1. On 12 October 2007, the 2nd Circuit Court of New York overturned the decision of a District Court by reinstating the claims of the Khulumani Support Group ("Khulumani") and other claimants against 23 foreign multinational corporations and banks.
2. Khulumani filed the suit in November 2002 in a District Court of New York against these corporations and banks on the basis that they have aided and abetted the Apartheid government in enabling the said government to commit acts of gross human rights violations.
3. The corporations are spread across 5 industries and are from six different countries. The industries operated in the field of providing: - arms and ammunition to the apartheid government;
- fuel to the police and military forces;
- transportation to the police and military forces;
- military technology to the apartheid government;
- financing to the apartheid government to obtain the above goods
4. The corporations and banks are from the following countries - Switzerland, Germany, The Netherlands, the United Kingdom, FranceUnited States of America. 5. The corporations and banks oppose the suits on the basis that their respective countries permitted trade with the Apartheid government. In particular, the U.S corporations argue that the U.S Foreign Policy encouraged constructive engagement with Apartheid South Africa and that investment and commerce played a critical part in pursuit of that policy.
6. In July 2003, the South African government urged the District Court to dismiss the suits on the basis that the suits interfere with the sovereign rights of the South African government. By this it means that it alone can deal exclusively with the question of reparations in South Africa. Furthermore, it argues that the suits also pose a danger to foreign direct investment.
7. In November 2004, the Southern District Court of New York dismissed the Khulumani and other suits. Khulumani took the matter on appeal to the 2nd Circuit Court of New York ("the 2nd Circuit").
8. On 12 October 2007, the 2nd Circuit overturned the decision of the District Court. The 2nd Circuit held that the Alien Tort Statute (ATS), the statute under which these cases are brought, indeed provides jurisdiction for the cases to be heard. It furthermore held that despite the South African government's request that the cases must be dismissed, a court must first hold an enquiry, thoroughly consider the views of the government, plaintiffs and the banks and corporations and only then make its decision whether to dismiss the cases or not. The 2nd Circuit held that this was not done and ordered that the cases go back to the District Court.
9. Since the decision of the 2nd Circuit, the banks and corporations on 1 November 2007 filed a Motion to Stay the decision of the 2nd Circuit pending their petition to the United States Supreme Court.
10. It may very well be that the highest court in the United States will hear the Khulumani and other cases in the next few months.
11. Khulumani seeks to achieve compensation for it and its members who have suffered acts of gross human rights violation. Khulumani argues that those corporations that provided arms and ammunition, transport to the armed forces, fuel and military technology to the armed forces and the banks that provided the funds to make these purchases are culpable of enabling the apartheid government to commit acts of gross human rights violations.
12. Khulumani furthermore seeks to hold these banks and corporations accountable as none of them appeared before the Truth & Reconciliation Commission ("the TRC") to disclose their involvement and association with the apartheid government.
13. Khulumani furthermore hopes that its case would prevent future conduct on the part of banks and corporations aiding and abetting rouge regimes, with particular reference to the Myanmar regime. |
