October 2007

Latest development in this saga

 

US court gives nod to apartheid claims

 

Paritosh Bansal | New York, United States  13 October 2007 09:53

 

A United States appellate court on Friday allowed claims brought by victims of apartheid against dozens of major companies to go forward, saying a lower court erred in ruling it did not have jurisdiction over the matter.

 

The corporations named in the suits include oil companies such as BP and Exxon Mobil, banks such as Citigroup, Deutsche Bank and UBS, as well as other multinationals such as IBM, General Motors and Ford.

 

The plaintiffs include the Khulumani Support Group, a South African non-profit organisation that works with victims of apartheid and says it has 32 700 members who are survivors of apartheid violence.

 

The US Court of Appeals for the Second Circuit ruling vacated an order by US District Judge John Sprizzo in Manhattan that had dismissed claims brought under the Alien Tort Claims Act (Atca) by the plaintiffs, who had argued that the companies collaborated with the government of South Africa in maintaining apartheid.

 

"The district court erred in holding that aiding and abetting violations of customary international law cannot provide a basis for Atca jurisdiction," the court ruled. "We hold that in this circuit, a plaintiff may plead a theory of aiding and abetting liability under the Atca."

 

Two of the three judges in the appellate panel -- Robert Katzmann and Peter Hall -- filed separate concurring opinions. The third, Edward Korman, concurred in part but disagreed with the judgement reversing the dismissal.

 

Three groups of plaintiffs had filed 10 separate actions in multiple federal courts asserting apartheid-related claims against the companies, according to the 147-page ruling. The cases were all transferred to the federal court in Manhattan in December 2002.

 

Torture claims

The appeals court did uphold the dismissal of claims made under the Torture Victim Protection Act. A group of plaintiffs had alleged the defendants aided and abetted the apartheid regime's use of torture and extrajudicial killing against the plaintiffs.

 

The South African government had asked the district court judge to dismiss the cases, saying it regarded the proceedings as interfering "with a foreign sovereign's efforts to address matters in which it has the predominant interest", according to the ruling.

 

In his dissenting opinion, Korman wrote that the majority allowed the case to go forward "over the vigorous objections of the United States, its allies, and, most notably, the Republic of South Africa, which is justifiably proud of the ability of its legal system to adjudicate legitimate human rights claims".

 

The US State Department had told the district judge that allowing the cases to proceed "risks potentially serious adverse consequences for significant interests of the United States", according to the ruling.

 

The lawyer for two of the plaintiff groups, Paul Hoffman, called the ruling significant. "We have been waiting a long time for it," Hoffman said. "It is really a cause for rejoicing."

 

The lawyer for the third group, Michael Hausfeld, called the ruling "a breakthrough and watershed in terms of international human rights".

 

A lawyer for the companies could not be reached immediately for comment.

 

The appeals court also set aside the U.S. District Court's order denying a motion by two of the plaintiff groups for leave to amend their complaint. -- Reuters

 

Previous articles

It's state v apartheid victims

 

Fikile-Ntsikelelo Moya                24 October 2005 06:30

 

Apartheid victims’ organisation Khulumani Support Group will square off against the South African government next month in a New York court when Khulumani accuses various multinational corporations of having aided and abetted apartheid.

 

The South African government’s decision to appear as a “friend of the court” on behalf of the corporations goes a step beyond the so-called “Maduna affidavit”, in which former justice minister Penuell Maduna argued that actions by organisations such as -Khulumani undermined state sovereignty and therefore did not have the support of the South African government.

 

The Khulumani case, which will be heard on November 31, pits the NGO against car manufacturers, oil companies and banks, whom it accuses of profiting from apartheid and making finance available for the apartheid government to sustain its policies.

 

It follows a June 29 decision by the United States Supreme Court, which held that foreigners could use the Alien Tort Claims Act to institute lawsuits in the US for human rights abuses wherever they may have been committed.

 

Kaizer Kganyago, the Justice Department spokesperson, said the government would restate Maduna’s position as outlined in his affidavit to the New York court.

 

Meanwhile, Khulumani, which represents about 44 000 apartheid victims, on Thursday expressed disappointment at the National Prosecuting Authority’s decision not to prosecute chemical warfare expert Dr Wouter Basson.

 

The authority had won a limited right to prosecute Basson but felt that such prosecution would most likely fail the double jeopardy muster, which essentially means that a person may not be charged with the same offence if a court has heard the matter.  

 

Activists to protest apartheid-reparations affidavit

 

Ray Faure | Johannesburg, South Africa     20 January 2006 04:26

 

Supporters of activist groups Khulumani and Jubilee South Africa are planning demonstrations in a last-ditch effort to get Minister of Justice and Constitutional Development Bridgette Mabandla to withdraw an opposing affidavit in an apartheid-reparations appeal case due to be heard in the United States next week.

