An appeal against the judgment of the Southern District Court in New York in the Khulumani et. al. v. Barclays et. al lawsuit (?the Khulumani International Lawsuit?) is to be heard in December 2005 or January 2006, in the Second Circuit Court of Appeal in New York.
The South African Government has filed an amicus curiae brief recommending that the appeal be dismissed. The Government?s amicus brief opposes the amicus curiae briefs signed by the majority of the Truth and Reconciliation Commission (TRC) Commissioners.
The Court is expected to place great store by the opinion of the South African Government as did the lower level District Court when dismissing what were referred to as the ?South African apartheid lawsuits? at this level. This is extremely unfortunate given that the Khulumani lawsuit represents the most important international case for extending international human rights law to the practices of multinational corporations wherever they operate in the world.
The amicus curiae brief now submitted by government simply reiterates and endorses the stance outlined in the ?Maduna affidavit? that actions such as the Khulumani International Lawsuit undermine the sovereignty of the South African government.
Khulumani Support Group however is of the opinion that Dr Maduna?s affidavit was not, and the subsequent affidavit submitted by the Honourable Minister Mabandla is not, applicable to the Khulumani lawsuit. In particular the assertions that the lawsuits undermine the sovereignty of the South African government are not applicable to Khulumani Support Group.
The ?Maduna affidavit? has had very unfortunate and regrettable consequences for victims of human rights violations globally. One such example has been the use of the ?Maduna affidavit? in the June 2005, dismissal by the US Court of Appeals for the District of Colombia of the claims of the ?comfort women?.*
About the lawsuit
The Khulumani et al v. Barclays Bank et al lawsuit was brought to the New York court in terms of the Alien Tort Claims Act, 28 U.S.C. ?1350, which allows injured parties to bring their complaints to the U.S. courts regardless of where the alleged damages occurred. This statute is increasingly being used to attempt to bring to justice those who have committed human rights abuses at an international level and in particular to advance the regulation and accountability of multinational corporations.
The Khulumani International Lawsuit thus seeks to hold accountable those internationally-based businesses that aided and abetted the apartheid regime for enabling the perpetration of gross human rights abuses and violations carried out mainly by the security forces in South Africa through their financial and other support to that government. While this was accomplished with the direct and indirect assistance of these companies, they at the same time profited from their involvement with the apartheid regime.
Car manufacturers such as Daimler Chrysler, profited from manufacturing the armoured vehicles used to patrol the townships, knowing that they would be used in repressive activities in the townships. Arms manufacturers profited by violating embargoes on arms sales to South Africa. Oil companies, including Total, BP, Engen and Shell amongst others, profited by violating the oil embargoes. Banks such as Barclays, Citibank, Deutsche Bank amongst others profited from making the finance available that enabled South Africa to expand its apartheid police and security apparatus.
The lawsuit names the defendants (the businesses) and their alleged specific involvements with the apartheid regime, and names the plaintiffs (Khulumani Support Group alongside individual members who are victims of apartheid gross human rights violations and also Professor Dennis Brutus) and specifies the abuses they experienced. (See http://www.khulumani.net for more details) The Khulumani Lawsuit covers a time period during which the General Assembly of the United Nations had declared apartheid to be a crime against humanity.
The specified businesses did not use the opportunity offered them to appear before the Truth and Reconciliation Commission (TRC). It is inexcusable for them now claim the ?protection? of the TRC process in order not to be held responsible for their role in the gross human rights abuses and violations that were perpetrated under apartheid.
Urgent Request to Honourable Minister of Justice, Ms Brigitte Sylvia Mabandla
Khulumani Support Group once again respectfully urges the South African Minister of Justice, the Honourable Brigitte Mabandla, and the South African Cabinet to reconsider their amicus curiae brief, not only for the sake of victims and survivors of apartheid gross human rights abuses and violations, but also in the light of the adverse legacy that this action potentially leaves towards an undermining of the international human rights agenda and the undermining of a rule of law that applies to all persons and to juristic bodies such a corporations.
Khulumani?s 44,500 members who survived gross human rights abuses under an apartheid government that was propped up by multinational companies over many years, believe that government has turned its back on victims and survivors and that it is deliberately acting against the best interests of these survivors who are its own citizens. The South African government is furthermore undermining respect for the rule of law by opposing the rights of people everywhere to seek legal redress in a competent court.
Khulumani Support Group calls on government to wake up to the realities of victims in South Africa who continue to struggle against severe poverty despite the critical role they played in realising a democratic government in South Africa.
Issued by Khulumani Support Group
For comment, please contact Khulumani?s Advocacy Coordinator, Mr Tshepo Madlingozi (+27 82 496 9914) of the Chairperson of Khulumani?s Board of Directors, Dr Marjorie Jobson
*On September 18, 2000, 15 former ?comfort women? from Korea, China, the Philippines and Taiwan filed an historic, class-action lawsuit in U.S. federal court against the Government of Japan. (Geum Joo Hwang, et al, Appellants v. Japan). The lawsuit was based on ?Alien Tort Claims Act,? (the same Act which the Khulumani case is using). The plaintiffs in this case are victims of the notorious jugun ianfu scheme who were murdered, deported, enslaved, imprisoned, tortured, raped subjected to inhumane treatment by the Japanese military during the World War II.