Apartheid reparations lawsuits (re So. Africa)

Black man drinking next to sign |"coloured"Für die deutsche Beschreibung des Falles, klicken Sie hier.

In 2002 a group of South Africans, represented by the Khulumani Support Group, sued 20 banks and corporations in US federal court that did business in South Africa during apartheid.  The plaintiffs allege that the participation of the defendant companies in key industries during the apartheid era was influential in encouraging and furthering abuses against black Africans during that time.  The plaintiffs are victims of human rights abuses such as extrajudicial killings, torture and rape, and they allege that the defendants’ activities in South Africa during the apartheid era made them complicit in the commission of those abuses. 

The South African Government was opposed to this lawsuit, and it filed documentation with both the district court and appeals court publicly stating its position regarding the case.  A federal district court judge granted the defendants’ motion to dismiss in November 2004.  The plaintiffs appealed this dismissal in August of 2005.  In October of 2007, the appeals court reversed the lower court's dismissal of this case and remanded the case back to the lower court for further proceedings.  On 10 January 2008, the defendant companies petitioned the US Supreme Court for certiorari, asking the court to hear their appeal of the October 2007 decision of the US Court of Appeals for the Second Circuit.  In May 2008, the US Supreme Court declared that it could not intervene in this case because four of the nine justices had to recuse themselves for apparent conflicts.  Lacking the required quorum, the Supreme Court had no option but to uphold the decision of the Second Circuit Court of Appeals allowing the lawsuit to proceed.  On 8 April 2009, the federal district court issued a ruling in this case.  The judge's ruling narrowed the claims in the case but allowed the case to continue against Daimler, Ford, General Motors, IBM and Rheinmetall Group.  In September 2009, the South African Government announced its support of the lawsuit, withdrawing its previous opposition to the case. 

The South African Justice Minister sent a letter to the District Court judge informing her that the government believes the court to be the appropriate forum to decide this case.  In August 2013 the US Court of Appeals for the Second Circuit returned the case to the lower court and recommended dismissing the case, citing the US Supreme Court's limitation on extraterritorial application of the Alien Tort Claims Act in Kiobel v. Shell.  On 26 December 2013 the lower court issued an order dismissing Daimler and Rheinmetall from the case, but the court declined to dismiss the claims against IBM and Ford. In April 2014, the lower court ruled the plaintiffs could amend their complaints against Ford and IBM to provide evidence that the companies' activities "touch and concern" the territory of the United States. The judge said that in order to overcome the presumption against extraterritoriality set forth in Kiobel, the plaintiffs must show corporate presence plus additional factors. On 29 August 2014, the lower court judge dismissed the case finding that the plaintiffs had not shown a sufficient connection with the United States to warrant the case being heard in US court.  On 27 July 2015, the court of appeals upheld the lower court's dismissal of the case. On 20 June, the US Supreme Court rejected the plaintiffs’ appeal, of a lower court decision holding that the plaintiffs had failed to show a sufficiently close connection between IBM and Ford’s actions in the US and human rights abuses by the apartheid government.

On 27 February 2012, the plaintiffs reached a settlement with General Motors.

- "U.S. top court declines to revive apartheid claims against IBM, Ford", Lawrence Hurley, Reuters, 20 Jun 2016
- "Ford, IBM defeat appeal over apartheid abuses - U.S. court", Jonathan Stempel, Reuters, 27 Jul 2015
- "Apartheid corporate lawsuit dismissed", Reuters, 29 Aug 2014
- "U.S. judge dismisses apartheid claims against 2 German companies", Nate Raymond, Reuters, 27 Dec 2013
- "High Court Decision Cited in Rejection of Apartheid Liability", Brendan Pierson, New York Law Journal, 22 Aug 2013 
- "US General Motors settles apartheid reparations claim", Adrian Ephraim, Mail & Guardian, 29 Feb 2012
- "State supports apartheid-era victims", Christelle Terreblanche, Cape Times [So. Africa], 3 Sep 2009
- "Judge Narrows Claims in Apartheid Torts Case Against Multinational Companies", Mark Hamblett, New York Law Journal, 9 Apr 2009
- "Court won't block U.S. lawsuit by apartheid victims", Mark Sherman, Associated Press, 12 May 2008
- “US court allows apartheid claims to go forward”, Paritosh Bansal, Reuters, 12 Oct 2007
- “Apartheid Victims Sue Global Corporations”, Alison Raphael, OneWorld US, 13 Nov 2002

