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1 Reparations for Apartheid-Era Human Rights Abuses: The Ongoing Struggle of Khulumani Support Group Narnia Bohler-Muller Deputy Executive Director, Democracy, Governance and Service Delivery Research Programme, Human Sciences Research Council; Adjunct Professor, Nelson R Mandela School of Law, University of Fort Hare 1. INTRODUCTION Speak to us about reconciliation Only after you first experience The anger of our dying. Talk to us about reconciliation Only if your living is not the cause Of our dying. Talk to us about reconciliation Only if your words are not products of your devious scheme To silence our struggle for freedom. Talk to us about reconciliation Only if your intention is not to entrench yourself More on your throne. Talk to us about reconciliation Only if you can cease to appropriate all the symbols And meanings of our struggle. 1 Healing wounds arising out of complex socio-economic and political violence cannot be easily reduced to monetary terms. Reconciliation through healing is a protracted and complex process that entails creating structures and institutions that act as vehicles for the transformation of society that is driven ‘from below’ and not imposed by the state. In many countries that purport to advance democracy, the state has the responsibility to meet transformational goals through such vehicles as truth and reconciliation commissions, inter alia. In this mostly state-centric model governments create new structures and institutions, and adopt new policies and laws in an attempt to manage complex social environments, with the ultimate grand aim of nation-building. However, despite the faith that governments have put in such institutions, critics have pointed BJuris LLB LLM (UPE) LLD (UP). 1 J Cabazares in Walter Wink Healing a Nation’s Wounds. Uppsala: Life and Peace Institute 1966.

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Reparations for Apartheid-Era Human Rights Abuses: The

Ongoing Struggle of Khulumani Support Group

Narnia Bohler-Muller

Deputy Executive Director, Democracy, Governance and Service Delivery Research Programme,

Human Sciences Research Council; Adjunct Professor, Nelson R Mandela School of Law,

University of Fort Hare

1. INTRODUCTION

Speak to us about reconciliation

Only after you first experience

The anger of our dying.

Talk to us about reconciliation

Only if your living is not the cause

Of our dying.

Talk to us about reconciliation

Only if your words are not products of your devious scheme

To silence our struggle for freedom.

Talk to us about reconciliation

Only if your intention is not to entrench yourself

More on your throne.

Talk to us about reconciliation

Only if you can cease to appropriate all the symbols

And meanings of our struggle.1

Healing wounds arising out of complex socio-economic and political violence cannot be easily

reduced to monetary terms. Reconciliation through healing is a protracted and complex process

that entails creating structures and institutions that act as vehicles for the transformation of

society that is driven ‘from below’ and not imposed by the state. In many countries that purport

to advance democracy, the state has the responsibility to meet transformational goals through

such vehicles as truth and reconciliation commissions, inter alia. In this mostly state-centric

model governments create new structures and institutions, and adopt new policies and laws in an

attempt to manage complex social environments, with the ultimate grand aim of nation-building.

However, despite the faith that governments have put in such institutions, critics have pointed

BJuris LLB LLM (UPE) LLD (UP).

1 J Cabazares in Walter Wink Healing a Nation’s Wounds. Uppsala: Life and Peace Institute 1966.

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out that such fora do not allow adequate space for dissent, arguably a necessary condition for

democracy.

In efforts to move beyond state-centric models of transformation, reconciliation, nation-building

and social cohesion, civil society at times organises itself into bodies that seek to champion the

interests of victims in a bid to encourage and nurture discourse and contestation and to facilitate

the creation of public spaces that rupture the metanarratives of national building and transitional

justice. It is from this perspective that this contribution critically interrogates the issue of

monetary reparations (compensation) for human rights abuses that took place during the

apartheid era, pursued in courts and other fora established by organisations such as Khulumani

Support Group (hereinafter referred to as Khulumani) in South Africa.

This contribution supplements the author’s earlier work that traced the disillusionment of victims

with the Truth and Reconciliation Commission (TRC), which they claim was a grand state-

building project that neither adequately addressed their trauma nor contributed to their personal

and financial well-being.2 Hence the core of the group’s objective is the need for a

victim/survivor driven process that in a sense resists and disrupts the state’s domination of the

transformation process, which prescribes forgiveness and closure. This article therefore attempts

to address some of the issues around Khulumani’s ongoing struggle in the US courts - and

domestically - in relation to democracy, nation-building, reconciliation and reparations.

However, it does not purport to provide a detailed exposition of American case law. In addition,

this analysis is limited to the question of reparations for apartheid era abuses, understood as

crimes against humanity in international customary law, but does not address the jurisprudence

of claims for environmental damage caused by multinational corporations. However, the

consequence of the April 2013 decision of the United States Supreme Court in Kiobel v. Royal

Dutch Petroleum Co.3 is relevant to the hopes of Khulumani’s success in the US Second Circuit

2 See Narnia Bohler-Muller “Against Forgetting: Reconciliation and Reparations after the Truth and Reconciliation

Commission 2008 19(3) Stellenbosch Law Review/ Stellenbosch Regstydskrif 466 - 482; Bohler-Muller

“Reparations for Apartheid Human Rights Abuses: The Case of Khulumani” 2008 AfricaGrowth Agenda 20 -22:

and Bohler-Muller “Apartheid victim group scores symbolic victory against multinationals” HSRC Review Volume

10 No. 3 September 2012. 3 569 U. S. (2013). In a unanimous court, Roberts C J delivered the opinion of the Court, in which Scalia, Kennedy,

Thomas and Alito, JJ joined. Kennedy J filed a concurring opinion. Alito J filed a concurring opinion, in which

Thomas J joined. Breyer J filed a concurring opinion, in which Ginsburg, Sotomayor and Kagan JJ joined.

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of Appeals, and the outcome of this case is therefore also analysed in order to better understand

prospects for the apartheid litigants.

Despite some well-earned gains, there is much despondency about the Kiobel appeal judgment.4

On the basis of the latter judgment, a unanimous panel of the US Court of Appeals for the

Second Circuit ruled in Balintulo v. Daimler AG (21 August 2013) that US courts have no

jurisdiction over the Khulumani lawsuit because all of the alleged wrongs took place in South

Africa, and not in the US. But the struggle continues. Despite this serious setback, the legal team

for Khulumani filed a petition on behalf of the plaintiffs for a panel rehearing or rehearing en

banc to review the Second Circuit Court of Appeal’s decision in Balintulo (also known as the In

Re South African Apartheid Litigation case). The petition states that “[t]he panel opinion in

Balintulo v. Daimler AG would eviscerate more than thirty years of this Court’s Alien Tort

Statute (‘ATS’) jurisprudence and should be reviewed en banc because it conflicts with the

Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. as well as decisions in this

Circuit.”5 The process of petitioning the court is ongoing.

