In September this year the South African government withdrew their opposition to the South Africa apartheid reparations lawsuit after opposing it for six years.
In September this year the South African government withdrew their opposition to the South Africa apartheid reparations lawsuit after opposing it for six years.
Initially filed by 87 plaintiffs against 23 US-based multinational corporations and banks, the case seeks to ensure that any person, anywhere in the world who is violated by a government or multinational corporation has access to redress.
The Khulumani Support Group filed the lawsuit in New York in November 2002. Khulumani argued that these companies enabled the South African apartheid government to commit gross human rights violations by providing it with equipment, technology and funding.
The companies are spread across five industries and come from six countries, including the United States, the United Kingdom and Switzerland. In their defense the corporate representatives argued that their governments at the time allowed and in some cases encouraged trade with the apartheid government.
In July 2003 the South African government opposed the case, saying that it “is not and will not be party to [the]litigation” as the case interferes with their sovereignty as an independant state. They argued that only they could address the question of reparations in South Africa and that they had done so through the Truth and Reconciliation Commission (TRC). There were also concerns that foreign investment would be affected.
The case went to court in November 2004. Judge John Sprizzo dismissed it but allowed for an appeal. The appeal case was heard three years later in October 2007 where it was held that the Alien Tort Statute (ATS) under which the case was brought to court, provided jurisdiction for the case to be heard.
The court also held that it could not dismiss the case merely because the South African government opposed it. An enquiry would have to be made during which all affected parties could raise their arguments and only then would the court decide whether or not to dismiss it. Consequently, it was ordered that the case go back to the first court that heard it so that the enquiry could be made.
Sprizzo however, died before he could hear the case again. He was replaced by Judge Shira Scheindlin who heard the case in April this year.
In a judgment hailed as “a major advancement in international human rights law” by the plaintiffs’ lawyer Michael Hausfeld, Scheindlin decided that seven of the original companies – Daimler Chrysler, Ford, General Motors, United Bank of Switzerland, IBM, Fujitsu and Rheinmetall – could be charged with aiding and abetting the apartheid government and that the case would go to trial before a jury.
Furthermore, she held that the case did not interfere with the South African government’s sovereignty and furthermore “such litigation is entirely consistent with [the]policies and the findings of the TRC”.
The plaintiffs were also given the opportunity to amend aspects of their case. Rather than 87 plaintiffs being represented, there are now 13, each heading a class action. A class action refers to a lawsuit brought forward by one or more plaintiffs on behalf of a large group of people who have a common legal claim.
On 1 September the South African government withdrew their opposition to the case. Several factors facilitated this among them the fact that the claims have been narrowed and that clearer causal links between the corporations and the plaintiffs have been established.
It is hoped that the support of the South African government will lead to a negotiated settlement outside of court although so far, the corporations have refused to settle.
“This is a relief after many long years of waiting for justice,” said Mpho Masemola. “We believe justice is on our side. We appreciate that the South African government is opening the door to begin negotiations. There is now some light at the end of the tunnel.”