- South African Minister of Justice and Constitutional Development Jeffrey Radebe: [PDF] Letter to Judge Shira Scheindlin regarding In Re South African Apartheid Litigation, 1 Sep 2009
- South African Minister of Justice and Constitutional Development Dr. P M Maduna: [PDF] Declaration of Minister Maduna to US District Court Judge Spizzo, 11 Jul 2003

- South African Minister of Foreign Affairs Nkosazana Dlamini Zuma: [PDF] Letter to US Secretary of State Colin Powell Re Apartheid Litigation, 16 May 2002


- Schonbrun DeSimone Seplow Harris & Hoffman LLP (plaintiffs’ co-counsel): case summary (includes links to legal briefs filed in this case)
- Hausfeld LLP (plaintiffs' co-counsel):  Khulumani v. Barclays National Bank Ltd. - Info Center
- Khulumani Support Group (plaintiffs): Khulumani Lawsuit in New York
- Khulumani Support Group: US Circuit Court dismisses apartheid litigation, 22 Aug 2013

- [PDF] Balintulo v. Ford, IBM, US Court of Appeals for the Second Circuit, 27 Jul 2015 [order affirmng lower court's dismissal]
- [PDF] In re South African Apartheid Litigation, US District Court for the Southern District of New York, 29 Aug 2014 [order dismissing the lawsuit]
- [PDF] In re South African Apartheid Litigation, US District Court for the Southern District of New York, 26 Dec 2013 [order dismissing Daimler & Rheinmetall from case]
- [PDF] Balintulo v. Daimler AG, US Court of Appeals for the Second Circuit, 21 Aug 2013
- [PDF] American Isuzu Motors, Inc., et al. v. Lungisile Ntsebeza, et al. - Brief for the United States as Amicus Curiae in Support of Petitioners, 11 Feb 2008 [brief of in support of dismissal of lawsuit]
- [PDF] American Isuzu Motors Inc. et al. v. Ntsebeza et al. - Petition for a Writ of Certiorari, 10 Jan 2008 [petition filed by the defendant companies at US Supreme Court]
- US District Court for the Southern District of New York: [PDF] In re South African Apartheid Litigation, 8 Apr 2009
- US Court of Appeals for the Second Circuit: [PDF] Khulumani v. Barclay National Bank, Ltd., 12 Oct 2007


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19 April 2010

[PDF] Universal Periodic Review – United States of America Submission to the Office of the High Commissioner for Human Rights

Author: EarthRights International

EarthRights International (ERI) makes this submission for the Universal Periodic Review of the United States of America, focusing on the United States’ participation in U.S. civil lawsuits raising international human rights claims over the past four years. Founded in 1995, ERI is a nonprofit, nongovernmental organization dedicated to the protection of human rights and the environment...Our legal program focuses primarily on cases against corporations who are responsible for human rights abuses, frequently litigated in U.S. courts under the Alien Tort Statute (ATS)…ERI has served as counsel in five ATS lawsuits against multinational corporations, and has submitted amicus curiae briefs in at least a dozen similar cases.

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9 February 2010

Apartheid Case Tests Reach of US Courts

Author: Nico Colombant, Voice of America (VOA)

…Last month, a federal district court judge in New York allowed several claims by the South African Khulumani victims support group against international corporations to go forward…American Michael Hausfeld, the lead counsel for the Khulumani group… [said] "It represents the first time post World War II where corporate accountability is clearly under scrutiny for not merely moral lapses but for legal obligations,"…Lawyer Paul Stephan, who filed a brief in the case on behalf of the U.S. National Foreign Trade Council…feels some American courts are going too far…A former U.S. ambassador to South Africa, Princeton Lyman,…said the apartheid lawsuit interferes with the Truth and Reconciliation Commission… [refers to Ford, General Motors, and IBM]

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13 January 2010

Angry appeals show true colours of business [So. Africa]

Author: Jaco Barnard-Naudé, in Business Day [So. Africa]

The apartheid reparation cases in the US courts continue this week amid news that similar cases are now being prepared in Europe...It is an understatement to say that big business, abroad and in SA, has generally spoken out against these claims...Daimler- Chrysler has gone so far as to say that it will terminate most — if not all — of its operations in SA should the claim against it proceed...Business’s dismay with the reparation cases is, of course, hardly surprising...[T]he idea of reparation is repulsive because it would signify an admission of responsibility for apartheid era atrocities; it would signify that somehow the maximisation of shareholder profit during apartheid was undue. [refers to Daimler-Chrysler]