2. BACKGROUND

As a result of the fact that customary international law does not recognise corporate

responsibility for human rights abuses, Khulumani instituted a legal claim for reparations against

multi-lateral corporations (MNCs) in the US in terms of the Alien Tort Claims Act (ATCA), also

known as the Alien Tort Statute (ATS).6 On the face of it the Act allows for civil actions brought

by foreigners to be heard in the US. Such cases are complex in nature as they require a court to

4 “Unanswered questions for SA Apartheid Litigation as US Supreme Court, 17 April, rules against Kiobel case”

Issued by: Khulumani Support Group, 24 April 2013,

http://pressoffice.mg.co.za/KhulumaniSupportGroup/PressRelease.php?StoryID=238851 (last accessed 29-05-

2013). 5 See “Plaintiffs File Petition in Second Circuit Court of Appeals to Review Panel’s Decision in Apartheid Case”

[Harvard Law, 20 September 2013] http://hrp.law.harvard.edu/alien-tort-statute/plaintiffs-file-petition-in-second-

circuit-court-of-appeals-to-review-panels-decision-in-apartheid-case/ (last accessed 29-10-2013) 6 Alien Tort Claims Act 28 U.S.C. § 1350. This US statute was part of the Judiciary Act of 1789. There is little

surviving legislative history regarding the Act, and its original meaning and purpose are uncertain. However, it has

been assumed that the Act was intended to assure foreign governments that the US would act to prevent and provide

remedies for breaches of customary international law, especially breaches concerning diplomats and merchants. For

an historical exposition see for example Hufbauer, GC; Mitrokostas, NK Awakening Monster: The Alien Tort Statute

of 1789. (2003 Washington, D.C.: Institute for International Economics). The Act lay dormant from 1789 to 1980. In

1980, however, the U.S. Court of Appeals for the Second Circuit held in the Filartiga v. Pena-Irala 630 F.2d 876,

885 (2d Cir. 1980) case that the right to be free from torture had become a principle of customary international law

and that this was enforceable in the US domestic courts under ACTA.

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balance the need to promote justice with the duty to uphold the principle of separation of powers,

namely non-interference with executive decisions and state sovereignty in foreign relations.7

With the initial litigation8 Khulumani encountered resistance from the South African

government, under the leadership of former President Thabo Mbeki, for undermining nation-

building and national peace and reconciliation efforts. However, as the legal challenge has

evolved in the US, 9

government has more recently expressed its support for this initiative.

These developments are briefly discussed below, thereafter the latest events, both positive and

negative, are highlighted.

In a positive development, one of the MNCs, General Motors Company, has acknowledged the

stories of members of Khulumani who suffered serious human rights abuses under the apartheid

regime by offering largely symbolic reparations in a "show of good faith". Earlier in 2012 GM

negotiated a "without prejudice" settlement with the claimants, despite the fact that the

bankruptcy court in the US ruled that Khulumani had no claim against the liquidated company. 10

The result of this negotiation was finalised by a US court on 27 February 2012, with a settlement

amount of $1.5-million to be split between the Khulumani and the claimants represented by

Advocate Lungisile Ntsebeza.11

More negatively, the US Supreme Court held in the

7 T Nemeroff “Untying the Khulumani knot: Aiding and abetting liability under the Alien Tort Claims Act after

Sosa” 2008 v. 40 Columbia Human Rights Law Review 231-286 at 286. 8 In re South Africa Apartheid Litigation, 346 F. Supp. 2d 538 (S.D.N.Y. 2004). The case originally comprised of

ten separate actions by three groups of plaintiffs against about fifty major multinational banks and corporations that

did business with the apartheid government. The plaintiffs instituted their initial claims under the ATCA, Torture

Victims Protection Act 1991 106 Stat. 73 and Racketeer Influenced and Corrupt Organizations Act (RICA) codified

as Chapter 96 of 18 U.S.C. § 1961–1968. The bases for their allegations were in brief: the defendants were aware of

the racist policies of the apartheid government and the human rights violations committed in terms of these policies

but nevertheless did business in South Africa; and the defendants made a profit from cheap labour and provided the

government with resources such as technology, oil, money and vehicles that were used to maintain and enforce

apartheid policies. It was alleged that if the defendants had not done business with the National Party government,

their rule of oppression would have ended sooner and the plaintiffs would not have suffered some or all of their

injuries. 9 Khulumani v. Barclay National Bank, 504 F. 3d 254 (2d Cir. 2007) and In re South African Apartheid Litigation,

617 F. Supp. 2d 228 (S.D.N.Y. 2009). 10

General Motors Liquidation Company (formerly known as General Motors Corp), filed for bankruptcy on 1 June

2009. On 5 July 2009, an order was entered approving the sale of all of Motors Liquidation Company's assets to a

new and independent company, the new General Motors Company, under the bankruptcy code. 11

See http://mg.co.za/article/2012-02-29-us-general-motors-settles-apartheid-reparations-claim/ (last accessed 17-

10-2012). On 27 February 2012 a US court upheld the settlement between "Motors Liquidation Company (formerly

known as General Motors Corporation) GUC Trust (General Unsecured Creditors) and the "debtors" (the apartheid

lawsuit claimants). The order does not require an admission of liability by General Motors and the details of the

settlement are still to be determined.

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disconcertingly conservative Kiobel appeal case12

that ACTA (ATS) has no extraterritorial

application. As Mia Swart stated in a media report on this decision:

The Alien Tort Claims Act provided an important and exciting forum to plaintiffs who

could not find their relief in their home countries. With the [US] Supreme Court choosing

an interpretation of the act that denies its extraterritorial application, it reverts to

isolationism.13

As discussed in more detail below, the US courts have finally opted for a more isolationist

approach.

To provide some context first, Khulumani Support Group is an organisation that represents

victims of apartheid-era human rights abuses who do not feel that they have benefited

sufficiently from the Truth and Reconciliation Commission (TRC) process and other large-scale

nation-building and unification processes. It is the only national membership organisation of

identified victims and survivors of apartheid human rights violations in South Africa.14

Khulumani had humble beginnings in 1995 as a trauma centre in Cape Town, where people

could share their experiences in small groups in order to ensure that victim re-empowerment

rested in the hands of victims/ survivors themselves. The stated aim of the organisation was to

allow victims to become active participants in their own lives in a supportive environment,

where victims were progressively transformed into victors.15

74% of Khulumani's membership

base of 54 000 individuals were unemployed at the time of the survey.16

Members reported that

their greatest need was for assistance and support to deal with interpersonal violence (in

12

Supra. 13

Mia Swart “Alien tort ruling is a snub for global justice” http://www.bdlive.co.za/opinion/2013/05/07/alien-tort-

ruling-is-a-snub-for-global-justice (last accessed 29-05-2013). 14

See in general www.khulumani.net. 15

Brandon Hamber, Ntombi Mosikare, Maggie Friedman & Traggy Maepa “Speaking Out: The role of the

Khulumani Victim Support Group in dealing with the past in South Africa”, Centre for the Study of Violence and

Reconciliation, Paper presented at Psychosocial programmes after war and dictatorship Conference, Frankfurt,

Germany, 17 to 21 June 2000 (paper in author’s possession). The initial aim was to assist survivors to gain access to

the TRC. The group was founded on the premise that encouraging people to “speak out” about the atrocities of the

past was psychologically beneficial. The group has a strong focus on advocacy activity with the intention of

keeping the reconciliation process victim-centered. They continue to this day to represent victims and survivors in

attaining reparations for apartheid era human rights abuses. 16

See “Background” http://www.khulumani.net/khulumani/about-us/item/1-background.html. See also Khulumani

membership statistics 2010 http://www.khulumani.net/truth-a-memory/victim-surveys/item/458-khulumani-

membership-statistics-2010.html (last accessed 18-10-2012).

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particular with domestic violence) and its related challenges, including HIV/AIDS infection.

