Introduction
Business and human rights litigation in South Africa has increased over the last ten years.Footnote 1 Most recently, the High Court considered a class action certification application in Various Parties on behalf of Minors v Anglo American South Africa Limited Footnote 2 (Kabwe), where the proposed class sought damages against a South African-based mining company for lead poisoning allegedly caused by its historic mining operations in Zambia. In this piece, the author outlines the developments in Kabwe that are relevant to business and human rights (BHR) and, focusing specifically on the class action certification, critiques the court’s interpretation of the opt-out mechanism as limiting to the advancement of BHR jurisprudence.
Since the advent of the United Nations Guiding Principles on Business and Human Rights (UNGPs) in 2011, an abundance of voluntary standards on business and human rights have followed.Footnote 3 States have also increasingly adopted mandatory human rights due diligence laws (MHRDD) that require companies to identify and prevent adverse human rights impacts caused by their operations and supply chain by, amongst others, undertaking due diligence. France’s Duty of Vigilance Law,Footnote 4 Germany’s Supply Chain Due Diligence ActFootnote 5 and the European Union’s Corporate Sustainability Due Diligence DirectiveFootnote 6 are some of the well-known developments. These constitute legal norms with binding effect on businesses to respect human rights,Footnote 7 and offer additional avenues for corporate accountability through administrative enforcement for failure to comply with due diligence requirementsFootnote 8 and/or civil liability against corporations.Footnote 9 In the African region, however, state adoption of MHRDD laws lags in comparison to the Global North. South Africa is an example of a jurisdiction yet to adopt MHRDD laws, and in its absence, litigants have appealed to South Africa’s legislative framework and judicial interpretation of constitutional and common law to secure corporate accountability.
Focusing on South African litigation, I analyse two cases dealing with class action certificationFootnote 10 where the class sought to bring claims against corporations for alleged violations of human rights and legal duties. By analysing Kabwe and Nkala v Harmony Gold Mining (Pty) Ltd (Treatment Action Campaign and another as amicus curiae) Footnote 11 (Nkala), I discuss:
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(i) how the country’s judiciary has contributed to the objectives of business and human rights through:
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(a) its interpretation of legislation and principles that create a legal basis for corporate accountability in South Africa in the absence of express MHRDD laws;
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(b) its jurisprudence on the class participation mechanism, that is, the opt-in and opt-out mechanism; and
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(ii) how, using the norm of Ubuntu, an Afrocentric perspective could have influenced reinterpretation of laws and legal principles in the above cases to advance a decolonial conception of BHR that is cognizant of the structural transformation necessary in Africa.
In Kabwe, Zambian victims brought a class certification application against Anglo American South Africa Limited (Anglo) for lead poisoning allegedly caused by its operations in the Kabwe region over a period of fifty years, from 1925 to 1974. The applicants claimed Anglo caused historical pollution and human rights violations. Kabwe’s hallmark predecessor, Nkala, also adjudicated a class certification application seeking redress for historical human rights violations. Former mineworkers sought justice against several mining companies that caused them to contract tuberculosis and silicosis through their negligent business practices.Footnote 12
In both matters, the courts assessed certification factors as part of an overall assessment of whether certifying each class was in the interests of justice.Footnote 13 Linking it back to the third discussion question above, I argue that in Nkala, the court was more alive to the claimants’ socio-economic reality, historical structural inequalityFootnote 14 and tenets of Ubuntu relational ethicsFootnote 15 in its assessment of the appropriateness of the opt-out mechanism. In turn, I show how this approach in Nkala contributed to discussion question two—furthering the objectives of BHR. Kabwe’s engagement with the opt-out mechanism, on the other hand, had potential to advance BHR jurisprudence, but failure to invigorate the interpretation of this procedural requirement with the tenets of Ubuntu resulted in a missed opportunity.
