INTRODUCTION TO THE NKALA CLASS ACTION BLOG SERIES
Every once in a while, a major case or event will have a dramatic impact on the field of business and human rights, such that it deserves careful consideration and analysis. In the US, cases like Kiobel v. Royal Dutch Petroleum and Jesner v. Arab Bank changed the legal landscape for human rights litigation. In South Africa, the recent settlement agreement in the Nkala and Others v. Harmony Gold Mining Company and Others class action is one of the most complex multi-party class settlements in the world today. This case presents a similarly dramatic moment, but, unlike Kiobel and Jesner, it is one that presents hope for victims of corporate abuse.
This blog series examines the Nkala class action from several angles: its role as a mechanism of transitional justice, the constitutional implications, the impact on class action litigation in South Africa moving forward, and the comparative lessons to be drawn.
In this introductory blog, I provide a brief description of the interconnectedness and interplay of the events in my life which have influenced my work in this field, my practice as a South African corporate and human rights attorney, and research as a legal academic.
I grew up in the now famous Sharpeville, during the politically volatile transitionary period of the 1980s and early 1990s. The earlier 21 March 1960 Sharpeville Massacre etched this township into the world’s public memory, over the outrage of the then government’s mass killing of anti-apartheid protestors. It was, significantly, the Sharpeville Massacre which compelled the United Nations to declare the political, economic, and social atrocities of Apartheid, a crime against humanity in 1976. Subsequent to this, the Vaal Reef Violence of the 1980s and 1990s, in my township resulted in army invasions, led to further international political and economic business condemnation of South Africa, and almost caused the irretrievable breakdown of the national democratic negotiations. The Vaal Reef Violence left many dead and others maimed. My initial experiences of life in my region of this country were but a microcosm of the greater South African society going through its last blood shed days of an unjust legal regime. Reflecting now, on these events and the subsequent negotiations towards constitutional democracy during this difficult period, demonstrated the contrasting powers of the law for me: the law can be an instrument for oppression or social change.
It was on 21 June 1992 when I first saw and heard, in person, this man whom they called “Mandela.” He had come to Boipatong township, near Sharpeville during the Reef Violence, to speak calm to the angry community at a dusty soccer field. It may sound an exaggeration now, but back then to a seven-year-old boy observing from the soccer field, “Mandela” was the tall and statuesque personification of the stuff of a township political legend. Historical accounts of that day record that Mandela spoke angrily against the public and private sponsorship of forces that sought to deprive ordinary South Africans of the right to choose and construct a constitutional democracy of their own making. Although it may have derailed the first Congress for a Democratic South Africa (CODESA I), the Reef Violence strengthened the resolve of those seeking a peaceful settlement by paving the way for CODESA II. What struck me most, I came to learn in later years about this man of legend however, was that he was a lawyer.
Four years after first seeing and hearing Mandela, I was then ten years old, when I witnessed a then President Mandela sign the final Constitution into law, close to my house in Sharpeville, on 10 December 1996. With the stroke of a pen apartheid was excised from the statute books and law reports, yet the pervasive and insidious complex economic power relations of corporate “privatized apartheid” however, lingered in the divisive crevices of our everyday lives. In an attempt to address historical, current and future forms of privatized economic apartheid, the drafters of our Constitution had contentiously made it one of only two constitutions in the world today, which directly enforce human rights obligations onto corporations. Aspirational words on pages however, could not reconcile the constructed societal structures of our privately lived realities, as the Truth and Reconciliation Commission (TRC) would reveal. Each Sunday evening from 1996 to 1998, we watched televised testimonies of victims and perpetrators during the TRC hearings. In its chapter dealing with corporate complicity, the TRC poignantly noted how the complex corporate power relations of apartheid continued to afflict post-apartheid society. The TRC identified the mining industry as having played a central role in economically designing and implementing apartheid policies which resulted in the deprivation of basic democratic rights. With this blog series I invite the reader to come along with me as I retrace these complex arrangements of corporate power, attempt to untangle them, and provide recommendations for redress and future deterrence.
In the first blog I consider the 133-year-old history of the gold mining industry leading up to the present. My specific focus is on the how this industry caused hundreds of thousands of mineworkers to become ill and die from occupational lung diseases, silicosis and tuberculosis. The South African government did not implement any of the TRC’s recommendations on corporate reparations preferring not to alienate private-sector investment in line with its neo-liberal economic policies. Since TRC had no prosecutorial powers, it at least, expressly identified the bases for civil and criminal corporate liability as a means of achieving transitional justice through litigation. In the second blog I consider the findings of the TRC and class action litigation as a transitional justice mechanism.
Two decades after the TRC hearings, I began practicing as corporate mine and occupational health and safety attorney. My practice exposed me to classes of mineworkers who were increasingly falling ill and dying from occupational lung diseases. During this time, in 2012 current and former mineworkers and their dependents instituted what would become one of the largest class actions in the world against thirty-two gold mining companies, in the South African High Court in Nkala and Others v. Harmony Gold and Others. In the third blog, I discuss how the South African Constitution provides for the direct application of constitutional rights to corporations, and the class action as a means of enhancing access to justice. I discuss how the Nkala class action forms part of the ongoing transitional justice project of achieving corporate accountability for human rights violations and thus serving a constitutional remedial purpose. The fourth blog is dedicated to a discussion of the recent $353 million Nkala class action settlement. Approved on 26 July 2019, this settlement raises the important question in the South African context: can constitutional rights such as the right to life, human dignity and freedom from acts of private violence, be sold in a private settlement agreement?
My research on this case, and on the South African mining industry as a whole, is the fruit of many years of engagement in this field. To some, I embody a legal contradiction. Let me tell you why. I have defended the major international mining corporations. I am also a human rights attorney who has represented mineworkers against these very same mining corporations in health and safety inquiries. Does this really present a contradiction? Well, I am certain of the following three things. I am a millennial. I come from a country that symbolizes the modern democratic compromise between conflict and peace. My country presents a microcosm of the tension inherent in reconciling corporate accountability for human rights violations and social responsibility for sustainable development in a transitional post-conflict society. I am a South African, born during the dying years of apartheid, lived through its formal death, and now maturing within a complex post-apartheid society defined by a persistent legacy of structural economic inequality. With my work, I aim to reconcile the ostensible conflict, which in recent years has come to be known through the somewhat oxymoronic term ‘business and human rights.’ From this brief introduction, you may already at face value deduce from your own vantage point whether or not I do present a legal contradiction. To arrive at a more comprehensive deduction, I invite you to consider my thoughts through this series of blogs.