Apartheid cases put firms in spotlight

ON JUNE 16 2002 we simultaneously announced in Zurich, Switzerland, and at the Hector Pieterson memorial centre in Soweto, the launching of the apartheid class action lawsuit against multi-national companies that aided and abetted the repressive apartheid regime leading to gross human rights violations suffered by the plaintiffs.

In Zurich, Dorothy Molefi (mother of Hector Pieterson) and I, joined by our then US correspondent attorney, announced the eminent filing of these cases in New York, while in Soweto, advocate Dumisa Ntsebeza SC (SA lead counsel in this case) led the announcement, joined by Hector's sister Lulu.

Pursuant thereto, we were inundated with enquiries from South Africans who were interested in the case, ultimately joining the class that instructed us to represent it in New York.

In the period to follow, a similar case was filed by the Digwamaje community, locally represented by Medi Mokuena and later Khulumani Support Group, locally represented by Charles Abrahams.

In all three cases, the defendants were more or less the same companies, with few exceptions totalling about 30 companies.

Shortly thereafter, our government issued a statement opposing our cases, joining the defendants in requesting the US courts to dismiss them.

The significance of the government's recently announced position, withdrawing their initial opposition to these cases while concurring with the plaintiffs on the appropriateness of the US court as the correct forum for adjudication of these cases, is indeed a reason for the plaintiffs to be hopeful for a successful outcome of this litigation.

It also raises questions on all the companies that failed to take advantage of the TRC process by not applying for amnesty, as is the case with the defendants in New York, leaving themselves open to prosecution criminally and/or civilly.

Following years of court proceedings, we amended our case in October 2008, narrowing the issues considerably, culminating in consolidation of the Ntsebeza & Digwamaje cases into one, with the Khulumani case being the other, collectively citing only nine defendants.

In February 2009, the remaining defendants asked the trial judge in New York to dismiss the cases. In April 2009, she ruled that several claims should proceed, namely those against General Motors, Ford, Daimler-Chrysler (Mercedes Benz), IBM, Fujitsu and Rheinmetall for their role in aiding and abetting the apartheid government in a number of international law violations.

The defendants in this case are not South African companies but the foreign parent companies who ran subsidiaries here in South Africa. This case does not attempt to repeat the TRC process. The companies that are defendants in this case did not participate in the TRC process and thus did not receive amnesty.

Back in April 2003, responding to the release of the final TRC report, former president Thabo Mbeki stated that he opposed a general amnesty and that he recognised the right of individuals to continue to seek redress for human rights violations in the courts. Also at that time, both he and then minister of justice Penuell Maduna stated their opposition to the use of foreign courts to seek such redress. That opposition encompassed the apartheid cases as they existed at the time and was based in part on concern for the future of foreign direct investment in South Africa.

Notably, the government's position in 2003 preceded the present state of the case, which took hold in October 2008. This is significant because the New York judge made it clear in her April 2009 ruling that this case does not allow companies to be sued merely for doing business in South Africa during apartheid. Rather, the companies had to have provided the means for the government to commit these abuses knowing that its actions would "substantially assist the perpetrator in the commission of a crime or tort in violation of the law of nations".

Consequent to the amendment of our case, we engaged our government and the ruling party on the need to withdraw their opposition to our case, and to rather remain neutral as they were not a party to the case. We made reference to the US government's intervention in the Holocaust cases, which were ultimately settled at the instance of the Clinton administration.

The culmination of this constructive engagement was the letter written by Justice Minister Jeff Radebe last week, to the Federal District court in New York, expressing the South African government's withdrawal of its opposition for this litigation. Radebe undoubtedly recognises that supporting these cases signifies protecting the right of the citizens of this country to seek justice under international human rights law.

Since the 1980s, human rights lawyers in the US have resurrected a law passed in 1789 that allows non-US citizens to sue in the US for certain abuses of international law so severe they are said to violate "the law of nations" - like torture, unlawful killing, cruel, inhuman and degrading treatment, and apartheid. The scope of this law allows for corporations to be sued for working with governments that committed these abuses. Plaintiffs from Burma reached a settlement with Unocal for torture, forced labour and extrajudicial killing in Doe v Unocal. Plaintiffs from Nigeria reached a settlement with Royal Dutch/Shell Petroleum in Wiwa v Shell for a number of international human rights violations, including those surrounding the hangings of Ken Saro-Wiwa and others among the Ogoni 9.

Several of the US lawyers who worked on those cases join us in representing the plaintiffs in the apartheid cases. Their past successes toward obtaining justice for victims of grave violations of international law sends a message to companies working with foreign governments. These companies are now starting to realise that they can be held accountable for assisting governments that are perpetrating abuses. In this way, the apartheid cases are putting companies on notice that they need to act responsibly and can no longer pretend that no one will hold them to account for activities they engage in or support in other countries.

Respect for South Africa and for South Africans must be part of the business model for foreign governments working in our land and with our people.

l The writer is a Johannesburg-based attorney