Simpson, Nardia

Waldman, Linda

English

IDS OpenDocs

4 | Mobilization through litigation: claiming 
health rights on asbestos issues in South Africa
N A R D I A  S I M P S O N  A N D  L I N D A  W A L D M A N
Citizens seeking to claim their rights, demand redress for grievances or 
increase pressure for political change may, in many instances, turn to 
litigation to do so (see Felstiner et al. 1980; Hershkoff and Hollander 2000; 
Houtzager 2005). Indeed, civil rights movements have historically used the 
courts as a means to claim their rights as citizens. Recently, however, the 
legal landscape has been marked by the rise of transnational litigation 
against corporations and states, as citizens of developing countries have 
begun to use foreign courts, particularly in the United States and the 
United Kingdom, to redress wrongs that occurred in their home country. 
These class actions, undertaken by large numbers of citizens, rather than 
individuals, are generally underpinned by collective social activism in 
their home countries and thus operate in a unique transnational and 
legal context. Because of the focus on legal activism, these movements 
straddle global and national contexts in peculiar ways. They are integrated 
into – and draw upon – global social movements as stimulants for their 
activism while simultaneously the legal paradigms ground their actions 
in particular national contexts. This chapter examines one of the first 
examples of social mobilization and transnational litigation which was 
labelled as a legal success. In exploring the role of litigation and iden-
tity in transnational mobilization, it examines how mobilization – or 
the lack thereof – contributes to citizen empowerment in specific local 
contexts. Contrary to much of the literature which sees global mobil-
ization networks as critical to citizen empowerment, and which has em-
phasized transnational civil society (Edelman 2001; Laclau and Mouffe 
1985;  Touraine 1988), this chapter argues that the effects of transnational 
litigation in conjunction with mobilization can be misinterpreted and un-
even. Most critically, however, the chapter shows how processes of social 
mobil ization and transnational litigation are reinterpreted according to 
local contexts and identities. Using the example of asbestos litigation and 
Griqua social identity, the chapter argues that the relationship between 
litigation and mobilization is more problematic than often assumed, and 
does not always result in citizen empowerment. As demonstrated in this 
Fo
ur
88
chapter, even when the litigation is successful, some claimants interpret 
the case as a bitter defeat. We seek to explore why South Africans in two 
neighbouring towns experienced the case so differently. We do this by 
examining the construction of an international legal case in conjunction 
with the particular local sociocultural experiences and identities of the 
towns’ residents.
In July 2003 a British company, Cape plc, which was formerly en-
gaged in asbestos mining and milling operations, agreed to transfer £10.5 
million to the Hendrik Afrika Trust, which was established to provide 
compensation for the 7,500-plus claimants in South Africa who suffer 
from asbestos-related diseases (ARDs). A further £10.5 million was to 
be paid into the fund over ten years. The creation of this trust was the 
culmination of an out-of-court settlement that occurred on 22 December 
2001. Reaching the settlement had taken more than four years. However, 
after Cape defaulted from this payment, citing plummeting share values 
and financial instability, a final settlement of £7.5 million was paid and 
distributed among the claimants. In the small rural town of Prieska, in 
the Northern Cape, the settlement was part of a process that began in 
the 1980s when a local group of activists commenced a campaign for 
improved access to asbestos compensation. (See L. Waldman 2007 for 
a detailed analysis of this legal campaign.) The settlement and Cape 
plc’s payment are often considered to be a legal success story. For many 
people within South Africa, this story of international litigation, local 
mobilization, activist networks and asbestos pollution is, without doubt, 
a David and Goliath story in which poor, disempowered people took on 
a powerful, international company and won. As Ward argues, the litiga-
tion is also a legal breakthrough as it is the first example of a foreign 
direct liability case in which personal injury actions were brought by 
South Africans against parent companies of English multinationals in the 
English High Court (Ward 2002). Along with other product liability cases 
around the world (Jasanoff 1995; Newell 2001), this has come to be seen 
by some as a means of ensuring that corporations are held accountable 
and as a way to deliver compensation to injured workers.
Throughout the litigation, non-governmental organizations (NGOs), 
academics and lawyers assumed that, although small by British stand-
ards, this compensation would greatly benefit impoverished commun ities. 
In fact, the poverty of the affected communities was identified as a key 
argument for pursuing international litigation against toxic abuses in 
South Africa, coupled with the lack of legal expertise or financial aid and 
the power ful incentives not to address corporate irresponsibility in the 
H
ea
lth rights in South A
frica
89
claimants’ home country (McCulloch 2002; Meeran 2003). As such, the 
settlement can be viewed as a significant victory. As demonstrated below, 
however, some claimants see this case as a bitter defeat. In  attempting to 
explain the diverse interpretations of the same litigation and the resultant 
tensions, this chapter draws on the literature of  social movements,  political 
mobilization, ethnic identity and millenarian  movements, relating these 
to everyday economic and cultural experiences in the Northern Cape. 
It examines the protest against asbestos pollution, and the sub sequent 
legal claims and compensation, from the perspective of the people of 
Griquatown and Prieska. The chapter argues that neither assumptions 
about the instrumental benefits of litigation nor theories of social move-
ments alone can adequately explain people’s emic  interpretations of inter-
national litiga tion and political mobilization. Rather, it is the linkages 
between these literatures, informed by an understanding of local ethnic 
identity, which provide a framework for understanding social behaviour 
and evaluating the ‘success’ of transnational litigation.
Litigation and social movements
The securing of compensation via the legal process can play an im-
portant role not only in a context where a large number of people have 
been injured, placing strain on public resources, but also in individual 
circumstances when health services are a minimal public right or non-
basic care is prohibitively expensive. In addition, access to legal services 
that can help secure financial resources to assist injured workers and 
their families has particular significance for poor populations where 
shocks in relation to the earning capacity of household members are 
very difficult to insure against.
Litigation is not, however, only about compensation and the satisfac-
tion of material needs; litigation can also be considered beneficial if it 
generates publicity and mobilization around a particular cause. As Marcia 
Greenberger, former co-president of the National Women’s Law Center 
(USA), explains, ‘a concrete case could provide a way of highlighting the 
importance of a legal principle in the context of a real set of facts and 
actual people affected by the outcome. A case could serve to rally press 
and public attention to the legal principle at stake’ (cited in Hershkoff 
and Hollander 2000: 96). Furthermore, the use of litigation can provide 
previously marginalized groups with a sense of legitimacy and protect 
members from public interference. As Joshi (2005) explains in relation to 
legal mobilization around the ‘right to work’ in India, a practical expecta-
tion of the litigation strategy was to cast a spotlight on the activities of 


Mobilization through Litigation: Claiming Health Rights on Asbestos Issues in South Africa

https://opendocs.ids.ac.uk/opendocs/bitstream/handle/20.500.12413/12565/simpson_etal_2010_mobilization.pdf?sequence=1&isAllowed=y

Mobilization through Litigation: Claiming Health Rights on Asbestos Issues in South Africa

Abstract

Similar works

Full text

Available Versions

IDS OpenDocs