Landmark apartheid reparations case against corporations

Shaft in South Africa
Shaft in South Africa © Chriswhitley

Federal Appeals Court hears arguments in landmark apartheid reparations case

A landmark case against several international corporations accused of aiding South Africa’s apartheid regime is underway. The companies include Daimler AG, General Motors, Ford Motor Company, and IBM. They’re accused in a class-action lawsuit of complicity in human rights abuses during the years they did business in apartheid South Africa. The suit was filed several years ago by black victims of white minority rule. Their lawyers are seeking up to $400 billion in compensation.

After the turn of the century, there was a rising awareness that corporations were never part of the truth and reconciliation process in South Africa. Despite being invited by the commissioners, companies refused to testify as to what their role was in regard to apartheid and its enforcement. A number of groups asked for an investigation whether there was the possibility of bringing a claim against those companies for that complicity.

There is a law in United States called the Alien Tort Statute, which essentially seeks to codify customary international law, which rises above national law, which protects basic human dignities. It’s the right to be free from genocide, to be free from prolonged arbitrary detention, to be free from torture, to be free from officially enforced rape. And it allows non-US citizens to bring cases against non-US citizens in a US court, because what’s involved is a violation of the law of, literally, the world.

The lawsuit is being brought by black South Africans who were abused by the military and security forces of apartheid South Africa against a number of companies that provided the tools to the military and security for them to perpetrate the abuse.

The corporations seek to dismiss the suit. They argue that US courts have no jurisdiction in the case. In 2009, after years of litigation, a US court ruled the case could go ahead under the Alien Tort Claims Act, which allows foreigners to file cases against companies for crimes committed abroad.

Khulumani Support Group (KSG), an organization presently with 58,000 individual victims of gross human rights violations. All of its members are part of the struggle to secure reparations. It’s basically a struggle to end impunity. They have other cases against impunity, but in this case they are against the impunity of corporations.


The facts

Daimler AG, General Motors, Ford Motor Company, and IBM are the ones that have been retained on the basis that the equipments that they produced and sold to the South African apartheid regime were directly used in suppressing the uprising against apartheid. It was the armoured vehicles that patrolled the townships. It was the weapons and ammunition that were used by the soldiers in those armoured vehicles to put down resistance. And it was also the software and the hardware produced by IBM that was used to track and monitor the movements of black activists and also to denationalize most of the black South African population, who were denied South African citizenship and had to become members of homelands, often of homelands that they had never ever visited.

Dennis Brutus, the late South African poet and activist who died just a few weeks ago in Cape Town spent many years promoting reparations to black South Africans from corporations that benefited from apartheid. In a 2008 interview on Democracy Now show, he talked about how multinational companies benefited from apartheid. Dennis Brutus said “I grew up in Port Elizabeth, which was the headquarters both of Ford and GM; and they were using black labour, but it was very cheap black labour because there was a law in South Africa which said “blacks are not allowed to join trade unions”, and “they’re not allowed to strike”, so they were forced to accept whatever wages they were given. They lived in ghettos, in some cases, near where I lived, actually in the boxes in which the parts had been shipped from the US to be assembled in South Africa. So you had a whole township called Kwaford, meaning the place of Ford, and it was all Ford boxes with the name “Ford” on them, because they were addressed to Ford in Port Elizabeth. Now, what is striking is that, when I appeared before the GM stockholders’ meeting in Detroit and I raised the question on behalf of the American churches, “What do you pay the blacks in South Africa?” the stockholders voted they didn’t want to be told, a 98 percent vote which said, “We don’t want to be told.” So, obviously, the complicity was both at the top executive level, but also with the stockholders.”

During the South African Truth and Reconciliation Commission (TRC), three days were dedicated to what was called the business hearings, holding corporations accountable.  If they told the whole story of how they murdered or tortured someone, they would be granted amnesty, if they told the full truth. It was limited to three days because they only received written submissions from fifty-five South African companies. They received no submission at all from any multinational that had operated in South Africa under apartheid. And what was very troubling about that hearing was that the South African companies argued that they themselves had been victims of apartheid, rather than beneficiaries of the apartheid laws that provided the kinds of things that Dennis Brutus referred to in that interview—I mean, the low wages, the poor living conditions, the single-sex hostels where the removal of people into homelands so that they could only come to townships on contracts and live in single-sex hostels for the year and go home three weeks a year, and all of those horrendous things that were constructed by corporations—South African companies, international companies—in collision with the South African government. And not a single company admitted any complicity for those kinds of  crimes.

