khulumani: a support group. a social movement. a strong voice.

DECLARATION BY PENUELL MPAPA MADUNA

1. I am the Minister of Justice and Constitutional Development of the Republic of South Africa and a member of the cabinet of President Thabo Mbeki. I am an admitted attorney of the High Court of South Africa and hold the degrees of B.Juris, LL.B, LL.M as well as an LL.D in constitutional law.

2. I make this declaration to set forth the South African government's ("the government") view of various cases pending in the United States courts against corporations that did business with and in South Africa during the apartheid period, including those cases consolidated under the caption, In Re South African Apartheid Litigation, MDL No. 1499 (S.D.N.Y.) and In Re Khulumani & others, CV 02 5952 (E.D.N.Y.) It is the government's submission that as these proceedings interfere with a sovereign's efforts to address matters in which it has the predominant interest, such proceedings should be dismissed.

KHULUMANI SUPPORT GROUP RESPONSE

• With respect it should be noted that the Khulumani lawsuit, being a damages lawsuit, names less than 100 individual plaintiffs, and one collective plaintiff representing about 32000 members.

• We believe that this does not interfere with " a sovereign's efforts" and neither does the government have "the predominant interest" in this case - but that the predominant interest belongs to the named victims and survivors as well as to the membership of Khulumani Support Group.

• In contrast the "South African Apartheid Litigation" with its un-named victims and presuming to act on behalf of black South Africans generally, does indeed "interfere with government's sovereign efforts to address matters in which it has the predominant interest".

DECLARATION BY PENUELL MPAPA MADUNA

3.
3.1 By way of background, the Republic of South Africa is one sovereign democratic state founded on the values of human dignity, equality, non-racialism, non-sexism, supremacy of the Constitution, and the rule of law, universal adult suffrage and a multi-party system of democratic government to ensure accountability, responsiveness and openness.

Under South Africa's 1996 Constitution, the Constitution is the supreme law of the republic. Under the Constitution, the judicial authority of the republic is vested in the courts, which are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.

No person or organ of state may interfere with the functioning of the courts, while all other organs of the state, through legislative and other measures, must assist and protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness. An order or decision of a court binds all persons to whom and organs of state to which it applies.

South Africa has a well-developed judicial system, with the Constitutional Court at its apex and the Supreme Court of Appeal as the final court of appeal in non-constitutional matters. Judgments of the Constitutional Court and, indeed, the Supreme Court of Appeal, are widely admired for their independence and incisiveness and are frequently referred to in judgments of other final courts of appeal internationally.

HULUMANI SUPPORT GROUP RESPONSE

• Khulumani Support Group is proud to be a corporate and patriotic citizen of the Republic of South Africa, and fully abides by the country's Constitution and the judicial authority of the Republic. The foreign (to South Africa) corporations which have been named in the Khulumani Lawsuit are, however, presently not subject to South African Law nor to its Constitution.

• Khulumani notes with concern the apparent discrepancy between the former Minister's statement about the rigorous manner in which the independence of the South African courts are protected from political interference, while his own action in submitting an affidavit to the New York court represents political interference in a judicial process.

• Khulumani Support Group is proud of the independence of the South African courts which are seen to apply the law without fear, favour or prejudice. We respectfully submit to the Ministry of Justice and Constitutional Development that their affidavit to the New York court represents a violation of this key principle upon which our domestic legal system is built.

• It should be noted that President Thabo Mbeki himself, at the tabling of the Truth Ccommission's final report, noted that "the government recognises the right of citizens to institute legal action".

3.2
3.2.1 The 1993 Interim Constitution, which paved the way for South Africa's first democratic government in 1994, made provision for the establishment of a Truth and Reconciliation Commission ("the TRC") in order to establish the truth in relation to "past events", the circumstances under which gross violations of human rights occurred and to make such findings known.

The purpose of the TRC was not simply to provide an account of the apartheid system, but to document gross violations of all human rights abuses, irrespective of their perpetrators, and to make provision for amnesty for those who made full disclosure of such politically motivated human rights violations and to provide reparations for the victims of such abuses.

In 1995, Parliament enacted legislation to establish the TRC formally. In taking these constitutionally-mandated steps, government deliberately avoided a "victors' justice" approach to the crimes of apartheid and chose instead one based on confession and absolution, informed by the principles of reconciliation, reconstruction, reparation and goodwill.