20% of members openly stated that they were affected by HIV/AIDS.17

Although celebrated internationally as an unparalleled success, the Truth and Reconciliation

Commission (TRC) has left in its wake what Villa-Vicencio and Du Toit call “un-finished

business”.18

For members of Khulumani this unfinished business largely comprises

dissatisfaction with respect to the amnesty process and issues of reparations. The view is that

both reconciliation and reparations are necessary (pre)conditions for restorative, redistributive

and social justice. Consequently, as long as reparations are not made, and perpetrators continue

to walk free, the struggle continues for many survivors. However, in recent case law, discussed

in more detail below, the Constitutional Court has continued to endorse the state-driven meta-

narrative of national unity and reconciliation despite the realities of disillusionment, especially of

the poor. It is against this backdrop of disillusionment of the poor that Khulumani seeks change

and support for its members, including through the litigation in the US, even though the latter

efforts seem to have been thwarted by the US Supreme Court. Khulumani’s aim continues to be

to ensure the fulfilment of the constitutional promise of a better life for all South Africans.19

3. KHULUMAN’S STRUGGLE AT HOME AND IN THE US COURTS

As already mentioned, Khulumani was initially set up in response to the TRC hearings by people

who felt the Commission should be used to speak out (khulumani means "speaking out" in

isiZulu) about the past to ensure that such violations – many recognised as crimes against

humanity - never happen again.20

Once the TRC had run its course, the group and its members

17

Supra. 18

C. Villa-Vicencio and F. du Toit (eds.) Truth and Reconciliation in South Africa : Ten years On 2006 at x. 19

The Preamble to the Constitution of the Republic of South Africa Act 108 of 1996 states inter alia that the new

constitutional framework seeks to ”… [i]mprove the quality of life of all citizens and free the potential of each

person”. 20

In 1973, the United Nations General Assembly (UNGA) opened for signature and ratification the International

Convention on the Suppression and Punishment of the Crime of Apartheid. The Convention defined the crime of

apartheid as "inhuman acts committed for the purpose of establishing and maintaining domination by one racial

group of persons over any other racial group of persons and systematically oppressing them" (art. I). The

Convention G.A. res. 3068 (XXVIII)), 28 U.N. GAOR Supp. (No. 30) at 75, U.N. Doc. A/9030 (1974), 1015

U.N.T.S. 243, entered into force July 18, 1976. Apartheid was annually condemned by the General Assembly as

contrary to Articles 55 and 56 of the Charter of the United Nations from 1952 until 1990; and was regularly

condemned by the Security Council after 1960. The Apartheid Convention was the ultimate step in the

condemnation of apartheid as it not only declared that apartheid was unlawful because it violated the Charter of the

United Nations, but in addition it declared apartheid to be criminal. There have been no prosecutions of the leaders

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expressed dissatisfaction with the outcomes of the TRC process and this led to a number of

initiatives to claim reparations for human rights abuses committed during the apartheid era.

Furthermore, they maintained the view that justice is a prerequisite for reconciliation rather than

an alternative to it, and expressed concern that the TRC had tipped the balance in favour of the

perpetrators of abuse when amnesty was granted to the perpetrators of human rights abuses

committed by, or on behalf of, the apartheid government.

In a bid to make the voices of victims heard, Khulumani petitioned the South African

government and Department of Justice and Constitutional Development (DOJCD) to honour the

payment of reparations to victims of apartheid crimes against humanity. In 24 April 2012,

Khulumani made a submission to the DOJCD demanding that the department does the

following:21

1. Undertake an open and transparent process of consultation and dialogue with civil

society to revise the Notice 282 regulations22

so as to be more responsive to victims’

needs;

2. Establish ongoing victim registration procedures and take affirmative steps to register

all victims of gross human rights violations;

3. Allow all those who are victims of gross human rights violations under the criteria

specified in the Promotion of National Unity and Reconciliation Act23

to be provided

with the TRC recommended reparations package;

4. Provide access to educational and medical benefits directly through the relevant

Departments; and

or agents of the apartheid regime for crimes of apartheid. Instead a Truth and Reconciliation Commission was

established with the tasks of achieving reconciliation and supervising the granting of amnesty to those who had

committed serious violations of human rights during the apartheid years. Significantly, post-apartheid South Africa

has not become a party to the Apartheid Convention. The Convention has been dormant and to date there have been

no prosecutions under it. However, it can be said to live on as a species of the crime against humanity, under both

customary international law and the Rome Statute of the International Criminal Court (adopted 17 July 1998, United

Nations, Treaty Series, vol. 2187, p. 3). 21

Khulumani’s submission to the Department of Justice and Constitutional Development

http://www.khulumani.net/reparations/government/item/657-khulumanis-submission-to-the-department-of-justice-

24-april-2012.html (last accessed 18-10-2012). 22

On 11 May 2011, the Department of Justice and Constitutional Development gazetted regulations for the payment

of educational assistance and health benefits exclusively to victims identified by the TRC. The regulations were

gazetted after only a very superficial consultation process with victims and other stakeholders and do not address the

key concerns expressed by these stakeholders (Government Gazette General Notice 282, 11 May 2011). 23

Act 34 of 1995.

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5. Collaborate with civil society partners on the design and implementation of measures

for community reparation and rehabilitation.

Parallel to this domestically driven national process of petitioning government, Khulumani is

also involved in representing members internationally in litigation for reparation against MNCs

in the US. The next part of this discussion will sketch the background and context of the court

cases cited in this regard, before attention is paid to the most recent developments.

The first reparations case was filed in 2002 against a large number of MNCs for “aiding and

abetting” apartheid crimes against humanity by allegedly supplying ammunition, technology, oil

and loans to the National Party government.24

The corporate defendants named by Khulumani

included amongst others IBM, General Motors, Daimler-Chrysler, Rheinmetall Group, Shell, BP

and Barclays Bank. In the years since the litigation began, however, the cases against the oil

companies and banks have been dropped as the US court ruled that oil companies and banks

provided normal services during the years of apartheid.

However, in the case of the five remaining companies, namely, GMC, Ford Motor Company,

IBM, Daimler and Rheinmetall, Khulumani continued to claim that they had exclusive contracts

to provide services which assisted in propping up the infrastructure of apartheid. In the case of

IBM, for instance, it is alleged that the computer giant provided the necessary technology to

facilitate the implementation of the “Pass Laws”.25

The motor companies are accused of having

provided customised vehicles for the security forces to use in townships to stifle resistance.26

The United States 1789 Alien Tort Claims Act (ATCA) grants jurisdiction over any claim by a

foreigner for a tort (civil reparations or delict in South African law) committed in violation of

international law or a treaty to which the US is party. This statute gives courts in the US

jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of

24

In re S. African Apartheid Litigation, 346 F.Supp. 2d 538, 542-46 (S.D.N.Y. 2004). See the full complaint at

www.cmht.com/pdfs/apartheid-cmpl.PDF (last accessed 16-09-2012). 25

The Urban Areas Consolidation Act of 1945, together with the Natives (Abolition of Passes and Coordination of

Documents) Act of 1952, were key laws. 26

Jaco Barnard-Naudé “Reparations for big business collusion with apartheid overdue” at

http://constitutionallyspeaking.co.za/jaco-barnard-naude-reparations-for-big-business-collusion-with-apartheid-

overdue/ (last accessed on 18 October 2012).

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nations or a treaty of the United States”27

and thus provides for the rights of foreigners to

institute lawsuits in the US for serious human rights violations. It is under this law that Khulmani

alleged that the MNCs violated customary international law and a series of United Nations

resolutions by aiding and abetting the crimes of apartheid, and that the defendants are liable to

the plaintiffs for compensatory and punitive damages, as well as any other appropriate and

equitable relief.

