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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2 November 2009

Professor Stresses Role of Lawyers in 'Civilising Globalisation'

Author: John Bringardner, Law.com

I think for corporations, the issue of human rights has been in the forefront for some time, particularly for those with big names...For the lawyers who advise them, the matter has not been as front and central...In many ways it's ironic that the focus is on...bigger companies. Yes, they do bad as well as good, but the real problem for the corporate world, and ultimately for lawyers, will be how you deal with those who don't have reputations, that aren't big enough --often the subcontractors and the sub-subcontractors of the big firms themselves. [refers to Shell, Drummond, Cisco, Yahoo!, Google, Microsoft]

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28 September 2009

[PDF] Special event: Martyn Day & Paul Hoffman speaking on “Human rights lawsuits against companies – our experiences with victims, their families and businesspeople” (London, 3 Dec 2009)

Author: Business & Human Rights Resource Centre

Business & Human Rights Resource Centre is pleased to invite you to an event featuring leading human rights lawyers: Martyn Day (UK) & Paul Hoffman (US). Both have brought landmark lawsuits against companies. They will be speaking on the same stage for the first time, and fielding questions from the audience. Martyn and Paul will share: - highlights of past cases; - inside view of current cases; - comments on what more should be done to hold companies accountable under law; and - what they would say to companies wishing to avoid such lawsuits. [refers to lawsuits against Trafigura, Cape plc, Gencor, BP, Anglo American, Thor Chemicals, Gallaher, Imperial Tobacco, Shell, Unocal, Bridgestone-Firestone, Chevron, Occidental Petroleum, Talisman, Wal-Mart]

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3 September 2009

State supports apartheid-era victims [So. Africa]

Author: Christelle Terreblanche, Cape Times [So. Africa]

In a move hailed as a "breakthrough" by victims of apartheid violations, the government has made a U-turn on apartheid-era lawsuits and is now supporting legal action by victims of apartheid violations against multinational companies…This is in direct contrast to Thabo Mbeki's government, which appealed to the court to dismiss the litigation…After a series of appeals, the case received the go-ahead in April, but the judge narrowed to five the number of companies subject to the claims. They are Daimler-Chrysler, Ford, IBM, General Motors and Rheinmetall, all of which have said they will oppose the claims.

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3 September 2009

[PDF] Khulumani Support Group as well as lawyers for the Ntsebeza and Digwamaje plaintiff groups have welcomed the decision of the South African government not to oppose the South Africa Apartheid Litigation claims being heard in the United States...

Author: Khulumani Support Group & Lawyers for the Ntsebeza & Digwamaje Plaintiffs

In a move hailed by South Africa’s victims and survivors of apartheid-era gross human rights violations, the South African government has written to the judge presiding over the South Africa Apartheid Litigation claims…that it is now believes that the New York Court is an appropriate forum for the claims. The claims, against General Motors Corp, Ford Motor Co., IBM, Rheinmetall Group AG, and Daimler AG are based upon allegations that the corporations aided and abetted apartheid crimes…committed in violation of international law. The South African government’s new position undermines one of the corporations’ major defences – that an American court should not hear the matter because the lawsuit undermines South Africa’s sovereignty.

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Author: Koordination Südliches Afrika, Kirchliche Arbeitsstelle Südliches Afrika, medico international, Schweizer Kampagne für Entschuldung und Entschädigung KEESA

„Die südafrikanische Regierung… ist jetzt der Ansicht, dass dieses Gericht ein geeignetes Forum für die Anhörung der verbleibenden Klagen wegen Beihilfe zur Verletzung des internationalen Rechts ist,“ schreibt der südafrikanische Justizminister Jeffrey Radebe am 1. September 2009 in einem an Richterin Shira Scheindlin vom New Yorker Bezirksgericht gerichteten Schreiben…In seinem Schreiben bietet Justizminister Radebe außerdem die Unterstützung der südafrikanischen Regierung für eine außergerichtliche Einigung zwischen Klagenden und Beklagten an. Unter dem „Alien Tort Claims Act“ (ATCA) verlangen Opfer und Überlebende von schweren Menschenrechtsverletzungen, dass die transnationalen Unternehmen Daimler AG, Rheinmetall, Ford und IBM wegen Beihilfe zu diesen Verbrechen Reparationszahlungen entrichten.

