A door that leads into a new front for the struggles of reparations seeking South African black workers has been left ajar after pounding by a trail-force of public interest litigation and in particular the nascent class action movement.
The latest emanation occurred on Friday the 13th of May 2016 through the silicosis matter. The said door may be flung open if the emerging private sector targeting reparation movement finds marriage within the polarisation of post 1994 left leaning party politics. More so if the litigious Economic Freedom Fighters (EFF) gets its head around the emerging movement of reparation like class actions. In that form, this movement could translate into a major headache for the party of Nelson Mandela, the ruling African National Congress (ANC). Consider the dynamics at play in and around the Marikana Massacre. Wait until the trail of class action hits state owned enterprises.
Silicosis matter is wrapped in apartheid cloth
On Friday the 13th of May 2016, the Gauteng High Court certified class action against the South African gold mining industry. The class of plaintiffs is made of a group of former mining workers who acquired respiratory health diseases, silicosis and tuberculosis, in the course of duty. The black workers were left for dead in experiences that go back to 1965. Many succumbed to the occupational diseases in a state of destitution when white capital was singing all the way to the bank.
One view has it that the case represents a back door entry for a movement that wants to make South Africa’s corporate sector pay for its apartheid sins while exposing the complicity of the post 1994 political elite. The matter is addressed towards injustices that are intrinsically linked to the practices of the apartheid regime. There are many more such cases to come. They should not be difficult to find given the impunity with which agents of apartheid trampled human rights. You will find this view if you listen closely to the tone of sociologist Lungisa Ntsebeza of the Khulumani class action fame.
Unpacking the repatriation course
To be sure, reparation has always been around the post 1994 South African politics and has been experienced largely in symbolic forms. Drawing from the United Nations (UN) and specifically the 2005 adopted Basic Principles and Guidelines on the Right to a Remedy and Reparation, South Africa has seen some forms of reparation. This UN document speaks of five forms of reparations: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.
Arguably the post 1994 South Africa has been big on the last two soft forms; satisfaction and guarantees of non-repetition. The country has largely neglected the hard ‘directly reparative measures’.
The UN document characterises the satisfaction form as follows:
- It include things like effective measures aimed at the cessation of continuing violations
- Verification of the facts and full disclosure of the truth and search of the disappeared
- An official declaration or a judicial decision restoring the dignity, the reputation and the rights of the victims
- Public apology, including acknowledgement of the facts and acceptance of responsibility
- Judicial and administrative sanctions against persons liable for the violations;
- Commemorations and tributes to the victims;
The UN document speaks of ‘guarantees of non-repetition’ as a reparative form that includes:
- Ensuring effective civilian control of military and security forces;
- Ensuring that all civilian and military proceedings abide by international standards of due process, fairness and impartiality;
- Strengthening the independence of the judiciary;
- Protecting persons in the legal, medical and health-care professions, the media and other related professions, and human rights defenders;
The latter elements of reparations were to some extent implemented at political institutional level and the post 1994 government attempted some direct reparation measures. For instance victims of apartheid who were featured in the Truth and Reconciliation Commission (TRC) were awarded some compensation under the Presidents Fund, some say it was an insult in its smallness. The South African government has also undertaken some land restitution programme.
The South African corporate sector is thought to have got off lightly when the parameters of the 1994 transition were negotiated. There is also a view that the private sector pissed at an opportunity to make things right during the time of the TRC. Organised business neglected to make redemptive presentation to the TRC while the state ignored a TRC proposal to impose a reparative wealth tax.
The negative private sector attitude towards early financial reparation talk might be explained by the security provided in the elitist pact that delivered the 1994 political transition. The Congress of Democratic South Africa (Codesa) pact came with the black economic empowerment (BEE) paradigm which was largely a promise by the private sector to undo past injustices on a voluntary basis. The BEE promise has turned out to be a get out of jail free card for the South African private sector.
Chickens may be coming home to roost.