In 2004 the claims were consolidated before Judge John Sprizzo in the Southern District Court of

New York who dismissed all the claims and held that the ATCA did not provide a basis for

aiding and abetting liability.28

The South African plaintiffs appealed the dismissal upon which

the Second Circuit Court partially vacated the dismissal in terms of the ATCA claim, finding that

aiding and abetting liability may be pleaded under the statute and allowing the claim to proceed.

On 12 May 2008 the U.S. Supreme Court issued an order affirming the Second Circuit’s decision

and the case continued, having gone through many developments since it was originally lodged

in 2002, more than ten years ago.29

Notably, as mentioned earlier, the South African government under former President Thabo

Mbeki initially opposed the lawsuit because it was thought that the matters were not legal but

political, that the TRC had already dealt with them, and that using foreign courts to address

matters central to the future of South Africa infringes on state sovereignty and would scare away

much needed foreign direct investment (FDI). In response to the litigation, government stated at

that time that the lawsuit interfered with the “sovereign right to determine, according to internal

political and constitutional order, how best to address Apartheid’s legacy”.30

Furthermore, the

27

28 U.S.C. § 1350. 28

Sprizzo judgment In re South Africa Apartheid Litigation, 346 F. Supp. 2d 538 (S.D.N.Y. 2004) at 550. 29

See for an analysis of the developments Patrick Bond “Can reparations for apartheid profits be won in the US

courts?” 2008 38(2) Africa Insight 13. 30

“Mbeki says 'no' to lawsuits, wealth tax”, 15 April 2003, http://www.iol.co.za/news/politics/mbeki-says-no-to-

lawsuits-wealth-tax-1.104622 (last accessed 18-10-2012). On the other hand, the chairman of the TRC, Archbishop

Emeritus Desmond Tutu, submitted an amicus brief to the Second Circuit Court stating: ‘[t]here was absolutely

nothing in the TRC process, its goals or the pursuit of the overarching goal of reconciliation, linked with truth that

would be impeded by this litigation. To the contrary, such litigation is entirely consistent with these policies and

with the findings of the TRC.’ (cited in Khulumani case 2009 at 94) . Nothing in the TRC Act or Commission

Reports amounted to the explicit or implicit granting of amnesty to corporations. The Promotion of National Unity

and Reconciliation Act 34 of 1995 which established the TRC stated in its preamble that amnesty could be afforded

to ‘persons who make full disclosure’ the implication being that corporations did not qualify for amnesty under the

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then Justice Minister Penuell Maduna filed a declaration with the US District Court stating that

the case should not be heard because it had the potential to discourage foreign investment in

South Africa.31

The Bush administration similarly argued in an amicus brief submitted to the

Second Circuit Court that allowing such claims under ACTA would damage foreign relations

and deter much needed foreign direct investment.32

Taking into account the position of the then US and South African governments, Justice John

Sprizzo dismissed the first case in the US on the basis that the claims for reparations would have

serious consequences for US-SA foreign relations and in particular commercial trade. This was

in spite of the view expressed in the TRC’s final report that business was central to the economy

that sustained the apartheid state and that many businesses benefited from apartheid policies.33

In

an affidavit submitted to the same court Archbishop Emeritus Desmond Tutu expressed support

for the litigation that could promote reconciliation by addressing the needs of victims dissatisfied

with the TRC monetary grant. In his capacity as the former chair of the TRC he stated that whilst

it would be preferable for matters to be settled internally, he supported the rights of victims to

institute claims in foreign jurisdictions such as the US.34

The case then went on appeal. In October 2007 the US Court of Appeals reversed the lower

court’s ruling and held that companies may be held liable for “aiding and abetting’’ a foreign

government’s violations under international law.35

The case was referred back to the US District

Court and proceeded with the approval of the Zuma government. On 1 September 2009 the

current Minster of Justice and Constitutional Development Jeff Radebe sent a letter to Judge

Shira Scheindlin with a copy to the Court of Appeals for the Second Circuit. The letter reversed

the South African government’s opposition to the litigation under former President Mbeki. In

Act nor did any apply for such amnesty cited in Khulumani case 2009 at 95) . In light of this, in its final report, the

TRC stated that business ‘must be held accountable’ outside of the amnesty mechanisms of the TRC (TRC report

2003). 31

7/23/03 Declaration of Penuell Mpapa Maduna, Minister of Justice, Republic of South Africa at para 3.3 as cited

in In re South African Apartheid Litigation 2009 at 92. 32

Brief for the United States of America as amicus curiae supporting Respondents as cited in Khulumani case 2007

at 13. 33

TRC Report 4 (2) 2003 161. For a full copy of the report released on 31 March 2003 see

http://www.info.gov.za/otherdocs/2003/trc/ (last accessed 18-10-2012). 34

See Bishop Tutu’s affidavit at www.woek.de/pdf/kasa_tutuaffidavit_dec_2003.pdf (last accessed 14-10-2012). 35

Khulumani v. Barclay National Bank, 504 F. 3d 254 (2d Cir. 2007).

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this regard, the Minister of Justice observed that the suit no longer involved claims against

corporations that merely did business in South Africa during that time and instead limited the

claims to those “based on aiding and abetting very serious crimes, such as torture, [and]

extrajudicial killing[s] committed in violation of international law by the apartheid regime”.36

The Minister also informed the court that “[t]he government of the Republic of South Africa,

having considered carefully the judgment of the […] Southern District of New York, is now of

the view that this Court is an appropriate forum to hear the remaining claims of aiding and

abetting in violation of international law”. However, the letter also stated that the government

would be “willing to offer counsel to the parties in pursuit of a settlement”.37

4. CONTINUED AND CONTINUING INJUSTICES

It can be said that the litigation instituted by Khulumani in the US is an example of the

"unfinished business" of reconciliation in South Africa as argued by Villa-Vicencio and du

Toit.38

For many victims and survivors the post-apartheid experience has become one of

bitterness, broken promises and a sense of betrayal. Tshepo Madlingozi argues that Khulumani

and its members have been classified as “bad victims” by the “prophets” and “entrepreneurs” of

truth and reconciliation in South Africa.39

By "bad victims" Madlingozi is referring to the fact

that members of Khulumani do not unquestioningly accept the meta-narratives of nation-

building, social cohesion, reconciliation and closure. The aim of the member-driven organisation

is rather to move beyond a state of denial and to recognise the shortcomings of the TRC amnesty

and reparations processes. Put simply, Madlingozi offers an effective argument that the rhetoric

of transitional justice should not be used as an excuse for closure when wounds still remain open

and raw. By focusing on state centric “nation building”, metanarratives of reconciliation could

systematically exclude those voices that have been, and remain silenced and muted. This results

36

Mataboge, M. State backs apartheid victims’ case. Mail & Guardian Online, Johannesburg, 9 Sept. 2009.

Available at: http://www.mg.co.za/article/2009-09-09-state-backs-apartheid-victims-case (last accessed 10-10-

2012). 37

Ibid. 38

Villa-Vicencio and Du Toit supra. 39

Tshepo Madlingozi 2007. ‘Good Victims, Bad Victims: Apartheid Beneficiaries, Victims and the Struggle for

Social Justice’. In: W. Le Roux and K. Van Marle (eds). Law, Memory and Apartheid: Ten Years after AZAPO v

President of South Africa. Pretoria: Pretoria University Law Press: 107–126. According to Madlingozi, “good

victims” are those who are prepared to accept the moral victory of freedom as sufficient, and “bad victims” are those

who continue to demand repair and reparations and who challenge the meta-narrative of a ”new” reconciled

South Africa.

