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Saturday, October 4, 2014

Reparations case filed in U.S. Courts against apartheid profiteers




Professor Patrick Bond, Jubilee South 




                                                               Patrick Bond


"Jubilee SA's Berend Schuitema reported that Maduna made an
extraordinary confession: "The reason why he had made the objection was
that he was asked for an opinion on the lawsuit by Colin Powell. He gave
Powell his written response, whereupon Powell said that he should lodge
this submission to the judge of the New York Court. Howls from the floor."






  • July 08, 2008 Edition 1

    Patrick Bond

    Today, the fascinating case of $400 billion (R3 trillion) in claims by
    black South Africans against multinational corporations once again comes
    to Judge John Sprizzo's New York Southern District Court.

    At the scene will be former Robben Islander and honorary UKZN professor
    Dennis Brutus, a leading plaintiff, but just one among many thousands of
    compatriots now rebelling against their government's disapproval of this
    Alien Tort Claims Act lawsuit.

    Only in the past two decades has the law become widely known. More than
    100 cases were filed in US courts, beginning with a Paraguayan torture
    victim.

    Encouraged by Burmese villagers fighting the US oil firm Unocal, a case
    which in 2003 withstood challenge by the Bush administration, activists
    like Brutus, Cape Town academic Lungisile Ntsebeza, the Khulumani
    Support Group and Jubilee SA used the Act to sue dozens of multinational
    corporations operating in SA during apartheid.

    The South African government was asked by the Bush administration to
    oppose the cases, and in part because Pretoria complied, Judge Sprizzo
    initially decided the case on behalf of corporate defendants in late
    2004. He reasoned that the Act conflicted with US foreign policy and
    South African domestic economic policy.

    But last October, litigants won an appeal on the grounds that Sprizzo's
    logic was faulty. In May, the US Supreme Court was expected to finally
    kill the lawsuit on behalf of the corporations, but four of the justices
    discovered conflicts of interest in their own investment portfolios, as
    they owned shares in the target firms. The case went back to Sprizzo, in
    what the plaintiffs' Cape Town-based lawyer, Charles Abrahams, argued
    was "a massive victory for the international human rights movement as a
    whole".

    According to Nicole Fritz, director of the Southern African Litigation
    Centre in Johannesburg: "Companies that were not perpetrators of human
    rights violations but were complicit in such violations through their
    dealings with oppressive governments are now potentially liable in law
    for their actions."

    Objective

    Disincentivising future profit-taking from dictatorships such as Burma
    or Zimbabwe is a central objective.

    Last month, just as Robert Mugabe's Zanu-PF paramilitaries committed
    sufficient murder and torture to ensure his "re-election", thanks in
    part to President Thabo Mbeki's perpetual connivance, AngloPlats
    announced a $400 million (R3 billion) investment in lucrative Zimbabwean
    platinum mines.

    Abrahams argues: "The substantive basis of the suit is that foreign
    multinational corporations aided and abetted the apartheid government by
    providing arms and ammunition, military technology, transportation and
    fuel with which the government and its armed forces were able to commit
    the most heinous crimes against the majority of the people of South Africa."

    Corporations being sued include the Reinmetall Group, for providing arms
    and ammunition to the apartheid government; British Petroleum (BP),
    Shell, Chevron Texaco, Exxon Mobil, Fluor Corporation and Total
    Fina-Elf, for providing fuel to the armed forces; Ford, Daimler-Chrysler
    and General Motors, for providing transport to the armed forces; and
    Fujitsu and IBM for providing the government with much needed military
    technology.

    Banks financing apartheid included Barclays, Citibank, Commerzbank,
    Credit Suisse, Deutsche, Dresdner, J P Morgan Chase and UBS.

    As a leading exiled foreign representative of the African National
    Congress before 1994, Mbeki supported the demand that multinational
    corporations disinvest from SA.

    But in 2001, at the UN World Conference Against Racism in Durban, he
    opposed a clause that the "US should take responsibility and pay
    reparations for the trans-atlantic slave trade", which was supported by
    Nigeria and other African states.

    In April 2003, Mbeki announced that it was "completely unacceptable that
    matters that are central to the future of our country should be
    adjudicated in foreign courts".

    Public enterprises minister Alec Erwin insisted that Pretoria was
    "opposed to, and contemptuous of the litigation". Any findings against
    apartheid-tainted companies "would not be honoured" within SA, he blustered.

    In July 2003, then-justice minister Penuell Maduna told the US courts
    that "the litigation could have a destabilising effect on the SA economy".

    But as a friend of the court on behalf of the claimants (alongside
    Archbishop Emeritus Desmond Tutu), Nobel laureate Joseph Stiglitz
    replied that such analysis had "no basis," because "those who helped
    support that system, and who contributed to human rights abuses should
    be held accountable".

    Maduna's letter to the US court requested that the lawsuits be
    dismissed, "in deference to the sovereign rights of foreign countries to
    legislate, and adjudicate domestic issues without outside interference".

    But in August 2003, at the opening plenary of a major Reparations
    Conference, Jubilee SA's Berend Schuitema reported that Maduna made an
    extraordinary confession: "The reason why he had made the objection was
    that he was asked for an opinion on the lawsuit by Colin Powell. He gave
    Powell his written response, whereupon Powell said that he should lodge
    this submission to the judge of the New York Court. Howls from the
    floor. Jubilee SA chairman M P Giyose pointed out the bankruptcy of the
    sovereignty argument."

    Conflict

    To be sure, conflict between plaintiffs makes it harder to win the
    hearts and minds of the broader public. The first set of cases was filed
    by a discredited New York lawyer who was active in a previous Alien Tort
    Claims Act lawsuit that generated $8 billion (R61.7 billion) in
    Holocaust-related out-of-court settlements. But that lawyer soon fell
    out with Ntsebeza.

    Between the Khulumani Support Group and Jubilee, tensions arose over
    claims to ownership of the case and over direction of strategy. And
    between Jubilee's former Johannesburg staff, on the one hand, and on the
    other, board members and several provincial chapters, a dispute erupted
    that temporarily paralysed the organisation.

    Still, Brutus believes the plaintiffs can leapfrog Mbeki to appeal to a
    much richer strand of African nationalism than the appeal to sovereignty.

    The Organisation of African Unity made a case for reparations in 1993 in
    the Abuja Proclamation against slavery, colonialism, and
    neo-colonialism. That damage is "not a thing of the past, but is
    painfully manifest in the damaged lives of contemporary Africans from
    Harlem to Harare, in the damaged economies of the black world from
    Guinea to Guyana, from Somalia to Surinam".

    A "moral debt is owed to the African peoples", the Abuja Proclamation
    declares, requiring "full monetary payment and debt cancellation".

    If the activists lose, in the event that Sprizzo develops a more
    coherent defence of apartheid profits, the challenge for civil society
    will not only be to turn up the street heat. Perhaps SA needs its own
    Alien Tort Claims Act to hold corporations responsible for damage.

    And a new government in 2009 will perhaps embrace the activists'
    reparations demands, so as to remind us of African economic liberation,
    instead of Mbeki's legacy: crony capitalism, capital flight, corporate
    tax cuts, corrupt arms deals, cheap electricity to influence-peddling
    minerals firms, and other forms of class apartheid.

    # Patrick Bond directs the Centre for Civil Society at the UKZN.

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