I. Judicial contribution establishing corporate accountability in South Africa
A. Contribution through statutory interpretation
The Bill of Rights applies horizontally, imposing obligations on juristic persons (through s 8(2) of the Constitution) and enabling juristic persons to enjoy certain claims.Footnote 16 Much academic and judicial literature on the interpretation of s 8(2) indicates that it is limited in scopeFootnote 17; juristic persons are not bound by all the provisions of the Bill of Rights, but only by those provisions determined to be applicable to them and to the extent to which the provision is applicable.Footnote 18 MeyersfeldFootnote 19 discusses three other ways in which the judiciary has established horizontality. Her last-mentioned avenue of horizontality—judicial interpretation of statutory requirements that impose obligations on private actors as part of the state’s duty to protect human rights—is of particular interest. I add that legislation promulgated to achieve this state duty may also expressly impose duties on corporations (without requiring judicial interpretation).
I commence the analysis by examining the judicial interpretation of statutory requirements as an avenue of horizontality. The Constitutional Court’s interpretation of s 35 of the Compensation of Occupational Diseases ActFootnote 20 (COIDA) in Mankayi v AngloGold Ashanti Ltd Footnote 21 was an important legal development that ensured employees were not deprived of their constitutional right to effective remedy.Footnote 22 A tension existed between the legislative entitlements and a delictual claim available to workers for work-related injuries and occupational diseases under COIDA and the Occupational Diseases in Mines and Works ActFootnote 23 (ODIMWA). The tension arises because COIDA generally bars employees from pursuing common-law delictual claims against their employer, substituting a statutory compensation scheme in its place. Khampepe J determined that the statutory entitlement in s 35(1) of COIDA did not extinguish an employee’s common law claim for damages where they were confined to compensation under ODIMWA’s separate compensation regime. The court engaged the rights to freedom and security of the personFootnote 24 and to appropriate relief to emphasize that extinguishing the common law right, especially given ODIMWA’s inadequate compensation, would deprive the employee of not only an appropriate, but an effective remedy.Footnote 25 I argue that while not explicitly stated, this interpretive approach reflects the substantive commitments of Ubuntu. In this sense, Ubuntu operates not merely as an abstract moral ideal but as an interpretive lens that orientates legal reasoning towards relational accountability, substantive rather than formal equality, and the prioritisation of effective remedies in contexts of structural vulnerability. By upholding an employee’s common law claim to damages to enforce constitutional rights, the court affirms private actors’ relational obligation to remedy harm, a component of Ubuntu. Footnote 26 The reasoning also prioritizes substantive justice by advancing a conception of remedy that acknowledges the historical injustice and structural vulnerability of mineworkers,Footnote 27 and seeks to redress imbalances.Footnote 28
I now consider the express legislative obligations on private actors as another avenue of horizontality. To mitigate and remedy harm caused by corporate actors to humans, legislation increasingly imposes administrative penalties and criminal liability for non-compliance with standards of conduct intended to protect human rights.Footnote 29 The National Environment Management ActFootnote 30 (NEMA) and the Mineral and Petroleum Resources Development ActFootnote 31 (MPRDA) are relevant examples where the preambles of both statutes affirm the state’s obligation to protect the environmental, social and economic rights of everyone. NEMA requires corporations to conduct Environmental Impact Assessments (EIAs) and the MPRDA obliges mining right applicants to submit a Social and Labour Plan (SLP) as a pre-condition for obtaining the mining right.Footnote 32 Both the EIA and SLP are designed as due diligence mechanisms imposing a legal standard of conductFootnote 33 on private actors to prevent environmental and socio-economic risks their operations may cause.
Litigants have used these legislative provisions to found causes of action (in contract or delict/tort) as another manner of seeking corporate accountability.
Nkala and Kabwe were certification applications based on statutory and common law legal duties allegedly owed by corporations to the applicants. The applicants in Nkala invoked the Mine and Works Act,Footnote 34 the Mine Health and Safety ActFootnote 35 and the company’s common law duty to take reasonable measures to provide a safe and healthy work environment to miners as the legal basis for the mines’ obligations to respect their human rights.Footnote 36 The applicants in Kabwe argued that Anglo owed a common law legal duty to members of the class to take all reasonable steps to protect them from harmful exposure to lead pollution caused by its mining activities. While wrongfulness would be assessed at trial, these statutory and common law duties supported the applicants’ claim of a triable cause of action for certification in both cases.