KHULUMANI SUPPORT GROUP RESPONSE

• While fully acknowledging the pivotal role of the TRC in our country's still rather brief democratic history, it must be noted that a significant proportion of Khulumani Support Group's membership was denied the opportunity of appearing before the TRC.

• Thus the "document[ation of] gross violations of all human rights abuses, irrespective of their perpetrators" (my emphasis) was not complete, and neither were all the victims who should have been designated as such by the TRC, recognised or provided with reparations.

• Furthermore, foreign "businesses" who as perpetrators, aiding and abetting the apartheid regime, failed to appear before the TRC to make "confession" and receive "absolution". This has had the effect, by default, of granting foreign "businesses" a blanket amnesty.

• Although some businesses are working with government in terms of "reconstruction, reparation and goodwill", the vital components of "confession and absolution" have been disregarded.

• The Khulumani International Lawsuit seeks to rectify this situation insofar as those foreign-based corporations, that can be shown to have actively supported (aided and abetted) the apartheid regime, are concerned. As mentioned above, this is on behalf of named plaintiffs and the membership of Khulumani Support Group.

3.2.2 The 1993 Constitution and the Promotion of National Unity and Reconciliation Act, 1995, which established the TRC, was based on a conscious agreement by all political parties in South Africa to avoid Nuremberg-style apartheid trials and any ensuing litigation.

3.2.3 The TRC completed its work in March 2003. It granted amnesty to many perpetrators of gross violations of human rights on a cross-party basis. It also recommended financial reparations for some 20,000 victims of such abuses.

In his address to Parliament on 15 April 2003, on the tabling of the TRC Report, President Thabo Mbeki on behalf of the government, observed that:

"In the recent past, the issue of litigation and civil suits against corporations that benefited from the apartheid system has sharply arisen. In this regard, we wish to reiterate that the South African Government is not and will not be a party to such litigation.

In addition, we consider it completely unacceptable that matters that are central to the future of our country should be adjudicated in foreign courts which bear no responsibility for the well-being of our country and the observance of the perspective contained in our constitution of the promotion of national reconciliation."

KHULUMANI SUPPORT GROUP RESPONSE

• With great respect to President Mbeki, he has not distinguished between foreign and local corporations; and he has not distinguished between "corporations that benefited from the apartheid system" and those that can be shown to have benefited from aiding and abetting the apartheid regime to carry out gross human rights abuses.

• We note President Mbeki's statement that "the South African Government is not and will not be a party to such litigation" and as a victim support group, Khulumani would be surprised if Government were to be party to a damages lawsuit such as the one for which notice of appeal has been lodged in New York. Government should not be involved in this "private" matter.

• Khulumani also respectfully disagrees that a damages suit involving less than 100 individual plaintiffs and one collective plaintiff (of a membership organisation of about 32,000 members) against 23 named foreign-based businesses is "central to the future of our country". This is where, we submit, there is a major difference between the "apartheid" lawsuits and the "Khulumani" lawsuit.

• Khulumani Support Group humbly submits that its case against 23 foreign multinationals is being brought in the present and future interest of the well-being of our country. The lawsuit does not seek any action that is inconsistent with government's approach to achieving its own long-term goals.

• Rather than undermining South Africa's sovereign democratic government, a successful outcome to the Khulumani lawsuit would in fact enhance and strengthen our constitutional democracy by securing the legal accountability of corporations for human rights abuses.

• It would also provide support for programmes of community reparation and rehabilitation. This would have significant implications for the rest of the world because it would make any business that violates universally recognised customary international law legally accountable and liable for redress for violations of international customary law.

• In the Khulumani lawsuit, the defendants are corporations in the oil, arms, transportation, banking and technology industries, which for almost 40 years, continued to cooperate with the military and security elements of the apartheid government, despite being put on notice by the United Nations and the international community that this cooperation constituted knowing participation in crimes against humanity.

• Repeated warnings were issued to these companies that their actions were "instrumental in encouraging and furthering the abuses" of the apartheid regime and their conduct was "so integrally connected to those abuses that the crimes would not have occurred in the same way without their participation." (Hausfeld M. 2002)

• All of the named corporations refused to participate in the processes of the Truth and Reconciliation Commission and failed to take responsibility for their contributions to the apartheid state's security apparatuses.

• All of these companies claim that they were simply doing business and that their only concern was their bottom line. But this was business without accountability.

• In a world in which economic power is becoming concentrated in fewer and fewer hands, big business cannot be allowed to do what it likes, free from accountability for the consequences of its action, past, present or future.

