EXTRACT | ‘In a Rain of Dust’ by David Kinley
ABOUT THE BOOK:
In a Rain of Dust: Death, Deceit, and the Lawyer Who Busted Big Asbestos by Prof David Kinley is powerful title which tells the extraordinary true story of the landmark asbestos case brought against Cape PLC, and reflects on its wider significance for corporate accountability and justice in post-apartheid SA.
Drawing on years of original research, dozens of interviews, and unprecedented access to key players, In a Rain of Dust not only chronicles an epic fight for justice but also explores its broader significance for the post-apartheid quest for economic and social redemption, and the evolution of global corporate responsibility standards.
READ AN EDITED EXTRACT HERE:
Several judges were shaking their heads, exasperated by what they were reading. It was the moment he began to think that they just might win. After years of seemingly endless court battles fighting an unscrupulous corporate giant armed with the best legal team money could buy, an exhausting itinerary shuttling between London and Johannesburg, and countless hours taking victims’ statements and poring over hundreds of thousands of pages of medical records, scientific studies, legal documents, and company reports, Richard Meeran could hardly believe it.
Meeran is the English lawyer (with Indian and African roots) who in the 1990s took on Cape Plc, one of the biggest names in the dirty business of asbestos mining. He alleged that the UK-based company’s South African operations had for decades caused the death of thousands of impoverished, pre-dominantly black and coloured workers and brought disease to many thousands more, all the while knowing of the dangers of asbestos to people’s health and welfare. It was a case of willful negligence, cover up, and double standards. Yet despite a body of damning evidence, the whole case turned on arguments over arcane and entrenched rules about jurisdiction and the separation of parent and subsidiary corporations. Where was the proper place for the case against the company to be heard? In the United Kingdom, where Cape was incorporated, or in South Africa, where its former subsidiary companies had operated? The answer was crucial.
Cape wanted the case heard in South Africa, where the claimants (whose number would eventually swell to 7,500) would likely have no legal representation, as neither legal aid nor lawyers able to act on contingency were then available under South African law. Without legal counsel, any prospects of successfully suing the company were markedly reduced. If, on the other hand, the case was heard in the United Kingdom, as Richard argued it should be, the litigants could have access to lawyers funded by legal aid, and any finding of negligence might attract a significant award of damages that Cape, as the parent company, had the financial capacity to pay. The problem for Richard was that a century of established legal precedent favoured Cape. Tearing away the corporate veil that protected parent companies like Cape from liability for its own actions or failures in respect of subsidiary operations was a truly monumental task, and yet for the sick, the dying, and the families of the already dead, he felt compelled to give it all he had.
Thursday, June 19, 2000, was a muggy, early summer’s day in London as Richard took his place behind the bar table in the sombre and surprisingly understated surroundings of the House of Lords, then the United Kingdom’s highest court. The five judges before him— the Law Lords— were considering the reasons why, eight months earlier, three judges of the Court of Appeal below had unanimously sided with Cape. The Law Lords’ decision would depend on how persuaded they were by the arguments of the lower court, and as the House of Lords was the court of last resort, its decision would be final.
Richard was surprised to see senior judges openly show such apparent disdain for fellow members of the bench. Their Lordships’ collective head- shaking was indeed a rare sight— and one, as it turned out, that was pivotal in this case. They were not impressed by the Court of Appeal’s reasoning (it had failed to take proper account of the evidence presented to it, they said) and duly held, unanimously, that the case against Cape could proceed in British courts. Given the weight of evidence of negligence that he had so painstakingly amassed against the company, Richard was optimistic about the prospects of a favorable outcome.
Victory was in sight. Or at least so he thought.
Indicating that he’d like to speak, the man rose gingerly to his feet. He wished to respond to a remark made by an asbestos industry representative who’d sought to remind every one of the many advantages asbestos brought to society. “You cannot make an omelet without breaking some eggs” was the astonishingly inappropriate metaphor the industry rep had chosen to make his point. Old before his time and in a halting voice no longer powered by fully functioning lungs, the new speaker’s first words silenced the room. “I’m one of those broken eggs,” he said. He then calmly spelled out that he was dying of an asbestos-related disease after having worked for years in Cape Town’s notorious Athlone Power Station, which had only recently been stripped of the abundant and badly maintained asbestos insulation material used in its original construction in the 1970s.
The setting for this piece of tragicomedy was an international asbestos conference being held in Johannesburg in late November 1998. Participants ranged from across the subject. Scientists, anti- asbestos activists, former employees, victims, lawyers, government officials, and industry and corporate representatives were all there, the aim being to bring as many stakeholders as possible together in the same room. Liziwe McDaid, a politically-well connected environmental activist and an enthusiastic and effective supporter of the case against Cape, was one of the chief organizers of the conference. Richard was also at the conference but doesn’t recall the “broken eggs” interaction, it being related to me by Liziwe. “It was an important moment,” she says, reflecting on how neatly it encapsulated the nature of pro- versus anti- asbestos movements. Collateral damage can never be acceptable to the latter when it constitutes death and disease in circumstances where the cause is understood and there exists the capacity to prevent it. If people from the asbestos communities had known that so many eggs would have to be broken, then they would have neither wanted nor needed the omelet.