South African law informed the adjudication of both applications,Footnote 37 and certification depended on whether, taken together, the certification factors established that admitting the class would be in the interests of justice. It is trite that the interests of justice are the overarching test, but centring access to justice as an integral element of the interest of justice testFootnote 38 is an important contribution of Nkala for purposes of the Afrocentric, decolonial inquiry in this piece. Whether certifying the class action assists claimants, who may not otherwise have alternative means to pursue their claims—often given their location as poor, black subjects living in historicized structural inequality—to access justice is a key question in certification applications.Footnote 39 At the same time, the access to justice question provides procedural guardrails aimed at preventing vulnerable claimants from being bound by fictitious consent that can terminate their claim,Footnote 40 certifying unmanageable classesFootnote 41 and ensuring judicial economy.Footnote 42
B. Judicial contributions through analysis of procedural requirements in class action certifications: the opt-out mechanism
Whilst certification factors are pivotal in determining the outcome of a certification application, the class participation mechanism, either opt-in or opt-out, is an important procedural guardrail which informs the certification factors (such as class definition).Footnote 43 In this section, I reflect on how judicial interpretation of the class participation mechanism can align procedural requirements in certification applications with providing access to remedy, thereby contributing to the same BHR objective in the UNGPs Pillar IIIFootnote 44 and serving the interests of justice.Footnote 45
The class participation mechanism is not a stand-alone certification requirement but operates as follows: a bifurcated process is adopted in the application to arrive at an objective class that equitably serves the interests of both parties. The first part enquires whether the prospective members share common issues,Footnote 46 and can be managed on an opt-in or opt-out basis. The second part deals with proving individual claims for damages and is managed using the converse method to that in the first part.Footnote 47 Under the opt-in mechanism, applicants must take proactive measures to join the class action, indicating their consent to the jurisdiction of the court and the outcome of the litigation. Parties who do not opt-in are not bound by the outcome, making their claim before another court possible. The opt-out mechanism requires members to expressly withdraw from litigation; failure to do so equates to consent to the jurisdiction of the court and automatic consent to the outcome. Additionally, claimants are barred from pursuing further claims on the same cause of action.Footnote 48 Opt-out mechanisms are supported as a better facilitator of the primary goal of class actions—access to justice.Footnote 49
In South Africa, courts have discretion to order opt-in or opt-out participation based on which option better serves the interest of justice.Footnote 50 The choice is informed by considerations of manageability,Footnote 51 and the risk of fictitious consent to potentially preclusive judgements.Footnote 52 If the proposed participation mechanism presents these risks, the court may conclude that the class definition is incompatible with the interests of justice, materially affecting certification. This effect is exacerbated on Brickhill’s reading that the class definition is a requirement rather than a factor—either an objectively identifiable class exists or not.Footnote 53
Kabwe held that a wholly foreign opt-out class is impermissible. Two main reasons informing this decision were:
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(i) Jurisdictional concerns: the court repeatedly emphasized the claimants’ weak connection to South Africa. The applicants were all Zambian, the harm occurred in Zambia and the only link to South Africa was Anglo’s domicile.
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(ii) Notice and participation challenges: the court found that the applicants did not propose an effective procedure to notify claimants and track opt-out. Foreign claimants are not subject to the jurisdiction of a single South African court, and absent the claimants’ express or implied consent to the jurisdiction of the court, the court could not order the opt-out class based on reigning precedent. Permitting a wholly foreign opt-out class raised the risk of fictitious consent and was thus impractical and unmanageable. Permitting it would undermine procedural fairness and the interest of justice.
Therefore, on the court’s reasoning of the shortcomings of the opt-out mechanism for a wholly foreign class, even if the proposed classes of (a) children and (b) women of childbearing age in Kabwe were held to be objectively identifiable classes, because both classes consisted of only foreign applicants, they could not participate in the class certification.