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in the alienation and further marginalisation of vulnerable groups and individuals, in particular

the poor (the “bad” victims), and poses a potential threat to the reconciliation project and the

peaceful communal healing that it is meant to support. Thus, despite a flood of post-1994

institutions and policies designed to promote public deliberation, the state (and/or party)

continues to dominate public space and to shut down critical public debates by adopting a

mixture of political triumphalism and a narrow national agenda of unity and reconciliation.

In a bid to promote social justice and (re)distribute resources, a once-off payment of R30,000

(thirty thousand rand) was awarded to each of approximately 22,000 victims who participated in

the TRC process. When announcing this development in 2003, Mbeki said: “[w]e are convinced

that to the millions who spared neither life nor limb in struggle there is no bigger prize than

freedom itself”.40

But Khulumani maintained that it had collected records of at least 65,000

people who suffered gross human rights violations under apartheid and that the payments should

not be limited to the 22,000 victims identified by government as being entitled to financial

reparations. Khulumani proposed that a grant of R120,000 should be paid to all identified

individuals in stipends of R2,000 a month for a period of six years.41

It is believed that these

reparations would not only allow for the economic rehabilitation of the victims, but also

constitute a necessary step towards coming-to-terms with the legacy of apartheid.

A central question is what Khulumani’s refusal to accept attempts at state-centric reconciliation

and its members’ embodiment of marginalisation means for the nation-building and national

reconciliation project in South Africa. This is not a simple question which calls for simple

answers, but it is noteworthy that the official policy discourse of the state on ‘social cohesion’

has failed to a large extent to recognise the contradictions inherent in reconciliation processes

that are imposed from above without active public participation and without hearing the voices

of those who feel that life has not improved despite grand narratives of success.

40

Former President Thabo Mbeki In his statement upon the release of the TRC report on 15 April 2003. 41

Letter addressed to President Jacob Zuma dated 7 February 2012 found at

http://www.khulumani.net/reparations/government/item/616-the-proposals-for-the-presidents-fund-the-fund-for-

much-needed-community-reparations.html (last accessed 18-10-2012).

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Although it is not within the scope of this discussion to provide an exhaustive definition of social

cohesion, a working definition is that it is a process of building shared values and communities

of interpretation; reducing disparities in wealth and income; and generally enabling people to

have a sense that they are engaged in a common enterprise, facing shared challenges as members

of the same community. Speaking at the 2012 Social Cohesion Summit at Walter Sisulu Square,

President Jacob Zuma argued that nation building and promoting national identity are all high on

the list of South Africa's priorities. The President further acknowledged that there were bound to

be challenges along the journey to social cohesion:

[...] We are under no illusion that it is going to be easy. The South African nation is a

product of many streams of history and culture, representing the origins, dispersal and re-

integration of humanity over hundreds of years. We have to build one national identity

out of multiple identities based on class, gender, age, language, geographic location, and

religion.42

It can also be stated that despite the rosy sounding rhetoric about a cohesive and inclusive

citizenry, the pursuit of state centric nation-building to a large extent refuses to recognise the

paradox of democracy: the fact that democracy carries within it the seeds of its own destruction

as it relies on disagreement, contestation and conflicting values to survive as democracy. Jacques

Ranciere expressed it well when he states that democracy cannot be a ‘régime’, as it constitutes a

“practice” of politics.43

He argues for democratic politics to be defined as an “excess”, resulting

in a celebration of its potential as a specific form of politics aimed at promoting equality and

levelling socio-political hierarchies:

[…] egalitarian society is only ever the set of egalitarian relations that are traced here and

now through singular and precarious acts. Democracy […] is not borne along by any

historical necessity and does not bear any […] But among those who know how to share

with anybody and everybody the equal power of intelligence, it can conversely inspire

courage, and hence joy.44

42

Opening address by President Jacob Zuma on the occasion of the National Summit on Social Cohesion, Walter

Sisulu Square of Dedication, Kliptown, Johannesburg 4 July 2012

http://www.info.gov.za/speech/DynamicAction?pageid=461&sid=28766&tid=74709 (last accessed 18-10-2012). 43

Jacques Rancier Hatred of Democracy Steve Corcoran (trans) London: Verso, 2006 at 45. 44

Rancier supra 96-97.

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However, by adopting an unquestioning ethos of shared meaning, consensus and cohesion, the

state imposes its own meta-narrative on lived experiences that closes down democratic spaces.

As closure is sought, there is a process of excluding those who do not accept the closure. As

such, Khulumani poses a challenge to notions that transformation has taken place and that

progress is linear when measured in terms of discourses of "transitional justice".45

Rather, the

ideal to strive for is a continuous state of transition that should neither be hailed as a victory nor

the “end of politics” as new communities of sharing are constantly created, destroyed and re-

created in the struggle towards equality. As such, by countering the hegemony of nation building

that is initiated by the state and is state driven, Khulumani, through its legal activism, aims to

enhance and bring to the fore the voices of the "unreconciled" or “bad” victims.46

5. LEGALISING THE GRAND-NARRATIVE OF NATIONAL RECONCILIATION

AND SOCIAL COHESION: THE ALBUTT CASE

Despite widespread criticism of the meta-discourse and rhetoric of national unity and

reconciliation that has continued since the TRC concluded its (unfinished) business,47

the

Constitutional Court has persisted with a jurisprudence of reconciliation that is over-simplified.

This is also despite Khulumani’s express campaign to lobby and advocate for community

reparations programmes and to pursue the prosecution of those perpetrators who failed to apply

for amnesty via the TRC processes.48

In the case of Ryan Albutt v Centre for the Study of

Violence and Reconciliation, Khulumani Support Group and Others49

the court had the

opportunity to address issues concerning victim participation in executive decision-making. This

case concerned the power of the President to grant pardon under section 84(2)(j) of the 1996

Constitution to people who claim to have been convicted of offences that they committed with a

political motive. The question the court had to decide was whether the President was required,

prior to the exercise of the power to grant pardon to such a group of convicted prisoners, to

45

See Tshepo Madlingozi ”Post-Apartheid Social Movements and the Quest for the Elusive ‘New’ South Africa”

2007 vol 34 nr 1 Journal of Law and Society 77 and Tshepo Madlingozi “On Transitional Justice Entrepreneurs and

the Production of Victims” 2010 vol 2 nr 2 Journal of Human Rights Practice 208. 46

Madlingozi refers to “unreconciled” victims in “Good Victim, Bad Victim” 2007 at 226. 47

“Background” http://www.khulumani.net/khulumani/about-us/item/1-background.html (last accessed 10-10-

2012. 48

“Background” supra. 49

Ryan Albutt v Centre for the Study of Violence and Reconciliation, Khulumani Support Group and Others CCT

54/09 [2010] SACC 4 (hereinafter referred to as the Albutt case).

