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Federal Appeals Court Hears Arguments in Landmark Apartheid Reparations Case

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A landmark case against several international corporations accused of aiding South Africa’s apartheid regime is underway. The companies include Daimler AG, General Motors, Ford Motor Company and IBM. They are accused in a class-action lawsuit of complicity in human rights abuses during the years they did business in apartheid South Africa. The suit was filed several years ago by black victims of white minority rule. Their lawyers are seeking up to $400 billion in compensation. [includes rush transcript]

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: A landmark case against several international corporations accused of aiding South Africa’s apartheid regime is underway. The companies include Daimler AG, General Motors, Ford Motor Company and IBM. They’re accused in a class-action lawsuit of complicity in human rights abuses during the years they did business in apartheid South Africa. The suit was filed several years ago by black victims of white minority rule. Their lawyers are seeking up to $400 billion in compensation.

A federal court in New York heard an appeal by the corporations seeking to dismiss the suit. They argue that US courts have no jurisdiction in the case. In 2009, after years of litigation, a US court ruled the case could go ahead under the Alien Tort Claims Act, which allows foreigners to file cases against companies for crimes committed abroad.

For more, I’m joined here in the studio by Michael Hausfeld, one of the attorneys for the plaintiffs in the lawsuit. We’re also joined from South Africa by Marjorie Jobson. She’s the national director of the Khulumani Support Group that’s filing the lawsuit. She joins us by Democracy Now! via stream from Pretoria.

We welcome you both to Democracy Now! First, Michael Hausfeld, explain exactly who you’re suing and why.

MICHAEL HAUSFELD: The lawsuit is being brought by black South Africans who were abused by the military and security forces of apartheid South Africa against a number of companies that provided the tools to the military and security for them to perpetrate the abuse.

AMY GOODMAN: And explain how this case came about and why it is in a US court.

MICHAEL HAUSFELD: It came about because, after the turn of the century, there was a rising awareness that corporations were never part of the truth and reconciliation process in South Africa. Despite being invited by the commissioners, companies refused to testify as to what their role was in regard to apartheid and its enforcement. A number of groups approached us and asked if we would investigate whether there was the possibility of bringing a claim against those companies for that complicity.

There is a law in United States called the Alien Tort Statute, which essentially seeks to codify customary international law, which rises above national law, which protects basic human dignities. It’s the right to be free from genocide, to be free from prolonged arbitrary detention, to be free from torture, to be free from officially enforced rape. And it allows non-US citizens to bring cases against non-US citizens in a US court, because what’s involved is a violation of the law of, literally, the world.

AMY GOODMAN: Let’s go right now to Marjorie Jobson, who’s national director of the Khulumani Support Group. You have filed the suit. You’re also an associate of the Institute for Women’s and Gender Studies at the University of Pretoria. Explain exactly who you are representing.

MARJORIE JOBSON: Thank you very much.

We are a membership-based organization, presently with 58,000 individual victims of gross human rights violations on our database. And all of our members are part of the struggle to secure reparations. It’s basically a struggle to end impunity. We have other cases against impunity, but we think in this case we’re against the impunity of corporations.

AMY GOODMAN: And why the corporations that I have just named, like Daimler AG, like Ford Motor Corporation?

MARJORIE JOBSON: Well, the remaining five companies in our lawsuits are the ones that we’ve been able to retain on the basis that the equipments that they produced and sold to the South African apartheid regime was directly used in suppressing the uprising against apartheid. It was the armored vehicles that patrolled the townships. It was the weapons and ammunition that were used by the soldiers in those armored vehicles to put down resistance. And it was also the software and the hardware produced by IBM that was used to track and monitor the movements of black activists and also to denationalize most of the black South African population, who were denied South African citizenship and had to become members of homelands, often of homelands that they had never ever visited.