Whilst the opt-out mechanism was not disputed in Nkala, the court leaned into the principle of extraterritoriality to secure transnational corporate accountability. The court recognised that a broad conception of the class at opt-out stage, properly managed, ensures that no individual with a legitimate claim is excluded.Footnote 54 Citing the fact that failing to allow indigent, rural mineworkers brought to South Africa as part of the migrant labour system where they contracted terminal diseases would render the constitutional right of access to justice illusory, Nkala sanctioned the opt-out mechanism as appropriate for a class composed partly of foreign peregrini. Footnote 55 The structural barriers faced by the mineworkers, including their severe illness, practical impossibility of individual litigation and lack of resources, made the class action the only realistic vehicle for relief, failing which, the claimants would have no recourse against the respondents. Based on the African epistemological paradigm of Ubuntu as well as decolonial theory, next I critique Kabwe’s interpretation of the opt-out mechanism as formalistic and posit that it narrows the potential of South African class litigation to advance BHR objectives regarding historic, transnational human rights violations.
II. Ubuntu and decolonial critiques on Kabwe’s rejection of a foreign opt-out class
Before turning to the court’s reasoning on the opt-out mechanism, it bears noting that the court ultimately declined to certify the class on the basis that no triable issue capable of being established at trial had been shown.Footnote 56 The court in Kabwe did not certify the class through either the opt-out or opt-in mechanism. The court’s denial of the opt-out mechanism rests on familiar doctrinal prescripts of jurisdiction, conflict of laws and comity.Footnote 57 This approach, I contend, overstates procedural formalism at the cost of relational ties and access to justice, and further, perpetuates colonial narratives of power and exclusion. This contention is formulated in three parts. First, I consider the shortfalls of the reasoning against the tenets of Ubuntu and propose why an Ubuntu-informed reading would have welcomed the opt-out class. Second, relying on decolonial critique by MadlingoziFootnote 58 and Modiri,Footnote 59 I show how Kabwe performed ‘disjunctive inclusion’ by engaging with the constitutional right of access to justice, but simultaneously reproduced Eurocentric judicial assumptions to restrict the claimants’ access to justice. Lastly, I outline practical procedural protections Kabwe could have incorporated into the opt-out mechanism to serve the interests of justice.
To the first point, Ubuntu centres the principles of solidarity and community, interpersonal accountability, relationality and restorative justice.Footnote 60 South African courts have used Ubuntu to promote restorative remediesFootnote 61 and context-sensitive meaningful engagementFootnote 62 amongst others. Molefe explains that Ubuntu prescribes a politics which requires that all individuals have access to conditions necessary for them to develop into ‘robust agents’ who, in turn, can pursue (Ubuntu as a) virtue. These necessary conditions refer to the basic goods that are needed to overcome not only present inequality, but, importantly, historic inequalities too.Footnote 63 Kabwe’s decision to reject the opt-out mechanism is incompatible with Ubuntu’s commitment to prioritizing historically socially disadvantaged claimants to obtain substantive justice and redress. In this case, not only individual, but collective redress and communal inclusion are undermined. Further, by emphasising interpersonal duties and relational duties, Ubuntu affirms humanity regardless of national boundaries. An Ubuntu-informed view of the opt-out mechanism would consider whether Anglo had a relational responsibility to the Zambian claimants based on its historic mining practices that could have impacted communal wellbeing and the disproportionate harm procedural barriers present to socially marginalized litigants.Footnote 64 Indeed, the other question at play is whether the court had a relational duty to those harmed by South African corporate actors, wherever they reside.Footnote 65 This raises broader implications beyond the immediate dispute, suggesting that an Ubuntu-inflected approach in South African courts could serve as a normative foundation for transnational adjudication, particularly in cases involving cross-border corporate harm where traditional jurisdictional doctrines inadequately capture relational responsibility.
