Word is that lawyers for some leading international firms were in shock following a US court’s ruling last week reversing a decision of a lower court which had dismissed the claims brought by 32 700 apartheid victims.
The lawyers, employed by the group of companies, which includes BP, ExxonMobil, Citigroup, Deutsche Bank, UBS, IBM and General Motors, apparently advised that the case did not stand a chance, notes a Business Day editorial.
It’s worrying for the companies because of the $400bn that is involved. It is also a shock for the SA’s Government and the US State Department, which both oppose the action. The plaintiffs include the Khulumani Support Group which brought the case under the Alien Tort Claims Act (Atca).
The court of first instance found aiding and abetting violations of customary international law cannot provide a basis for Atca jurisdiction. The three-judge Appeal Court found two to one that the trial court had applied the law incorrectly, and in fact there was a basis for the case to go forward. Consequently, the case goes back to the trial court to be heard on its merits rather than on jurisdictional grounds.
This is a big step forward for the plaintiffs, one of whose lawyers, Michael Hausfeld, described the ruling as “a breakthrough and watershed in terms of international human rights”. But the crucial thing is that they still have to prove there was a causal link between selling goods and services to the apartheid government and the suffering of the plaintiffs.
Full Business Day editorial