<incom> Apartheid Lawsuit Reinstated

[Soenke Zehle]

Good news, breathing new life into the US Alien Tort Claims Act, one of 
the few legal instruments to take transnational corporations to
court (in the US); also yet another example of how registers of 
sovereignty get mixed up, as SA activists find support in a US court
while their own post-Apartheid government would have preferred to have 
the case dismissed to avoid disruptions in SA's economic development. 
IBM was one of the companies listed, outcomes of this process may have 
implications for other corporations that provide surveillance etc tech 
in the name of 'tech transfer' and 'ict4d', Soenke

Rights Case Against 50 Companies Is Reinstated

By ALAN FEUER
NYT, October 13, 2007

A divided federal appeals court ruled yesterday that a human rights
lawsuit filed against 50 major corporations that did business in South
Africa under apartheid should be revived and reconsidered by the lower
court that dismissed it.

The United States Court of Appeals for the Second Circuit reinstated the
suit, which was filed in 2002 by three separate groups of plaintiffs in
eight federal courts across the country. They argued that the
corporations, most of which are American, violated international law by
aiding and abetting the apartheid system in South Africa.

The plaintiffs sued the corporations — among them Citigroup, General
Electric, E. I. DuPont de Nemours, I.B.M., General Motors, Shell Oil and
ExxonMobil — under the Alien Tort Claims Act, which was passed in 1789
to protect American ships and diplomats from attack when they were
overseas. In 2004, Judge John E. Sprizzo of Federal District Court in
Manhattan dismissed the case, saying that his court did not have
jurisdiction to consider the suit.

In his ruling to dismiss, Judge Sprizzo wrote that the courts must be
“extremely cautious in permitting suits here based upon a corporation’s
doing business in countries with less than stellar human rights
records.” He warned that such suits could have “significant, if not
disastrous, effects” on trade.

A three-judge panel of the appeals court reversed that decision, saying
that Judge Sprizzo did have jurisdiction and returning the case for
reconsideration.

“The majority allows three class actions on behalf of all persons who
lived in South Africa between 1948 and the present and who suffered
damages as a result of apartheid to go forward in a United States court
against American, Canadian and European corporations that sold goods and
materials or made loans to the Union of South Africa during the
apartheid era,” one of the appellate judges, Edward R. Korman, wrote.

Jubilee South Africa
Media Statement
14 October 2007

The United States Second Circuit Court of Appeals’ finding in favour of
the plaintiffs in the Apartheid lawsuits represents a significant
victory for those who suffered at the hands of the Apartheid regime and
for human rights internationally. It also puts into stark relief the
shameful position of the South African Government in support of the big
banks and corporations and against so many of its own citizens and other
citizens of the world who have suffered human rights abuses.

The Second Circuit Court of Appeals overturned the New York Southern
District Court’s decision to dismiss the Apartheid cases. It effectively
upheld the right of the plaintiffs to pursue their claims under the
Alien Tort Claims Act, deeming that the act provides jurisdiction for
the claims that the banks and corporations were aiding and abetting the
Apartheid regime in violation of customary international law. The Court
of Appeals further found that the District Court failed to properly
address the interventions of the South African and United States
Governments in dismissing the cases.

The Circuit Judges reached their findings despite the South African
Government deliberately acting to prevent those who suffered human
rights violations from having recourse to one of the few legal options
available to them. Jubilee South Africa reiterates its call that the
Government should abandon this course of going out on a limb against its
own citizens, a course which also has negative repercussions for those
who suffer violations in other countries. It should use the opportunity
of the Circuit Judges’ findings to withdraw its intervention in the
United States’ courts and stand with the citizens of the country and the
world who are acting in pursuit of their legitimate rights.

Background

In 1999, Jubilee South Africa approached various banks that had financed
the Apartheid regime to engage in discussion as to their role in making
reparations to those that had suffered at the hands of the regime. This
approach having been flatly rejected, Jubilee then pursued legal options
and was advised that making a claim under the United States’ Alien Tort
Claims Act, a piece of legislation dating back to 1789, during a more
broad-minded period in United States’ history, offered the best chance
of success.

A legal team, headed by Michael Hausfeld in the United States and
Charles Abrahams in South Africa filed the Khulumani et al case,
including, as plaintiffs, the Khulumani Support Group and some 90
individuals who suffered gross human rights violations, amongst whose
number Dennis Brutus, a patron of Jubilee South Africa. It named 23
corporations, including banks and oil, motor and information and
technology corporations, as having aided and abetted the Apartheid
regime and thus liable to make reparations to those affected.

This lawsuit was consolidated with other Apartheid lawsuits, including
Ntsebeza et al and Digwamaje et al. The matter of whether the cases
could proceed to trial was heard collectively by Judge Sprizzo of the
New York Southern District Court. He was aproached directly by the then
South African Minister of Justice, Penuell Maduna, under persuasion from
then United States Secretary of State, Colin Powell, to dismiss the
cases on the grounds that they undermined South African sovereignty.
This he duly did.

Maduna’s intervention has already been referred to in other cases before
the United States’ courts, with negative consequences for people who
have suffered human rights violations in other parts of the world. The
current Minister of Finance, Bridgette Mabandla, has reiterated the
South African Government’s position as presented by Maduna.

The plaintiffs in the Apartheid case appealed the District Court’s
finding to the Second Circuit Court of Appeals and the matter was heard
by Judges Katzmann, Hall and Korman, overtunring the dismissal of the cases.

For further information, please contact:

MP Giyose, Jubilee South Africa Chairperson, 082 350 0361
George Dor, Jubilee South Africa General Secretary, 011 648 7000,
george at mail.ngo.za
Charles Abrahams, South African lawyer for Khulumani et al, 082 560 7152