Mbeki's dilemma (NY courtroom view)

Patrick Bond pbond at sn.apc.org
Tue Aug 12 13:58:06 MDT 2003


Sorry, just back from a week's travels.

----- Original Message -----
From: "Charles Brown" <cbrown at michiganlegal.org>
> What's up on Mbeki's critique of neo-liberalism
> here ? His expressions in this article don't seem likely to be entirely
> hypocritical, rather, it would seem that the ANC calculated that it had no
> choice but to cooperate with imperialism, for some reason.
> Perhaps Patrick Bond and others have comments.

Yes, that's a fair way to describe it. But what is 'choice'? Was he pushed
or did he jump? (My *Against Global Apartheid* concludes, 'both!', and I've
nearly finished a sequel, *Sustaining Global Apartheid*, which gives more of
the gory post-9/11 details.)

But a better way to capture the problem is 'talk left, act right'. You have
to remember that moments after Mbeki put this article to bed (also printed
in the Guardian on July 9), he was instructing his justice minister to file
a complaint in NY about the Jubilee SA lawsuit for reparations. Sad to say,
but my comrades here were wiping sweat from brow on Sunday, when the piece
below appeared...

***

Sunday Independent

TOP INTERNATIONAL ECONOMIST STIGLITZ TAKES SA GOVERNMENT TO TASK

CHRISTELLE TERREBLANCHE
Political Correspondent

Cape Town, Aug 9 - The debate over apartheid reparations took an unexpected
turn this week with Nobel laureate and former World Bank vice-president
Joseph E. Stiglitz coming out firmly in support of the victims' lawsuits.
Stiglitz, also a former chief economist of the World Bank, wrote to the New
York court in an apparent move to counter efforts by the South African
government and multi-national corporations to squash the lawsuits.
He said the lawsuits would aid economic growth in South Africa.
His 2-page letter on Wednesday follows that of justice minister Penuell
Maduna to the court last month, in which he argued that  "permitting the
litigation" would discourage "much-needed foreign investment and delay the
achievement of the government's goals".
"Indeed, the litigation could have a destabilising effect on the South
African economy as investment is not only a driver of growth, but also of
unemployment", Maduna said.
American born Stiglitz, who piloted a new form of economics based on market
information, took a diametrically opposite view, and said the South African
government's concern has "no basis".
"Apartheid is a matter of the past, though its consequences lives on",
Stiglitz wrote.
"Those who helped support that system, and who contributed to human rights
abuses, should be held accountable.
"Holding them accountable would contribute to confidence in the market
system, creating a more favourable business climate. If anything, it would
thereby contribute to South Africa's growth and development."
Stiglitz specifically wrote in defence of the Khulumani Support Group and
Jubilee South Africa's litigation against 23 companies "for knowingly
aiding and abetting the commission of crimes against humanity" on behalf of
82 victims of apartheid. He does not mention two other groups of litigants
who first brought two class action suit in the United States courts, which
allows for this type of litigation.
Earlier in the week Khulumani responded to Maduna's affidavit to the court,
which judge John E. Sprizzo, said was something he "can't ignore".
Khulumani attempted to distinguish its cases from that of the class suits
brought by controversial lawyer, Ed Fagan and the Digwamanje group, which
Maduna accused of attempting to set up a "surrogate government".
In addition, Khulumani reiterated the basis of the legitimacy of the cases
on the strength of the findings of the Truth and Reconciliation Commission
(TRC), which in its final report to President Thabo Mbeki, trashed big
business' role in sustaining apartheid, particularly its failure to take
responsibility for its actions.
Stiglitz told the judge: "South Africa has expressed concern that recent
suits in America, intended to address issues of abuses of basic individual
rights during the apartheid regime in South Africa, risk having an adverse
effect on growth and development in South Africa. I see no basis for those
concerns."
In a recent interview with the Sunday Independent, Maduna disclosed that
the big corporations have pledged to make community reparations in return
for state support to squash the claims.
"Business has been talking to us with their lawyers", Maduna said. "They
said they are willing to work with us in order to convince American courts
that as South Africans we can find workable and less destructive solutions."
He revealed that both foreign and local companies have warned the
government that the lawsuits could result in massive job losses.
Stiglitz on the other hand, argued that "such arguments implied that no
firm would ever be held accountable for past behaviour".
"So too in the cases at hand", he said.
According the Stiglitz, those firms which contemplate investment in South
Africa "today" are concerned with "what is sometimes called the overall
business climate".
"Among the factors that determine the business climate are governmental
attitudes to business and broader social and political stability", he wrote.
Stiglitz said South Africa has amply demonstrated a favourable climate for
business.
But he stresses that while rules and regulations imposed on business to
make it accountable should not be "anti-business", it was an important tool
to ensure "social and political stability".
"... this in turn makes a positive contribution to creating a favourable
business climate", Stiglitz said.
"If, in fact, American businesses did aid and abet the system of
apartheid......then it is important that this form of misconduct be
addressed; and knowing that such abuses can be effectively addressed,
contributes to overall confidence within society towards business. It helps
to create a more positive business climate.
"No one would argue that (for instance) one should not impose fines or
penalties for past pollution (by corporations) because doing so would
discourage future investment."
Award-winning Stiglitz also served as economic advisor the Clinton
administration. His work has helped explain the circumstances in which
markets do not work well, and how selective government intervention can
improve their performance.

