/ 9 September 2009

State backs apartheid victims’ case

Apartheid victims suing international companies for “aiding and abetting” will consider turning down an out-of-court settlement.

Apartheid victims suing international companies for ‘aiding and abetting” will consider turning down an out-of-court settlement. They want their case concluded in court so as to set a precedent that will prevent multinationals from colluding criminally with repressive governments.

Daimler Chrysler, Ford, Fujitsu, General Motors, International Business Machines (IBM) and Rheinmetall are among the companies being sued.

All operated in the country under apartheid and are accused of taking part in gross human-rights violations such as disappearances, arbitrary and prolonged detentions without trial, assault and injury, as well as extrajudicial killings.

The initial claim filed in 2002 was for $40-billion, but the latest court papers do not quantify the damages sought. The South African government this week performed a turnabout on the civil action by offering to assist the plaintiffs.

Former president Thabo Mbeki’s administration opposed the action for seven years. But in a letter delivered to Judge Shira Scheindlin of the United States District Court on Tuesday, Justice Minister Jeff Radebe said South Africa would be ‘willing to offer its counsel to the parties in pursuit of a settlement”.

Justice department spokesperson Tlali Tlali said the government’s change of heart was influenced by the reality that there was no ‘appropriate forum” in South Africa for litigation of this nature. ‘Our view is that the US court is an appropriate forum to hear these matters,” Tlali said. ‘Our government is, however, available to facilitate [out-of- court] settlements if the litigants are amenable to that option.”

But the first prize for the plaintiffs is to continue with the court action in order to set a precedent for future cases. ‘We would prefer that the case is concluded in court so we get a landmark decision, which will curb multinationals from committing criminal acts together with repressive governments,” attorney John Ngcebetsha, the spokesperson for the group, said. ‘We are prepared to continue with the matter; we have a strong case.”

The Mbeki government had said that the case undermined its sovereignty, while the US urged its supreme court to dismiss the case on the grounds that it jeopardized the commercial interests of both countries.

Ngcebetsha said a group of lawyers had been talking to the government about the lawsuit for the past 18 months. ‘We are delighted at the government’s stance. The fact that they appeared to be standing against the litigation brought by apartheid victims was not an ideal situation.”

He said the plaintiffs would not dismiss the government’s proposal without exploring it. ‘We respect the government’s stance and will be willing to talk about the settlement. The lawyers cannot simply disregard what the government is saying on the matter.”

He said there had been no discussions about which figure would satisfy the plaintiffs in an out-of-court settlement, because the proposal still needed to be explored.

Tlali said one of the government’s problems with the litigation was that the plaintiff’s first legal papers, filed in 2002, made ‘unsavoury and offensive comments” about the process followed by the South African government through the Truth and Reconciliation Commission (TRC). ‘In the revised particulars of the claim those comments were abandoned.”

The TRC did not hold to account corporations that benefited from the apartheid government. But in 2005 the TRC told the US court hearing the matter that companies charged with participating in apartheid had never pleaded for amnesty and that they could still be held legally accountable as a matter of civil law.

The justice department’s director general, Menzi Simelane, is leading government talks with both the victims and the companies being sued. He is scheduled to meet legal representatives of some of the companies in Johannesburg on Friday. Lawyers for the victims are to meet Simelane on the same day.