News agency, Cape Town, South Africa
Wednesday June 19th 2019

Gvt flip-flops on apartheid litigation – DA wants answers

Sandiso Phaliso

The Democratic Alliance (DA) has put questions in Parliament to Justice Minister Jeff Radebe asking for clarity on the government’s apparent flip-flop over litigation against multi-national corporations that allegedly supported the apartheid government.

The class action lawsuit case, which was initiated in 2002, brought by South African non-governmental organisations Khulumani Support Group and plaintiffs under Dumisa Ntsebeza, is being argued at the United State’s Circuit Court of Appeal under the Alien Tort Claims Act, which allows non-US citizens to bring civil suits against companies who are also trading in the US.

The plaintiffs are seeking $10 billion (about R73 billion) in compensation from firms such as Daimler Chrysler, IBM, General Motors and Rheinmettal, whom they believe supported apartheid by selling vehicles, weapons and computer equipments to the regime, despite international sanctions.

Under the Mbeki administration, the South African government opposed the case.
Then Justice Minister Bridgette Mabandla is on record as saying: “We consider it completely unacceptable that matters that are central to the future of our country should be adjudicated in foreign courts which bear no responsibility for the wellbeing of South African citizens.”

International law expert and former education minister Kader Asmal, as part of a group of 16 legal experts acting as friends of the court (amicus curiae), filed papers in late December last year supporting the defendant’s move to have the case dismissed.
Asmal has stated that the group’s legal analysis found that corporations could not be held liable under the customary international law which applied to this case.

But the DA’s shadow minister of justice and constitutional development, Dene Smuts, said Justice Minister Jeff Radebe “reportedly” wrote a letter to the New York court in September last year informing them that the South African government believed it was an appropriate forum to hear the claims.

At the last hearing, on January 11, the court asked the South African government to clarify why it had changed its position on the matter.
It is expected that at the next court date, not yet finalised, the South African government will provide its answers.

As a result Smuts said she has explicitly asked for clarity on whether Radebe’s letter reflects the views of President Zuma.
“We cannot imagine that Cabinet Ministers in the economic cluster were party to this reversal,” stated Smuts.
“It bears the hallmarks of the Zuma model of leadership, which tries to please everyone.”

Fears raised in Smut’s statement, that the South African government’s support of the litigation would make investors wary, was dismissed by constitutional law expert and University of Cape Town Professor in the Department of Public Law, Pierre de Vos.

De Vos said the companies involved were being sued in terms of a US law in a US court and “it would not be rational for them (multinational corporations) to punish South Africa for what happens in the courts of another country”.

He said the Mbeki government’s opposition to the case stemmed from a “profound philosophical problem with the concept of reparations on the basis that the suffering of all black people could not be quantified in money”.

The government’s new approach needed to be similarly based on a view that reparations could contribute to healing the nation, he said.
“It is more inline with the principles adopted in indigenous customary law wherein reparations – not punishment- is often at the centre of correcting past wrongs.”
He said problem was deciding who should be included as beneficiaries of successful litigation, and who would be left out.

“This is obviously an issue that the US court will have to deal with in the event of the case being successful,” he said.

Tags: Alien Tort Claims Act, Dene Smuts, Dumisa Ntsebeza, Jeff Radebe, Kader Asmal, Khulumani

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One Response to “Gvt flip-flops on apartheid litigation – DA wants answers”

  1. IBM participated in Apartheid, the Holocaust, and chemical exposure deaths. Details and links — ibmTheWidowMaker com

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