Victims of South Africa’s apartheid regime have won the right to seek compensation from some of the world’s largest companies following a landmark decision in the New York Supreme Court last week.
In a case that could have ramifications across the corporate world, the human rights group Khulumani was told it could proceed with a lawsuit for damages against 23 multinationals, including Barclays, BP, Credit Suisse, Deutsche Bank, Fujitsu and Daimler-Benz. All the firms named are contesting the claims, which could run to billions of pounds.
The companies’ lawyers had gone to the state’s Supreme Court to block the move with the support of the US administration and the South African government, but they were defeated – more by default than argument. Four of the 10 justices had shares in some of the companies, and because one of the other judges was absent, the court was unable to form a quorum. It therefore upheld an earlier appeals court ruling allowing the lawsuit to proceed in a New York district court, which will sit in July to decide on the conduct of the case.
Khulumani lawyer Charles Abrahams, who is working pro bono, said: ‘This is a massive victory for international human rights. This has the potential to change the relationship between states, individuals and multinational corporations with respect to human rights.’ He dismissed reports that the sums being claimed were $400bn (£200bn), saying that only a grand jury could decide figures.
Khulumani – named after the Zulu word meaning ‘to speak out’ – has nearly 50,000 members, all of whom suffered harassment, intimidation and violence under apartheid, which was enforced by the South African government between 1948 and 1994. It is challenging companies that it claims gave specific assistance to the military, the police and intelligence agencies during that time by providing finance, oil, weapons and computer technology.
Spokeswoman Shirley Gunn, 53, said she was delighted: ‘These companies were under no illusion what was happening in South Africa, and yet they continued to assist it in their pursuit of profit. Without petrol to drive the tanks, police trucks and planes, without the technology to run computers, without the guns and bullets and finance to pay for it, apartheid could not have survived.’
The South African government is opposed to the lawsuit, claiming the case undermines its sovereignty and could deter foreign investment, and that the Truth and Reconciliation Commission (TRC), set up after all-race elections in 1994, has already dealt with the issues.
Some of those arguments have won support from one key member of that commission. Dr Alex Boraine, former vice-chairman of the TRC under Archbishop Desmond Tutu, said: ‘I think this lawsuit is not the right way to proceed. This could damage investment and new jobs just when we need business to come here. I have enormous sympathy for victims but we don’t want to scare away the international business community.’
Khulumani’s case involves the Alien Tort Claims Act, an 18th-century law that allows foreigners to sue in US courts over international law violations. It was originally intended to allow foreigners to make claims against pirates.
Khulumani has 97 ‘named plaintiffs’ on whom it will build its case. That will include four categories: disappearance, detention without trial, assault and injury, and extra-judicial killings.
Most of the companies involved have declined to comment about the case.