***

Sunday Independent

GLOVES COME OFF IN FIGHT OVER APARTHEID REPARATIONS
CHRISTELLE TERREBLANCHE
Political Bureau

Cape Town, July 25 - The government has finally thrown down the gauntlet to
4 sets of reparations claims brought by apartheid victim's in the United
States by asking for the lawsuits to be dismissed.
In a 9-page affidavit to a US court, Justice minister Penuell Maduna
accused the victims' representatives of seeking to set up a "surrogate
government" and attempting to undermine South Africa's sovereignty and
economic growth.
The sworn statement also provides an unmistakable document of the
government's continued commitment to "market-friendly" policies and Gear.
And in the British House of Commons, the minister for trade and investment,
Mike O'Brien, echoed Maduna's arguments against the claims in a statement
to members, saying the British government opposed all "unwarranted
assertions of extra-territorial jurisdiction in commercial assets".
Victims have vowed to fight back, but it is understood that other South
African ministers will make submissions to the southern district of New
York court, where the cases against a range of foreign banks and companies
are pending.
The claimants allege that the corporations have propped up the apartheid
state through busting United Nations sanctions and should pay up.
Maduna however argued that "permitting the litigation" would discourage
"much-needed foreign investment and delay the achievement of the
government's goals".
"Indeed, the litigation could have a destabilising effect on the South
African economy as investment is not only a driver of growth, but also of
unemployment", Maduna said.
In an interview with the Sunday Independent last month, Maduna disclosed
that the big corporations have pledged to make community reparations in
return for state support to squash the claims.
"Business has been talking to us with their lawyers", Maduna said. "They
said they are willing to work with us in order to convince American courts
that as South Africans we can find workable and less destructive solutions."
He revealed that both foreign and local companies have warned the
government that the lawsuits could result in massive job losses.
In his sworn statement, Maduna said that "corporate South Africa is already
making a meaningful contribution to the broad national goal of
rehabilitating the lives of those affected by apartheid".
"The litigation appears to suggest that the government... has done little
or nothing about redressing the ravages of the apartheid system, which ...
continue to live with us and will, unfortunately, continue to endure for
many years to come", Maduna said.
"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."
The minister asked the court to "abstain from adjudicating" the claims "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".
Lawyers for the victims have reacted with outrage, saying that Maduna's
submission was made in violation of court rules.
"Maduna's affidavit is unsolicited and addressed to the court directly.....
as if it was an attempt to interfere with the judicial process", said
Charles Abrahams, lawyer for the Khulumani victims support group's claims.
"Normally the court will seek the views of the US state department in order
to see whether it is in the interest of the US to have this kind of case
conducted in a US court and the state department would then solicit the
views of the South African government and go back to the court.
"But in this case Maduna went entirely out of his own and this to my mind
is a clear attempt at influencing a legitimate process which borders on an
executive interference."
Dumisa Ntsebeza, advocate for the Fagan case on behalf of the Apartheid
Claims Taskforce (ACT), which filed the first of the 4 claims in June last
year, said he was "quite disappointed".
"I have written to the minister on July 4 after his comments to the Sunday
Independent, but he has not replied.  I will reserve my views until such
time as I have had a reply", Ntsebeza said.
Maduna strongly denounced the two claims filed against South African mining
firms, Anglo American and De Beers, by controversial lawyer, Ed Fagan on
behalf of ACT.
Medi Mokuena, one of a group of black lawyers from Connecticut who filed
claims in tandem with ACT accused Maduna and the government of contempt for
victims and warned that if the lawsuits are derailed, "victims and their
supporters will justifiably drag into courts even the present members of
the government for their own violations of human rights".
In London, O'Brien said that the claims "interfere with the sovereign right
of states to regulate activities in their own territory" and "can create a
climate of uncertainty which may affect the trading and investment
conditions of British companies".
"We believe that, in the first instance, legal remedies in the country
where the act allegedly took place should be exhausted", O'Brien said. "In
the apartheid cases this does not appear to have happened. Moreover, South
Africa is engaged in an ongoing post-apartheid reconciliation process, the
complexities of which should not be under-estimated. We believe that the
South African government is best placed and best capable of dealing with
the issue of reparations for crimes under apartheid."
(suggested trim)
In similar vein, Maduna told the court: "Another country's courts should
not determine how ongoing political processes in South Africa should be
resolved... In addition, the continuation of these proceedings, which
inevitably will include massive demands for documents and testimony from
South Africans involved in various sides of the negotiated peace that ended
apartheid, will intrude upon and disrupt our own efforts to achieve
reconciliation and reconstruction."
The attempts to squash the claims coincided with efforts by civil society
to broaden the cases. After a workshop on reparations last weekend, led by
Jubilee SA, a statement pledged their intention to hold a "People's
Tribunal that will determine the people, institutions and businesses that
must make reparations and the forms that these should take".
"In addition, we will identify specific companies and products that
symbolise the role these corporations played in facilitating the
development of apartheid, which will be targeted in a consumer boycott",
the statement by about 25 organisations, including Sangoco, the
Anti-Privatisation Forum and the Freedom of Expression Institute, said.
President Thabo Mbeki first denounced the lawsuits when he informed
parliament on his views of the Truth Commission's final report, and
stressed that the "South African government is not and will not be party to
such litigation".
He asked business for voluntary compensation.


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