 

Arguing that the case undermines the sovereignty of the South African government, the justice ministry has filed an affidavit calling for the dismissal of Khulumani's case against 23 international companies that allegedly benefited from doing business in South Africa during the apartheid era.

 

Oral arguments in the case will be heard in the Court of Appeals, Second District of New York, on Tuesday.

 

Jubilee South Africa plans to demonstrate that morning outside the justice ministry in Pretoria, while the Western Cape Branch of the Khulumani Support Group plans to stage an all-night vigil in Cape Town on Tuesday evening in a last-ditch effort to get the government to withdraw its opposition to the case.

 

An application filed earlier by Khulumani for reparations to be made to victims of human rights suffered under apartheid was rejected by the Southern District Court in New York on the grounds that it was more of a political issue than a legal one.

 

Companies that Khulumani is seeking reparations from include international banking groups such as Barclays plc, Citibank and Deutsche Bank, which it says profited from making the finance available that enabled South Africa to expand its apartheid police and security apparatus; and oil companies such as Total, BP, Engen and Shell, among others, which it charges profited by violating the oil embargoes against South Africa at the time.

 

It also cites car manufacturers such as Daimler Chrysler, which it alleges profited from manufacturing the armoured vehicles used to patrol the townships, "knowing that they would be used in repressive activities in the townships"; and arms manufacturers, which it claims profited by violating embargoes on arms sales to South Africa. -- I-Net Bridge

 

   Khulumani: SA govt 'putting profits before people'

 

Wendell Roelf | Cape Town, South Africa  24 January 2006 05:58

 

A vigil will be held in Cape Town on Tuesday night by victims of apartheid, as their lawyers possibly adjourn for a lunch-break while arguing a reparations lawsuit in a New York appeal court.

 

"The positive outcome of this [the vigil] is to show that there is support on the ground for the lawsuit in South Africa," said Shirley Gunn, of the Khulumani support group, which represents the plaintiffs, but has a membership of more than 44 000.

 

Oral argument started in Khulumani et al vs Barclays et al in New York on Tuesday with 87 South African victims claiming reparations from 23 foreign corporations charged with aiding and abetting the apartheid regime.

 

In papers before the court, Khulumani's lawyers argue that multinational companies played key roles in the way apartheid occurred.

 

"The story of economic development of this country [South Africa] is intimately bound up with foreign capital, technology and expertise," read the appellant's papers, quoting former South African finance minister Owen Horwood.

 

"Significant investments usually bring all three. It allows us to do what we want rather more quickly. It allows us to do some things better than we would otherwise do."

 

Quoting diverse sources, the plaintiffs held that private corporate support was largely responsible for the success of the government's apartheid policies.

 

They contended that companies played a strategic role in the apartheid state's defence from civil unrest, with business leaders -- including officers from Barclays, Standard Bank and Anglo American mining company -- appointed to a defence advisory board by then prime minister PW Botha.

 

"We have obtained some of the top business leaders in South Africa to serve on the Defence Advisory Board in order to advise me from the inside, not only about the armaments industry, but also about the best methods to be applied within the Defence Force," Botha is quoted as having told Parliament's House of Assembly.

 

However, the defendants contend that doing business in and with apartheid South Africa, "which industrialised nations permitted and encouraged", never violated the international norms envisaged by the legislation under which the claim is being brought.

 

The lawsuit was based on common law principles of liability and on the Alien Tort Claims Act, which grants US courts jurisdiction over certain violations of international law, regardless of where they occur.

 

Lawyers for the defendants argue in their papers that adjudication of alleged actions would "offend the political question doctrine because it would require a court to pass upon the merits of political questions that were resolved by the political branches of the United States in favour of commerce with South

Africa generally".

 

The defendants suggest adjudication would offend the sovereignty of the Republic of South Africa and compromise the United States' relations with that country and other allies and friends.

 

The South African government, via the justice ministry, has filed an affidavit on behalf of the defendants.

 

According to Gunn, the plaintiffs have made numerous attempts to persuade Justice Minister Brigitte Mabandla and her predecessor Penuell Maduna to withdraw the affidavits supporting the defendants, to no avail.

 

"I think it's [the government is] putting profits before people."

 

Gunn lashed out at the government's for its stance, saying it was paying victims identified as eligible to receive state reparations, a "measly and pathetic" sum of R30 000.

 

"I would love to say we can move from here, but I cannot rest until we have made the people and institutions take responsibility for the past, and the South African government must lead the way and not act contrary to international human rights law.

 

"For a society to participate in the future it has to have resolved its past... [and] face its demons and face its ghosts." - Sapa