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  • Written by  Business Day
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Khulumani case will define SA

The Khulumani lawsuit strengthens SA's constitutional democracy by acknowledging the supremacy and universality of an international rule of law that obligates adherence to behaviours that respect basic human dignity. It does not seek any action that is inconsistent with government's approach to achieving its long-term goals .

APARTHEID REDRESS by Norman Reynolds

THE Khulumani Support Group's reparations case under the Alien Tort Claims Act of the US , and other "apartheid" cases, was thrown out on September 29 by a New York judge. He found that there was no violation of the law in commercial links with SA .

Among the cases thrown out was one initiated by US lawyer Ed Fagan, in which he had demanded that the South African government and companies should pay into a $20bn "humanitarian fund".

The Khulumani case is being taken on appeal in a process that will demand that the merits of its case are more carefully reviewed and discerned. It is viewed in the international human rights movement as the strongest case yet in enforcing international norms in respect of the behaviours of foreign multinational companies.

The Khulumani Support Group represents victims of apartheid who told their stories to the Truth and Reconciliation Commission and a larger group of survivors of human rights violations who did not engage with the commission's process.

The Khulumani case has survived several attempts to have it destroyed. One was the request by a number of multinational corporations, supported by several governments, including the US and British, to the US supreme court not to allow foreigners to file lawsuits in America for human rights violations committed elsewhere .

However, on June 29 the US supreme court held that foreigners could use the Alien Tort Claims Act to institute lawsuits in the US for human rights abuses wherever they may be committed .

This judgment represents a significant victory for human rights globally and a milestone in the progress of the Khulumani international lawsuit.

While other "apartheid lawsuits" sought "open-ended" redress for all black South Africans born in the country between 1948 and 1994, the Khulumani case seeks limited individual, tailored relief for identified victims from foreign multinational corporations that violated international law and were involved in colluding with the apartheid state .

With the support of some of these corporations, the apartheid government committed extra-judicial killing, torture, sexual assault, prolonged arbitrary detention and multiple crimes against humanity.

The lawsuit is highly significant in terms of international human rights law, in particular in the advance of international customary law and the creation of a world of greater social fairness.

That is why it is lodged in New York, which houses global corporations and the United Nations. It is a vital test case to ensure that any person anywhere in the world who is violated by a government or a multinational business would have access to redress.

The former justice minister made a submission to the presiding judge saying that he did not distinguish between the different "apartheid" cases. Government claimed that these cases would impede the foreign investment needed to redress the legacies of apartheid.

It may well be that by upholding the right of Khulumani to seek redress from companies that broke international sanctions and knowingly aided the apartheid regime, government would build greater certainty in investors and business.

As Nobel laureate economist Joseph Stiglitz has pointed out, "addressing corporate misconduct brings confidence to consumers and markets ".

President Thabo Mbeki , at the tabling of the truth commission's final report, noted that "the government recognises the right of citizens to institute legal action".

Mbeki now has the opportunity take the higher ground and clarify the affidavit submitted to the New York court. He should distinguish the Khulumani case from the others and support the right of redress to US courts for all those who become the future victims of bad governments and criminal businesses.

The Khulumani lawsuit strengthens SA's constitutional democracy by acknowledging the supremacy and universality of an international rule of law that obligates adherence to behaviours that respect basic human dignity. It does not seek any action that is inconsistent with government's approach to achieving its long-term goals .

It is also time for South African business to tell South Africans and the world that it is confident of itself and its practices, that it endorses the truth commission process that lies behind the Khulumani case, and that it stands tall for human rights .

Reynolds is an economist.

Source This article appeared on the Business Day bday.co.za website

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