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Broken laws, broken promises, broken lives

1 Aug

The iniquity of the companies that knowingly aided and abetted the security forces of the illegitimate apartheid regime is that not only did they break international sanctions imposed by the United Nations, but their actions have directly and indirectly resulted in a number of people’s lives being almost irreparably damaged. These companies include IBM, Daimler, General Motors, Ford Motor Company and Rheinmetall. Many others were involved – banks, oil companies, mining companies, arms and ammunitions companies, construction companies. Indeed any local or international corporation that allowed itself to be co-opted in one or other way not only in sustaining and maintaining apartheid’s illegitimate legislation, but also those companies that assisted the security forces to oppress the people of South Africa. Some of this oppression was through following the immoral and illegitimate laws of the land at that time. For example: did Daimler pay its workers in South Africa (through Mercedes Benz SA) the equivalent rate that its workers in Germany received? Or was it the opportunity to exploit cheap labour that made SA so attractive to Daimler (and many other companies)?

Many victims and survivors of the myriad deliberately harming and destructive actions of the corporations are today worse off than before liberation. The promise of a ‘better life for all’ has become a ‘better life for all – except for those who had a better life before, and except for those who are not connected’ . . . to elites in the ruling party. The tragedy is that many of the victims and survivors who have been transformed into elites themselves do not care about their comrades who have seen no justice or whose lives are worse off than before: dispossessed, as Prof Ariel Dorfman says, of their futures.

Victims testified at the Truth and Reconciliation Commission under the impression that, because they had voluntarily given up the right to sue their perpetrators in pursuance of the truth of the past, they would be appropriately recompensed for their suffering and losses. Government broke that promise despite the TRC itself recommending that reparations be paid annually to the victims and survivors for six years. This must have partly been to try and ensure that none of the victims and survivors were worse off afterwards than they were during apartheid. A once-off reparations grant of R30,000 was provided by President Thabo Mbeki and his government.

One of the mothers of a disappeared son bought a second hand car with the money and named the car after her son. But the possibility of a son who may have gone on to study or work and to help support his mother in her old age could never be compensated for by the minimum payment made by government, or the purchase of a car.  The worst broken promise — a betrayal of trust — comes from those in positions of power or wealth who have turned their backs on their comrades.

Broken laws require that the perpetrators are found guilty in a court of law and suitably punished. This includes that those guilty of apartheid crimes, and apartheid was a crime against humanity that cannot prescribe or be allowed to prescribe through glib legal arguments.

Broken promises require that the promise-breakers should make amends for their defaulting. This means that our government must come to the table with the victims and survivors and ensure that the resources made available by donors and foreign governments to the President’s Fund eventually reach those people they were meant for. It is a disgrace that the President, the TRC Unit and the officer in charge of the President’s Fund have not yet published the required regulations for distributing the money in this fund to those it was created for, thirteen years after the first donations were made by the Swiss Government and the Kingdom of Denmark! The Swiss Government stipulated that the funds be distributed as mandated by the TRC. The Danish money was to be spent “solely in accordance with the recommendations of the Truth and Reconciliation Commission’s Commitee on Reparation and Rehabilitation”. This has clearly not been done.

Broken lives require that the resources for redress of material, emotional, social and community reparations are provided. It requires that every one of us living in South Africa, but especially the elites and the new elites, do what we can to make sure that the forgotten heroes of the struggle who suffered for justice and freedom in our land are enabled to carry on with their lives not worse off than when they joined the struggle.


Introducing Michael Hausfeld – Litigator and Human Rights Defender

5 Jul

The Khulumani Red Card Campaign has two major components: advocacy and campaigning in South Africa and across the world (as carried out on this blog, for example); and the actual legal battles in the New York courtroom. While we head things up here, we thought it would be a good idea to introduce you to our ‘man on the ground’ in New York, the exceptional lawyer Michael Hausfeld, and his firm Hausfeld LLP.

Hausfeld has a long history of work in the field of human rights – on a domestic US-level as well as internationally. He tried the first case that established the principle that sexual harassment was a form of discrimination prohibited under the US Title VII laws. In 1989 he represented the Native Alaskans who were horrifically affected by the Exxon Valdez oil spill, where he negotiated a $176-million settlement from Texaco Inc. He later successfully represented a class of Holocaust victims whose assets were retained by private Swiss banks during and after WWII; and separately represented the Republics of Poland, Czech Republic, Belarus, Ukraine and the Russian Federation on issues of slave and forced labour for both Jewish and non-Jewish victims of Nazi persecution.