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afford the victims of these offences a hearing. Although the facts did not relate directly to issues

of amnesty as granted by the TRC, this special dispensation for pardon was described by former

President Mbeki in 2007 as dealing with the “unfinished business” of the TRC. In the sense that

Mbeki meant it, this “unfinished business” included “the question of amnesty for many South

Africans who had not participated in the TRC process for a number of reasons”.50

As Mbeki

explained:

[a]s a way forward and in the interest of nation-building, national reconciliation and the

further enhancement of national cohesion, and in order to make a further break with

matters which arise from the conflicts of the past, consideration has therefore been given

to the use of the Presidential pardon to deal with this ‘unfinished business’.51

Mbeki also stated that decisions related to the special dispensation to pardon should “be guided

by the principles and values which underpin the Constitution, including the principles and

objectives of nation-building and national reconciliation; and, uphold and be guided by the

principles, criteria and spirit that inspired and underpinned the process of the Truth and

Reconciliation Commission, especially as they relate to the amnesty process”.52

Against this background, Chief Justice Sandile Ngcobo (as he then was) held that while the

executive had a wide discretion in selecting the means to achieve its constitutionally permissible

objectives, courts were obliged to examine whether the means selected were rationally related to

the constitutional objective sought to be achieved. And if objectively speaking they were not,

they fell short of the standard demanded by the 1996 Constitution. This was true of the exercise

of the power to pardon under section 84(2)(j).53

In terms of section 83(c) of the Constitution, the

President had a duty to promote “the unity of the nation and that which will advance the

Republic”, but this power should be exercised in a manner that allowed public participation as

was evident in the TRC process itself, despite its many alleged and apparent shortcomings.

50

Address by President of South Africa, Thabo Mbeki to the Joint Sitting of Parliament to Report on the Processing

of some Presidential Pardons, Cape Town, 21 November 2007 available at

http://www.thepresidency.gov.za/president/sp/2007/sp11211540.htm (last accessed 15-12-2011). 51

Ibid 52

Mbeki address ibid. 53

Albutt case para. 51.

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The court then went on to reason that because the TRC emphasised the importance of the

participation of victims and perpetrators in the achievement of national reconciliation, such

participation would also be required prior to deciding whether to pardon criminals whose

offences where politically motivated.54

Consequently, Ngcobo found that there could be no

rational distinction between the TRC and the special dispensation so as to justify the presence of

victims in the former process but not in the latter. The court held that before the President could

grant pardon, he must establish the facts in accordance with criteria set out in the special

dispensation, that is whether the crime was committed with a political motive. To so decide, the

president was obliged to hear both the applicant and victim/s. It was held that victim

participation was required to achieve the objective within the ambit of the Constitution.55

Although it can be said that the outcome of this case was just, in that the court endorsed a

process of active victim participation in terms of the president’s special dispensation to pardon,

the court also continued to endorse and support the national project of reconciliation in a manner

that did not allow for other voices, such as the voices of the “unreconciled”, to be heard. It is

submitted that the Albutt case failed to address in any significant way concerns about the state’s

meta-narrative of social cohesion. The court did not rise to the challenge posed by critics such as

Madlingozi to reconsider its simplistic jurisprudence of reconciliation, or to give more substance

to its understanding of the nature of restorative justice and the meaning of Ubuntu/Botho. 56

It

would have been preferable for Ngcobo J and his colleagues to critically interrogate the

54

Albutt case para. 58. 55

In a short judgment Justice Johann Froneman emphasises the fact that victim participation is a norm in African

society. However, he provides no context for this addition to the main judgment, which appears to serve no real

purpose other than to provide some kind of additional justification for the decision. Once again the Constitutional

Court tends to pay lipservice to African norms as has been the case with the value of Ubuntu that has not been

grappled with substantially despite being invoked in a number of cases. Ubuntu was introduced as a constitutional

value for the first time in S v Makwanyane [1995] 3 SA 391 (CC). 56

Ubuntu, an Nguni word, signifies an extremely complex concept, which is not easily translated into English but

nevertheless has a profound impact on African ontology across the continent. Very simply put, it can be described as

evoking a ‘communal’ or communitarian ethic (see for instance Narnia Bohler-Muller “The story of an African

value” 2005 20(2) SA Public Law 266-280) in which the very meaning of being human is located in one’s relation to

others. The essence of ubuntu is that an individual owes his or her existence to the existence of others. 'I am' because

'you are' and you are because 'I am'. Unlike the discourse of rights, which emphasises individual entitlement, ubuntu

tends to emphasise mutual obligation and duty to support the welfare of the community. As Bohler-Muller has

noted, its incorporation in South African constitutional discourse, has rendered it malleable to both conservative and

transformative interpretations. Its meanings continue to be a site of contestation but its deployment in nationalist

discourse tends to render the concept as a homogenised, romanticised, transcendental value that signifies a

‘traditional’, caring and cohesive African past.

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institutionalisation of processes of reconciliation, forgiveness and healing. By not reflecting on

the complexities of reconciliation, the court failed to acknowledge Madlingozi's figure of the

"bad victim" who reminds us of the (im)possibility of final and complete reconciliation.57

Similarly, Stewart Motha warns against the naïve endorsement of national reconciliation

projects.58

He argues that the ‘time’ of reconciliation is marked and delineated by the possibility

of producing a renewed polity or ‘political community’59

that re-inscribes the political under

‘one-law’, which in turn subordinates anything other than that law in the name of ‘civilisation’.60

He thus understands reconciliation as a form of domination that endorses conventional narratives

of nation-building. In this writing Motha refers specifically to the problem of exclusion of

indigenous laws and customs when imposing an enforced commonality, but his critique could

equally apply to other forms of enforced social cohesion such as in the case of South Africa

where forgiveness is demanded of those who cannot, or simply refuse to forgive. He states that

“[t]he limits of reconciliatory gestures have been determined by a unitary ‘political community’

as the regulatory device (‘stable’ nation, ‘proper’ native and so on)”.61

In her analysis of compensation as an attempt to disrupt and subvert the metanarrative of

reconciliation, Claire Moon62

references Khulumani’s US litigation:

Clearly, no single version of justice will satisfy multiple and divergent claims. But the

fundamental value of the apartheid lawsuit resides, overall, in the way that it challenges

the dominant, therapeutic, discourse of reconciliation by addressing the beneficiaries that

profited from the racially structured social and political organization of the apartheid

state, and the intrinsic web of exploitation and violation that this structure produced. In

addition, the claim for material compensation alters fundamentally the discursive image

of claimants, transforming them from victims to creditors, such that they are no longer

seen to be seeking concessions, but seeking what is rightfully due to them.63

57

Madlingozi “Good Victims, Bad Victims” 2007 supra. 58

Stewart Motha “Reconciliation as Domination” in Scott Veitch (ed.) Law and the Politics of Reconciliation 2007

Ashgate Publishing 69 – 91. 59

What Motha refers to as assimilationist policies in search of a stable nation (supra). 60

Motha 2007 at 69. 61

Motha 2007 at 88. 62

Claire Moon “Reconciliation as Therapy and Compensation: A critical Analysis” in Veitch ed. (2007) 163-184. 63

Moon 2007 at 182.

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Khulmani’s counter-narrative and its ongoing struggle to secure reparations for victims of human

rights abuses is illustrative of the fact that matters of reconciliation are complex and require

nuanced responses that take into account the fact that transformation is an ongoing process and

not a linear event that leads to closure and the eventual loss of memory. Charles Villa-Vicencio

argues that transitional justice should be approached holistically as it is a slow, complex and

multifaceted process that encompasses many aspects: accountability of perpetrators; truth

recovery; institutional reform; reparations; civic trust and reconciliation.64

Reconciliation does

not stand apart from any of the other inter-related factors and can only be attained if real efforts

are made to create a society that provides for the material well-being and human dignity of all its

citizens, a promise made in the 1996 Constitution.65

This is a promise yet to be realised, still to

come.