• The unbridled exercise of pure business power, without conscience or regard to its consequences, carries within it the seed for unparalleled weakening of democracy and possibilities of immense personal loss. (Hausfeld M, July 2004)

• While the South African government can be proud of its positive attitude towards business, it is in its own best interest to ensure that business operates in a responsible way and within the rules and regulations imposed by government.

• These should not be viewed as being anti-business, but rather as vital elements in contributing towards social and political stability. Such stability in itself makes a positive contribution to creating a favorable business climate.

• It is not in the best interest of any nation to bargain away accountability for human rights violations. Government should preferably "raise the floor for the benefit of the citizens and the citizens of all nations" and insist that business is both responsible and respectful. Such an outcome is to the benefit and well-being of both business and society. (Hausfeld M, July 2004)

• In respect of former Minister Maduna's statement about the case being adjudicated in foreign courts, it should be noted that the right of foreigners to institute lawsuits in the United States was upheld by the U S Supreme Court, on 29 June 2004, despite objections from corporations and the US, British, Swiss and other governments.This represents a victory for human rights globally.

• Khulumani is aware of previously made public statements of senior government officials that government upholds the right of citizens to seek legal redress in whichever courts are competent to hear their cases.

3.2.4 It is my respectful submission that the government's views on matters which fall within its sovereign domain should be respected in all forums.

• Khulumani agrees completely and would reassure Government that it has no intention, with its damages case, of in any way showing disrespect to or interfering with Government's sovereign domain.

3.3 I believe that it is important for the court to understand the context in which these cases are brought.

The litigation appears to suggest that the government of which I am a member, has done little or nothing about redressing the ravages of the apartheid system, which, while formally and institutionally terminated by the election of the Mandela government on 27 April 1994, continue to live with us and will, unfortunately, continue to endure for many years to come.

It likewise fails to appreciate the mandate under which South Africa's first democratic government was elected and how it has gone about executing this mandate since 1994. In order to assist the court, I set out briefly the details of this below.

• This would appear to be a misinterpretation of the Khulumani Litigation, which does not at all suggest that the Government of South Africa "has done little or nothing" to redress the ravages of the apartheid system. This may well be a valid interpretation of the other "apartheid lawsuits".
  
• To the contrary, Khulumani Support Group recognises with pride the enormous advances made in addressing the socio-economic, infrastructural and institutional havoc wreaked by the previous regime.

4. In addition to institutionalising enforced racial segregation, and denying the majority the franchise, the apartheid system sought systematically to exclude most South Africans from access to adequate education, health care, housing, water, electricity, land and communications, while likewise excluding it from proper participation in the economy.

The African National Congress-led government, under the leadership of former President Mandela, was elected in 1994 by the previously apartheid-excluded majority on a programme specifically to redress the legacy of apartheid.

The government's programme, based on the reconstruction and development of the South African economy, accordingly had and continues to have as its central plank the fundamental transformation of South African society.

It does so by attempting to rehabilitate the lives of the previously disadvantaged through the promotion of non-racialism, equality and social justice. The implementation of this policy, as will be seen below, has been and continues to be achieved through wide-ranging legislative reforms to transform South African society.

In other words, what the government is attempting to do is to repair the damage caused by the apartheid system through a broad programme of socio-economic reparations which has at its heart, the betterment of the lives of the previously disadvantaged.

KHULUMANI SUPPORT GROUP RESPONSE

• As indicated above, this is acknowledged with pride by Khulumani Support Group. Khulumani acknowledges the pivotal role played by government in initiating extensive programmes of general social upliftment of the previously disadvantaged population.

• It is of concern to Khulumani Support Group that the South African government appears to see its significant spending on the general social upliftment of the previously disadvantaged as its form of reparations.

• Khulumani acknowledges that there will always be a tension between the developmental needs of a nation and needs and rights of victims to reparations.

• However, Khulumani wishes to emphasise that in the understanding of the nation and of the world, programmes for the socio-economic advancement of the majority was not the mandate of the TRC, but of the electorate. These initiatives should therefore be seen as complementing rather than replacing a TRC reparation package.

• Khulumani Support Group wishes to place on the record the fact that government has not yet placed in the public domain its comprehensive proposals on reparations beyond its proposals on individual payments.

• Khulumani Support Group - Western Cape lodged a case against the TRC and Justice Ministry using the Access to information Act (of 2000) in which it requested clear information about government's proposed comprehensive reparation policy.

• Khulumani envisaged that such a policy could include holding corporations, both local and international, accountable and could mandate them to contribute to a fund for victims.

