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  • Written by  Mail&Guardian
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Business unusual — during apartheid

From http://www.thoughtleader.co.za/royjobson/

Judge Korman was the lone dissenting voice against the appeal of the Khulumani lawsuit in October 2007. The appeal was lodged against the judgement dismissing the plaintiffs' claims under the United States' Alien Tort Claims Act.

The Khulumani Lawsuit, on behalf of Khulumani Support Group and less than 100 named plaintiffs, charges 23 foreign corporations for their roles in aiding and abetting the apartheid regime and seeks to obtain damages for the named plaintiffs. Judge Korman indicated that the business of corporations is business, and they were merely conducting business (with the apartheid regime). Business unusual?

The corporations subsequently attempted to “leapfrog” the process and have the lawsuit dismissed by the Supreme Court in the United States. But there was just a little problem. Of the nine Supreme Court judges appointed to hear the corporations' appeal, four had to recuse themselves. Three have shares in the very companies involved, and one of them has a family member as a senior executive in one of the companies. The required quorum of six judges could not be realised. Rather unusual apparently.

As a result the appeal to the Supreme Court by the corporations has been denied, and the lawsuit must return to the court where it was originally heard. And for the first time, the actual arguments about and evidence for corporations “aiding and abetting” the apartheid regime will be heard. It seems that this is what they particularly do not want to have to deal with in a public forum — their business unusual activities during apartheid. (None of them took the opportunity to come clean at the Truth and Reconciliation Commission.)

This is not really a victory for Khulumani, it is an unforeseen obstacle in the defendants' strategy.

The real victory for Khulumani will be if our government can be persuaded to withdraw its opposition to the lawsuit, and allow the merits of the case to be fully interrogated.

The then Minister of Justice, Penuell Maduna, was the first to submit a declaration, unasked for, to the original court. This declaration was endorsed last year by present Minister of Justice, Brigitte Mabandla, and subsequently by President Thabo Mbeki himself during a parliamentary question session and, unusually, in a personally written op–ed piece in City Press. All of this having the effect of “protecting” the corporates named in the lawsuit from being interrogated about their choosing to continue profiting from an illegitimate regime long after apartheid had been declared a crime against humanity by the United Nations.

Apart from seeking relief for the named plaintiffs, an important international human rights principle is at stake here. Is it legitimate for corporations to exploit and profit from situations created by oppressive regimes? The corporations named in the Khulumani Lawsuit profited from funding the apartheid government by lending it money and selling it resources used for carrying out assassinations, indiscriminate shootings, torture, sexual assault, and prolonged arbitrary detention. Does this constitute “aiding and abetting”? The court will be asked to decide this. Was it immoral and unethical business behaviour? I believe so.

South Africans who lived through the turbulent latter years of apartheid (and possibly those South Africans who observed them from afar) will intuitively know that the country's leadership was morally bankrupt, let alone deeply in debt.

It is high time our government officially withdrew its opposition to the Khulumani lawsuit in particular. Government's opposition, which focusses on a perceived undermining of the sovereignty of South Africa in sorting out its own problems, is spurious.

The promised remedial actions have not yet materialised. The “community reparations policy”, first announced by President Mbeki in 2003 has not yet been made public. This policy is apparently now being (re)considered, but, once again, seemingly without input from the victims and survivors of apartheid's gross human rights abuses. Is this not typical business unusual?

Victims and survivors of apartheid's gross human rights abuses are a specific and unique constituency of South Africa, with unique needs. Since the TRC ended, their voices have increasingly been ignored. Their constitutional rights to seek justice in what could be argued is the only court in the world empowered to deliver justice in this case, are being negated by the very government that created the opportunity for them to exercise those rights.

Abused by apartheid, “exploited” by the TRC, marginalised by Government… There's yet a chance to remedy this, and for Government to reverse the Maduna–Mabandla–Mbeki stance against the Khulumani lawsuit.

Could a blog be an advocacy tool for such a constituency? Could a blog be part of a multifaceted strategy to “encourage” government to do “the right thing” and withdraw its opposition to the Khulumani Lawsuit? Well, let's see. A petition has been created at http://www.thepetitionsite.com/1/For-Khulumani-and-Justice — and you, dear reader, are welcome to sign it.

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