AMY GOODMAN: I want to play a clip of Dennis Brutus, the late South African poet and activist who died just a few weeks ago in Cape Town. He was eighty-five years old. He spent many years promoting reparations to black South Africans from corporations that benefited from apartheid. Dennis Brutus was a frequent guest on Democracy Now! for years. This is from an interview I did with him in 2008, where he talked about how multinational companies benefited from apartheid.

    DENNIS BRUTUS: I grew up in Port Elizabeth, for instance, which was the headquarters both of Ford and GM, and they were using black labor, but it was very cheap black labor, because there was a law in South Africa which said (a) blacks are not allowed to join trade unions, and (b) they’re not allowed to strike, so that they were forced to accept whatever wages they were given. They lived in ghettos, in some cases, near where I lived, actually in the boxes in which the parts had been shipped from the US to be assembled in South Africa. So you had a whole township called Kwaford, meaning the place of Ford, and it was all Ford boxes with the name “Ford” on them, because they were addressed to Ford in Port Elizabeth.

    Now, what is striking is that when I appeared before the GM stockholders’ meeting in Detroit and I raised the question on behalf of the American churches, “What do you pay the blacks in South Africa?” the stockholders voted they didn’t want to be told, a 98 percent vote which said, “We don’t want to be told.” So, obviously, the complicity was both at the top executive level, but also with the stockholders.

AMY GOODMAN: That was Dennis Brutus. It was very interesting. That day, we were broadcasting out of the firehouse in downtown New York, and we just walked out of the firehouse and went over to the courthouse, where we thought the trial was going to take place that day, but it had been continued.

Now, let me ask first, Marjorie Jobson, during the South African Truth and Reconciliation Commission, wasn’t there a part of those proceedings that involved holding corporations accountable, not just people coming forward and if they told the whole story of how they murdered or tortured someone, they would be granted amnesty, if they told the full truth, but also a section on corporations? And what happened with that?

MARJORIE JOBSON: Well, it was three — actually three days were dedicated to what was called the business hearings of the TRC. It was limited to three days because they only received written submissions from fifty-five South African companies. They received no submission at all from any multinational who had operated in South Africa under apartheid.

And what was very troubling about that hearing was that the South African companies argued that they themselves had been victims of apartheid, rather than beneficiaries of the apartheid laws that provided the kinds of things that Dennis Brutus referred to in that interview — I mean, the low wages, the poor living conditions, the single-sex hostels where the removal of people into homelands so that they could only come to townships on contracts and live in single-sex hostels for the year and go home three weeks a year, and all of those horrendous things that were constructed by corporations — South African companies, international companies — in collision with the South African government. And not a single company admitted any complicity for those kinds of [inaudible].

And so, basically, when Judge Scheindlin gave her opinion in April last year, we were really heartened to see that she said that this takes forward the unfinished business of the TRC, particularly in relation to the role of corporations during apartheid. And, I mean, this is being so closely watched, because there’s such a deep sense of injustice amongst people at this impunity the companies are seeking.

AMY GOODMAN: We’re talking to Marjorie Jobson in Pretoria. She is director of the Khulumani Support Group that’s filing a lawsuit here in New York. Now, Jacob Zuma, shortly after he took office as president in South Africa, supported this lawsuit. Thabo Mbeki, the previous president, did not, saying it would discourage foreign investors. Your response to that, Marjorie Jobson?

MARJORIE JOBSON: Well, we’re very grateful for the new situation, the new spirit in the land, the sense that President Zuma has a much wider sense of what the desperate situation is of people who, in particular, were victimized. And we did not have the ear of the former president and many of his cabinet, who had basically lived more than twenty years in exile and hadn’t firsthand known the struggle. It’s different having President Zuma in place.

But what we also know is that the fact that our case has been refined and amended in the process of this seven years of trying to bring it to trial has also been a help to the South African government, because some of their concerns around the size of compensation that we’ve been asking for have really been relayed, and they no longer feel that it can present a threat to foreign investment in South Africa. In fact, they actually state that the nature of these crimes is so serious that this really needs its day in court.

