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  • Written by  Business Day
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Reparations claims 'on shaky ground'

"PRESIDENT Thabo Mbeki takes the side of businesses which bolstered apartheid against his own people, who are the victims of a "genocide", says controversial reparations lawyer Ed Fagan in his latest lawsuit filed in a New York District Court this week ."
PRESIDENT Thabo Mbeki takes the side of businesses which bolstered apartheid against his own people, who are the victims of a "genocide", says controversial reparations lawyer Ed Fagan in his latest lawsuit filed in a New York District Court this week .

Six South Africans, including the mother of Hector Petersen one of the first pupils to be killed in the Soweto 1976 uprising are suing eight companies, the South African government, former president Nelson Mandela and Mbeki for 20bn for suffering abuses under a "genocide campaign".

Two other apartheid cases filed by Fagan are pending in the same court. He was fired by his first batch of South African clients, who accused him of being more interested in self-promotion than representing their interests.

Fagan was quick to contact the media again this week, no doubt to ensure publicity for his latest case.

Fagan burst into prominence in 1998 when he, and others, won a settlement of 1,2bn from Swiss banks for victims of the Nazi Holocaust.

He is using international and US law in the apartheid reparations case, which allows foreign citizens to demand compensation from American companies.

But South African legal expert Prof Shadrack Gutto believes it will not be easy to win a case linking the apartheid regime with genocide.

Although apartheid was declared a crime against humanity by the United Nations, it had never been "found guilty" in any international forum for the murders of black people as a race.

Gutto says Fagan's case for his Holocaust victims was boosted by how "white, western states" viewed the Holocaust and also the strong Jewish lobby, particularly in the US.

"There is a feeling among western nations that they played a role in the Holocaust. This had to do with collective responsibility," Gutto says.

The Swiss and German companies which settled in the face of Fagan's lawsuit did not want to be seen as corporations that supported the Holocaust.

But Gutto says white South Africans generally do not believe they committed horrendous crimes against blacks.

With the latest lawsuit, where Fagan targets companies for specific acts committed such as exposure to dangerous chemicals and acts of violence against employees Gutto does not think the case will succeed.

"Fagan's argument that the companies are responsible for genocide is a bit far-fetched. This is much more difficult to prove and this latest lawsuit stands on shaky ground," he says.

The South African government will oppose Fagan's latest adventure.

Former justice minister Penuell Maduna lobbied the US court to dismiss the first two cases earlier this year.

The justice department says it will continue to defend any action that targets US companies which have subsidiaries in SA.

"It is unfortunate that people decided to take this course, but it is now up to a judge to decide," says department spokesman Nathi Kheswa.

Bhekisizwe Maphumulo, one of the claimants in the latest lawsuit and organiser of a victims' group, believes the suit has a chance of succeeding because it targets specific companies .

Maphumulo also believes that the Truth and Reconciliation Commission did not work for the people of SA because it did not provide direct compensation.

Fagan has another courtroom battle in Germany where he plans to file a 18bn lawsuit accusing Germany of making money off artworks stolen from victims of the Holocaust.

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