• The case was eventually withdrawn because the Ministry of Justice finally made public its proposals on final individual reparations, thus abiding by the regulations of the TRC Act. This happened just prior to the 2004 elections.

• In Professor Kader Asmal's words, at the conference of the International Center for Transitional Justice, held in the Western Cape in March 2005, "it was a missed opportunity".

• The Ministry of Justice has yet to disclose its comprehensive reparations policy beyond these individual monetary payments, which Khulumani's commissioned research revealed as falling far short of what is required in terms of adequate reparations for survivors of gross human rights violations.

• It should be noted that the Khulumani Support Group presented its proposals on Community Reparations to the Office of the President on October 29, 2003. Khulumani still awaits government's response to these proposals.

5.
5.1 South Africa's 1996 Constitution, which the African National Congress was instrumental in drafting, gives effect to government policy to redress the wrongs of the apartheid system, by not only prohibiting all forms of discrimination, but also by guaranteeing the right of all South Africans to access to housing, education, health care and related social services.

Under the Constitution, the government is obliged to meet these socio-economic rights within the limits of its resources. The central importance of these provisions of the Constitution is, however, transformative and redistributive, in order to enable all South Africans to overcome the legacy of apartheid, through the creation of a more just and egalitarian society.

Although, the government has obviously not met all of its 1994 goals, its record, faced with the realities of a globalised economy is, I submit, impressive.

KHULUMANI SUPPORT GROUP RESPONSE

• Many of Khulumani Support Group's membership have benefited from these central provisions of the Constitution.

 

5.2 In education, the spending disparity on white and black learners (18:1 in 1970 was reduced to 3:1 by 1993) was eliminated by racially integrating schools while at the same time, directing the bulk of state expenditure to the neediest schools. In addition, free primary and secondary level education will be available to the poorest 40 percent of the population from 2004. Government remains committed to reducing adult illiteracy.

5.3 Skewed land ownership is being addressed through legislation which provides for the restitution of land taken from black South Africans under race-based legislation first introduced in 1913. Further laws provide for the redistribution, with state assistance, of some 30 percent of commercial farming land to emerging black farmers.

5.4 Social pensions (equalised prior to 1994) have now been extended to many more beneficiaries and supplemented by school feeding schemes, free medical treatment at state hospitals for pregnant women and children under the age of six, and a child support grant.

Substantial increases have been made in providing state financial support, especially to children, with more than eight million people expected to receive social assistance grants by 2005 compared with 2,7 million in 1997. Government is currently rolling out state financial support for children between the ages of seven and fourteen years, over a seven-year period.

5.5 At the same time, government has adopted a range of legislative measures aimed at overcoming racial inequality, including the Employment Equity Act of 1998, and the Preferential Procurement Policy Framework Act of 2000. The vast bulk of the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000, came into effect on 16 June, 2003.

5.6 A good example of achieving majority participation in the economy is the Minerals and Petroleum Resources Development Act of 2002, which is due to come into force in late 2003.

This vests all mineral rights in the state and grants new mining licences to applicants in return, among other things, for comprehensive endeavours to promote black economic empowerment.

The objectives here include the transfer of ownership to black South Africans of at least 26 percent of equity or operating assets within ten years under a broad-based mining charter agreed with the South African mining industry.

Likewise a Black Economic Empowerment Bill, intended to promote black economic empowerment in other sectors through measures such as affirmative action, preferential procurement and equity transfers in favour of black South Africans, is currently before the South African Parliament.

Apart from these ongoing achievements, other noteworthy accomplishments have been realised, including the Comprehensive HIV and AIDS Prevention, Treatment and Management Plan approved by Cabinet in November 2003.

6. While the government's job is to govern in a way which is best for the people as a whole, it cannot ignore the fact that it is the successor government and, as such, bears primary responsibility for the rehabilitation and improvement of the lives of the people whom the claimants claim to represent.

• With respect once again, the lives of the people represented by the Khulumani litigation (less than 33,000) cannot be compared to the lives of the people represented by the "apartheid lawsuits" (many millions).

• Clearly government carries the primary responsibility for the "rehabilitation and improvement" of the lives of these latter millions (which ironically would include the Khulumani membership).

• However the claiming of damages by a relatively small number of claimants in the Khulumani lawsuit, for specific abuses from foreign-based defendants that can be shown to have directly "propped up", sustained and profited from the apartheid regime, and who furthermore did not appear before the TRC, is surely not the "primary responsibility" of government.