South Africa: "Apartheid Victims" [Left-wing racists...] Lose 14-Year Legal Battle Against Ford and IBM


By Rejul Bejoy
US Supreme Court upholds 2014 ruling to dismiss claims against both 

In a new setback in the 14-year-old battle to hold multi-national 
corporations responsible for human rights violations under apartheid, the 
United States Supreme Court declined this week to hear the case.

The case was brought by several South Africans, including Lungisile 
Ntsebeza, whose brother Dumisa Ntsebeza is one of the lawyers in the case. 
Several of them were former employees of Ford who were arrested and 
tortured after Ford released information about protests to the apartheid 

The denial by the Supreme Court of the right to appeal on Monday 20 June 
means that an earlier ruling by the lower US District Court stands - that 
IBM and Ford could not be held liable, in US courts, for actions by its 
subsidiaries based in South Africa in favour of the apartheid regime.

The South Africans sued the corporations under the Alien Tort Statute 
(ATS), which allows non-citizens to pursue civil claims in US district 
courts for violations of international law or US treaties. Initially, 23 
companies had been sued for having relations with the apartheid regime.

Since 1980, US courts have interpreted the Statute to allow foreign 
citizens to sue for human-rights violations that may have occurred outside 
of the United States. However, the Supreme Court has never specified if 
corporations can be held liable for their actions under this law.

Additionally, it is still unclear if entities can be held liable for 
actions that did not occur in the United States. In the absence of a final 
decision on that question, lower courts have required varying degrees of 
the planning of human rights violations to have actually occurred in the 
United States.

As a result, by 2013, claims had been dismissed against all corporations, 
except for Ford and IBM, due to an inability to prove that the 
corporations had planned their human rights violations within the United 

Before it came to the Supreme Court, the Ntsebeza case was combined with a 
similar case brought by Sakwe Bantiulo, against Ford and IBM, assigned to 
a US district court in Manhattan. (Bantiulo was supported by the Khulumani 
Support Network, a South African organisation representing about 100,000 
victims of apartheid-related human rights violations.)

Ntsebeza's and Balintulo's legal teams worked together as one set of 
plaintiffs through the district and appeals courts. However, the petition 
to the Supreme Court was only concerning Ntsebeza's case. (Ntsebeza's 
legal team was helped by Harvard's Human Rights Law Clinic.)

Support for the claimants

Support for both plaintiffs came from a variety of organisations, 
including former Truth and Reconciliation commissioners, various human 
rights NGOs, COSATU, and the South African Council of Churches. Former US 
Ambassador David Scheffer submitted a brief to the Supreme Court 
supporting the plaintiffs.

The government of South Africa was initially opposed to the lawsuit, 
claiming that it would damage foreign investor perceptions of the country. 
However, in 2009, the government officially reversed its position. In a 
letter to the United States Supreme Court, Minister of Justice Jeffrey 
Radebe stated that his government was of the view that the "[Supreme] 
Court is the appropriate forum to hear the remaining claims of aiding and 
abetting in violation of international law."

Ford and IBM during apartheid

In their arguments to the Second Circuit Court, Ntsebeza and the others 
argued that Ford and IBM should be held accountable as they were "U.S. 
corporations that, through their conduct in the United States, provided 
direct support to the South African government during apartheid and/or 
were purposefully complicit in the human rights violations committed by 
the apartheid government and security forces... [and] produced the very 
products that enabled the apartheid government to run and maintain the 
apartheid system and to oppress, control, suppress, intimidate, 
denationalize, and otherwise violate the rights of black South Africans."

They claim that Ford's US board made key decisions to manufacture 
specialised vehicles for apartheid security forces in violation of US 
sanctions and retaliated against employees who took part in anti-apartheid 

IBM, they say, provided database and information storage services that 
allowed the apartheid government to implement the race-based 
classification system.

Several of the South Africans in the court case were former employees of 
Ford who had been arrested and tortured after Ford released information 
about protest activities to the apartheid government. They believe that 
Ford and IBM's US supervision of South African subsidiaries was a strong 
enough connection to allow the companies to be prosecuted under the Alien 
Tort Statute.

In their submitted briefs, Ford and IBM did not deny that their South 
African subsidiaries had helped the apartheid government. But they argued 
that they could not be held liable in the United States, as general 
supervision of their South African subsidiaries was not a strong enough 
connection to establish that the US headquarters had planned and supported 
the human rights violations.

Additionally, they contended that the Statute did not allow for corporate 
liability, especially when the corporation that had committed the 
violations were based in another country (as their subsidiaries 
technically were).

Claims dismissed

In August 2014, US District Judge Shira A. Scheindlin dismissed the claims 
on grounds that the Statute did not allow for corporations to be held 
liable, when all relevant violations of international law had taken place 
outside of the United States. In her opinion she stated, "that these 
plaintiffs are left without relief in an American court is regrettable" 
but said she was bound to follow previous cases, "no matter what my 
personal view of the law may be."

In February 2016, Ntsebeza's legal team wrote a petition to the Supreme 
Court, appealing against the dismissal of their case. They highlighted 
inconsistent standards among lower courts on what actually constitutes 
"aiding and abetting in human rights violations" and they asked the 
Supreme Court to answer the fundamental question of whether corporations 
can be held liable under the Statute.

The denial of appeal means the Supreme Court did not see this as a strong 
enough court case or did not want to answer either of those questions. As 
it is the highest court in the United States, Ford and IBM are officially 
free from the civil action by Ntsebeza.

But the corporations are still not quite off the hook. In a press 
statement last year, Khulumani indicated that it would be submitting an 
appeal to the US District Court against the dismissal of the Bantiulo case 
against Ford and IBM on the basis of new evidence from the South African 
Department of Justice archives.

If that does not work, then Khulumani still has the option of appealing in 
the Second Court of Appeals or Supreme Court.

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6/25/2016 12:03:53 AM
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