6. THE STRUGGLE CONTINUES: NEW DEVELOPMENTS IN THE US COURTS

Against forgetting, and for the sake of our future, the (im)possibility of reconciliation must be

kept in play. It is crucial that we pay close attention to the voices of those who have not yet

healed, or may never heal, for the pain, the violence and the brokenness will remain. But if we –

each one of us – remain open to the challenge, we may yet be able to respond ethically,

politically and legally to the cries of pain and anger …66

Khulumani has welcomed the decision of General Motors Company to make a contribution

towards redressing the harms caused through corporate complicity with apartheid security

agencies and has called on the remaining companies in the litigation, IBM, Daimler and

Rheinmetall, to come to the table to negotiate a settlement.

It is clear, despite various setbacks, that the Khulumani’s persistence has already had far-

reaching impact since it sent a strong message to multi-national corporations about the

responsibilities, ethics and consequences of doing business with governments that commit

human rights abuses. However, lack of clarity on the doctrine for aiding and abetting liability

under the ATCA has served as a stumbling block for Khulumani claimants as jurisprudence in

64

Charles Villa-Vicencio Walk with us and listen: Political reconciliation in Africa 2009 UCT Press at 182. 65

Ibid. 66

Narnia Bohler-Muller “Against forgetting: Reconciliation and reparations after the Truth and Reconciliation

Commission” 2008 (3) Stell LR 466 at 482.

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the US is not clear as to how foreign corporations could be held liable and on what basis. The US

courts have actually sent mixed messages about whether these claims could be successful. In

fact, the latest developments are leaning towards an approach that foreign claims cannot stand as

the Act has no application outside the US, as held in the Kiobel judgment on appeal heard in

April 2013.

Previously, in an attempt to establish some kind of certainty, Judge Scheindlin emphasised in the

2009 Khulumani case that “knowledge” was required for aiding and abetting liability under

international law67

and concluded that in the absence of other relevant legal materials requiring

specific intent, customary international law required that an aider or abettor knows that its actions

will substantially assist the perpetrator in the commission of a crime or tort in violation of the

law of nations and that this was the standard to be applied in deciding whether conduct amounted

to aiding and abetting liability under ATCA.68

In other words, defendant corporations should be

held liable where they have knowingly participated in any violation of an international norm.

Upon Judge Scheindlin’s formulation for imposing liability plaintiffs would bear the onus of

showing that a corporation knowingly provided substantial assistance to a regime that committed

human rights violations which infringed established international norms.69

Under this standard it

is unlikely that a corporation will be held liable for merely doing business in a country with a

poor human rights record.

Although Scheindlin’s interpretation of the doctrine of aiding and abetting liability under ATCA

appeared to be gaining momentum, since then various federal courts, and the Supreme Court,

have handed down decisions pointing the other way. Of significance is the US Second Circuit

ruling in Presbyterian Church of Sudan v. Talisman Energy Inc70

where the court held that in

order to establish aiding and abetting liability under the ATCA, a plaintiff must show that a

defendant purposefully aided and abetted a violation of international law. In changing the

standard from knowledge to purpose, the Second Circuit has placed a heavier burden on

plaintiffs bringing ATCA claims, and it is yet to be established which test is to be applied to

67

In re South African Apartheid Litigation 2009 at 45. See fn 161 of the opinion for a list of the cases relied upon by

Justice Scheindlin. 68

In re South African Apartheid Litigation 2009 at 54. 69

Ibid. 70

Presbyterian Church of Sudan v. Talisman Energy Inc 582 F. 3d 244 (2d Cir 2009).

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“alien” claims lodged against MNCs in the US courts under ATCA/ATS. The Kiobel judgment

on appeal from the Second Circuit (the same circuit in which the Khulumani case is pending) has

furthermore thwarted attempts at claiming reparations for human rights abuses, which is

discussed in more detail below.

As already stated, there have been some recent positive and negative developments that have

both strengthened and weakened the case of the South African litigants in the US. In the case of

Doe v Exxon Mobil71

the DC Circuit court in the US decided on 8 July 2011 that “aiding and

abetting” liability is well established under international law. This lawsuit was filed in the US by

fifteen Indonesian villagers from the oil-rich province of Aceh, Indonesia against Exxon Mobil

Corporation. The villagers claimed that during a period of civil unrest Exxon Mobil retained

soldiers from Indonesia's military as guards for a natural gas facility in Aceh, despite knowing of

past human rights abuses by the Indonesian army, leading to human rights violations against

Aceh villagers. In this case the court held that the 1789 ACTA allowed corporations in foreign

countries to be "held liable for the torts committed by their agents".

Kiobel v. Royal Dutch Petroleum Co.72

is another case in which the US Supreme Court had to

decide whether corporations could be sued for violations of international human rights law. The

case was brought by twelve plaintiffs from the Ogoni region of Nigeria against Royal Dutch

Shell for its alleged complicity in serious human rights abuses. The plaintiffs alleged that Shell

aided and abetted the military dictatorship in Nigeria in the early 1990s leading to arbitrary

arrests, detention and torture. During this period, the Ogoni people protested against Shell’s

despoliation of the Niger Delta and demanded that Shell and the Nigerian government halt the

destruction and share the benefits of Nigeria’s oil wealth with the poverty-stricken Ogoni people.

The claimants alleged that Shell provided financial and other assistance to the Nigerian military

in order to brutally oppress the Ogoni people,

As Christin Gowar73

observed with respect to the Kiobel case in 2012:

71

Doe v. Exxon Mobil Corp., 473 F.3d 345 (D.C. Cir. 2007). 72

Kiobel v. Royal Dutch Petroleum Co 621 F.3d 111, 120 (2d Cir. 2010). 73

Gowar “The Alien Tort Claims Act and the South African Apartheid litigation: is the end nigh?” Speculum iuris

2012 http://www.speculumjuris.co.za/ (last accessed 29-05-2013).

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The judgment on the issues raised before the Supreme Court is being eagerly awaited by

a number of litigants, potential litigants, commentators, spectators and jurists across the

globe. This ruling by the Supreme Court has the potential to dramatically alter the course

of ACTA litigation and may reduce the protection available for fundamental human

rights.74

She goes on to state that “[t]he Kiobel decision by the Supreme Court has the potential to make

or break the Apartheid Litigation”.75

Her prediction seems to have been accurate, but it is not the issue of corporate accountability that

was clarified, but rather the issue of the extraterritorial application of the Act. The US Supreme

Court decided on 17 April 2013 in Kiobel v. Royal Dutch Petroleum Co.76

that the presumption

against extraterritoriality applies to claims under the Alien Tort Statute (ATS), and that nothing

in the statute rebuts that presumption. The question was not whether petitioners have stated a

proper claim under the ACTA/ATS, but whether a claim may reach conduct occurring in the

territory of another sovereign state. The court held that it had no jurisdiction under the Act to

hear matters that have occurred outside the US. The court did not, however, answer the question

as to whether corporations could be sued for violations of human rights under ACTA/ATS.