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1 September 2009

[PDF] Letter to Judge Shira Scheindlin regarding In Re South African Apartheid Litigation

Author: Jeffrey Thamsanqa Radebe, South African Minister of Justice and Constitutional Development

The Government of the Republic of South Africa, having considered carefully the judgement of the United States District Court, Southern District of New York is now of the view that this Court is an appropriate forum to hear the remaining claims of aiding and abetting in violation of international law.

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27 August 2009

Arcane Law Brings Conflicts From Overseas to U.S. Courts

Author: Nathan Koppel, Wall Street Journal

The Alien Tort Statute…has been used often in recent years to sue major companies for alleged complicity in crimes overseas, including torture and murder. Defendants need only to have regular business contacts with the U.S. to be vulnerable to lawsuits. The litigation has proven controversial. Some legal experts claim that opportunistic plaintiffs' lawyers have seized on the long-dormant law to enrich themselves…But human-rights lawyers counter that victims of abuses often can't obtain justice in foreign courts, making alien tort suits their only recourse. Both sides agree on one thing: Courts increasingly are willing to consider alien-tort suits and to force companies to answer for their behavior overseas. [refers to Shell, Rio Tinto, Ford, General Motors]

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1 June 2009

Trying an Old Law [USA]

Author: Mark C. Medish, visiting scholar at the Carnegie Endowment for International Peace, and Daniel R. Lucich, trade policy expert - Op-Ed in New York Times

The vagueness of the Alien Tort Statute also does a poor job of protecting victims of human rights abuses because the lack of substantive standards makes it difficult to win in court and does little to encourage responsible business standards in a global economy...The final goal for corporate liability reform should be a multilateral convention that provides clear guidelines for business along with consistent legal standards and enforcement mechanisms in each signing country. [refers to Shell]

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26 May 2009

The U.S. Can't Be the World's Court - New York isn't the right venue to sue for apartheid abuses.

Author: [opinion] John R. Bellinger III, partner at Arnold & Porter law firm; former Legal Adviser, US State Department, in Wall Street Journal

A federal judge in New York recently allowed a lawsuit to proceed against General Motors, Ford and IBM for aiding and abetting crimes against humanity committed by the apartheid government in South Africa. And a lawsuit against Royal Dutch Shell for alleged human-rights abuses in Nigeria is scheduled to begin today in Manhattan. We may be on the verge of a new wave of legal actions against U.S. and foreign corporations in American courts... these lawsuits, which are being brought under the 200-year-old Alien Tort Statute, are likely to cause friction between foreign governments and the Obama administration. Congress should step in and clarify the types of human-rights cases that may be heard... Litigation under the Alien Tort Statute may force companies to modify their international activities in some cases, although it rarely produces monetary awards for plaintiffs. But it does give rise to diplomatic friction in U.S. relations with foreign governments... Human-rights and labor groups are likely to press the Obama administration to support litigation under the Alien Tort Statute and even to reverse the Bush administration's opposition to the apartheid case. [also refers to lawsuits against Caterpillar, Dow Chemical, Yahoo, ExxonMobil, Unocal (now part of Chevron), Talisman Energy, Rio Tinto]

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25 May 2009

Old law exhumed by fighters for human rights [USA]

Author: Michael Peel, Financial Times

...On Tuesday, a court in New York will start hearing a lawsuit alleging Shell was complicit in Ken Saro-Wiwa’s death and a campaign of terror by Nigerian security forces. The claim – which the company says is false and is defending – is one of a series of similar cases launched against big businesses from round the world...The potential of these lawsuits to generate huge damages and disastrous publicity now hovers, according to one lawyer whose firm defends big companies, “very close to the consciousness of corporate America acting overseas”…These US actions are part of a wider international move to hold companies to account in rich countries over allegedly harmful activities in the poor world. In the absence of a bespoke world civil court to deal with such claims, lawyers are coming up with innovative ways of using existing national laws and procedures…The steadily widening stream of international litigation has opened up largely because of the US Alien Tort Claims Act of 1789…While some corporate lawyers argue the act is being used in cases for which it was never originally intended, the statute’s supporters say it is probably being applied in the same spirit now as it was when it was created. [also refers to Chevron, Trafigura, Unocal, Yahoo!]

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