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Author: Jean-Louis Pourtet, RFI (Radio France Internationale)

Les multinationales Daimler, IBM, Ford, General Motors et RheinMetall ont-elles été complices du régime d'apartheid en Afrique du Sud ? Un tribunal de New York doit statuer ce mardi 12 janvier 2010 en appel, sur une plainte de Khulumani, une organisation de défense des droits de l'Homme... Dans un jugement de 144 pages, elle avait estimé que les multinationales avaient contribué à la répression, car leurs véhicules et leurs ordinateurs avaient été utilisés par le gouvernement blanc contre les Africains. Ou bien la cour donnera-t-elle raison aux entreprises qui rejettent la plainte au motif qu’une multinationale ne peut-être tenue pour responsable, car une condamnation morale ne peut-être imposée qu’à des êtres humain ?

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11 January 2010

US court considers appeal against apartheid lawsuit

Author: AFP

A US court on Monday heard an appeal by major corporations attempting to stop a lawsuit over their role in South Africa's apartheid-era regime. The US Court of Appeals for the Second Circuit in New York will now rule whether the appeal can go forward or whether the class-action lawsuit against the corporations, which include Daimler, Ford and IBM, should go to jury trial.

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1 January 2010

[PDF] Human Rights Due Diligence: Is It Too Risky? [scroll to p. 6]

Author: John F. Sherman, III, Harvard Kennedy School; Amy K. Lehr, Foley Hoag law firm, in CSR Journal, ABA Section of Intl. Law (American Bar Assn.)

Due diligence can and should now be used to assess and reduce a business risk that was only explicitly recognized
as a risk quite recently--corporate involvement in human rights abuse... Under this framework [of UN Special Representative John Ruggie], the business responsibility to respect human rights requires companies to conduct human rights due diligence... Conducting due diligence provides corporate boards with strong protection against mismanagement claims by shareholders, usually in the form of derivative lawsuits. [article addresses concerns that due diligence might increase risks from Alien Tort Statute claims, negligence claims, misrepresentation claims, confidentiality obligations; argument that conducting due diligence should result in immunity. Refers to apartheid reparations lawsuits, Chevron lawsuit re Nigeria, Unocal lawsuit re Burma, ExxonMobil lawsuit re Aceh, Nike v Kasky, UK OECD Guidelines cases involving Afrimex, Vedanta]

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18 December 2009

[PDF] Balintulo et al. v. Daimler AG et al. - Statement by German Government

Author: Klaus Botzet - Legal Adviser & Consul General, Embassy of the Federal Republic of Germany, Washington, DC

Please find enclosed a statement of the German Government in response to the questions raised by the court in the Balintulo et. al. v. Daimler AG et. al. litigation, which has been filed with the United States Court of Appeals for the Second Circuit.

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3 December 2009

Date set for 'apartheid' class action

Author: Asa Sokopo, Daily Dispatch Online [So. Africa]

THOUSANDS in the Eastern Cape have come forward as complainants in a multi-billion dollar class action lawsuit against some of South Africa’s top international firms. The firms, which include Mercedes- Benz (Daimler), IBM, General Motors and Ford, will be taken to task for their alleged role in aiding the apartheid regime…The case will be heard before a United States court on January 6. The US government called on Tuesday for the dismissal of an appeal by the firms…The South African Council of Churches had also shown their support through general secretary Eddie Makue .

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30 November 2009

[PDF] Balintulo, et al. v. Daimler AG, et al. - Brief for the United States as Amicus Curiae Supporting Appellees

Author: Lewis S. Yelin, US Attorney

[Full text of amicus curiae brief filed by US Government in support of the Plantiffs/Appellees in this case, urging court to dismiss the Defendants'/Appellants' appeal for lack of jurisdiction.]

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18 November 2009

[PDF] Complicity with Apartheid

Author: Human Rights Lawyers Association

Apartheid was one of the vilest State-sponsored crimes of the last century. The regime that promulgated apartheid was able to stay in power for over 40 years because it infiltrated every aspect of daily life…To what extent can, or should, corporations be held responsible for crimes being perpetrated around them? Can they be considered as being complicit?...A number of US based corporations that worked in South Africa during apartheid are now being sued for reparations under a US Federal law. By focussing on this litigation, this seminar will explore the extent of corporate accountability for human rights violations.

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