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Unfinished Business in South Africa - 2002-12-16

The final report of the South African Truth and Reconciliation Commission is due to be handed over to the government by the end of next January. The commission investigated human rights abuses under the apartheid government and granted amnesty to some perpetrators. But some South Africans say there is an unfinished business from the Commission's work. They have sued about 30 American, European, and Asian multi-lateral companies in U.S. courts for reparations.

Apartheid reparations lawsuits have been filed in New Jersey, New York, California, Texas, and Louisiana against several major U.S. and foreign corporations, including Citi Group, IBM, General Motors, and Exxon Mobil. On Monday a multi-district litigation panel at a U.S. district court in New York will decide which judge and district will hear the combined cases.

John Ngcebetsha, a South African lawyer representing some of the apartheid era victims, says "we are arguing that the multinational companies, banks, and corporations that we cited in court profiteered unduly as a result of the system of apartheid despite that they were aware that they were busting sanctions and contravening UN resolutions. And in some instances, contravening ordinances of the state from which they come from. We are holding them liable for supporting the system against the backdrop that their investment was directly linked to gross human rights violations, which would be perpetrated in the form of murder, killings, torture, arbitrary arrests and trials, and many other forms of human rights violations."

The lawsuits were filed under the Aliens Tort Claims Act, an 18th Century U-S law that allows any non-U.S. citizen to sue any company doing business in the United States. Similar law was used to get reparations for Holocaust victims.

Dumisa Ntsebeza is one of the lead lawyers in another reparations lawsuit in which his brother is a lead plaintiff. Dumisa Ntsebeza was chief investigator in the Truth and Reconciliation Commission. He says suing for reparations is part of the Commission's unfinished business. "I think it is a fallacy to think that the Truth and Reconciliation Commission was only for reconciliation. The 1993 post-apartheid interim constitution talks about reconciliation and reconstruction of South African society. And one of the key committees in the Truth and Reconciliation Commission was the reparation and rehabilitation committee," he says. "And that is the committee that actually recommended, among others, that there must be cash payment to victims of gross violation of human rights, and there must also be symbolic reparations."

Paul Fetsetse is spokesman for the South African justice ministry. He says the South African government is not a party to the lawsuits. "We are not against or in favor of the lawsuits. People are entitled in terms of our constitution here to exercise their right to file civil litigation against anybody or any company they feel has done wrong to them," he says. "And as a government, we do not therefore support individuals who are taking the legal actions based on their own views. However, our attitude is that those foreign companies are indeed being encouraged to do business with South Africa as a whole so that our people in general benefit from this."

Mr. Fetsetse says the Truth and Reconciliation Commission has done a thorough job in addressing the issue of reparations, and that the South African government has already begun paying what he calls interim reparations. "In terms of the TRC report, it recommends reparations to be in two forms. First, we must assist victims with urgent interim reparations, which we have since done. We have up to date paid 50 million rands toward urgent interim reparations victims," he says. "And the [number of] people we are talking about is approximately 18,000 people. Now the remaining issue is the question of final reparations, and that we are going to address it as soon as the final report of the TRC report has been handed over to the government."

As the people of Sierra Leone prepare to begin their own Truth and Reconciliation Commission, Mr. Ntsebeza says he hopes their TRC does not make the same errors made by the South African panel. "My advice is that if there is something which the Truth and Reconciliation Commission is hoping to recommend by way of reparations, it must make sure that as it deals with the question of granting amnesty to perpetrators, it must at the same pace make sure that there are reparations given and awarded to victims. So that that commission will not be seen as a perpetrator friendly commission," he says. "Because the South African TRC has been shown to become a perpetrator friendly TRC."

As for the apartheid reparations lawsuits, Mr. Ntsebeza says he's not suing for the sake of the money. He says whatever compensation he and his fellow lawyers get from their lawsuits should be placed in a humanitarian fund and used to address the social and economic problems affecting many black South Africans. But Mr. Ntsebeza says the reparations lawsuits would send a clear message to multinational corporations wanting to do business in Africa to be more concerned about corruption and human rights violations.