According to the court in Kiobel the presumption against extraterritorial application stands in

that “[w]hen a statute gives no clear indication of an extraterritorial application, it has none”.77

This presumption “serves to protect against unintended clashes between our laws and those of

other nations which could result in international discord.”78

The presumption is typically applied

to discern whether an Act of Congress regulating conduct applies abroad, but its underlying

principles similarly constrain courts when considering causes of action that may be brought

under the ATCA/ ATS. Indeed, the danger of unwarranted judicial interference in the conduct of

foreign policy is magnified in this context, where the question is not what Congress has done but

what courts may do. The court further held that this presumption is not rebutted by the text,

74

Gowar 2012 at 17. 75

Gowar 2012 at 19. 76

Kiobel 2013. 77

Morrison v. National Australia Bank Ltd., 561 U. S (2010). 78

EEOC v. Arabian American Oil Co., 499 U. S. 244, 248 (1991).

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history, or purposes of the ATS as “… there is no indication that the ATS was passed to make

the United States a uniquely hospitable forum for the enforcement of international norms”.79

As

Justice Story put it, “No nation has ever yet pretended to be the custos morum of the whole

world […]”.80

The 2013 Kiobel judgment has had serious consequences for the Khulumani lawsuit. However, it

is important to note that Justice Kennedy did state in a concurring opinion that “the Court is

careful to leave open a number of significant questions regarding the reach and interpretation of

the Alien Tort Statute. In my view that is a proper disposition.”81

He further stated that concerns

with respect to human rights abuses committed abroad have been addressed by Congress in

statutes such as the Torture Victim Protection Act of 1991 (TVPA).82

He noted that other cases

may arise with allegations of serious violations of international law principles that are neither

covered by the TVPA “nor by the reasoning and holding of today’s case; and in those disputes

the proper implementation of the presumption against extraterritorial application may require

some further elaboration and explanation”.83

This cautionary note by Kennedy J appeared to be

an attempt to leave the door open for the Second Circuit court to decide the Khulumani case on

its own merits, especially since the incumbent government in South Africa has expressed its

support for the claim and does not see it as a foreign policy challenge as the Mbeki regime did.

However, caution was not exercised when the US Federal Appeals court ruled in August 2013

that the US Supreme Court decision in Kiobel “plainly bars” lawsuits like the South African

Apartheid lawsuit, and consequently that IBM, Daimler and Ford (the only remaining corporate

defendants) could not be held liable.84

This latter decision is being petitioned by Khulumani’s

legal team at the time of writing.85

79

Kiobel 2013 at p. 3. 80

United States v. The La Jeune Eugenie, 26 F. Cas. 832, 847 (No. 15,551) (CC. Mass. 1822), quoted in Kiobel at p.

12. 81

Kennedy concurring opinion in Kiobel 2013 at p. 1. 82

28 U. S. C. §1350. 83

Kennedy supra. 84

Balintulo v. Daimler AG supra. 85

See “Breaking News: Plaintiffs File Petition in Second Circuit Court of Appeals to Review Panel’s Decision in

Apartheid Case”, 24 September 2013, http://www.khulumani.net/reparations/corporate/item/846-breaking-news-

plaintiffs-file-petition-in-second-circuit-court-of-appeals-to-review-panel%E2%80%99s-decision-in-apartheid-

case.html (last accessed 29-10-2013).

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REPARATIONS FOR APARTHEID-ERA HUMAN RIGHTS ABUSES: THE ONGOING STRUGGLE OF

KHULUMANI SUPPORT GROUP

23

Navi Pillay, the United Nations High Commissioner for Human Rights, in her submission in

support of the apartheid litigation petitioners has correctly pointed out that:86

The exercise of universal civil jurisdiction over gross human rights violations and serious

violations of international humanitarian law is not only permitted, it is also beneficial from a

human rights perspective. Universal criminal and universal civil jurisdiction complement each

other. Both contribute to the establishment of an international culture of accountability. Both

provide victims of the worst violations with access to justice and effective remedies in cases

where they are denied access to justice in their home countries. The exercise of universal

jurisdiction under the Alien Tort Statute has positive deterrent effects because the prospect of

litigation before independent courts provides incentives for States, corporations, and

individuals to prevent gross human rights violations and adapt their practices accordingly.

It is a great pity that those who sat on the Kiobel bench did not carefully consider their

obligations under international law, as expressed by Pillay, to protect victims of human rights

abuses against the predatory conduct of large corporations.

7. UNCERTAINTY REMAINS AND THE STRUGGLE CONTINUES

While the legal procedures and negotiations with multi-national corporations continue,

Khulumani has called on the South African government to become a partner in the “unfinished

business” of restoring the lives and the losses of victims of apartheid-era crimes. On 20 March

2012 Khulumani delivered memoranda to the DOJCD and the Presidency requesting government

to “join victims and survivors of gross human rights abuses to close the gaps in post-apartheid

injustices”.87

Khulumani has called upon the State to:

1. Honour and fulfil its obligations to provide reparations to all victims and survivors of

gross human rights violations;

2. Work with all victims and survivors of gross human rights violations to provide

community reparations to meet their urgent needs;

86

On Writ Of Certiorari to the United States Court Of Appeals For The Second Circuit: Supplemental Brief of

Amicus Curiae Navi Pillay, The United Nations High Commissioner for Human Rights in Support of Petitioners

http://harvardhumanrights.files.wordpress.com/2012/06/navi-pillay-revised.pdf (last accessed 30-05-2013). 87

Memorandum handed over to the Office of the President in Pretoria on Tuesday, March 20, 2012

http://www.khulumani.net/khulumani/statements/item/637-memorandum-handed-over-to-the-office-of-the-

president-in-pretoria-on-tuesday-march-20-2012.html (last accessed 18-10-2012)

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3. Make provisions for the rehabilitation of all victims and survivors of these crimes and

include the category of victims of political crimes in its planning for social

development services;

4. Recognise the equal provision of benefits for non-military struggle veterans who

sustained gross human rights violations in the liberation struggle; and

5. Engage victims of the political crimes of the past as equal partners in the resolution of

the consequences of these crimes.

In this memorandum Khulumani states that it has rejected the allegedly arbitrary distinction

drawn between military struggle veterans and non-military struggle veterans and points out that

the awarding of ‘Special Pensions' has been flawed by prolonged delays, lack of transparency,

political bias and multiple instances of fraud and corruption. In addition, when the memorandum

was delivered, protesters at the Union Buildings expressed concern that survivors of the

Sharpeville massacre were dying without being compensated.

It is clear that Khulumani’s members continue to resist being “good victims”. As long as the

state’s policy discourse on reconciliation and social cohesion is seen to ignore and exclude some

voices, the project of developmental nation-state building will fail. Attempts made by the state to

impose shared values and solidarity, construct a ‘caring’ citizenry and advance a society based

on the values of Ubuntu/Botho, can be seen as but another grand meta-narrative that may easily

serve to silence voices of dissent. Rather, it is important to allow contestations on ‘shared values’

to flourish. In order to disrupt exclusionary narratives, Madlingozi warns against complacency

and urges scholars and researchers to be keenly aware of the everyday struggles of social and

community movements, such as Khulumani. He encourages an engaged and active citizenship

that refuses the technicisation of politics and the passivity engendered by it. 88

The aim should be

to encourage and nurture dialogue and debate on the nature of values and community in a way

that does not exclude difference and the diversity of lived experiences and perspectives, and that

allows the “unreconciled” a space within the polity.

And so the struggle continues for victims of apartheid human rights abuses both within South

Africa and abroad.

88

Tshepo Madlingozi “Hayi Bo! Refusing the Plan: Acting, Thinking and Revolting by Post-Apartheid Social

Movements and Community Organisations" in Karin van Marle (ed.)Refusal, Transition and Post-Apartheid Law

Karin van Marle (ed) 2009 Sun-Media 79 – 100.