Khulumani responds to the claims of Professor Asmal et al that corporations should not be held responsible for their conduct and that the Apartheid Lawsuit usurps the sovereignty of South Africa:
International Law recognises corporate liability:
1. Many treaties as well as the domestic law of virtually every country including India, the USA and South Africa recognise that corporations can be held responsible for human rights abuses and criminal conduct. Khulumani's lawyers, supported by many international law professors, have put forward a convincing argument that international customary law principles recognise corporate liability. The Alien Tort Claims Act does not exclude corporate liability.
2. Leading academics and civil society activists such as Professor John Dugard, Jody Kollapen and former Prime Minister of Ireland Mary Robinson have long advocated for corporate accountability. In the academia there is a broad consensus on this issue.
3. In South Africa virtually all human rights organisations advocate for recognition of corporate accountability for human rights abuses. These organisations include the South African Human Rights Commission; the International Centre for Transitional Justice; the South African Institute for Advanced Constitutional, Public, Human Rights and International Law; the Centre for the Study of Violence and Reconciliation; the African Institute of Corporate Citizenship; the Foundation for Human Rights; COSATU and the Centre for Human Rights at the University of Pretoria (of which Professor Kader Asmal is a board member).
4. Multinational Corporations command huge economic muscle which can and has been used to influence the conduct and policy of governments. From a moral and political perspective, it is only logical that corporations be held accountable for propping up illegitimate and repressive regimes.
5. The TRC made a clear determination that apartheid would not have lasted as long as it did had it not been for the support of big business - both South African and foreign. More to the point, the defendant corporations are charged with trading in commodities that were used by the apartheid military and security establishments to torture, maim, kill, disappear and denationalise thousand and thousands of South Africans.
South Africa's sovereignty is not threatened:
1. On 1 September 2009 the South African government, in a letter sent to the District Court in New York, stipulated that as presently framed the lawsuits should continue in New York (see letter)
2. These corporations snubbed the TRC process and never accounted for their acts during apartheid.
3. The TRC made a finding that the big business was complicit in the perpetuation of the crime against humanity of apartheid. The TRC's recommendation of a wealth tax against big business was never implemented. An overwhelming number of former TRC commissioners including its former Chairperson, Archbishop Desmond Tutu submitted an amicus brief pointing out clearly that these lawsuits are not inimical to the objectives of the TRC process.
4. There is no legislation in South Africa that can be used to hold these multinational corporations responsible for aiding and abetting the apartheid regime.
5. As one of the leading advocates of the Global anti-apartheid movement, which advocated for trade sanctions against apartheid South Africa, professor Asmal knows that these corporations were involved in sanctions-busting and that they violated many UN resolutions. By declaring that he, together with others, "support defendants' request for the dismissal of the present lawsuits", he is now seeking to absolve these corporations.