His firm, Hausfeld LLP, describes its work as follows: “Hausfeld LLP is a global claimants firm founded on a very simple yet largely unmet premise: global wrongs must be accountable to global rights. With unique global resources, unlimited creativity and steadfast integrity, we seek to achieve unprecedented results on behalf of citizens and corporations involved in large and complex disputes that touch every corner of the globe and impact every industry and population.”

Hausfeld and his incredible international team have been an excellent example of a legal team that are dedicated to standing for justice, accountability and most importantly making a tangible positive difference to the lives of the people on whose behalf they work. As Hausfeld writes:

“The U.S. law under which the [Khulumani] case is proceeding—the Alien Tort Claims Act—provides a place for foreign nationals to bring cases against U.S. citizens or other foreign nationals for violations of customary international law, including gross human rights abuses.

The Defendants in the case…have opposed being held to account for their conduct in the U.S. court. When, however, they were given the opportunity in South Africa to tell the truth about their participation in Apartheid and their relationship with its enforcement through terrorist type behavior, they failed to do so. Now they do not want to be held accountable in a court of law in a country in which most of them are citizens or in which they routinely do business. What they are really saying is that they should not be responsible to anyone, for anything, at anytime, anywhere.

Human rights abusers should not dictate where, when, and to whom they are accountable.  They cannot silence their victims or camouflage their misconduct by disappearing, shutting down or foreclosing all legitimate avenues of inquiry. Those who have been wronged have rights.  Those who have done wrong have responsibilities.”

International Day in Support of Victims / Survivors of Torture

29 Jun

On Saturday 26 June 2010, fifty-eight Khulumani members came together at Freedom Square in Kliptown, Soweto, to declare that they will never be silent, but will continue to speak out (khulumani) about torture and its devastating consequences on their lives. The members came from Mamelodi in Pretoria/Tshwane; Katlehong and Vosloorus in Ekurhuleni; Sharpeville and Sebokeng in Sedibeng; and from Soweto to remember the anniversary of the June 26, 1987 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. (UNCAT).

The common thread running through the Khulumani members’ narratives was their experiences of torture. This is not surprising given that torture was condoned by all levels of the apartheid police and security apparatus in South Africa, not only to intimidate but to extract information from anti-apartheid activists.

For most survivors of torture, the major persistent consequence is a destruction of their capacity to establish and sustain meaningful and trusting interpersonal relationships. As torture survivor Peter Pitso Moletsane from Klerksdorp had explained in his testimony to the Truth and Reconciliation Commission (TRC): torture was designed to render its victims ‘unfit for life’.

When survivors of torture come together to collectively speak out about the abomination of torture, they are making a stand for life, rather than for death. A declaration by victims of torture that they are committed to working together for a world free of torture, is a powerful reclamation of survivors’ agency.

Despite worldwide condemnation of torture and the existence of treaty provisions that forbid torture and that criminalise perpetrators of torture, torture still occurs in two thirds of the world’s nations, including those that promote themselves as ‘civilised nations’. In South Africa, there is evidence that torture is still practiced by our security forces today in situations of involuntary detention. For Khulumani, it remains a responsibility to continue to SPEAK OUT in the struggle to ‘wipe the scourge of torture from the face of the earth so that torture may finally be consigned to the darkest spaces of history’. (Kofi Annan, June 26, 1998)

The June 26 Khulumani Commemoration programme to remember our history; to honour those who lived this history; and to speak out to stop the use of torture in South Africa, demonstrates that what happens in small places out of the public gaze will increasingly be exposed and those who commit the crime of torture will be held accountable.

Torture is one of the crimes which the defendant companies in the South African apartheid litigation, Daimler, General Motors, Ford Motor Company, IBM and Rheinmetall, are accused of knowingly aiding and abetting – through their deliberate business dealings with the security forces of the apartheid regime.

The Khulumani Commemoration ended with the launch of the book, ‘All That Was Lost’ by Professor Cath Byrne. The book is dedicated to the memory of Khulumani founder member, the late Mr Duma Kumalo.

