Apartheid victims have vowed to step up their arguments for compensation claims from multinationals in the wake of a landmark ruling by the United States Supreme Court this week.
They insist the ruling, which gave the go-ahead for foreigners to use the 200-year-old Alien Torte Statute, was in their favour, despite contradictory interpretations of a simultaneous “rule of restraint”.
The Jubilee and Khulumani victims’ groups met Archbishop Desmond Tutu in Cape Town on Friday, and he again gave his backing to their US litigation against multinational companies and banks that propped up the apartheid state.
But the victims’ groups say they agree with interpretations of the ruling that it would damage some claims, particularly the latest suit allegedly filed by Ed Fagan, the controversial American lawyer, against the South African government for “genocide”. They are accelerating efforts to have Fagan removed from the litigation.
Lawyers, however, believe the historic ruling against those who wanted to dismiss the Alien Torte Act could boost the other South African litigant groups, who brought claims in 2002 against the multinationals “for aiding and abetting the apartheid state”.
The multinationals main argument for dismissal of the cases to US judge John Sprizzo last year was that the Alien Torte Statute, used successfully in Holocaust claims, was not applicable for human rights abuse civil cases.
The US supreme court ruled six to three this week that the Alien Torte act is still available to foreigners for civil suits in relation to gross human rights violations, which the court said was universally recognisable, naming examples such as torture, genocide, rape, beatings and detention.
This meant broadly that the main argument of the multinationals was refuted.
Both the defendants and the litigants now have 30 days in which to bring new arguments to the judge, who had reserved judgment on their cases in lieu of the supreme court ruling.
Tutu was briefed on Friday on the developments by American lawyer Michael Hausfelt, who is acting for Khulumani and Jubilee’s victims.
Hausfelt welcomed the ruling, which he considers “very positive” for his South African litigants, saying: “This is not the end. This is the beginning.”
The two-part judgment, which leaves a wide margin of discretion to the lower courts, including the New York court that hears the apartheid cases, also gave a “rule of restraint”.
This has led to initial interpretations that the ruling was a death knell to the apartheid cases.
The restraint means, however, that lower courts should be careful of and respect the prerogative of the executive of both the US and foreign legislatures and executives to manage their own foreign affairs and that litigation should not affect foreign relations.
The restraint was issued in response to an affidavit by Penuell Maduna, the former justice minister, to Judge Sprizzo, arguing that the claims would affect South Africa’s sovereignty and efforts to attract investment and bring about reconciliation.
Maduna’s letter prompted both Tutu and fellow Nobel laureate Joseph Stiglitz to write to Judge Sprizzo in opposition.
Speaking about the victims on Friday, Tutu said: “I’m still interested in what they’re doing and willing to be helpful.”
Professor Gerhard Erasmus, an international and human rights law expert, said the ruling meant that South African victims “would definitely be able to bring such cases, if gross violations occurred, and that the US court will have jurisdiction over it”, but that the “lower court must interpret the sensitivities of the South African and American executives”.
“It is a rule of restraint, not a prescription, and it is not beyond review,” said Erasmus, who is the head of Stellenbosch University’s Trade Law Centre.
Enver Daniels, South Africa’s chief state law adviser, said he did not have instructions yet as to whether the government will make further representations to Judge Sprizzo.”