MPI ATTORNEYS Litigation News 1

Shot in the arm for apartheid lawsuits


Ford and IBM will again have to face a US lawsuit claiming they encouraged race-based human rights abuses in apartheid-era SA, despite a series of recent court decisions limiting the right to pursue such cases, notes a report on the site. Reviving a 12-year-old lawsuit, US District Judge Shira Scheindlin in Manhattan accepted an argument that corporations may be held liable under a 1789 law, the Alien Tort Statute (ATS), that lets non-US citizens pursue some cases in US courts over alleged violations of international law. ‘No principle of domestic or international law supports the conclusion that the norms enforceable through the ATS … apply only to natural persons and not to corporations,’ Scheindlin wrote. The plaintiffs, all victims of apartheid abuse, contended that by having made military vehicles and computers for SA security forces, several companies during the 1970s, 1980s and early 1990s had aided and abetted SA’s former apartheid government in perpetrating abuses, such as killings and torture. The litigation seeks class action status, with potential damages in the billions of dollars. Last April, the US Supreme Court limited the sweep of the Alien Tort Statute, in Kiobel et al v Royal Dutch Petroleum Co et al. It held that the 1789 law was presumed to cover only violations of international law occurring in the US, and that violations elsewhere must ‘touch and concern’ US territory ‘with sufficient force to displace the presumption.’ Four months later, Circuit Judge Jose Cabranes wrote for the 2nd Circuit that these findings meant the case against Ford and IBM should be dismissed, having ‘plainly bar common-law suits, like this one, alleging violations of customary international law based solely on conduct occurring abroad’.

‘The apartheid lawsuit case is not going away, not yet,’

was Advocate Dumisa Ntsebeza’s response to the ruling, according to a BDlive report. It says the crucial judgment, which would have marked the end of the road for the 2002 lawsuit had the court ruled differently, means that Ntsebeza’s team would have to file new papers showing that Ford and IBM acted, ‘not only with knowledge but with the purpose to aid and abet the South African regime’s tortious conduct’.

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