CSR and Corporate Culture; a list of chapters in the handbook and ordering details can be found at http://www.cca-institute.org/handbook.html] The following sections set out why human rights are relevant to all companies, and why it is important that all companies take human rights seriously. i. International standards require companies to address human rights... ii. Only human rights provide companies with a framework of globally recognised principles... iii. There are increasing expectations for companies to manage human rights issues... iv. There are significant risks for companies that don’t respect human rights... v. Companies benefit from taking a proactive stance on human rights... vi. Human rights are universal standards that go beyond national laws... [refers to ABB, adidas-Salomon, Anglo American, Barclays, BHP Billiton, Body Shop, BP, BT, Cape PLC, Carrefour, Chiquita, Chevron/Texaco, Coca-Cola, Co-operative Financial Services, ExxonMobil, Ford, Gap, Hewlett-Packard, ING, McDonald’s, MTV Networks Europe, National Grid, Nike, Novartis, Novo Nordisk, Occidental, Premier Oil, Rio Tinto, Shell, Statoil, Taco Bell (part of YUM!), Talisman Energy, Union Carbide/Dow, Unocal, Wal-Mart]

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Article
8 March 2006

Asbestos attorney secures Swiss payout [South Africa]

Author: Ronnie Morris, Business Report [South Africa]

A settlement has been reached between a South African attorney [Richard Spoor] and Becon, a Swiss company, over compensation to people who became ill as a result of exposure to asbestos dust and fibres in Danielskuil and Kuruman in the Northern Cape… It would cover several thousand people who did not qualify for compensation from settlements reached with Cape plc, a British multinational, in March 2003... The size of the grants payable to qualifying applicants would take into account loss of earnings, pain and suffering and medical costs incurred or likely to be incurred by the victim.

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Article
1 March 2006

[PDF] Transboundary Accountability for Transnational Corporations: Using Private Civil Claims

Author: Myfanwy Badge

The fundamental issue underlying this paper is the extent to which companies which have legal or de facto control over other companies in developing countries may be liable under civil law for harm caused by those companies and, if so, the nature of the harm. Put another way, what is the extent of companies’ obligations to take action to inves tigate, make stipulations about, and monitor the activities of companies over which they have legal or de facto control?

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Article
1 October 2005

[DOC] Regulations for Corporations: A historical account of TNC regulation

Author: Désirée Abrahams

This paper has aimed to give a contemporary history of the regulation of transnational corporations...[refers to Ford, General Motors, IBM, Pepsi Cola (now PepsiCo), United Fruit Company (now Chiquita), International Telephone and Telegraph Company (ITT) (present-day ITT Industries was one of the companies that emerged when ITT split up), Shell, Unilever, Danone, Altria, Thor, Rio Tinto, Cape Plc, Cambior, BHP Billiton, Freeport-McMoran, Chevron, Unocal, Body Shop, Ben & Jerry's (part of Unilever), Novartis]

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Article
6 September 2005

Legal Remedies for the Resource Curse - A Digest of Experience in Using Law to Combat Natural Resource Corruption

Author: Open Society Justice Initiative

Legal Remedies for the Resource Curse is a digest of practical experience in using law to combat corruption across jurisdictions. When resource extraction companies can obtain oil, diamonds, gold, coltan, timber, and other natural resources through covert contacts with unaccountable government officials, the losers are the people in the communities where the wealth originates. The power of corrupt governments frequently derives from monopoly access to natural wealth, bolstered by foreign government and industry allies. Local populations suffer the effects of the "resource curse," including the destruction of their immediate environment and the social and economic devastation that follows: arbitrary eviction and dispossession, unlawful arrest or harassment, and neglect of health care, housing, and education. [refers to Elf Aquitaine (now part of Total), Kellogg Brown & Root (part of Halliburton), Rougier and its Cameroonian subsidiary SFID, Acres, Riggs Bank (now part of PNC Financial Services), Banco Santander (part of Grupo Santander), HSBC, Shell, Nigerian National Petroleum Company]

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Article
1 March 2005

[PDF] Beating the Odds: The Quest for Justice by South African Asbestos Mining Communities

Author: Jock McCulloch, Review of African Political Economy

In March 2003 a small community group, ‘The Concerned People Against Asbestos (CPA)’ based at Prieska in the Northern Cape, won a court case in a foreign country. That case may change the way in which multinational corporations behave in the developing world...Despite its lack of resources the CPA was able to synchronise an elaborate game of small and big politics. The group’s victory suggests that such communities have levels of political and organisation skill which given the right alignments can be irresistible...The big mines were owned and operated by British firms the Cape Asbestos Company (later Cape PLC) and the Griqualand Exploration and Finance Company Limited (Gefco) [fully owned subsidiary of Gencor].

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Article
21 December 2004

Law, Globalization & Multinational Corps [Corporations] Law [Syllabus]

Author: Anita Ramasastry, Univ. of Washington School of Law

Whether you are a labor lawyer concerned about global trade issues or labor standards, an environmental activist concerned about the role of MNEs [multinational enterprises] with respect to environmental policy, or you work as an in-house counsel for a major MNE, it is important for you to understand how MNEs function as legal entities and what legal rules govern their existence. [refers to Rio Tinto, Cape plc, Wiwa lawsuit against Shell]

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Article
1 December 2004

[PDF] executive summary: "Business and International Crimes: Assessing the Liability of Business Entities for Grave Violations of International Law"

Author: Fafo Institute for Applied Social Science & Intl. Peace Academy

It is possible to hold business entities accountable for international crimes...but the problem of jurisdiction remains a barrier to international prosecution...Domestic courts are possible venues for assessing liability of companies operating
abroad...especially through the doctrine of complicity. [refers to Talisman, Rio Tinto, Unocal, Shell, Chevron (part of ChevronTexaco), ExxonMobil, Freeport-McMoRan, Cape plc]

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