And so, basically, when Judge Scheindlin gave her opinion in April last year, that the case could be dealt with under the Alien Tort Statute of the USA jurisdiction, the Khulumani Support Group (KSG), was really heartened to see that she said that this takes forward the unfinished business of the TRC, particularly in relation to the role of corporations during apartheid. This is being very closely watched, because there’s such a deep sense of injustice amongst people at this impunity the companies are seeking.

Jacob Zuma, shortly after he took office as president in South Africa, supported this lawsuit. Thabo Mbeki, the previous president, did not, saying it would discourage foreign investors. The difference is that President Zuma has a much wider sense of what the desperate situation is of people who, in particular, were victimized. The former president and many of his cabinet, who had basically lived more than twenty years in exile and hadn’t firsthand known the struggle, didn’t have the same listening ear towards the victims of the apartheid.

The fact is that the case has been refined and amended in the process of these seven years of trying to bring it to trial. Now this has also been a help to the South African government, because some of their concerns around the size of compensation asked for have really been relayed, and they no longer feel that it can present a threat to foreign investment in South Africa. In fact, they actually state that the nature of these crimes is so serious that this really needs its day in court.

Princeton Lyman who served as US ambassador to South Africa from 1992 to 1995 and is now a fellow at the Council on Foreign Relations,  in January 2010 wrote an op-ed about this lawsuit in the New York Times called “Paying the Price for Apartheid.” He writes, “Perhaps the most fundamental moral and practical question is how the victims of the deep wrongs of apartheid should be compensated. Unfortunately, for these victims, this [lawsuit] is not the way.” He goes on to conclude, “This suit may have helped publicize the country’s unmet needs and delayed justice, and it may spur the outside world to do more. But it cannot address South Africa’s real needs; and, if it results in yet another token payment to a few thousand people, it will make the aftertaste of apartheid even more bitter.” 

In this article the responsibility of companies is ignored. However,  it can affect individual lives as much and as deeply as any government. The question is who is a corporation and what are its responsibilities, not just to shareholders, but to the community which it serves and in which it does business. If companies can affect lives in ways that make those lives worse, so that people are suppressed or terrorized, as it was the case under the apartheid regime towards its black South Africans, then anyone who provided the tools to enforce that suppression and terrorism should be responsible. If that question remains unanswered, because a complete measure of justice to victims, cannot fully be provided then, not only are we depriving the victims of an opportunity for justice, but we are providing corporations or types of citizens a means by which they can claim immunity from any responsibility for what they do.

To show how the life of the people was affected is the fact that for many victims their husbands, their fathers and their sons were forcibly disappeared and, it is suspected, that were killed extra-judicially. And hundreds of those cases have never been resolved. People have never been able to secure benefits. Many people had insurance programs, but because the case has never been concluded, they cannot access any benefits. That’s very typical of the desperate situation people are in.

The levels of unemployment in South Africa are enormous. Inequality is growing. Sixty-seven percent of the ruling party’s membership is unemployed. And so, poverty and deprivation is the reality for most of the members of KSG. We think that companies have a duty to redress and for reconciliation in South Africa to be achieved, there has to be a bridging of this enormous and growing gulf between people who have the means to assist those who have nothing.

The Second Circuit of the suit will take from four to six months to render its decision. And then, depending on the decision, the case can either proceed at a district court level or there may be a petition asking the Supreme Court to review the decision. Now the corporations, not only those referred to, but all corporations and chambers of commerce throughout the world feel that what this case may do is set principles of corporate responsibility that can be imposed worldwide. The interest of the case is the importance of establishing the principle that no company in the future will be able to act both with impunity and immunity. They will have to assume the responsibility of their actions.

Although the victims of this case in South Africa, may not be able to get complete justice today, the case is ascribing to eternity the fact that no one in the future will ever be able to do that again.

Source: Democracy Now

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