The case will now have to proceed in the South African courts which have yet to deal with a group action. The judge said South Africa was "clearly and distinctly the more appropriate forum" for a hearing into conditions in South Africa over 20 or 30 years, and the individual history of many claimants.
He had ben told Cape, which now works in asbestos removal, had sold its mines in 1979, and today had no interests in the country, and very little documentation relating to the relevant period.
The judge said South African courts could draw, if they wished, on the experience of the English courts in group actions "and perhaps avoid some of the pitfalls". He added: "I cannot find, on the evidence, that the South African courts would fail to deal with the matter appropriately. It is not for me, save in a clear and extreme case, to pass judgment on the merits or otherwise of another jurisdiction and I include in that its administration of a properly constituted legal aid system."
He granted leave to appeal to the claimants, who wanted the case heard in England, and said it was "highly desirable" that it should proceed as soon as possible as "claimants are dying and their cases are being continued on behalf of their estates".
Cape's QC, Brian Doctor, had said the issue to be tried was not just about the existence of a duty of care allegedly owed by the company but about "100 years of evidence of playing in the asbestos dumps".
He said it would be "practically impossible" for the English courts to manage a group action comprising thousands of South African nationals over whom it had no jurisdiction. The claimants said justice could not be done in South Africa because the claimants would not obtain legal aid or legal representation and there were other major obstacles.
The judge said: "Parts of South Africa were awash with asbestos. Not only in the mines and mills, but in dumps and on the roads. Houses and schools were built of it.
"The defendant was not the only operator in the relevant areas. Much of the labour was itinerant and work records largely non-existent. It will be a considerable undertaking to establish whether it was employment by the defendant or exposure to dust in the atmosphere of a particular locality for which the defendant was responsible, which materially contributed to a particular claimant's illness."Reuse content