Following the House of Lords’ judgment in July 2000, Richard’s focus had begun to shift toward assessing the extent of the damage caused by Cape’s negligence, which he was now very confident of persuasively establishing. If there was any silver lining to the dark cloud of protracted litigation over the past three and a half years, it was that considerable time and effort had been invested in compiling a compelling dossier of research on Cape’s levels of awareness and responsibility.
That said, at this point the litigation could go one of two ways. Either the case proceeded to trial and the two sides would slug it out over whether and to what extent Cape had acted negligently and was therefore liable for damages. Or, realizing that the game was up, Cape might seek an out-of-court financial settlement. Either way, arguments and negotiations over corresponding levels of compensation for the claimants would be at the heart of proceedings. As near impossible as it is to mend a broken egg, so is the task of putting appropriate monetary figures on eviscerated lungs, devastated livelihoods, and lost loved ones. Furthermore, even if one can, there remained back then the elemental question of how much the company (and its insurers) could really afford.
Cape, as it transpired, chose to take both routes.
However, the rules of engagement had now changed significantly. With the case no longer governed by narrow and dry legal argument over jurisdiction, broader concerns of public and political perception were now paramount. Societal awareness of the perils of asbestos was heightened and people’s intolerance of corporate excuses was acute and scathing. Too many families and friends had been afflicted with ARDs, and litigation and compensation claims were now commonplace in the United Kingdom, as they were across all developed economies. A widely cited study published in the Lancet a few years earlier showed that in the twenty years between 1971 and 1991, the numbers of mesothelioma deaths in the United Kingdom had risen by more than 700 percent. A follow-up survey published in 1999 showed that across Europe during roughly the same period, Britain had by far the sharpest increase in the rate of mesothelioma deaths of any country surveyed. The British media was also full of stories of lives devastated, corporations shirking responsibility, and the regulatory failures of governments.
There had been ample media coverage in the United Kingdom of the House of Lords’ decision as the case reflected so many of these heartfelt concerns. The fact that the victims in the Cape case were mainly poor, black, and coloured Africans, rather than Britons, added to the outrage. Fran Abrams of the Independent reported that “Cape . . . could be forced to pay millions of pounds to . . . [thousands of] South African miners and their families suffering from asbestos- related diseases [who] . . . were exposed to levels of asbestos dust up to 35 times the British legal limit.” While David Pallister of the Guardian wrote that “the decision could have far-reaching consequences for British multinationals” operating overseas, before adding that “last year [Cape] made a pre-tax profit of £9.1m.”
But perhaps the most moving of all accounts of Cape’s asbestos legacy came from a most unlikely source. Audrey Van Schalkwyk had worked for many years as a nurse in Prieska Hospital, where she had witnessed the rising tide of asbestos disease and death. Her parents had both worked for Cape— her father as a miner at Koegas and her mother as a “stamper” (operating a mechanical compressor) at the mill in Prieska. After school, she and her brother used to help their mother ram the asbestos fibers into hessian sacks. Her father had died of mesothelioma in 1993, and her mother was then succumbing to the same disease (she died eighteen months later in 2002). Audrey herself had recently been diagnosed with asbestosis. Richard had invited Audrey to London to attend the delivery of the Law Lords’ judgment and to participate in several preceding publicity events. Audrey is small, softly spoken and almost preternaturally poised, with gently contoured facial features and a shy smile. That said, she maintains strong eye contact in conversation, showing, one soon realizes, a gutsy determination.
One of the events Richard had organized was a private briefing with fifty or so members of the UK Parliament’s second chamber, the House of Lords. Before this august body and in a wood-paneled committee room perched above the main chamber, Audrey had been asked to speak. “Just tell them your story,” Richard urged her, “tell them about your family and life in Prieska.”
She spoke for about twenty minutes without notes and without hesitation. She appeared calm, but, she now admits, she was terrified at the time, especially having to speak in English. “It felt good to get it out in the open,” she says, “but I was shocked to see that some of the people there were crying.” As she recounts this story to me, sitting in her tiny, impeccably tidy living room in Prieska twenty-three years later, I notice that she too has a tear in her eye. “It was very powerful,” she says, composing herself.
Having people like Audrey speak at events such as these was a coup. For while seasoned operators such as South African politicians and Richard himself were also performing in front of audiences, microphones, and cameras at the time, none had quite the authenticity of Audrey, precisely “because she was so obviously non-political,” as Thabo Makweya stresses. He, too, had been taken aback by the emotional reaction of the aristocratic members of the audience that day. A former mining trade unionist and diehard communist, who habitually refers to colleagues (and me) as “comrade,” Thabo had grown up viewing “the white man as the devil,” as he candidly puts it. “To see many of them so genuinely moved— showing real compassion for our plight— was a revelation.” So much so, he adds, to my surprise, that it gave him real hope for the ongoing process of reconciliation back home in South Africa.
In a Rain of Dust is published by Johns Hopkins University Press. Extract provided by Angela Karnein on behalf of JHUP