Notes on a Lecture I attended last week

Notes on 2-June-2010
SCL lecture by Mia Swart on Apartheid
The Internationalisation of the Reparations Debate in South Africa: Is ATCA an Appropriate Mechanism for Obtaining Apartheid Reparations?




Dr. Mia Swart is an Associate Professor at the University of Witwatersrand in Johannesburg, South Africa. She presented on Victims of Apartheid in South Africa, explaining the results of the Truth and Reconciliation Commission and the Tort Law Suit occurring in the United States.

The Truth and Reconciliation Commission (TRC) identified 22,000 victims and awarded US$85 million total payments for victims. The money was given out as a 1-time payment of 30,000 Rand (≈ Euro 3.000) into bank accounts of victims. This money was paid out in April, 2003 (7 years after it had been promised). Unfortunately, many victims are without bank accounts and thus did not receive the payment. Thus, not all of the identified victims have received reparations.

Dr. Swart stated that some victims felt this payment was unethical, as it was seen as blood money. In some cases, victims felt that no money would have been better than this low amount. Most victims, however, did not resist the reparations because of the desperate situations and poverty they are suffering.

Another route to obtain reparations has been taken by a group called Khulumani. This group is made up of about 38,000 people (and is still increasing) who were victims of Apartheid and have come together as a social action and support group. They decided to do something rather than remain passive. This group has allowed victims to be empowered and involved in bringing the case into the public domain. Since the TRC did not address corporations’ involvement in Apartheid, a lawsuit was initiated in the United States in a tort claim against several companies (Khulumani et al v. Barclays et al). This tort claim was made possible by the Alien Tort Claims Act. This act allows district courts in the U.S. to have original jurisdiction for torts only in violation of treaties and/or violations of the law of nations. Because of the embargoes and treaties in place during Apartheid, these companies that provided products and services to the South African Government were in violation of these agreements. Thus, it is possible that the case can be heard in the U.S. District Court.

The Tort Case was brought before the New York District Court in 2002 against 34 companies originally. The remaining companies in the lawsuit include Ford, GM, IBM, Barclay National Bank, Daimlerchrysler, and Rheinmetall. Basically these companies funded and assisted the South African Government in the Apartheid. Thus, they were in violation of international law by “aiding and abetting” the government. The plaintiff (victims) in this suit seek to show that mere knowledge that they are assisting in these violations of international law is enough to show responsibility in the tort claim. However, this case has been a little rocky. In 2004, Judge Spritzer dismissed the case, stating that there was no legal basis for the case. His decision was later overturned by the 2nd Circuit appeals court. In the ruling, the Court reversed the decision of the District Court on the Alien Tort Statute claims, and held that aiding and abetting liability exists and can be pled under the Alien Tort Statue.

One of the major questions discussed by Dr. Swart and the audience at the presentation was the issue of causation. It is likely that showing that the companies’ involvement caused the harm to the victims will be difficult. Additionally, since victims suffered a wide range of harm, there may be an issue with grouping them all together for the class action suit. Harm ranges from discrimination to torture and death; thus, it may be a problem for the victims to be grouped.

The case is currently being appealed by the defendants. It will be a long time before the case is resolved. Victims will have a long time to wait for any kind of reparations (if they receive any at all).




More information:
Khulumani Support Group: http://www.khulumani.net/khulumani/about-us.html
Also on Facebook: http://www.facebook.com/pages/Khulumani-Support-Group/482321890293