The curious case of the apartheid lawsuits

President Jacob Zuma is, as the cliche goes, the consummate politician. One of his most likeable qualities is that he is an instinctive politician. He feels it in the gut: his political antennae uncannily aligned to the electorate’s bandwidth. Clearly a “people’s person”, Zuma is an eminently likeable, charming, dapper dude. Refreshingly too, unlike most politicians, he does not affect to have a sophisticated handle on policy. His policy prescriptions are, like the much-missed Madiba’s were, anecdotal and discursive, rather than analytical and quantitative — like those of “you-know-whose-name-is-banished-forever-and-ever” (Comrade Thabo).

This was in evidence two weeks ago when JZ compèred his first “Questions to the President” with all the avuncular charm of a game-show host. “Yes I see you,” he cheerily called out to the ACDP (just as well, since no one else does). But first up was the newly minted leader of the opposition. Athol Trollip is a superb parliamentary performer; he has a commanding voice and the ear of the House. But he royally missed this one. The two leaders’ exchange of something along the lines of who posted a letter, when it was posted/faxed and if it had a second or first-class stamp will go down in political history as a byword for banality and missed opportunities. Via an incomprehensible ramble about languages in schools, it got livelier when Mangosuthu Buthelezi rose to ask Zuma about an alleged broken promise made in cabinet. Zuma disagreed and gamely invited the entire cabinet to support him. Trevor Manuel, always a good sport, madly waved his arms in the air at the startled elder and, if the speaker had not intervened “not now”, we might have had the delicious spectacle of the entire government doing a Mexican wave. While all this is quite amusing and nobody seriously suggests visiting parliament to find out what’s going on, the business of government is a serious matter. I am amazed that neither the leader of the opposition or ANC and opposition members quizzed Zuma about government’s stance on the apartheid lawsuits in the United States.

By way of background, Mbeki’s government, in 2003, had opposed twin lawsuits brought by the Khulumani Support Group in the federal court in New York in which apartheid victims alleged that foreign corporations (the defendants) — including Daimler, Ford, General Motors, IBM and German arms manufacturer Rheinmetall — aided and abetted apartheid crimes such as torture, extrajudicial killings, and arbitrary denationalisation. The government believed that the lawsuits might interfere with SA’s sovereignty, ie its ability to redress its apartheid past, and could deter direct foreign investment. The American government supported the SA government and the defendants’ efforts to get the complaints dismissed, as did Germany, Switzerland, Canada and Britain.

To get a sense of the self-evident moral and ethical dimensions of this complex case, supporters of the lawsuits included Archbishop Emeritus Desmond Tutu, a recipient of the Nobel Peace Prize and, more pertinently in terms of reparations, chairperson of the Truth and Reconciliation Commission. Last year, the plaintiffs filed amended complaints that sought to address the government’s concerns about their original lawsuits. But the government adamantly maintained its position up to and beyond April’s general election. Then, hey presto, last week, the government did a complete U-turn when Justice Minister Jeff Radebe announced that the Zuma government now supported the Khulumani Group against the conglomerates in the US courts. These were two of the responses from the plaintiffs’ legal teams: “By stating that the Southern District of New York is an appropriate venue for this case, the South African government sends the message that perpetrators of human-rights violations can be brought to justice in US courts,” said Susan Farbstein, a lecturer on law at the International Human Rights Clinic at Harvard Law School. “For our plaintiffs, this letter represents a statement on behalf of the South Africa government in support of their struggle for accountability,” she said. “Our hope is that this brings us one step closer to justice for our plaintiffs and to collaboration between governments and victims to achieve redress for apartheid-era crimes,” said Diane Sammons of Nagel Rice LLP.

The fascinating question is, of course, what led to the ANC’s change of heart last week? As the Khulumani Group statement said: ‘This represents a very significant shift from the government’s 2003 position that [it] is not and will not be party to litigation against companies that did business with and in South Africa during the apartheid period.” Although I hear that the government insists that it has not in fact changed its position, Radebe’s letter to Judge Scheindlin of the US District Court in New York clearly shows that it has done exactly that. It’s an interesting question, of course, whether Radebe was acting on the president’s — or the cabinet’s — instructions, or is this is a case of make-it-up-as you-go-along when it comes to important policy decisions?

The proverbial elephant hiding in the trees, obviously, is will this change of policy lead to a new round of litigation by other parties who will seek redress for apartheid’s crimes? The decision is, despite Radebe’s protestations, a significant major policy — and ideological — shift. Is it, I wonder, a belated recognition that moral and ethical considerations are now components of trade policy? Should Redebe not have told parliament that the government was about to change its position? Was the government persuaded by the merits of the plaintiffs’ amended submission (unlikely) or other factors which we don’t know about? As an aside, this was interesting coming in the same week as the government’s criticism of the Canadian ruling on Brandon Huntley, which generally points to the increasing phenomena of jurisprudent rulings that have an impact on two or more sovereign states. The message from all this is clear: Zuma’s government must get a handle on policy, and, just as importantly, how it communicates it. I don’t have Mexican waves in mind.