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found that South African courts would not be a viable alternative forum because legal aid in South Africa had been withdrawn for personal injury claims and no reasonable likelihood existed for the plaintiffs to acquire effective legal representation on a contingency fee basis for a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
14 March 2003

Black workers to receive £45m asbestos settlement [South Africa]

Author: David Black, Guardian [UK]

Thousands of black South African workers suffering from asbestos-related diseases yesterday secured multi-million pound compensation deals from two leading mining companies, after six years of legal wrangling in London and Johannesburg. British company Cape has agreed to pay £7.5m in compensation to 7,500 workers, and Gencor, a South African company which took over many Cape operations in 1979, has agreed to set up a trust fund for its workers, worth 448 million rand (£37.5m). Gencor will pay an additional £3.21m to the Cape claimants, who were also exposed to Gencor's operations.

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Article
14 March 2003

Gold Mines Could Face Gencor-Type Lawsuits [South Africa]

Author: Business Day [South Africa]

[to find article, scroll half-way down the page] Spoor said far more workers had silicosis than asbestosis [refers to AngloGold]

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Article
14 March 2003

Less money for mining victims

Author: Justin Arenstein, Mail & Guardian [South Africa]

Cape plc’s South African asbestos victims will get only one-third of the £21-million originally promised them by the British-based multinational.

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Article
31 January 2003

[PDF] Legal Issues in Corporate Citizenship

Author: Halina Ward, International Institute for Environment and Development

Mandatory legislation on various aspects of business transparency is emerging around the world. It can form part of company law, environmental regulation, or tailored legislation for institutional investors or on social and environmental reporting. Pressure for enhanced public sector accountability has also given rise to calls for company reporting on revenues paid to host government by companies in the extractive industries...A new wave of legal actions – mostly in US courts, but also in some EU countries – is testing the boundaries of existing legal principles in relation to some of the most difficult issues of the CSR agenda. For example, a series of cases in the US, France and Belgium are testing how fundamental principles of international law – particularly human rights law – apply to parent companies of multinational corporate groups.

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Article
25 November 2002

Gencor denies it employed asbestos claimants [South Africa]

Author: Ronnie Morris, Business Report

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Article
22 November 2002

Gencor opposes class action as 37 seek payment for asbestos-related diseases [South Africa]

Author: , Business Day [South Africa]

SA MINING company, Gencor, has contested the basis for a class action in SA.

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Article
21 November 2002

Gencor's asbestos liability could be huge, court told [South Africa]

Author: Ronnie Morris, Business Report [South Africa]

Thousands of mineworkers were exposed to the hazards of asbestos dust and as a result thousands of cases could come before the courts

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Article
18 November 2002

Asbestos victims seek court nod for class action against Gencor [South Africa]

Author: Ronnie Morris, Business Report [South Africa]

The Johannesburg high court will be asked tomorrow to recognise the right of people suffering from asbestos-related diseases to bring a class action for damages against Gencor, the investment holding company. [refers also to Cape plc]

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Article
14 November 2002

Claimants set to pursue Gencor in UK [UK/South Africa]

Author: Business Day [South Africa]

...Lawyers for the claimants are apparently re-opening the case because Cape plc failed to pay the first tranche of the settlement on the due date. Gencor has denied any liability arising from claims by asbestos miners

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Article
28 October 2002

Asbestos victims' lawyers carry costs

Author: Business Day [South Africa]

UK-based company Cape plc reneged on more than just the settlement agreement it had with 7500 SA [South Africa] victims suffering from asbestos-related disease, says London lawyer for the claimants Richard Meeran. Cape plc failed to pay more than £50000, being the costs of a medical review of the claimants, until forced to do after a judgment was obtained against the company. The £20000 in expenses incurred in setting up a trust fund in SA are still outstanding.

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