Talk of making the corporate sector pay for its apartheid sins is gaining momentum due to the gross inefficiencies in the prevailing methods of delivering economic justice. That view has been well spelt out by one Gloria Serobe. The executive of the Women Investment Portfolio Holdings (Wiphold) has maintained that business has not really come to the economic transformation/BEE party. “For starters, big business lost a huge opportunity by not coming on board in the Truth and Reconciliation Commission. The CEO’s of the big businesses of the time made a tactical error by refusing to participate…”
Early last week, Christine Qunta was drumming up the reparation theme. In a piece drawing from a new book she is about to release, Qunta the legal eagle observed that South Africa must entertain the (economic) reparation path to avoid political conflagration.
“I believe reparations to be a precondition for the remaking of South Africa. Without it, there is no possibility of moving forward. Reparations are neither a favour nor a gesture of goodwill.”
Qunta added that “The German government paid – and continues to pay – billions in reparations to the Israeli state and individual Jews for their slave labour and property unlawfully taken from them. The principle is therefore one established in law.”
The Khulumani Pioneering Path
In the days gone by, advocates of the economic reparations path were laughed out of the ideas market. They were dismissed as unreasonable radicals who were threatening to spoil the 1994 “political miracle”. A voluntary redress of the apartheid era sins was supposedly underway through the BEE philosophy.
One group which has kept the reparation fires burning is Khulumani Support Group. Khulumani runs with the initiative which filed class action in the US against global corporations accused of propping up the apartheid regime. It took on global corporations like, IBM and Ford, on allegations that the firms directly aided the apartheid. IBM, claimed Khulumani provided custom-made software to facilitate racial population registration, making itself an accomplice to the international crime of denationalisation. On the other hand Ford was accused of supplying the apartheid state with armoured vehicles.
Khulumani sought to take advantage of the US’ Tort Claim Act of 1789, a law which allows non US citizens to take civil action against enterprises with operations in the US but for transgressions outside the US. Representing about 52 000 apartheid victims Khulumani’s case has hit serious snags but will find solace from the view that its course is now finding cause within the South African courts.
A gathering momentum of class actions
The silicosis ruling of Friday the 13th of May 2016, came shortly after a critical development in the bread price fixing civil suit against companies found guilty by the competition authorities. One of the culprits, Premier Foods, settled out of court with groups pursuing the course of class action. The cause of class action pursued by civil society organisations against Pioneer Foods, Tiger Brands, and Foodcorp continues. There has been talk to pursue class action against construction companies which were found guilty of price fixing by the competition authorities. The Black Business Council (BBC) is one organization which has aired this consideration because its members were prejudiced when mainstream contractors collaborated in the R50 billion raiding of the public purse. This comes alongside a move by the South African Rail Agency Limited (SANRAL) to launch a civil suit against the guilty contractors. A group of about 60 000 ex Transnet workers are paving a class action path against the state owned enterprise over pension benefits valued around R80 billion.
This class action movement comes on the back of a clearer legal class action course in South Africa. While the country’s post 1994 constitution has since establishment allowed for class actions the actual path and process remained vague if cumbersome. The path has been fine tuned over the years through case law and regulatory prescriptions.
Acknowledging that South Africa is likely to see a rise in private sector directed class action Lerato Zikalala, an associate at Bowman Gilfillan, has argued that this was result of the development of class action allowing legal procedures.
“This is a development to which companies should pay close attention. Previously companies were relatively immune from litigation in which many people had claims, especially small individual claims, because the risk of incurring individual legal costs for potential litigants often outweighed the potential benefit of a judgment that could be obtained.
She said “claims that would have never been brought because litigating them was too costly for the ordinary person can now be brought on behalf a class of affected people, thus increasing the likelihood of litigation and the potential legal risk faced by companies.”
The legalese is chapter of this story is one part. The other critical chapter emerges from evolving political economic forces. This is to say the legal opening may lead into new political territory that promises to drown out South Africa’s economic redistribution poser, BEE, and bring back into political fashion the concept of reparative economic justice, albeit through the back door.
It is here that South Africa’s post 1994 legalism can converge with real life people’s struggles to fit into the beautiful words of French philosopher Francis Foucault. Speaking of history as state of permanent war, Foucault says “The law is not born of nature…”
The law, adds, Foucault is born of real battles, victories, massacres, and conquest which can be dated and which have their horrific heroes. The law was “born in burning towns and ravaged fields…together with famous innocents who died at break of day”.