Neville Gabriel

05 September 2003

Our democratic government’s recent intervention opposing legal action in New York against corporations that aided and abetted the illegitimate apartheid state must be rebutted.

Although the submission to the United States court by Minister of Justice and Constitutional Development Penuell Maduna arose from a request by US Secretary of State Colin Powell, the submission went beyond stating the government’s belief that legal action was not the best way to resolve the matter. It called for the legal complaint to be dismissed. In other words, it called for the rights of its own citizens to be denied.

Human rights only really exist when there is legal protection of those rights, and legal protection is only effective when some form of redress for human-rights violations is imposed.

The claimants did the right thing by taking legal action, as European, North American, and other communities have done in the past. They resorted to this measure after four years of public calls made for the corporations to address their legitimate claims on behalf of all victims of apartheid, but the corporations either ridiculed or ignored them.

The government’s submission also argued that apartheid reparation is a sovereign concern that is best handled through South Africa’s own democratic processes. Such a proposition misses several important points about these ground-breaking cases.

In today’s world, multinational corporations are a law unto themselves; more powerful than most states. If we want to hold multinationals accountable for human rights, environmental and economic justice concerns, both tactically and in terms of legal process, they must be engaged at their power base.

In a world of globalised capital we must use the law (among other means), wherever appropriate, to reverse the rampant erosion of human-rights discourse in the global economic and political spheres and to develop a new ethic for global business. This is not the responsibility of governments alone, but of global civil society as a whole.

Still, are we really to believe that apartheid victims would be given a fair deal by the world’s biggest banks and businesses, while our government’s economic development strategy is premised on offering profit-making deals to foreign investors and our courts acquitted Magnus Malan and Wouter Basson?

In any event, the cases could not have been brought in South African courts because there is no enabling legal mechanism for such cases.

It is equally unconvincing to argue that the government’s efforts at reconstruction and development are sufficient to absolve multinational corporations from their complicity in apartheid. To do so is to expect the victims of apartheid, through their democratic government, to pay for their own suffering.

Social welfare and development programmes are part of the responsibility of any developmental state, as corporate social-responsibility initiatives are conventional practice for today’s brand-wary multinationals.

Apartheid reparations require an acknowledgement of responsibility by the corporations and accountability in the form of a reconciliatory gesture that goes beyond business as usual. It could be a reparations fund for specific reconstruction and development programmes, or the acceptance of a wealth tax, or another form of redress for apartheid’s victims.

If the government wants to be an honest broker in the reparations saga, it cannot simply defend the corporations while arguing that the claimants are being set up as a “surrogate government”.

The claimants held discussions with senior government officials about the claims before they were brought to the courts. However, the perception prevails that the government has heard the cry of the corporations for protection, but not the cry of the victims who continue to suffer from apartheid’s legacy.

Nor did the shameful parliamentary process that looked into the government’s response to the recommendations of the Truth and Reconciliation Commission provide recourse for the victims.

Despite undertakings that there would be widespread consultation with civil society, a high-ranking parliamentarian, when offered a briefing by the claimants, resolutely declared that no opportunity would be given to “far-left agendas” to address the relevant parliamentary committees. Such a stance is a far cry from the originally neutral position of the government.

The shift coincides with the response from some business leaders that they are in a compact with the government and will fight the reparations lawsuits. If the government has indeed entered into a compact with business, it should take the people into its confidence and tell us what deal has been struck.

President Thabo Mbeki’s initiative to bring together the claimants and the corporations is, therefore, a welcome reconsideration of the role that the government should play in resolving the claims.

New apartheid labour claims, to be brought by British lawyers for occupational health damages against mining corporations, indicate that the issue will not go away. For there to be any comprehensive settlement, all corporations who could be liable for similar claims must be drawn into the process.

However, settlements with historically South African and foreign corporations must be managed through different processes. Government officials have a tendency to argue against reparations claims, based primarily on their concern for developing a national consensus with historically South African corporations. This blurs the difference between the government’s engagement with some local corporations and foreign multinationals that profited from apartheid.

The government should heed the advice of the former World Bank chief economist and Nobel economics laureate, Joseph Stiglitz, that there is absolutely no reason to believe that the reparations claims will damage the country’s foreign investment prospects.

Reparation is not the responsibility of the government alone — we are all responsible. Yet, voluntary reparation contributions will not work to build a just and caring society. The reparations claimants have done the noble thing on behalf of all victims and survivors of apartheid.

That is not to say that there is no hope for building a spirit of voluntary reconciliation and healing in our society. It is rather to say that reconciliation and reparation are neither opposed to each other nor simply feel-good projects.

The choice that lies before us is not whether we opt for national reconciliation or justice in the form of decisive reparation gestures, as if we are an immature society that cannot resolve difficult problems. It is whether we can muster the strength of character and principled identity as a society to reconcile ourselves through the imperatives of restorative justice.

Neville Gabriel is the coordinator of the Justice and Peace Department of the Southern African Catholic Bishops’ Conference and a member of the national executive committee of the Moral Regeneration Movement. He writes in his personal capacity.

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