13.10.2007, South Africa
Khulumani Support Group welcomes the long-awaited decision of the
New York circuit court of Appeal to reverse the finding of the district
court on its Alien Tort Statute claim (Khulumani et al v. Barclays et
al). The court held that liability of corporations for aiding and
abetting the perpetration of gross human rights abuses does exist and
that it can be pled under the statute. The Alien Tort Statute (ATCA)
allows for people anywhere in the world to make claims against United
States-based corporations that have caused damage to those people. It
must be noted that the businesses listed in the lawsuit chose not to
appear before the TRC.
The decision is a victory in a long struggle for justice for victims of
corporate complicity with the illegitimate apartheid government. All
the defendant companies listed in the Khulumani et al v. Barclays et al
lawsuit can be shown, not only to have profited from apartheid, but
also to have propped up the illegitimate regime long beyond the
declaration of apartheid as a crime against humanity by the United
Nations. The case is now being sent back to the district court where
Judge Sprizzo who originally dismissed it as being, amongst other
descriptions, "frivolous", is now required to reconsider his decision.
The success of this appeal comes in the light of a campaign that has
been supported by an overwhelming majority of Truth and Reconciliation
Commissioners as well as by numbers of South African and international
civil society organisations and individuals.
The decision of the circuit court contrasts with the position of the
South African government that requested the dismissal of the claims on
the basis that they interfered with the sovereignty of the South
African government to deal with the matter of reparations and that the
claims might possibly deter foreign investment. (ex parte declaration
submitted by former Minster of Justice Mr Penuell Maduna, dated July
11, 2003, in which former Minister Maduna refers to President Mbeki's
announcement of April 15, 2003 that final reparations would be
"combined with community reparations and assistance through
opportunities and services". ) The opposition of the South African
government to the Khulumani claim was unexpected given that it had
initially declared that "(it) recognises the right of citizens to
institute legal action". However, government went even further when
Khulumani tabled its appeal in January 2006, and submitted an amicus
curiae brief to the Circuit Court in support of 'big business' and
against those victims who had sacrificed so much for freedom.
While we note that there is a dissenting opinion in the court decision,
it seems to relate more to the two other cases than specifically to the
Khulumani case and seems to be particularly influenced by the
'unfortunate' Maduna affidavit, in which claims are made that
government is in the process of implementing community reparations.
This is untrue. What Minister Maduna was referring to were general
measures for social reconstruction and development, rather than
targeted reparations measures for affected communities.
At this stage, South Africa's present government has to date not made
public the community reparations programme referred to by Mr Maduna in
his ex parte declaration, based on President's Mbeki's announcement of
April 2003. Khulumani calls on the South African government to make
their proposals on community reparations public without any further
delay, noting that Khulumani submitted its suggested proposals for
community reparations to the Office of the President on October 29,
2003, and that to date, government has still not responded to these.
Khulumani notes, moreover, that more than R600 million remains in the
President's Fund and is not being used in a transparent manner, given
that these funds are derived from the public fiscus and that organised
victim groups continue to struggle to get access to resources to
implement their plans for sustainable livelihoods. Khulumani also notes
that the TRC Unit in the Department of Justice, established at the end
of 2005, continues to function in an opaque fashion and has not yet
involved Khulumani in discussions to plan how to comprehensively deal
with the "unfinished business of the TRC". The Ministry of Justice has,
moreover, remained unresponsive to recent requests for urgent meetings
to share information on the procedures available to victims for
submitting applications to have their urgent needs addressed. The South
African government, having failed to wholeheartedly embrace the full
scope of reparations, is thereby promoting a model of transitional
justice that incorporates "unfinished business".
Khulumani believes that the circuit court decision in New York is an
important step forward in a fight for reparations, not only for
survivors of gross human rights abuses in South Africa, but for victims
affected by unethical corporate behaviour everywhere in the world.
Provided there is no challenge to this latest decision, the role of big
business in aiding and abetting the apartheid government, and in
profiting from apartheid, can at last begin to be interrogated.
Issued by Khulumani Support Group's National Contact and Support Centre (www.khulumani.net)
For comment, please contact:
Khulumani's Acting Director, Dr Marjorie Jobson +27 82 268 0223 or (046) 636 2715
Khulumani's Advocacy Coordinator, Mr Tshepo Madlingozi-+27 82 496 9914
Khulumani's Contact Centre Liaison Officer, Mr Zweli Mkhize +27 73 704 6414 or (011) 403 4098
Please note that the court decision can be accessed at
http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA1LTIxNDEtY3Zfb3BuLnBkZg==/05-2141-cv_opn.pdf
List of defendants:
Barclay National Bank Ltd., British Petroleum, PLC, Chevrontexaco
Corporation, Chevrontexaco Global Energy, Inc., Citigroup, Inc.,
Commerzbank, Credit Suisse Group, Daimlerchrysler AG, Deutsche Bank AG,
Dresdner Bank AG, Exxonmobil Corporation, Ford Motor Company, Fujitsu,
Ltd., General Motors Corporations, International Business Machines
Corp., J.P. Morgan Chase, Shell Oil Company, UBS AG, AEG Daimler-Benz
Industrie, Fluor Corporation, Rheinmetall Group AG, Rio Tinto Group and
Total-Fina-Elf
Cooperator
World Coalition Against Torturers (WCAT)
Project Management
Bianca Schmolze
Bianca Schmolze
has a Master of Business Administration and works for the Medical Care
Service for Refugees since 2002. After serving as a fundraiser, she
became responsible coordinator of the "Justice heals" campaign in 2004.
Furthermore, she has a mandate in the city council of Bochum.
Tel.: +49-(0)234-9041380
Fax: +49-(0)234-9041381
(Thursday and Friday, 10.00–18.00 Uhr)
Supported by
Manfred
Nowak,
UN Special Rapporteur on Torture