Jury’s out

What is the likely impact of the Zuma administration’s decision to reverse its predecessor’s s stance on the apartheid reparations claims that have been crawling through the US courts for the past six years? Could it speed a resolution? Or will it rekindle the otherwise fading embers of worry about South Africa’s investor friendliness post-Polokwane? The jury is out.

President Thabo Mbeki was unequivocal.  Speaking at the tabling of the Truth and Reconciliation Commission’s final report in 2003, he said it was “completely unacceptable that matters that are central to the future of our country should be adjudicated in foreign courts which bear no responsibility for the well-being of our country…”

In a letter delivered on September 1 to Judge Shira Scheindlin, before whom the claims are now being heard in the Southern District of New York, Jeff Radebe, Minister of Justice and Constitutional Development, said that the South African government now felt that  Scheindlin’s court – hers specifically —  was “an appropriate forum” for the case as she had framed it. Continue reading “Jury’s out”

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Back Into the Heart of Apartheid Darkness

Judge Shira Scheindlin of the Federal District Court for the Southern District of New York has spared President-soon-to-be-elect Jacob Zuma some trouble. She will not be seeking his opinion on the six-year-old lawsuits now before her which rely on the only-in-America Alien Tort Claims Act to extract reparations for apartheid from such household names as Daimler, IBM and General Motors.

Denying in part and granting in part the defendants’ motion to dismiss, Scheindlin on April 8 rejected the plaintiffs’ request that the South African and US governments be asked to resubmit their views.  The Mbeki administration had been hostile to the idea of US courts usurping the right of South Africa’s democracy to deal with the past on its own terms. The Bush administration urged deference to that position.

The plaintiffs – two sets, one named after the Khulumani Support Group, the other after advocate Dumisa Ntsebeza – were hoping the Zuma and Obama administrations might be more sympathetic towards what former President Mbeki considered US judicial imperialism. Continue reading “Back Into the Heart of Apartheid Darkness”

Jarndyce v. Jarndyce Redux

Like Jarndyce v. Jarndyce in Charles Dickens’ Bleak House, Khulumani v. Barclays National Bank grinds on inexorably  before a federal court in New York.  We are now in the seventh year of this oft-renamed quest to extract reparations from multinationals that did business with the South African government under apartheid.  No immediate relief is in sight.

There have been developments, though.  We have a new judge.  She is Judge Shira Scheindlin. Her predecessor, Judge John Sprizzo, died last December. He wanted to dismiss the case, but the appeals court found fault with his reasoning. The Supreme Court was expected to uphold his dismissal but could not produce a quorum. Too many of its members had stakes in defendant companies and had to recuse themselves. So the case went back to Sprizzo.

He would likely have dealt with the appeals court’s objections quite quickly. Though divided, the three-judge panel gave him clear enough instructions on how to bullet-proof his dismissal next time. Alas, the reaper intervened.  Now it is up Judge Schiendlin to rule afresh on the defendants’ motion to dismiss. At a preliminary hearing last week she seemed inclined to go to trial. Legal history crooked a seductive finger. Continue reading “Jarndyce v. Jarndyce Redux”

Feeding lawyers

The attempt to extract $400 billion in reparations for apartheid from some 50 multinational corporations via the US courts over the strenuous objections of the South African government won a reprieve this week. The endeavour remains quixotic, nonetheless. The only redistribution of wealth ever likely to result is from shareholders to lawyers. There has been plenty of that already. There will be more.

The US Supreme Court was expected to put American Isuzu Motors, et al., v. Ntsebeza, et al., as the case is now officially known, out of its misery in short order. Then four of the nine justices unexpectedly recused themselves. Three have investments in defendant companies, a corporate who’s who of North America and Europe. The fourth has a son who works in one. It takes a quorum of six to hear an appeal.

So, by default, the case goes back to federal district Judge John Sprizzo in New York who dismissed it in 2004. Last year, the Second Circuit Court of Appeals court found flaws in Sprizzo’s reasoning and told him to try again. That instruction must now be carried out. More years of litigation are in the offing, beginning with a hearing on July 8. Continue reading “Feeding lawyers”