Duma Kumalo performing at a Khulumani Support Group event

Duma was sentenced to death based on a fellow Sharpeville resident’s false testimony which was extracted under torture. Although Duma was released from jail hours before he was due to be executed, justice has not been served. His name has still not been cleared, despite his testimony to the TRC and three applications to the Department of Justice for the expunging of his criminal record. Unfortunately Duma died unexpectedly on 3 February 2006 at the age of 48. Khulumani Support Group and Duma’s family believe that a posthumous order by the Minister of Justice or the President of South Africa to expunge his criminal record would be in order, and call on the Minister and the President to expedite this request.

The Waving Flag and Freedom

19 Jun

K’naan’s evocative lyrics for Waving Flag start with the phrase: “When I get older, I will be stronger/They’ll call me freedom just like a waving flag.”

Many Khulumani members are much older now, but they’re not stronger –many are quite frail – and they’re not experiencing a waving flag of freedom, but ongoing poverty.

Unlike the sanitised  Coca-Cola/World Cup version of the song, the original lyrics to K’Naan’s song, which is a reflection on his own childhood in war-torn Somalia, go on: “so many wars settling scores/bringing us promises, leaving us poor/i heard them say love is the way/love is the answer that’s what they say/but look how they treat us/make us believers make we/fight their battles then they deceive us . . .”

K’maan’s reflection on the broken promises made to his generation could well be sung about the promises made to Khulumani members – they or their families were part of the freedom struggle against apartheid. Promises were made about reparations and that perpetrators who had not received amnesty would be prosecuted. The reparations were not adequate and not what the TRC recommended. Government broke that promise. Government has taken so long to start prosecutions against the perpetrators, that many of these crimes have now “expired”. Only murder does not expire as a crime. Another broken promise of Government. The National Prosecuting Authority (NPA) should have initiated these prosecutions in consultation with the victims of the crimes immediately after the closure of the Truth and Reconciliation Commission (TRC). They did not, and now they may have delayed too long.

When K’naan sings that “i heard them say love is the way/love is the answer that’s what they say”, in South Africa what they said was “the TRC is the answer”. But many people couldn’t access the TRC, and those that did, have been profoundly let down – not in the least by it’s inability to ensure government followed up and secured adequate justice, tangible reparations and corporate accountability.

For most Khulumani members, those who went to the TRC and those who didn’t, the waving flag of freedom hasn’t “opened happiness” (as Coca Cola may have you believe) but has been only a small victory in the ongoing, everyday struggles for justice. Aluta continua!


19 Jun

Cape Town, June 16, 2010 – Two surviving relatives of apartheid victims have filed an application to intervene in the Constitutional Court case of The Citizen v. McBride as amici curiae.   The Supreme Court of Appeal (SCA) in its ruling against the Citizen newspaper, had earlier held that the granting of amnesty by the Truth and Reconciliation Commission (TRC) removes the conviction “for all purposes” so that anyone who describes such acts as ‘murder’ and any statements referring to an amnesty applicant as a ‘murderer’ would now be considered false and a ground for defamation.

The amicus applicants are Joyce Sibanyoni Mbizana and Mbasa Mxenge. Ms. Mbizana is the sister of Justice Mbizana who was abducted in 1987 by members of the Northern Transvaal Security Branch, tortured and murdered. In 2005, the NPA recovered a black bag of bone fragments. These were the remains of the bodies of the ‘Mamelodi Four’ who had all been underground operatives in and around Mamelodi township, Pretoria / Tshwane. After being killed one by one in front of each other alongside the Pienaars River on the property of a police dog unit, the four bodies were tied together, rigged with explosives and repeatedly detonated. Eight men confessed to participating in Justice’s death and were granted amnesty by the TRC for the “Abduction, Assault and Murder of Justice Mandla Mbizana” in 2003.

Mr. Mbasa Mxenge is the eldest son of the late Griffiths and Victoria Mxenge, who were both human rights lawyers in Durban and who were murdered in separate incidents in the 1980s. In 1981 a hit squad was assembled from the South African Police Force for the specific purpose of killing Griffiths Mxenge.  When Griffiths Mxenge’s body was found, it had more than 45 stab wounds. Three members of the South African Police force were subsequently convicted for Mxenge’s murder.  Following a full confession and testimony to the TRC, all three men were granted amnesty for the murder of Griffiths Mxenge in 2001.