AMY GOODMAN: Michael Hausfeld, I want to read a quote to you, a comment by Princeton Lyman, who served as US ambassador to South Africa from 1992 to 1995. He’s now a fellow at the Council on Foreign Relations. He wrote an op-ed about this lawsuit in the New York Times last week called “Paying the Price for Apartheid.” He writes, quote, “Perhaps the most fundamental moral and practical question is how the victims of the deep wrongs of apartheid should be compensated. Unfortunately, for these victims, this [lawsuit] is not the way.”

He goes on to conclude, quote, “This suit may have helped publicize the country’s unmet needs and delayed justice, and it may spur the outside world to do more. But it cannot address South Africa’s real needs, and if it results in yet another token payment to a few thousand people, it will make the aftertaste of apartheid even more bitter.”

Michael Hausfeld, your response?

MICHAEL HAUSFELD: What’s ignored is the responsibility of companies who can affect individual lives as much and as deeply as any government. You have an issue as to who is a corporation and what are its responsibilities, not just to shareholders, but to the community which it serves and in which it does business. If companies can affect lives in ways that make those lives worse, so that people are suppressed or terrorized, as we contend the apartheid regime was towards its black South Africans, then anyone who provided the tools to enforce that suppression and terrorism should be responsible.

If you leave that question unanswered, because you cannot fully provide a complete measure of justice to victims, then not only are you depriving the victims of an opportunity for justice, but you are providing corporations or types of citizens a means by which they can claim immunity from any — from responsibility for what they do.

AMY GOODMAN: Marjorie Jobson, before you go, speaking to you in Pretoria, what has been the response to this lawsuit? Is it getting much coverage in South Africa? And if you could describe particularly the people you represent — I know it’s a class-action suit — but to give us an example directly of how an individual life was affected.

MARJORIE JOBSON: Well, one of the most serious issues of many of our members is the fact that their husbands, their fathers and their sons were forcibly disappeared and, we suspect, that were killed extrajudicially. And hundreds of those cases have never been resolved. People have never been able to secure benefits. Many people had insurance programs, but because the case has never been concluded, they cannot access any benefits. That’s very typical of the desperate situation people are in.

The levels of unemployment in South Africa are enormous. Inequality is growing. Sixty-seven percent of the ruling party’s membership is unemployed. And so, I mean, poverty and deprivation is the reality for most of our members.

And it’s really that that we think that companies have a duty to redress and that if we are going to ever achieve reconciliation in South Africa, it will mean that there has to be a bridging of this enormous and growing gulf between people who have the means to assist those who have nothing.

AMY GOODMAN: Finally, Michael Hausfeld, what happens now with the suit? You argued yesterday. What’s the timetable?

MICHAEL HAUSFELD: Normally, the Second Circuit will take anywhere from four to six months to render its decision. And then, depending on the decision, the case can either proceed at a district court level or there may be a petition asking the Supreme Court to review the decision.

AMY GOODMAN: You have some heavy artillery aimed against you. I imagine the courthouse is quite full on the other side representing these very powerful corporations.

MICHAEL HAUSFELD: Yes, and those corporations that stand behind those corporations, because chambers of commerce throughout the world feel that what this case may do is set principles of corporate responsibility that can be imposed worldwide.

AMY GOODMAN: So why did you take it on?

MICHAEL HAUSFELD: For that very reason, because if you don’t establish the principle, then although you may not be able to get complete justice for the victims in South Africa today, you are basically ascribing to eternity the fact that no one in the future will ever be able to do that and companies can act with, as Marjorie said, both impunity and immunity.

AMY GOODMAN: Well, Michael Hausfeld, I want to thank you very much for being with us, and also Marjorie Jobson, national director of the Khulumani Support Group filing the lawsuit, also an associate with the Institute for Women’s and Gender Studies at the University of Pretoria, which is where she was speaking to us from.

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