Mind the Governance Gap: ESG-Related Litigation for Environmental Harm in the Kabwe Class Action

The business and human rights landscape has shifted significantly in the last two decades (Bilchitz & Deva, Human rights obligations of business: Beyond the corporate responsibility to respect?, pp. 1–26, 2013). Human rights are no longer seen as “add-on” issues to businesses and are progressively becoming the subject of litigation (Hackett et al., Envtl L Rep 50:10849, 2020). This chapter uses the Kabwe class action, which is currently before the Johannesburg High Court, to explore how issues of human rights are increasingly relevant to businesses, and particularly to those who profess to uphold human rights standards in their environmental, social, and governance (ESG) reporting. While ESG reporting has been heavily criticised for downplaying the adverse impacts of corporations (De Silva Lokuwaduge & De Silva, Australas Account Bus Fin J 16(1):146–159, 2022), the rise in ESG-related litigation provides an alternative outlook—a standard for stakeholders to judge business conduct. Similarly, against the backdrop of the negotiations for a binding Business and Human Rights Treaty and the pursuit of environmental justice, claimants have turned to courts to find redress for cross-border corporate harm (Setzer & Vanhala, Wiley Interdiscip Rev Clim Change 10(3):e580, 2019). In the case of Kabwe, a group of Zambian claimants, primarily made up of women and children, seek to hold Anglo American South Africa liable for lead poisoning as a result of decades of environmental pollution caused by the operation of one of its former subsidiaries. This case offers some insight into how claimants are using published statements related to parent company involvement in the operations of their subsidiaries in order to assert legal responsibility. This chapter analyses how the Kabwe class action reflects the view that corporations are social actors and how adverse impacts on people and the environment can lead to ESG litigation risks. It concludes by stating that ESG-related litigation offers claimants who have suffered harm as a result of corporate conduct an avenue for justice as well as ensures that corporations can no longer discard human rights issues in their operations.