Joyce Sibanyoni Mbizana and Mbasa Mxenge believe that the SCA interpretation of the implications of being a recipient of amnesty is contrary to the spirit and intent of the TRC Act and will limit their ability to speak freely about the murders of their loved ones. Both wish to protect their rights to refer to the killers of their loved ones as murderers.  If the decision of the SCA stands they may face an untenable prospect of being sued for defamation, should they speak or publish the full truth by referring to heir loved ones’ killers as murderers. They will tell the Court that no law may render the truth as false for purposes of public debate and discourse. As amici curiae, they argue that the freedom to speak the truth about the events of the past, should not be suppressed. They hope by their action to preserve the legacy of the negotiated transition, which gave birth to South Africa’s new constitutional order as well as the TRC and its amnesty process that sought to bring the truth to light.

In her application to join the proceedings as an amicus Ms. Mbizana states, “Until the decision of the Supreme Court of Appeal in this matter, I enjoyed a right to speak freely about the crimes perpetrated against my brother and in particular I enjoyed and asserted a right to refer to the killers of my brother as murderers.  If the decision of the SCA stands I may face the sanction of a defamation suit should I speak or publish the full truth by referring to my brother’s killers as murderers.”

As amici, Ms. Mbizana and Mr. Mxenge will be allowed to raise issues with the Court through written and oral submissions.  The Constitutional Court is scheduled to hear the matter of The Citizen (1978) (Pty) Ltd and Others v McBride (CCT23/10) on 30 September 2010.

Ms. Mbizana and Mr. Mxenge’s efforts to bring these issues of victims’ rights to the attention of the Constitutional Court affirms that the TRC Act must be interpreted in a way which protects South African society’s right to know and express the truth.  Any attempt to limit this right by removing terms such as ‘murder’ from discussions of the past will result in a falsification of history, undercut the purpose and intent of the Truth and Reconciliation Commission, and infringe on the “truth as justice” which was offered to victims of the apartheid struggle in exchange for removing criminal and civil liability from perpetrators.

Ms. Mbizana and Mr. Mxenge’ are supported by an alliance of South African civil society organizations comprised of Khulumani Support Group; International Center for Transitional Justice; Centre for the Study of Violence and Reconciliation; South African History Archives; Human Rights Media Centre; and the Institute for Justice and Reconciliation;

For more information, please contact

  • Khulumani Support Group: Tshepo Madlingozi on 082 496 9914 / Marjorie Jobson: 082 268 0223
  • International Center for Transitional Justice: Piers Pigou 083 381 7150
  • Centre for the Study of Violence and Reconciliation: Hugo van der Merwe 082 570 0744
  • South African History Archives: Gabriella Razzano 082 780 1903
  • Human Rights Media Centre: Shirley Gunn 082 450 9276
  • Institute for Justice and Reconciliation: Fanie du Toit 083 266 1766

Daimler — the best or nothing

13 Jun

Germany meets Australia in the Soccer World Cup tonight. The German team is sponsored by Daimler AG. Daimler’s new international brand campaign was launched on 11 June 2010 — the same day the FIFA World Soccer Cup commenced in South Africa! The new slogan for Daimler is “THE BEST OR NOTHING”.

When it came to aiding and abetting the apartheid government, most South Africans who suffered gross human rights abuses would have preferred that it was “NOTHING”. Daimler provided the apartheid military with vehicles. Over 6,000 Daimler Unimogs were widely used in the oppressive military and security forces. Spare parts for Casspirs, Hippos and Buffels were provided. These armoured vehicles were used to patrol and control black urban settlements, to disperse civilian assemblies and to raid communities in search of dissidents, all the while keeping safe the armed men and their guns, hidden inside the vehicles.

Daimler continued to provide and maintain this equipment in defiance of international sanctions and embargoes imposed over many years by the United Nations. In 1979, the UN Special Committee Against Apartheid in South Africa warned that transnational companies have to bear a “major share of responsibility for the maintenance of the system of apartheid, for strengthening the repressive and military power of the racist regime and for undermining of international action to promote freedom and human dignity in South Africa.”

The South African Truth and Reconciliation Commission (TRC) confirmed that the international businesses involved in helping the apartheid military and other security forces, did not take responsibility for their actions and … for their involvement in the military and security forces.”  Daimler AG as a key supplier of military equipment to the apartheid government, is one of these international businesses.

