Ten years ago, a group of apartheid victims set out to launch a landmark class-action lawsuit. Their aim? To hold companies liable for their part in assisting the government in carrying out apartheid atrocities.
The case has become known as the SA Apartheid Litigation, and it is playing out in the US legal system. Justice Writer LEILA SAMODIEN reports.
BULLETS, vehicles and technology – these are all products the apartheid regime needed, and used, to keep its grip on the country.
And while many individuals have been held accountable for their actions through the Truth and Reconciliation Commission (TRC), can companies, too, be held liable for their part in assisting the government to carry out apartheid atrocities?
This is what a group of apartheid victims have set out to do in a landmark class-action lawsuit which has so far spanned more than a decade. The case has become known as the SA Apartheid Litigation, and is playing out in the US legal system. It was filed in 2002, making this year the lawsuit’s 10th anniversary.
“The general time frame to resolve such cases is 14 years, so the 10-year mark is a huge one for us,” said Marjorie Jobson, director of the Khulumani Support Group, which lobbies for financial reparations for victims of apartheid.
The group represents 13 of the plaintiffs in the case, while Lungisile Ntsebeza, the brother of advocate Dumisa Ntsebeza, represents another 13. They initially took 23 multi-national companies to court, but only five remain: Daimler AG, the Ford Motor Company, General Motors, IBM and Rheinmetall.
General Motors, however, settled out of court last year, giving the plaintiffs $1.5 million (R12.7m) in shares under its bankruptcy distribution plan in a “show of good faith”. The companies, it is claimed, knowingly provided apparatus that the apartheid police used to carry out atrocities, such as violent raids and assassinations.
“Essentially, the issue is: can you hold a company liable for aiding and abetting the perpetration of human rights violations?” said Jobson.
The case has been progressing through the US legal system and hangs on three major factors: whether the companies are indeed responsible for human rights violations, whether (if they are found to be responsible) they can be held accountable for conduct outside of the US, as well as any conditions the courts might set for a plaintiff to bring a case in the US.
Attorney Charles Abrahams, representing Khulumani, explained that the lawsuit had been filed in the US in terms of the Alien Tort Statute, a law that is used to bring international human rights cases to the US courts. Much of the future of the SA Apartheid Litigation matter depends on the outcome of a separate but similar case, known as the Kiobel case.
In that matter, US resident Esther Kiobel filed a lawsuit, also in 2002 under the Alien Tort Statute, against Royal Dutch Petroleum for its alleged complicity in a brutal crackdown on protesters, including her husband, in Nigeria from 1992 to 1995. Abrahams said the decision in the Kiobel matter would have a significant bearing on the future of their case.
Michael Hausfeld, the US human rights lawyer acting for Khulumani, told the Cape Times he didn’t expect an outcome in the Kiobel case until later next year. He considered the SA Apartheid Litigation matter to be a “poster child” of such litigation. “It is the most seminal litigation holding corporations responsible (for human rights violations) since World War II,” said Hausfeld.
“The case is huge for law globally. These are multinational corporations, and whatever decision is taken, it will bind those companies no matter what country they originate in or where the abuse occurs.”
One person keeping a close eye on its progress is Ntsebeza, a professor at UCT’s sociology department, who said the TRC had failed to hold business accountable. “They made millions out of apartheid, so why not (sue them)? If they (the companies) are committed to reconciliation, they will allow the case to proceed. I’m not apologetic about it. I don’t see this as a damages claim. It’s meant to give effect to reconciliation,” he said.