South African apartheid victims are considering legal action against controversial American lawyer Ed Fagan for bringing his own "genocide" case against the government.
They believe Fagan, who was initially instructed to bring their case for compensation in a United States court, has gone too far and his latest litigation could ruin their pending case.
John Ngcebetsha, instructing attorney for the Apartheid Claims Taskforce, who filed the first set of complaints against foreign companies and banks in a US court through Fagan in 2002, said they were likely to ask a US court to strike Fagan's complaint.
Fagan was fired by the group days before US judge John Sprizzo heard a motion by the foreign companies to dismiss the claims in a New York court. At the time Ngcebetsha said they took the decision "in the interest of our clients".
But Fagan vowed to be back and this week announced that he filed a suit against the government for genocide on behalf of a few South African victims, including Dorothy Molefe, mother of Soweto unrest victim Hector Peterson.
Victim representative groups now fear he will try to piggy-back his case on the existing four sets of compensation claims against companies that allegedly propped up the apartheid state.
Ironically it was Fagan, successful attorney in cases in which holocaust victims received damages from companies, who fought for the four separate cases to be heard together.
At stake is the fact that the other litigant groups have carefully avoided implicating the current government in the litigation, mainly because this would have complicated it unnecessarily.
"One of the issues that a US court might rely upon for resisting claims by foreigners is when it perceives that it might interfere against a foreign government that enjoys a diplomatic relationship with its own," said Dumisa Ntsebeza, South African counsel for the ACT case.
"The question that the court might ask itself is whether it is in the interest of foreign policy for it to deal with something that might poison relationships between these governments."
The only way for Fagan to get back into the case was to sue a different party and he chose not another corporation, but the South African government, ACT said.
Ngcebetsha stressed that the government was never the intended target of the apartheid claims - "neither morally nor legally". Ngcebetsha said no-one knew what Fagan meant by suing for "genocide".
Charles Abrahamse, instructing attorney for two other apartheid compensation cases brought by Khulumani and Jubilee, said they had distanced themselves from Fagan from the outset in 2002.
On the latest Fagan case, he said: "There is no conceivable legal basis in American law, especially under the alien torte act (on which the other cases are based), that would provide the basis for Fagan to even contemplate suing president Mbeki. It is entirely without any legal foundation."
"Our lawsuit is against foreign companies and banks that aided the apartheid government at the time and committed violations of international law."
- Source Full article "Victims say Fagan's going too far" appeared on the Independant Online iol.co.za website