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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found that South African courts would not be a viable alternative forum because legal aid in South Africa had been withdrawn for personal injury claims and no reasonable likelihood existed for the plaintiffs to acquire effective legal representation on a contingency fee basis for a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
16 October 2002

Gencor mum on asbestos case [South Africa]

Author: Justin Brown, Business Day [South Africa]

Gencor, the mining holding company, said that until it had papers served upon it in South Africa, it had no comment on the decision by the English High Court to include Gencor as a co-defendant in the asbestos case of Cape plc, the UK building materials company.

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Article
15 October 2002

Cape avoids justice again

Author: ACTSA - Action for Southern Africa

ACTSA [Action for Southern Africa] campaigners protested today outside the Royal Courts of Justice to express their outrage and disappointment at the collapse of the out-of-court settlement between Cape Plc and the 7,500 South African asbestos claimants, which was made last December.

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Article
14 October 2002

Miners take Cape Plc back to court [South Africa/UK]

Author: Reuters

Lawyers for sick South African miners said on Monday they would return to court in London on Tuesday in a bid to get building materials firm Cape Plc to honour a settlement it reached with former employees.

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Article
8 October 2002

SA asbestos lawyers could face dilemma: Gencor may seek redress from Cape [South Africa]

Author: Business Day [South Africa]

Lawyers for the 7500 SA victims suffering from asbestos-related diseases will ask the British High Court next week to make Gencor a co-defendant in proceedings against UK-based company Cape plc.

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Article
30 September 2002

Asbestos claim case takes new twist with Gencor: Workers to challenge company's unbundling [South Africa]

Author: Business Day [South Africa]

The case brought by 7500 SA mineworkers against UK multinational Cape plc took a new twist last Friday when London lawyers joined forces with SA lawyers to challenge the terms of Gencor's proposed unbundling. Gencor's shareholders are scheduled to meet on Wednesday on whether or not to approve the proposal which provides R409m for the costs of defending asbestos claims, but no provision to compensate victims.

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Article
16 September 2002

Cape Plc fails to pay asbestos claimants [South Africa]

Author: South African Press Association, in Business Report [South Africa]

The lawyers of thousands of South Africans suffering from asbestos-related diseases said on Monday they would return to the United Kingdom High Court in an effort to force mining company Cape Plc to pay overdue settlement claims.

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Article
16 September 2002

Cape plc's P5.6m goes to banks, not victims [South Africa]

Author: Ronnie Morris, Business Report [South Africa]

Poor South Africans, thousands of them ill and dying, are unlikely to see a cent from the sale of the manufacturing division of Cape plc, the British multinational they hold responsible for their asbestos-related diseases.

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Article
10 September 2002

Asbestos case: Bankers could be held liable [South Africa]

Author: South African Press Association

The bankers of Cape plc, the company that reached an out-of-court settlement with South African asbestosis victims last year, would be held personally responsible if it was proved they were responsible for reneging on the agreement, the victims' legal counsel said on Tuesday. The directors of the company and its bankers, Barclays and the Royal Bank of Scotland, were formally notified of this on Tuesday

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Article
2 September 2002

Asbestos Lawyers Hand Cape a Final Ultimatum to Pay [South Africa]

Author: South African Press Association

Lawyers acting on behalf of victims of Cape plc's asbestos operations on Monday handed the multi-national an ultimatum to comply with an out-of-court settlement.

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Article
8 August 2002

Asbestos victims' wait drags on [South Africa]

Author: Business Day [South Africa]

UK company Cape plc is expected to make payment of its first £11m to the 7500 SA victims of asbestos-related disease on August 20, according to lawyers for the victims. Late last week, however, Cape plc was unable to give a date for payment of the first instalment. The company was originally due to make the payment at the end of June, but this was delayed due to a major financial restructuring exercise.

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