South African Press Association (Johannesburg)
29 July 2003
Pretoria — The South African government has officially asked a US court to dismiss apartheid reparations litigation before it.
In a strongly-worded letter from Minister Penuell Maduna to United States District Judge John E Sprizzo, the South African minister asked Sprizzo, a federal judge, to dismiss two apartheid reparations lawsuits.
The letter and an accompanying nine-page declaration, both dated July 11, urges Sprizzo to abstain from adjudicating in the In Re South African Apartheid Litigation and In Re Khulumani & others cases.
"I understand that under United States law, courts may abstain from adjudicating cases in deference to the sovereign rights of foreign countries to legislate, adjudicate and otherwise resolve domestic issues without outside interference, particularly where the relevant government has expressed opposition to the actions proceeding in the United States and where adjudication would interfere with the foreign sovereign's efforts to address in which it has the predominant interest. The government (of South Africa) submits that its interest in addressing its apartheid past presents just such a situation."
The declaration repeats government's opposition to the two class-action court cases. It also repeats the government's assertions that the lawsuits, brought against a number of corporations that did business in South Africa before 1994 under an arcane US law, would hurt the economy and the very people it was meant to help by increasing unemployment and crime.
"If this litigation proceeds, far from promoting economic growth and employment, and thus advantaging the previously disadvantaged, the litigation, by deterring foreign direct investment, and undermining economic stability will do exactly the opposite of what it ostensibly sets out to do."
Maduna explained to the US judge that the government had deliberately avoided a "victors' justice" approach to the crimes of apartheid and chose instead "one based on confession and absolution, informed by the principles of reconciliation, reconstruction, reparation and goodwill."
He added that the litigation appeared to suggest that the South African government had done "little or nothing about redressing the ravages of the apartheid system."
It likewise failed to appreciate the mandate under which South Africa's first democratic government was elected and how it has gone about executing this mandate since 1994, Maduna said.
The Justice Minister further explained that the Cabinet decision not to support the litigation was not taken lightly.
"The Cabinet only took this decision after an extensive discussion both at Cabinet committee level and in the full Cabinet in which I participated fully," he said.
"The principal reason for the Cabinet's decision was that as the Mandela government in 1994 and the Mbeki government in 1999 were both elected by an overwhelming majority of the population, on a programme of thorough socio-economic transformation aimed at redressing the legacy of apartheid, it would make little sense for the government to support litigation, which not only sought to impose liability and damages on corporate South Africa but which, in effect, sought to set up the claimants as a surrogate government."
Maduna told the American judge that government's policy was to "promote reconciliation with and business investment by all firms," South African and foreign, "and we regard these lawsuits as inconsistent with that goal."
Government's 1996 Growth, Employment and Redistribution strategy further acknowledged the importance of the private sector that faster economic growth offered the only way out of poverty, inequality, and unemployment.
"The remedies demanded in the current litigation in the United States -- both the specific requests (such as for the creation of a historical commission and the institution of affirmative action programmes) and the demand for billions of dollars in damages to be distributed by the US courts -- are inconsistent with South Africa's approach to achieving its long term goals," Maduna argued.
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