The big payback?

A shattered life

In 1976 Sindiswa Nunu, then a pupil at Gugulethu’s Isaac Mkhize Secondary, was shot in both legs by the police during the wave of student uprisings that swept the country.

She could not walk for three months. Eight years later, while pursuing her diploma in teaching, she was teargassed and detained when Nyanga Bush, a squatter camp near Crossroads in Cape Town, was raided under the pretext that it was a ‘terrorist camp”. An active United Democratic Front (UDF) member, she was forced to abandon her studies and live life on the run.

Detained and beaten several times in the ensuing years, a five-months pregnant Nunu suffered a miscarriage after a brutal beating in 1987 at Caledon Square Police Station.

Today she is unemployed and lives in an unfinished house in Phillipi. She survives on grants she receives for two of her four children. She half jokingly says that apartheid is the reason she is single, because marriage would have demanded a more stable lifestyle.

The case and the Tort Act

Nunu is one of 97 plaintiffs who have taken on multinationals — including IBM, General Motors, Daimler Chrysler, Rheinmetall Group and Barclays Bank — as part of the Khulumani Support Group’s quest for reparations for gross human rights violations during apartheid.

They allege that these corporations ‘aided and abetted” the apartheid system by providing arms and ammunition (especially the Rheinmetall Group), military technology, oil and fuel for police and army vehicles used in the transport of personnel involved in violent human rights abuses. Khulumani has asserted that the firms profited from apartheid because of the cheap pool of labour entrenched through racialisation.

The case was initially thrown out by US district court Judge John Sprizzo in 2004, but last week, hearing an appeal, the US Second Circuit Court of Appeals found in favour of the plaintiffs. If the various corporations do not appeal against the judgement, the case will return to the district court to be heard again.

The appeal court found that Sprizzo had erred in ‘two fundamental respects” in 2004 when analysing the claims. Contrary to his judgement, the court found that the American federal court did indeed have jurisdiction to hear the claims under the Alien Tort Claims Act. It pointed out that liability in aiding and abetting does fall under international law. This, according to human rights activist Yasmin Sooka, has added weight to the ‘legitimacy” of the Tort Act ‘as a mechanism for human rights victims from around the world to seek reparations”.

A tort is an infringement of a right that leads to legal liability. The Tort Act was introduced in 1789 to cover violations during acts of piracy, infringements on the rights of diplomats and violations of safe conduct.

The section used by litigators against human rights abuse includes the assertion that American ‘district courts shall have original jurisdiction of any civil action for a tort only, committed in violation of the law of nations or a treaty of the US”.

The Act has more recently been used to hold multinational corporations, governments and various armies accountable, in a court of law, for human rights abuses.

Precedents

The Act was first used for human rights litigation in 1979 when the family of 17-year-old Joel Filartiga sued the Paraguayan police chief over Filartiga’s torture and death, citing ‘a violation of the law of nations” redressable under the Act. A New York Federal Court ruled that Paraguay was responsible for state-sponsored torture and subject to prosecution under the Act. Other cases include the Ken Saro Wiwa litigation against the Royal Dutch Petroleum Company, alleging complicity in the assassination of several Nigerians, and the case against Serbian military leader Radovan Karadzic, alleging he orchestrated various rapes and murders during the Balkan crisis.

Fewer than 100 cases have been filed under the Act and there has yet to be a judgement against a corporation.

The US ruling

In passing judgement in the South African case, Judges Korman, Katzman and Hall found that US federal district courts do have jurisdiction to try cases of this nature in relation to the Tort Act, reaffirming the possibility that future cases could be tried in this arena. The judgement allows the plaintiffs to amend their submissions when the case is heard again.

The judges found that Sprizzo had ‘erred in holding that aiding and abetting violations of customary international law cannot provide a basis for [the Act’s] jursidiction. We hold that in this Circuit, a plaintiff may plead a theory of aiding and abetting liability under [the Act].”

With the US and South African governments making submissions in favour of the corporations, the ruling also cautions against a blurring of the separation of powers when considering if a case is ‘justiciable”. The judgement states that assertions by the executive branch of governments are entitled to ‘respectful consideration”, but should ‘not necessarily preclude adjudication”.

‘Not every case touching foreign relations is non-justiciable, and judges should not reflexively invoke these [political] doctrines to avoid difficult and somewhat sensitive decisions in the context of human rights,” it says.

Government response

The US government has maintained that litigation would cause tensions with South Africa and affect efforts at reconciliation and reparation.

The South African government, in a 2003 declaration made by then minister of justice Penuell Maduna and reiterated by current Minister Brigitte Mabandla, said the case interfered with its own rights to litigate. Ministerial spokesperson Zolile Nqayi confirmed this week that government’s position remains unchanged.

SA civil society’s response

Activist Dennis Brutus (right), one of the plaintiffs, said the government’s stance is spurious. ‘I find it a disgraceful submission by the government that they would turn their backs on their own citizens in favour of what is an attempt to maintain their neoliberal economic agenda,” said Brutus, who was shot in the back by police in 1963.

Nunu, now 46, joined the support group in 1999 for trauma counselling. ‘Apartheid would not have succeeded had these companies not supported the government. It would have been difficult to uphold apartheid if Caltex [a ChevronTexaco unit] had not provided the fuel for the hippos [Casspirs] to use, or if the banks had not supported the economy during the state of emergency,” she told the Mail & Guardian.

‘Without the support of IBM pass laws would have been difficult to implement.”

She does not know what awards the court applications are seeking. Although there have been media reports placing the expected figure at $100-billion, Shirley Dunn, of the Khulumani Support Group, said the figure is unquantifiable.

Dunn added that apart from the 97 named plaintiffs, Khulumani had more than 45 000 members, who all stood to benefit.

Khulumani said the US ruling is ‘an important step forward in a fight for reparations”.

It pointed a finger at the government, saying it ‘has to date not made public the community reparations programme referred to by [former justice minister] Maduna in his ex parte declaration, based on President Thabo Mbeki’s announcement of April 2003. Khulumani calls on the South African government to make its proposals on community reparations public without further delay.”

The support group said an amount of R600-million, which remains in the President’s Fund, is not being used transparently, making it a struggle for organised victim groups to secure sustainable livelihoods. It said the group has been shunned by the justice department’s Truth and Reconciliation Unit, which ‘continues to function in an opaque fashion, and has not yet involved Khulumani in discussions to plan how to deal comprehensively with the unfinished business of the Truth and Reconciliation Commission”.

Companies contacted by the M&G failed to respond at the time of going to press.

An incomplete reconciliation

Alex Boraine, former vice-chair of the Truth and Reconciliation Commission, insists that the TRC process in South Africa is incomplete and is mired in foot-dragging over prosecutions of those who were denied amnesty.

Those who did not appear before the commission or others who had obviously lied to it, or withheld testimony, should be in the dock, he said this week.

‘The question of community reparations is being totally ignored,” he said, calling for a swift decision from the government to make transparent the processes of prosecution and reparation.

The targets

Barclays

British Petroleum

ChevronTexaco Corporation

ChevronTexaco Global Energy

Citigroup

Commerzbank

Credit Suisse Group

Daimlerchrysler

Deutsche Bank

Dresdner Bank

ExxonMobil Corporation

Ford Motor Corporation

Fujitsu

General Motors

IBM

JP Morgan Chase

Shell

UBS

AEG

Daimler-Benz

Fluor Corporation

Rheinmetall Group

Rio Tinto Group

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