Trading insults: Khulumani, Korman, Maduna, Mabandla

When the Khulumani Support Group’s appeal against the dismissal of its international lawsuit (Khulumani et al v Barclays et al) was granted recently, the decision was not, as implied by most reports, unanimous. The dissenting judge (in three parts of the judgment), Judge Edward Korman, stated that “[the] lawsuit [is] an insult to the post-apartheid, black-majority government of a free people”.

He goes on to say that a decision to hear these cases would “reflect[] the worst sort of ‘judicial imperialism’ … [and] send the message that the United States does not respect the ability of South African society to administer justice by implying that US courts are better placed to judge the pace and degree of South Africa’s national reconciliation”.

Korman is described on the website of his alma mater (Brooklyn College, New York) as “the presiding judge in a landmark case brought by Holocaust survivors against Swiss banks who profited from the confiscated property of European Jews. His work on this case, which he describes as a ‘once-in-a-lifetime case for a judge’, gave him the opportunity to play a critical role in addressing one of the great injustices of the 20th century.”

Admittedly the circumstances and the laws are different, but the principles are the same: the Khulumani lawsuit is a landmark case brought by victims and survivors of apartheid gross human rights abuses against international corporations, not headquartered in South Africa (that is, not directly under South African jurisdiction), that profited from aiding and abetting the apartheid regime. Perhaps Judge Korman was given another “once-in-a-lifetime” case; perhaps he even had another opportunity to play a critical role in addressing one of the other great injustices of the 20th century. Perhaps he blew it. Was it possibly because in the Khulumani lawsuit the victims are neither European nor Jewish?

Is this part of a widely held perspective that the citizens of a country with a black majority government are not equally deserving of the same treatment as the citizens of any other society? From the perspective of the Khulumani plaintiffs, this may well be the greater insult.

One cannot draw the conclusion that Korman himself has a racist outlook — his dissenting opinion was largely based on a declaration submitted by former minister of justice Penuell Maduna to Judge Sprizzo’s New York court where the case was dismissed. The present Justice Minister, Brigitte Mabandla, resubmitted the original Maduna declaration to the appeals court with her endorsement, as an amicus curiae brief asking that the appeal not be granted — in contrast to the amicus curiae brief signed by Archbishop Desmond Tutu and a majority of the former Truth and Reconciliation commissioners. Is this the actual insult? Our government taking the side of foreign-based corporations rather than a group of citizens that directly suffered from some of apartheid’s worst atrocities?

An unfortunate confounding factor is that the Khulumani lawsuit was lumped together with two other much more broad-based lawsuits, and all three were considered as “the South African apartheid litigation”. Only the Khulumani lawsuit had individual, named plaintiffs as well as Khulumani itself as an organisation. The individual, named plaintiffs had all suffered one or more of five predefined gross apartheid human rights abuses: “extrajudicial killings” (assassination or murder of a family member); “torture”; “indiscriminate shootings”; “sexual assault”; or “arbitrary detention”.

Korman seems to have swallowed the Maduna/Mabandla bait in focusing on the South African government’s wishes. However, neither Maduna’s declaration nor Korman’s decision is concerned with individual victims and survivors of apartheid gross human rights abuses and violations.

Fortunately, because Korman’s dissenting voice was opposed by judges Katzmann and Hall, the case is to return to Judge Sprizzo and his court. Unless the corporations listed in the lawsuit appeal against the latest decision, the interrogation of the “facts of the case” will hopefully not yet again be delayed.

Minister Mabandla’s October 19 2007 media statement following news of the success of the appeal merely reiterates the government’s original view that the case revolves essentially only around “political issues”, and that it is not about “damages” or apartheid gross human rights abuses. Is this not an insult to those victims and survivors who lived through these violations? Is it not an insult to many who still carry the scars and bear the wounds of that time?

Former minister Maduna indicated that the case directly challenges the sovereignty of the South African state and should be resolved through South Africa’s own democratic processes. Minister Mabandla, again quoting Maduna: “We submit that another country’s courts should not determine how ongoing political processes in South Africa should be resolved.”

Someone’s missing the point here. The Khulumani case, specifically, is neither about ongoing “political” processes nor about national reconciliation. It’s about damaged people seeking justice and redress that is, in fact, not available to them in their own country. The case is not about challenging the state’s sovereignty.

Is the sovereignty of the South African state under greater threat through this NGO’s lawsuit than through state-less corporates that subtly, or not so subtly, directly or indirectly, influence government policy? Isn’t our country’s notorious arms deal, passed by Parliament through an allegedly dubious “due process” as indicated by Pregs Govender in her book Love and Courage, not perhaps a more significant challenge to our country’s sovereignty?

The opportunity provided by the TRC for foreign (and local) businesses to come clean was spurned. The corporate world essentially granted itself a “blanket amnesty”. If the Khulumani lawsuit is ultimately successful for the plaintiffs, it would simultaneously become another landmark case in delegitimising business dealings between “respectable” international corporations and illegitimate governments, such as the former apartheid regime.

The minister’s statement ends by maintaining that the responsibility to address the country’s apartheid past, as well as the rehabilitation and improvement of the lives of the people of South Africa, is the South African government’s responsibility. A key word here is rehabilitation.

The TRC’s recommendations to government included rehabilitation as well as reparations for the identified victims. The resultant one-off R30 000 reparations pay-out, not what was recommended by the TRC, has patently not helped rehabilitate the lives of many of these “identified” victims and survivors.

There appears not to be any specific rehabilitation plans for this identified constituency. The hints of possible restorative justice action offered in the TRC report have been quashed by subsequent government decisions. For many apartheid victims and survivors of gross human rights abuses, especially those who testified at the TRC and whose lives remain worse off than before, the experience has become one of bitterness, broken promises and a great sense of betrayal. Hardly what one would call reconciliation.

The government would have difficulty in showing how it has taken responsibility for the plaintiffs named in the Khulumani lawsuit. Evidence of abdication of this responsibility, however, could probably be quite easily led in the New York court, should the case proceed and such evidence be requested. Rather than being an insult to the post-apartheid, black-majority government of a free people as asserted by Judge Korman, perhaps it would be more accurate to say that the case would be acutely embarrassing to the government.

If the case proceeds, and the government once again decides to make a submission, it should be made clear that it is specifically not referring to or including the Khulumani lawsuit.