Oral argument started in Khulumani et al vs Barclays et al in New York on Tuesday with 87 South African victims claiming reparations from 23 foreign corporations charged with aiding and abetting the apartheid regime.
In papers before the court, Khulumani’s lawyers argue that multinational companies played key roles in the way apartheid occurred.
“The story of economic development of this country [South Africa] is intimately bound up with foreign capital, technology and expertise,” read the appellant’s papers, quoting former South African finance minister Owen Horwood.
“Significant investments usually bring all three. It allows us to do what we want rather more quickly. It allows us to do some things better than we would otherwise do.”
Quoting diverse sources, the plaintiffs held that private corporate support was largely responsible for the success of the government’s apartheid policies.
They contended that companies played a strategic role in the apartheid state’s defence from civil unrest, with business leaders — including officers from Barclays, Standard Bank and Anglo American mining company — appointed to a defence advisory board by then prime minister PW Botha.
“We have obtained some of the top business leaders in South Africa to serve on the Defence Advisory Board in order to advise me from the inside, not only about the armaments industry, but also about the best methods to be applied within the Defence Force,” Botha is quoted as having told Parliament’s House of Assembly.
However, the defendants contend that doing business in and with apartheid South Africa, “which industrialised nations permitted and encouraged”, never violated the international norms envisaged by the legislation under which the claim is being brought.
The lawsuit was based on common law principles of liability and on the Alien Tort Claims Act, which grants US courts jurisdiction over certain violations of international law, regardless of where they occur.
Lawyers for the defendants argue in their papers that adjudication of alleged actions would “offend the political question doctrine because it would require a court to pass upon the merits of political questions that were resolved by the political branches of the United States in favour of commerce with South
The defendants suggest adjudication would offend the sovereignty of the Republic of South Africa and compromise the United States’ relations with that country and other allies and friends.
The South African government, via the justice ministry, has filed an affidavit on behalf of the defendants.
According to Gunn, the plaintiffs have made numerous attempts to persuade Justice Minister Brigitte Mabandla and her predecessor Penuell Maduna to withdraw the affidavits supporting the defendants, to no avail.
“I think it’s [the government is] putting profits before people.”
Gunn lashed out at the government’s for its stance, saying it was paying victims identified as eligible to receive state reparations, a “measly and pathetic” sum of R30 000.
“I would love to say we can move from here, but I cannot rest until we have made the people and institutions take responsibility for the past, and the South African government must lead the way and not act contrary to international human rights law.