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The South African Experience: Litigating Remedies
Published online by Cambridge University Press: 22 June 2021
Abstract
Many transnational corporations (TNCs) that conducted business in South Africa during apartheid had deemed it profitable and desirable, despite the country’s systemic human rights violations against its majority black population. In the aftermath of the 1960 Sharpeville Massacre and 1976 student uprising, various United Nations and other international resolutions condemned TNCs for their incestuous relationship with apartheid South Africa and called for international sanctions against the regime. The demise of apartheid in 1994 brought about a new democratic, constitutional dispensation based on respect for human rights. However, attempts at holding TNCs liable for aiding and abetting the apartheid regime were fraught with obstacles and proved unsuccessful. Yet, the pursuit of strategic, class action litigation in areas as diverse as collusive conduct in bread manufacturing to occupational lung disease in South Africa’s goldmining industry have proven to be more successful in developing legal remedies against corporate harm. Areas impacted are extended legal standing under the common law, development of new causes of action and generous application of contingence fees arrangement.
- Type
- Scholarly Articles – Special Issue on “BHR Landscape after 10 years of the UNGPs: An Assessment”
- Information
- Business and Human Rights Journal , Volume 6 , Issue 2: Special Issue: BHR Landscape after 10 years of the UNGPs: An Assessment , June 2021 , pp. 270 - 278
- Copyright
- © The Author(s), 2021. Published by Cambridge University Press
Footnotes
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Conflicts of interest: The author has litigated the Khulumani, Children’s Trust and Nkala cases mentioned in this article.
*
Charles Abrahams is a senior partner at Abrahams Kiewitz Inc., a boutique law firm in Cape Town, South Africa. He holds a Master’s Degree in Public International Law from Leiden University, the Netherlands and is currently pursuing a doctoral degree in constitutional law at the University of Cape Town.
References
1 For more information on 16 June 1976, see https://www.sahistory.org.za/article/june-16-soweto-youth-uprising (accessed 16 April 2021).
2 Security Council Resolution, S/RES/134, 1 April 1960.
3 For more information on 21 March 1960, see https://www.sahistory.org.za/article/sharpeville-massacre-21-march-1960 (accessed 16 April 2021).
4 For more information on the United Nation’s International Day for the Elimination of Racial Discrimination, see https://www.un.org/en/observances/end-racism-day (accessed 16 April 2021).
5 Koenderman, Tony, Sanctions – The Treat to South Africa (Jonathan Ball Publishers, 1982) 151 Google Scholar,
6 Ibid, 155.
7 Truth & Reconciliation Commission, Report of the Reparation & Rehabilitation Committee: Reparations and the Business Sector (vol 6, section 2, chapter 5) 144.
8 Seidman, Ann W and Makgetla, Neva, ‘Activities of Transnational Corporations in South Africa’ (1978) UN Centre Against Apartheid Notes and Documents 75Google Scholar.
9 Terry Shott, ‘The Banks and the Military in South Africa’, paper was distributed at the ‘International Seminar on Bank Loans to South Africa’ co-sponsored by the U.N. Special Committee Against Apartheid in cooperation with the World Council of Churches, the Swiss Anti-Apartheid Movement, the Berne Declaration Group and the Non-Governmental Organizations Sub-Committee on Racism, Racial Discrimination, Apartheid and Decolonization on 5–7 April 1981.
10 Statement of Dr Jean Sindab, Executive Director, Washington Office on Africa, quoting PW Botha, ‘Economic Sanctions and their Potential Impact on U.S. Corporate Involvement in South Africa’, Hearing before the Subcommittee on Africa of the House Foreign Affairs Committee (1985) 99th Congress 1st Session, 31 January, 24.
11 General Assembly Resolution, ‘The Policies of Apartheid of the Government of South Africa’, A/RES/2396
(XXIII) (2 December 1968).
12 General Assembly Resolution, ‘Policies of Apartheid of the Government of South Africa: Economic Collaboration with South Africa’, A/RES/31/6 H (9 November 1976).
13 Landgren, Signe, Embargo Disimplemented: South Africa’s Military Industry (Oxford: Oxford University Press, 1989) 88–95 Google Scholar.
14 Limmat Verlag, ‘Die Bührle Saga. Festschrift zum 65. Geburtstag des letzten aktiven Familiensprosses in einer weltberühmten Waffenschmiede’ (Zürich, 1986) 139, 142.
15 United Nations Security Council Resolution, ‘The Question of South Africa’, S/RES/418 (4 November 1977).
16 The end of official apartheid is generally marked by the first democratic elections held on 27 April 1994.
17 Constitution of the Republic of South Africa, 1996 (South Africa).
18 Constitution of the Republic of South Africa Act 1996 (South Africa) section 8(2): ‘A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.’
