THE government’s recent about- face on the pending lawsuits under US tort law has serious implications that have not been thought through. One is that South African sovereignty is being undermined by our own government.
On September 1, Justice Minister Jeff Radebe wrote to a New York court to say the government deemed that court an “appropriate forum” to decide claims brought by South African citizens against corporations that allegedly aided and abetted the apartheid regime’s human rights abuses in SA.
Radebe’s letter reverses former president Thabo Mbeki ‘s stand against the litigation in the US, which he labelled an insult to South African sovereignty and an expression of US “judicial imperialism”.
Mbeki was right. So why would the government of President Jacob Zuma have less respect than its predecessor for the sovereign status of SA and the competence of its own judiciary to address such claims?
SA has one last chance to undo the damage caused by the government’s flip-flop. The US appellate court overseeing the New York apartheid litigation has asked our government, along with those of the US, UK, Canada, Switzerland and Germany, to clarify their views on the litigation. All of those other governments are on record opposing it.
Will SA – the country that would seem to have the most interest in addressing these claims through its own internal process – be the one country that says that they don’t belong in SA?
Could there perhaps be some reason why the government is not comfortable having the claims adjudicated in SA?
Perhaps Radebe thought that if the litigation went forward in New York, he would keep it away from SA. If so, he accomplished the reverse.
In giving his blessing to the US action and stating that the South African government now considers New York an “appropriate forum”, Radebe implied that the South African government would support the New York legal process.
This will include compliance with such US legal procedures as fact “discovery”, one of the longest and most active and intrusive phases of US civil litigation. Most of that discovery will take place in SA because that is where most of the evidence is.
The Mbeki government understood this back in 2003, pointing out that the litigation would “inevitably include massive demands for documents and for testimony from South Africans involved in various sides of the negotiated peace that ended apartheid”.
While the US lawsuit is between private litigants, and the South African government is not technically a party to the case, as a result of Radebe’s letter key people in Pretoria will be directly involved in this lawsuit – whether they like it or not.
Plaintiffs will not only want mountains of paper records in SA, but they have already announced their intention to involve as witnesses more than 150 South Africans, such as Anglican Archbishop Emeritus Desmond Tutu, Richard Lyster, Yasmin Sooka, Mary Burton, Wendy Orr, Glenda Wildschut, Hugh Lewin, Ilan Lax, Tom Manthata, Bongani Finca, and Dr KEM Mgojo.
The defendants – who understandably will defend themselves against the charges – will no doubt want to take the testimony of many South African government and political figures as well.
Because discovery will probably run through the summer of 2010, the rehashing of the apartheid drama will vie with the Fifa World Cup for the public’s attention.
Is the Zuma government perhaps concerned that resolving these claims in SA would frighten away foreign investors? But again, endorsing a US forum is precisely the best way to frighten foreign investors.
Radebe’s letter implies to them that SA considers its internal processes and judicial system to be incapable of adjudicating complex and sensitive political issues.
As Zuma understands very well, foreign investors look at the maturity of an investment destination’s legal environment as a key indicator of a reliable economy.
When a government passes off jurisdiction of critical matters within its borders to judges offshore, it becomes impossible to assess the legal risks associated with investment in the jurisdiction.
Did the Zuma government hope that by expressing support for the litigation to proceed in the US, it would force the parties to reach a settlement? Radebe has made statements suggesting this.
Certainly, it appears that the South African claimants and their lawyers are looking to use Pretoria’s supposed change of heart to coerce a financial settlement.
Marjorie Jobson, director of the Khulumani Support Group, which represents 55000 alleged victims of apartheid in the lawsuits, said her group was now “waiting to see if the companies might agree to a negotiated settlement”.
One of the lawyers handling the case, Charles Abrahams, said that the South African government’s policy reversal “paves the way” for the parties to reach a financial settlement.
However, the defendants have stated that they have no intention of settling.
Only three companies remain in the case – IBM, Daimler, and Ford. It is practically not possible to hold only three businesses financially liable for all the wrongs of apartheid.
In any event, this lawsuit is too prominent for them to be able to settle. Settlement would only breed more such claims.
It would also set a precedent that would deter economic engagement in many key markets with questionable human rights records, such as China, the Middle East and much of contemporary Africa.
So the defendants are likely to fight the litigation in the US with great determination and resources.
Or maybe our government has no underlying rationale for its apparent about- face and is simply confused.
Zuma says that everyone “misunderstood” the Radebe letter and that it should not be interpreted as changing SA’s opposition to the litigation’s proceeding in New York overall, but only with regard to “certain aspects”. The kindest interpretation of this sort of “explanation” is that his government’s position is unclear. And an unclear position is as good as none.
Whether SA is going to cede its authority to a New York court is a critical issue. The lawsuit encapsulates considerations of the apartheid past and how the country has chosen to deal with it.
Only by objecting to a US court handling that lawsuit can SA show respect for the strength and maturity of its own judiciary and legal system and insist upon its right to be taken seriously as an independent sovereign state able to deal with its own history.
In short, our government should have a considered opinion on the New York litigation, and it should demand that the US courts take that opinion seriously.
If the government truly believes there has been a “misunderstanding” about its position, then it must make this clear.
Fortunately, the government still has time to do precisely that – and to tell the US court that it objects to the litigation going forward in the US.
Kane-Berman is CE of the South African Institute of Race Relations.