<incom> Khulumani International Lawsuit Appeal Victory

[Soenke Zehle]

see link to court decision below or at http://www.khulumani.net/, Soenke

Johannesburg

October 13, 2007

Khulumani International Lawsuit Appeal Victory Removes an Obstacle to 
Justice for Victims and to the Advance of Corporate Accountability

Khulumani Support Group welcomes the long-awaited decision of the New 
York circuit court of Appeal to reverse the finding of the district 
court on its Alien Tort Statute claim (Khulumani et al v. Barclays et 
al). The court held that liability of corporations for aiding and 
abetting the perpetration of gross human rights abuses does exist and 
that it can be pled under the statute. The Alien Tort Statute (ATCA) 
allows for people anywhere in the world to make claims against United 
States-based corporations that have caused damage to those people. It 
must be noted that the businesses listed in the lawsuit chose not to 
appear before the TRC.

The decision is a victory in a long struggle for justice for victims of 
corporate complicity with the illegitimate apartheid government. All the 
defendant companies listed in the Khulumani et al v. Barclays et al 
lawsuit can be shown, not only to have profited from apartheid, but also 
to have propped up the illegitimate regime long beyond the declaration 
of apartheid as a crime against humanity by the United Nations. The case 
is now being sent back to the district court where Judge Sprizzo who 
originally dismissed it as being, amongst other descriptions, 
“frivolous”, is now required to reconsider his decision. The success of 
this appeal comes in the light of a campaign that has been supported by 
an overwhelming majority of Truth and Reconciliation Commissioners as 
well as by numbers of South African and international civil society 
organisations and individuals.

The decision of the circuit court contrasts with the position of the 
South African government that requested the dismissal of the claims on 
the basis that they interfered with the sovereignty of the South African 
government to deal with the matter of reparations and that the claims 
might possibly deter foreign investment. (ex parte declaration submitted 
by former Minster of Justice Mr Penuell Maduna, dated July 11, 2003, in 
which former Minister Maduna refers to President Mbeki's announcement of 
April 15, 2003 that final reparations would be “combined with community 
reparations and assistance through opportunities and services”. ) The 
opposition of the South African government to the Khulumani claim was 
unexpected given that it had initially declared that "(it) recognises 
the right of citizens to institute legal action”. However, government 
went even further when Khulumani tabled its appeal in January 2006, and 
submitted an amicus curiae brief to the Circuit Court in support of 'big 
business' and against those victims who had sacrificed so much for freedom.

While we note that there is a dissenting opinion in the court decision, 
it seems to relate more to the two other cases than specifically to the 
Khulumani case and seems to be particularly influenced by the 
'unfortunate' Maduna affidavit, in which claims are made that government 
is in the process of implementing community reparations. This is untrue. 
What Minister Maduna was referring to were general measures for social 
reconstruction and development, rather than targeted reparations 
measures for affected communities.

At this stage, South Africa's present government has to date not made 
public the community reparations programme referred to by Mr Maduna in 
his ex parte declaration, based on President's Mbeki's announcement of 
April 2003. Khulumani calls on the South African government to make 
their proposals on community reparations public without any further 
delay, noting that Khulumani submitted its suggested proposals for 
community reparations to the Office of the President on October 29, 
2003, and that to date, government has still not responded to these. 
Khulumani notes, moreover, that more than R600 million remains in the 
President's Fund and is not being used in a transparent manner, given 
that these funds are derived from the public fiscus and that organised 
victim groups continue to struggle to get access to resources to 
implement their plans for sustainable livelihoods.

Khulumani also notes that the TRC Unit in the Department of Justice, 
established at the end of 2005, continues to function in an opaque 
fashion and has not yet involved Khulumani in discussions to plan how to 
comprehensively deal with the “unfinished business of the TRC”. The 
Ministry of Justice has, moreover, remained unresponsive to recent 
requests for urgent meetings to share information on the procedures 
available to victims for submitting applications to have their urgent 
needs addressed. The South African government, having failed to 
wholeheartedly embrace the full scope of reparations, is thereby 
promoting a model of transitional justice that incorporates “unfinished 
business”.

Khulumani believes that the circuit court decision in New York is an 
important step forward in a fight for reparations, not only for 
survivors of gross human rights abuses in South Africa, but for victims 
affected by unethical corporate behaviour everywhere in the world. 
Provided there is no challenge to this latest decision, the role of big 
business in aiding and abetting the apartheid government, and in 
profiting from apartheid, can at last begin to be interrogated.

Issued by Khulumani Support Group's National Contact and Support Centre


For comment, please contact:

Khulumani's Acting Director, Dr Marjorie Jobson +27 82 268 0223 or (046) 
636 2715
Khulumani’s Advocacy Coordinator, Mr Tshepo Madlingozi-+27 82 496 9914
Khulumani's Contact Centre Liaison Officer, Mr Zweli Mkhize +27 73 704 
6414 or (011) 403 4098

Please note that the court decision can be accessed at

http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA1LTIxNDEtY3Zfb3BuLnBkZg==/05-2141-cv_opn.pdf

List of defendants:

Barclay National Bank Ltd., British Petroleum, PLC, Chevrontexaco 
Corporation, Chevrontexaco Global Energy, Inc., Citigroup, Inc., 
Commerzbank, Credit Suisse Group, Daimlerchrysler AG, Deutsche Bank AG, 
Dresdner Bank AG, Exxonmobil Corporation, Ford Motor Company, Fujitsu, 
Ltd., General Motors Corporations, International Business Machines 
Corp., J.P. Morgan Chase, Shell Oil Company, UBS AG, AEG Daimler-Benz 
Industrie, Fluor Corporation, Rheinmetall Group AG, Rio Tinto Group and 
Total-Fina-Elf