19 Broad-Based Black Economic Empowerment Act 2003 (South Africa); Employment Equity Act 1998 (South Africa).
20 Ralph Hamann et al, ‘Business and Human Rights in South Africa: An Analysis of Antecedents of Human Rights Due Diligence’ (2009) 87 Journal of Business Ethics Supplement 2: Spheres of Influence/Spheres of Responsibility: Multinational Corporations and Human Rights 457.
21 Ibid, 459.
22 The complaint was initially filed on 11 November 2002 in the Eastern District Court of New York but was consolidated with two other cases in the Southern District Court of New York.
23 Alien Tort Statute 1789 (US), grants jurisdiction to federal district courts of all causes where an alien sues for a tort only in violation of the law of nation or of a treaty of the United States.
24 Khulumani v Barclay National Bank Ltd, 504 F.3d 254, 260 (2d Cir. 2007).
25 Kiobel v Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013).
26 Ibid, 10.
27 The Recognition of Class Actions and Public Interest Actions in South Africa’ (1998) 88 The South African Law Commission, Project 12.
28 PE Bosman Transport Works Committee & Others v Piet Bosman Transport (Pty) Ltd, 1980 (4) SA 801 (T).
29 Constitution of the Republic of South Africa Act 1996 (South Africa), section 34: ‘Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.’
30 Constitution of the Republic of South Africa Act 1996 (South Africa), section 38: ‘Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are -
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who cannot act in their own name;
(c) anyone acting as a member of, or in the interest of, a group or class of persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its members.
31 The Trustees for the Time Being for the Children’s Resource Centre Trust and Others v Pioneer Foods (Pty) Ltd and Others, Mukaddam and Others v Pioneer Foods (Pty) Ltd and Others [2011] ZAWCHC 102.
32 Ibid, para 12.
33 Ibid, para 38.
34 Children’s Resource Centre Trust v Pioneer Food (50/2012) [2012] ZASCA 182, para 21.
35 Pretorius v Transnet Second Defined Benefit Fund 2014 (6) SA 77 (GP).
36 Nkala v Harmony Gold Mining Co Ltd 2016 (5) SA 240 (GJ)
37 Ibid, para 79.
38 Wal-Mart Stores, Inc. v Dukes et al, 564 S Ct (2011).
39 Ibid, 19.
40 Nkala, note 36, para 115.
41 Ibid, para 223.
42 Ekaterina Aristova, ‘Tort Litigation against Transnational Corporations in the English Courts: The Challenge of Jurisdiction’ (2018) 14 Utrecht Law Review 7.
43 Ibid.
44 Nkala, note 36, para 71.
45 The following elements should guide a court in making a certification decision, being: the existence of a class identifiable by objective criteria; a cause of action raising a triable issue; that the right to relief depends upon the determination of issues of fact, or law, or both, common to all members of the class; that the relief sought, or damages claimed, flow from the cause of action and are ascertainable and capable of determination; that where the claim is for damages there is an appropriate procedure for allocating the damages to the members of the class; that the proposed representative is suitable to be permitted to conduct the action and represent the class; whether given the composition of the class and the nature of the proposed action a class action is the most appropriate means of determining the claims of class members.
46 Contingency Fees Act 1997 (South Africa).
47 Contingency Fees Act 1997 (South Africa), section 2: ‘Notwithstanding anything to the contrary in any law or the common law, a legal practitioner may, if in his or her opinion there are reasonable prospects that his or her client may be successful in any proceedings, enter into an agreement with such client …’.
48 Gold Fields Limited and Others v Motley Rice LLC, In re: Nkala v Harmony Gold Mining Company Limited and Others, 2015 (4) SA 299 (GJ).
49 Ibid, para 37.
50 Ibid, para 55.
51 South African Human Rights Commission, ‘Business and Human Rights Dialogue Report’ convened by the South African Human Rights Commission on 13–14 March 2018.
52 Tebello Thabane, ‘Weak Extraterritorial Remedies: The Achilles Heel of Ruggie’s “Protect, Respect and Remedy” Framework and Guiding Principles’ (2014) 14 African Human Righs Law Journal 43–60.
53 Resolution adopted by the Human Rights Council, ‘Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights’, A/HRC/RES/26/9 (14 July 2014).
54 Ibid.
55 https://www.ohchr.org/en/hrbodies/hrc/wgtranscorp/pages/igwgontnc.aspx (accessed 16 April 2021).
56 Thabane, note 52, 50.
57 Aristovan, note 42, 6.