As the government prepares to celebrate the 10th anniversary of the Truth and Reconciliation Commission (TRC), two pending clashes show just how wide the gulf between civil society and the government over the commission's legacy has grown. On Tuesday Brigitte Mabandla, the justice minister, will square off against two sets of lawyers representing thousands of apartheid victims at an appeal hearing in New York over their 2002 compensation claims brought against foreign multinational companies and banks they accuse of aiding and abetting apartheid violence. The government is opposing the claims, saying the case interferes with South Africa's sovereignty and will impede foreign investment.
Directly opposed to the government are most former TRC commissioners, including its chairperson, Archbishop Emeritus Desmond Tutu, who are supporting the victims' claims that state reparations did not preclude them from seeking compensation elsewhere and that big business failed to acknowledge its role in apartheid.
In the meantime, victim groups and non-governmental organisations supporting them are scheduling a number of public meetings to discuss a possible constitutional challenge to the state's unilateral implementation last month of a new set of guidelines to prosecute apartheid-era perpetrators who did not come clean at the TRC. They believe the guidelines give the National Prosecuting Authority (NPA) wider powers than the TRC's amnesty panel to effectively grant further amnesties on the basis of what they deem national interest.
In his last ANC Today letter of 2005, however, President Thabo Mbeki said that "the celebration of the 10th anniversary of the TRC will once again help to draw our attention to the continuing challenge in our country to work for national reconciliation, and centrally the objective of building a nonracial society.
"We must use the forthcoming year to build on the achievements of the TRC and the vision that inspired its establishment," he said, although none of the former commissioners have been informed of the plans.
In New York a panel of three US appeal court judges will, this week, hear arguments by the victims, whose claims were thrown out by a district court judge in 2004. An opposing submission by former justice minister Penuell Maduna has been re-submitted for the appeal by Mabandla.
On the same day, Jubilee South Africa, which supports the Khulumani group of victims' claims, will hold a mass demonstration at Mabandla's office to call for the withdrawal of her opposing affidavit, while Khulumani Western Cape plans a 12-hour night vigil in Cape Town from Tuesday evening to coincide with the hearing.
The state's chief law adviser, Enver Daniels, said there would be no oral argument by the state beyond the opposing affidavit. Maduna's affidavit has influenced a number of similar US court cases already, and Khulumani said it feared it could have grave consequences for international human rights law should its appeal fail. The US government also opposes the claims, along with the defending corporations, which include in their ranks Barclays, BP, Credit Suisse, Hewlett-Packard, Coca-Cola, DaimlerChrysler, Ford and Shell Oil.
Significantly, however, this time the government's objections are being disputed in a new affidavit by TRC commissioners as well as by means of comprehensive submissions by other groups of amicus curiae (friends of the court) including civil society, American labour organisations and nine former US diplomats. Among the 29 civil society groups and individuals supporting the plaintiffs are the SA National NGO coalition, the Anti-Privatisation Forum, Earthlife Africa, the Freedom of Expression Institute; Cosatu's SA Municipal Workers' Union; and a political party, the Pan-Africanist Congress.
The diplomats argue that companies that allegedly propped up the apartheid state breached the US's constructive engagement policy and the Sullivan code, which were aimed at opposing discrimination. Advocate Michael Osborne, counsel to the "Ntsebeza" claimants, said although the appeal arguments would be similar to the original hearings, lawyers would focus on reasons why the cases were rejected and whether the case would interfere with sovereignty and separation of powers.
Osborne said they would try to show that companies were liable as accomplices in state violence; that although they "did not pull the trigger", corporations aided and abetted atrocities. Khulumani's Marjorie Dobson said examples included two computer companies that "enabled South Africa to create the hated pass book system"; "car manufacturers that provided the armoured vehicles used to patrol the townships; and arms manufacturers that violated arms embargoes in place against the South African government.
The victims' lawyers would also cite precedents from tribunals of eastern European genocides that acknowledged the liability of accomplices. Two powerful US unions and the International Labour Rights Fund make a case that the historic role companies played in setting up the homelands and recruiting cheap workers amounted to forced labour, a form of modern slavery that does not require state action to be acknowledged under the Act.
In the meantime a number of NGOs, including the Centre for the Study of Violence and Reconciliation (CSVR), are studying new NPA guidelines which, they fear, give the authority vast powers to decide when not to prosecute apartheid-era perpetrators. Ahmed Motala, the CSVR's executive director, said a constitutional challenge was among a range of options that were being considered.
Yasmin Sooka, a former TRC commissioner and now head of the European Committee for Human Rights in Pretoria, said: "It is admirable that the president has signalled that prosecutions can finally go ahead. The problem lies in the content of provisions, which seems... that there is an amnesty deal contained within the guidelines." The guidelines were implemented on December 1 but were tabled in parliament for discussion only this week.
The justice department's Gerhard Nel, who briefed parliament this week, confirmed that the legislature did not have the power to make changes to the guidelines, but that the public could make submissions. On the possibility of a constitutional challenge, he said: "It will not help to take it to court, because the NPA is independent in terms of its policy. Parliament was briefed to ensure its full co-operation."