South Africa - ESG Disputes Bulletin

​​​​​Landmark judgment seeks to overhaul existing maternity and parental leave provisions

In October 2023, the High Court ruled in favour of a set of parents who challenged the constitutionality of the current South African statutory maternity leave provisions contained in the Basic Conditions of Employment Act. The High Court declared the current statutory provisions regulating maternity leave to be unconstitutional on the basis that they unfairly discriminate against fathers, by placing the primary caregiving of an infant solely on mothers. The Applicants had argued that parents' ought to be able to elect which parent will take maternity leave to care for an infant. The High Court ruled that language should be included in the maternity leave provisions that will see fathers have the option to benefit from the statutorily provided pool of maternity leave. The High Court's order must first be confirmed by South Africa's Constitutional Court before it can have any binding effect. If confirmed, the judgment, which seeks to promote gender equality in the workplace, will have significant consequences for employers. See our insights article and podcast where we unpack the judgment and consider some of its consequences.

ESG class actions - updates in the Kabwe Lead Mine case

The judgment is detailed but the following pertinent points are noted:

  • Commonality - the court remarked that it is not a requirement that the class members' cause of action be identical.
  • Funding arrangements - the court remarked that the applicant's proposed funding model was a novelty in the South African landscape and scrutinised the funding arrangements against different legal standards. The court found that Anglo's concerns related to the funding arrangements were without merit.
  • Triable issue of fact - the court found that the facts and documentary evidence the applicants relied on in support of their claim were insufficient to establish a prima facie case against Anglo.
  • Determining and allocating damages - the court held that "it will always be open to that court [trial court] to insist that individual members would have to prove their damages as they would have done in a separated quantum hearing as individual litigants" and also found that the applicants sought relief of remediation "is inappropriate and ineffective in the form advanced by the applicants, because they have not demonstrated that this remedy is legally sustainable in Zambian law".
  • Opt-in or opt-out class - the court held that it would not be appropriate to certify the class action on an opt-out basis.
  • Zambian law prescription - the court found that in the circumstances, the suggestion that the prescription argument can be rejected on policy or constitutional grounds is patently bad.
  •  Class representatives suitability - the court found that the proposed class representatives do satisfy the criteria specified in the class definitions.

As a result, most of the claims in the second proposed class were time-barred, making the class overbroad for purposes of the class action.

​​More importantly for purposes of ESG and historical environmental fallout claims, the court held that the applicants "have not cited any precedent in which an alleged historical polluter was held liable in tort for negligence because it owed a duty of care to those who had not yet been born at the time it allegedly polluted. Furthermore, the judge agreed with counsel for Anglo that the limited legal precedents available indicate that establishing such an intergenerational duty of care is untenable, as damage to subsequent generations and decades into the future could not have been foreseen."

Failure of legislative and constitutional duties led to the Lily Mine collapse

In October 2023, a Magistrates' Court found that the owners of the Lily Mine in Mpumalanga, where a 2016 ground collapse led to the deaths of three mineworkers, failed to conduct proper risk assessments as required by the Mine Health and Safety Act, 1996. In a judgment handed down in an inquest held in November 2021 and February 2023, the Magistrate further found that the failure of police and the Department of Mineral Resources and Energy to combat illegal mining contributed to the fatal collapse. It was found that the two-state institutions failed in their constitutional duties to protect the country's inhabitants and "to have the environment protected, for the benefit of present and future generations". The Magistrate indicated that the record of proceedings would be forwarded to the Director of Public Prosecutions for the possibility of instituting criminal proceedings.

​Biodiversity offset challenges in gas-to-power project

On 22 November 2023, the Biodiversity Law Centre lodged an internal administrative appeal against an environmental authorisation (EA) granted by the Department of Forestry, Fisheries & the Environment (DFFE) to Karpowership SA to proceed with plans to moor floating gas power ships in the port of Richards Bay (the Richards Bay Project). The appeal concerns an agreement between Karpowership and Ezemvelo KZN Wildlife (Ezemvelo) in terms of which Kapowership allegedly purchased the Madaka game farm for Ezemvelo to 'offset' the biodiversity loss that the Richards Bay Project will cause to Richard Bay's sensitive estuarine environment. Among multiple appeal grounds are the concerns that:

  • in the absence of a comprehensive offset report; that there is inherent uncertainty regarding whether the offsets are in fact possible;
  • it is unclear how purchasing Madaka, with biodiversity targets relating to elephants and black and white rhino populations, will compensate for impacts on estuarine environment in Richards Bay; and
  • the offset mechanism contemplated creates a problematic precedent for how to hold developers accountable for biodiversity impacts arising from delays in offsets becoming functional.
  •  ​offsets are included in the EA without a satisfactory explanation as to the specific residual impacts the offsets seek to remedy;

The Biodiversity Law Centre also questions whether the offset arrangement is lawful in terms of statutory and policy provisions governing offsets. After appealing, Karpowership applied to have the EA's automatic suspension be lifted, while the appeal was being heard. They claimed this would cause prejudice, which was challenged by the Biodiversity Law Centre. In January 2024, it was reported that Eskom issued a statement indicating that the grid access it had set aside for Karpowership's three proposed gas-to-power plants (including the Richards Bay Project) had expired after the projects failed to reach financial close by the deadline of 31 December 2023.

Human Rights Commission brings case against anti-LGBTQIA+ shop owner

South Africa's Human Rights Commission has brought a case in the Eastern Cape High Court against an anti-LGBTQIA+ shop owner, who admitted to erecting a sign outside his establishment in Parkside, banning gay, lesbian, and transgender people. The allegations against the shop owner include discrimination, hate speech and harassment, and that his conduct violated the rights of the LGBTQIA+ community. On 6 November 2023, representatives of the Human Rights Commission appeared in a Judge's chambers for a directions hearing, which was then postponed to a later date because the respondent's representatives could not attend the hearing.

South Africa's genocide case against Israel

On 29 December 2023, South Africa applied to the International Court of Justice (ICJ) to institute proceedings against Israel. The application included a request for provisional measures. South Africa's case is that Israel has violated the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) by deliberately trying to destroy part of the Palestinian people. South Africa wants Israel's conduct in Gaza to be declared as acts of genocide or genocidal intent in violation of the Genocide Convention. South Africa requested the ICJ to indicate provisional measures on an urgent basis for the protection of rights and irreparable harm, including immediately suspending Israel's military operations in and against Gaza; requiring Israel to take all reasonable measures to prevent genocide, and desist from committing genocide and forced displacement of Palestinians and depriving access to humanitarian assistance to Palestinians. Arguments on the provisional measures took place on 11 and 12 January 2024. Judgment on the provisional measures is expected to be received within a few weeks.

​*This article was initially drafted in December 2023 before the ICJ issued what it called "emergency measures" on 26 January. This was a hearing to rule on several interim steps that South Africa had asked it to take against Israel. The ICJ ordered the State of Israel to take all measures within its power to prevent the commission of genocide, to ensure that its military does not commit genocide, to prevent and punish incitement to commit genocide, and to enable the provision of urgently needed basic services and humanitarian assistance to the people of Gaza. This is still an ongoing and developing case.



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