State sticks to its guns on reparations
August 24, 2003
By Wiseman Khuzwayo
The government is sticking to its guns in opposing the apartheid reparations suits being heard in the US, even though it has been warned that an approach to the judge in the case violated local court rules and risks having the government cast into the dock alongside international companies accused of apartheid crimes.
Lawyers in the US and South Africa are representing mainly victims of apartheid from this country's rural areas who did not testify before the Truth and Reconciliation Commission and those living abroad. They have been so incensed by a letter sent by justice minister Penuell Maduna to the New York judge presiding over the lawsuits, that they have written to Maduna to demand he withdraw his letter or they will apply to the court for an order declaring the minister and the South African government be party to the proceedings.
To this effect, the lawyers have sent their intended court motions to President Thabo Mbeki, deputy president Jacob Zuma and Maduna.
Companies being sued include information technology group IBM, Citibank and the Bank of America.
In July Maduna wrote to Judge John Sprizzo, of the federal district court for the southern district of New York, saying that the South African government was opposed to the lawsuits because they would "discourage much needed direct foreign investment into South Africa".
In the letter, which for some obscure reason he describes as a declaration, Maduna quotes Mbeki as saying: "The South African government is not and will not be party to such litigation."
Maduna adds: "Permitting this litigation to go forward will, in the government's view, discourage much needed foreign investment in South Africa and thus delay the achievement of our central goals.
"If this litigation proceeds, far from promoting economic growth and employment and thus advantaging the previously disadvantaged, the litigation, by deterring foreign direct investment and undermining economic stability, will do exactly the opposite of what it ostensibly sets out to do."
Paul Ngobeni, the lawyer acting for the plaintiffs in the US, has thrown Maduna's letter back at him, saying that by writing to the judge and opposing the litigation, the justice minister and the government have joined the legal fray and are now permanently anchored as a party to the litigation.
Ngobeni wrote to Maduna: "Arguably, the filing of your improper statement suffices to make the Republic of South Africa (RSA) a de facto intervener, assuming the validity of that concept, for the RSA indicates its willingness to be present throughout every stage of the proceedings going forward, its interests are synonymous with those of the named corporate defendants, and the RSA is behaving as a party in this case. Under the circumstances, the RSA has taken action that subjects it to the general jurisdiction of the district court for the purpose of the sanction award.
"Nothing short of a formal withdrawal of your letter or declaration can even cure the severe prejudice likely to be suffered by our clients in this case. We demand that you do so forthwith," wrote Ngobeni.
"Having agreed to accept the status of non-party, the government of the RSA may not assert personal defences in lieu of or as proxy for and/or on behalf of the defendants in this case."
He added that the lawyers would press the sanctions issue with a vengeance "to prevent you from victimising the victims of apartheid twice; that is denying them justice at home and then attempting to derail their access to appropriate judicial forum".
Ngobeni argued further that by writing to Sprizzo without first notifying the lawyers for both the plaintiffs and defendants, so giving them a chance to make objections, was a violation of US civil procedure. He also reminded Maduna that his communication with the judge was, in fact, an application to dismiss the claims.
This may now force the lawyers for the claimants, who include Digwamaje, the Apartheid Claims Taskforce and the Apartheid Debt and Reparations Campaign and others, to seek the judge's recusal.
This would be accompanied by a motion seeking costs from the South African government for these lawyers and their defendants.
The lawsuits are being done on a contingency basis. This means lawyers have to use their own money and time and will be reimbursed only if they win the case.
Under the circumstances, the costs would be phenomenal. The hearings started in May. There are almost 30 companies being sued, being represented by as many legal teams, who could comprise as many as six members in each team.
"These are only the first steps in the long and determined legal battle and many others to follow, even in South African courts," warns Ngobeni.
The motion, which the lawyers intend to file, will cause much political embarrassment to the government.
It will force it into accepting the status of being an involuntary co-plaintiff. This means that it will unwillingly join the apartheid victims in the civil action against the companies.
Alternatively, the government will oppose this enjoiner, thus unwittingly anchoring itself on the side of the alleged human rights abusers.
Paul Setetse, the spokesperson for Maduna, said the minister's letter was a reiteration of the government's position, which was already known.
"We are not about to withdraw that statement because by so doing we would be withdrawing the statement made by the president in his state of the nation address."
Mbeki's spokesperson, Bheki Khumalo, said: "The president has no intention of changing his position on this matter." - Johannesburg
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