Turning to the second point on decolonial thoughts on the court’s rejection of the opt-out mechanism. The court’s appeal to the right to access to justice as primordial in class actions but limiting it to claimants with sufficient connection (which was not precisely defined in Kabwe)Footnote 66 to the jurisdiction of the court reveals the ‘conquest of logic’ of constitutional interpretation.Footnote 67 The court’s deference to jurisdiction and the claimants’ substantive connection to South Africa—whilst important procedural safeguards—can be argued to display loyalty to colonial boundaries of sovereignty and territory. But transnational corporate harm does not territorially constrain victims, especially not to jurisdictions that have robust, capacitated court systems with legal resources to represent them in large-scale litigation.Footnote 68 Usually, the corporation is based in capacitated jurisdictions and operates globally, while claimants are in regions historically shaped by colonialism and other forms of extractive capitalism.Footnote 69 Madlingozi’s call for ‘decolonization from below’ grounds true decolonization in greater community self-determination where communities define their problems and solutions to them on their own terms, including through the use of epistemic justice (such as indigenous law and governance systems), instead of through imposed legal frameworks.Footnote 70 Like Molefe, he posits that institutions such as courts and NGOs play an enabling role; they should provide resources to achieve decolonization from below.Footnote 71 In this case, some of the resources the court could have crafted include providing procedural safeguards in the opt-out mechanism to enhance claimants’ agency to opt-out and to apply Ubuntu principles as authoritative to advance collective action.
A final point of decolonial critique: the court’s insistence on an opt-in regime for foreign claimants reproduces at least two Eurocentric jurisprudential assumptions which emblazon the colour-blind and power-blind nature of the law.Footnote 72 The first assumption is that the claimants in Kabwe have legal autonomy and the agency to opt-in, unaffected by poverty, linguistic or literacy barriers and geography. The second is that South African courts must defer to foreign sovereign lawFootnote 73 rather than acknowledge their own role and agency in securing transnational corporate accountability. The court’s posture on opt-out mechanisms obscured the racialized and economically marginalizing nature of the extractive sector.Footnote 74 Conversely, the expansive interpretation of the certification issues in Nkala re-examined prevailing legal frameworks through contextual realities to disrupt the reproduction of colonial labour relations and knowledge production under existing delictual and BHR frameworks.Footnote 75 The court’s engagement with the intersections of historical political and economic disenfranchisement based on the claimants’ race, class, and geographical location, as well as the profits derived by the corporations from this disenfranchisement, influenced successful certification. This lens adopted in Nkala provided important guidance on equitable conceptions of justice. I also believe that the above approach serves a further valuable purpose: against the backdrop of the UNGPs’ silence on remediation of historic harms, it offers practitioners, law makers and companies a framework for understanding what equitable conceptions of justice may require when interpreting and applying the UNGPs.
It is acknowledged that the court’s decision to reject the opt-out mechanism for class certification was premised on the application of pragmatism and precedent as discussed in section B of this paper. However, it is contended that the court in Kabwe, like in Nkala, could have used its discretion to combine practical safeguards within the opt-out mechanism to further the interest of justice. To minimize the risk of fictitious consent,Footnote 76 Nkala exercised supervision over the applicants’ notice process, requesting them to return with a detailed plan on how opt-out notice would be managed, for review and approval. To facilitate the opt-out process, safeguards including a multi-platformed notification campaign involving radio announcements in several languages, notices in mining regions, notices published in newspapers and via NGOs and clinics were required by the court. The proactive stance of the court is congruent with Principle 26 of the UNGPs: ensuring effective remedy entails considering ways to reduce legal, practical and other barriers that could deny access to remedy.
Conclusion
The South African judiciary has substantively contributed to the BHR principles of access to justice and remedy through statutory interpretation and class action certifications. I have shown how the Constitutional Court’s dissection of the opt-out class in Nkala intentionally recognised the sub-humanization of mineworkers through the matrix of corporate and state power and historic laws disproportionately affecting workers of colour. While not expressly discussed in Makanyi, the judgement centred collective remedy and substantive justice, invoking core principles of Ubuntu and decolonial thought, in keeping with the Court’s history of using Ubuntu to interpret legal issues. I have argued that Kabwe’s rejection of the opt-out mechanism for a class of foreign plaintiffs missed an opportunity to similarly appeal to the African epistemology of Ubuntu to strengthen BHR norms on access to justice, especially for transnational corporate accountability in South Africa. Interpreting the appropriateness of the opt-out mechanism for a foreign class presented a unique opportunity for the court to localize the UNGPs by grounding them in the indigenous normative frameworks of Ubuntu and decolonialism.
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