In what is growing into an unprecedented international lawsuit, United States attorneys Finkelstein, Thompson and Lougrhan on Friday filed a charge on behalf of six apartheid victims in the New York Eastern District Court.
The firm is the fourth group of US lawyers since last year to lay claims on behalf of apartheid victims.
The charge is being brought against seven banks and 12 international corporations from Germany, Switzerland, Britain, the US, The Netherlands and France that ”aided and abetted the apartheid system”, said Neville Gabriel, convenor of the Apartheid Debt and Reparations Campaign.
The Apartheid Debt and Reparations Campaign, launched in 1998, lobbies for the cancellation of apartheid debt and compensation from businesses that ”profited from apartheid abuses”, said Gabriel. The campaign has a network of national and international researchers, with supporters in Germany, Switzerland and the US who are ”committed to the reparations”.
”Despite growing international popular opinion that the multinational banks and businesses that propped up and profited from apartheid abuses should acknowledge their complicity and take measures to repair the damage … the corporations have refused to take responsibility for their actions,” he said.
The companies being sued include British Petroleum, DaimlerChrysler, Deutsche Bank, Ford Motor, Barclays National Bank, Fujitsu ICL, Caltex, Royal Dutch Shell, International Business Machines (IBM) and Exxon Mobil.
The six claimants are: Thitha Makhetha and Violet Molekwa, students involved in the 1976 Soweto uprising; Makopi Mogera, who was detained several times and tortured; William Malaza, whose brother in the Black Consciousness Movement died in custody; the mother of David Diutlwileng, a member of Umkhonto weSizwe who was assassinated; and Mbuyi Mhlauli, wife of Scelo Mhlauli, one of the Cradock Four.
A statement by Jubilee South Africa, a partner of the Apartheid Debt and Reparations Campaign, said the complainants seek to hold responsible companies like IBM that provided the computers to create the passbook system, car manufacturers that provided the armoured vehicles to patrol the townships and banks that ”enabled South Africa to expand its police and security apparatus”.
The legal battle for apartheid reparations began last June when US attorney Ed Fagan filed the first claim for a group of complainants in the New York Federal Court.
The Apartheid Debt and Reparations Campaign had lobbied for more than three years for the matter to be resolved without litigation. But ”our public calls were consistently rejected by the corporations as unjustified and ineffective … political representatives argued that the matter should be taken up directly with the banks and businesses”, said Gabriel.
Meanwhile, the campaign began exploring international legal action and was contacted by Fagan, who had been involved in Holocaust compensation claims.
In September Charles Mojapelo Attorneys, a group of South African lawyers based in Connecticut, filed the second set of complaints in the New York Federal Court.
And in November Michael Hausfeld attorneys filed a complaint on behalf of the Khulumani Support Group, a partner of the Apartheid Debt and Reparations Campaign. Khulumani represents about 32 000 victims of apartheid.
None of the complaints has yet come to trial. ”They are still in their preliminary stages,” said Liz Johnstone, coordinator of the Apartheid Debt and Reparations Campaign.
The charges are based on the US Alien Tort Claims Act, which grants US courts jurisdiction over certain violations of international law, regardless of where they occur. The US is the only country in the world that allows for this type of litigation to be brought in its jurisdiction.
Extrajudicial killings, torture and arbitrary detention are recognised violations of international law. According to a United Nations convention, these acts were practised by the apartheid regime, which makes the system a crime against humanity.
Finkelstein, Thompson and Lougrhan, which has 30 years of experience in class-action litigation, confirms that the defendants in today’s complaint satisfy the standard common-law principles of liability, ”including aiding and abetting” apartheid.
Justice Ministry representative Paul Setsetse said the South African government was ”indifferent” towards the apartheid reparation claims.
”People who are filing civil litigation claims against multinational companies are doing so in their personal capacity. As government we are not involved in civil litigation. We respect the rights of people to bring these matters to the court, but we are neither in favour or against the claims.”
Asked if the government is concerned that the lawsuits could harm relations with potential investors, Setsetse said: ”We don’t believe such litigation will negatively impact on our relations with these countries because they understand our position.”
Gabriel said international banks and corporations made massive profits at the expense of ordinary people in South Africa. ”These banks and corporations must take responsibility for their actions. With this new claim, momentum continues to grow and those responsible can no longer ignore the truth or avoid providing reparations for affected communities.”