The lawsuits were filed against several multinational corporations for aiding and abetting the apartheid government in gross human rights violations. The Mbeki government vigorously opposed the claims, as did George Bush's administration. ''Friends of the court" affidavits in support of the victims were filed by Archbishop Emeritus Desmond Tutu and other former TRC commissioners. Remarkably, the South African government invoked "national unity and reconciliation" as its basis for dismissing the victims' claims.
Former minister of justice Penuell Maduna argued that the claims undermined what the state sought to achieve through the TRC. According to Maduna, "The issue at stake is one of sovereignty". He argued against "using foreign courts to deal with issues from our past, in the light of our efforts to build unity and reconciliation".
Such appeals to sovereignty are fundamentally misconceived. Sovereignty is the authority of a state to govern itself. The litigation is plainly not a matter of foreign parties interfering in the domestic affairs of South Africa, nor does it undermine our programme of national unity and reconciliation.
Litigants have a right to seek the recovery of losses in the most appropriate forum, whether locally or abroad. It is not uncommon for litigants from one country to pursue their claim in another country in which a defendant has substantial interests. South African workers who suffered mercury poisoning in a factory in the KwaZulu-Natal midlands, for example, sued the parent corporation in the UK. Victims of Nazi slave labour have pursued in the US claims against European corporations that have a considerable presence that they aided and abetted the Nazi regime. The European defendant corporations settled and funded a comprehensive reparations programme for the victims.
Former president Thabo Mbeki told Parliament in 2003 that "matters that are central to the future of our country should not be heard in foreign courts, which are not responsible for the wellbeing of our country and which will not be sensitive to the promotion of national reconciliation". Yet the subject matter before the foreign court is not central to the future of South Africa and will not determine policy in South Africa. Courts apply laws, rules and principles to relevant facts. They do not bear the responsibility for the wellbeing of a country. The former government's submissions were not legal arguments; they were little more than expressions of its policy preference.
There is no question of the US courts interfering in the internal affairs of South Africa. The cases are nothing more than claims for monetary damages by victims. The claimants allege that the corporations benefited enormously from their collusion with the apartheid regime. Regardless of the merits of their claims, which will be decided by the court, the claimants had every right to bring their action in the forum of their choice.
The executive officers of the corporations had the chance to participate in the TRC process. They could have explained the role of their organisations during apartheid. They could have collaborated with the TRC in the development of an equitable reparations programme. They chose not to. There is then, some irony in the argument that the TRC process, which was spurned by the corporations, is a reason to dismiss the claims against them. The irony of invoking the high principles of "unity, healing and reconciliation" to deny compensation for harm has not been lost on the victims.
South Africa's truth and reconciliation design required victims to sacrifice their rights to justice in order to advance national unity and reconciliation. In so doing, the state entered into a compact with victims that required it to take all reasonable steps to prosecute deserving cases against offenders who were not amnestied. It also obliged the state to provide adequate reparations and not stand in the way of victims' civil claims for compensation.
The state has done little to meet its obligations. The one-off, one-size-fits-all, pro rata payment only to those victims who registered with the TRC has been roundly criticised as inadequate.
The state has employed various machinations to avoid prosecuting apartheid-era criminals and, until recently, it actively opposed attempts by victims to seek redress in US courts.
The sense of betrayal felt by the victims must be overwhelming.
Though the change in stance by the South African government is encouraging, there is still much to be done. The billion rands that have been languishing for years in the President's Fund must be unlocked for the benefit of victims and survivors. Deserving cases from the past must be investigated and prosecuted in the normal course.
It is time to stand up for those who made sacrifices for South Africa's liberation.
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