The South African government is not opposed to civil action by victims against companies which operated in the country under apartheid — as long as the litigation takes place within South Africa’s borders, chief state law adviser Enver Daniels said this week.
Daniels was reacting to the United States Supreme Court’s failure to hear an appeal by 50 mostly multinational companies against a $400-million damages claim by two groups of apartheid victims.
The companies included are among the world’s largest, such as General Electric, BP and Barclays Bank.
The court could not reach the required quorum to hear the matter after four judges, including Chief Justice John G Roberts, recused themselves because they own shares in some of the companies involved.
By default, the upshot is that the matter will return for trial to the court of first instance, the New York District Court.
It is speculated that the South African government, which bitterly opposes the action, may now litigate in the case.
Until now it has left the matter to counsel for the United States state department .
Some commentators close to the case suggested that Justice Minister Brigitte Mabandla is under heavy pressure from the Cabinet.
Spokesperson for the justice minister, Zolile Nqayi, said the department could not deny or confirm this.
South Africa argues that the case undermines its sovereignity, while the US urged the Supreme Court to dismiss the case on the political grounds that it jeopardises the commercial interests of both countries.
The victims are split into two groups: Khulumani, which represents about 32 000 victims, and another grouping, led by prominent human-rights lawyer Dumisa Ntsebeza, who has brought a class action.
Both argue that the companies were responsible for ‘aiding and abetting†human rights abuses by the apartheid government.
The Supreme Court merely affirmed an earlier decision of a lower federal appeals court which ruled that the New York District Court had the jurisdiction to hear the matter.
The matter was brought to court under the Alien Tort Claims Act, enacted in 1789. It was first heard by Judge John E Sprizzo, who dismissed the case after arguing that his court did not have the jurisdiction to hear claims emanating from other countries.
The Act lay idle for many years until it was used in US courts by foreign nationals to sue for human rights abuses.
‘In a world where many countries may fall considerably short of ideal economic, political and social conditions, this court must be extremely cautious in permitting suits here based upon a corporation’s doing business in countries with less than stellar human rights records,†the New York Times reported Sprizzo saying.
Attorney for the Khulumani group, Charles Abrahams, lauded the Supreme Court decision and described it as ‘a major victory, not only for apartheid victims but for victims throughout the worldâ€.
State law adviser Daniels said South Africa had gone through the truth and reconciliation process, which had allowed it to deal effectively with issues of reparation.
‘I was personally involved in the Truth and Reconciliation Commission, I want the matter handled here,†he said.
Ntsebeza said that at this stage his group was not prepared to comment on the lawsuit, but would call a press conference in due course.