Daimler AG was repeatedly warned about how the equipment it was supplying, was being used. Reverend Beyers Naude addressed a Daimler AG Shareholders’ AGM in the following words: “I can assure you, Mr. Reuter (a former CEO), that these vehicles for which Daimler-Benz supplies the engines, are being used for aggressive purposes”. Daimler ignored these and many other warnings.

Khulumani plaintiff, Mr Mpho Masemola, addressed Daimler’s AGM in April this year, to extend an invitation to Daimler to begin a dialogue with victims of apartheid violations in South Africa. Daimler CEO, Dr Zetsche responded by stating that Daimler denies any responsibility for human rights violations in South Africa and that the company has no case to answer as the company conducted its business in South Africa according to German law and with the support of German politicians. Khulumani is concerned at this attempt by Daimler’s CEO to justify its conduct by claiming that it has always acted in accordance with German law and the will of German politicians, given its history of compliance with the orders of the Third Reich.

Khulumani notes that Daimler may have become more aware of that fact that “those that do business in countries with no respect for human rights do so at their peril” (Ntsebeza and Bell) and that Daimler has apparently recently withdrawn its trucks from Iran on the basis of its concern for the human rights practices of Iran. The record remains, however, that Daimler refused to withdraw its equipment from South Africa at the height of the political struggle in apartheid South Africa, at a time when the whole world knew what was happening in South Africa and when the United Nations had passed many resolutions about the crime of apartheid.

Khulumani also notes Dr Zetsche’s assertion at the AGM that Daimler AG has “nothing” to hide; that it informed the South African TRC that its archive was open and that this is still the case. Khulumani thanks Dr Zetsche for this and appreciates Daimler’s invitation to Khulumani to research the archives. Khulumani graciously accepts this invitation and will shortly be formally requesting a date and time in which acknowledged academic researchers will be granted access to Daimler’s archives.

Khulumani believes that a company that wishes to promote responsible business dealings in South Africa, should be willing to take responsibility for its past actions and should agree to meet with victims of these actions, especially when that company played so central a role in apartheid.

Khulumani notes that Dr Zetsche recently responded to the finding of the culpability of Daimler and certain of its affiliates and subsidiaries, charged for bribery in securing government contracts in 22 countries around the world, by saying, “We have learned a lot from past experience. Today, we are a better and stronger company, and we will continue to do everything we can to maintain the highest compliance standards.” The investigation of those cases, that were tried in the United States, revealed that Daimler had improperly paid some $56 million in bribes, that in turn awarded the company some $1.9 billion in revenue and at least $91.4 million in illegal profits.

Khulumani will not give up its call to Daimler to address its complicity with the apartheid government and to compensate victims for the harm that they were caused through Daimler’s involvement in the oppression of the majority of South Africans during the apartheid era.

So far, Daimler has given nothing to the indirect victims of its complicity with the illegitimate apartheid regime. It’s time to change this. It’s time for Daimler to become “the best” example of acknowledging its mistakes of the past; it’s time for Daimler to become “the best” at listening to and responding to the needs of the South African victims and survivors; it’s time for Daimler to consider making “the best” offer to settle the South African apartheid litigation. Because NOTHING is not acceptable — and nothing will make the victims and survivors stop highlighting Daimler’s irresponsible, cold-blooded and cold hearted behaviour in apartheid South Africa. In fact “nothing” but your “best” offer can begin to make things right.

Victims Red Carded for too long…

8 Jun

Victims and survivors of apartheid era gross human rights abuses were red carded by the Truth and Reconciliation Commission (TRC) and by the South African government — especially former President Thabo Mbeki, former Minister of Justice Penuell Maduna, and the officials in the TRC unit in the Department of Justice.

The promise made to victims and survivors was, that by testifying at the TRC and thereby participating in the process which led to the perpetrators receiving amnesty, they would receive reparations. These promises were only partly kept. The TRC’s recommendations for reparations were not accepted by the South African government — in fact only about a sixth of the amount recommended was finally (after five years) granted to those victims who testified at the TRC. But many perpetrators received amnesty and continued to receive it after the TRC officially closed its books.

Victims of apartheid crimes who did not make it to the TRC are to this day not recognised but simply ignored. The South Africa we live in today owes an enormous amount to the victims and survivors of the struggle. Some of these were heroes who have ended up in plush and cushy government jobs — but most have literally been red carded from society and stay out of sight and out of the mind of the South African peoples. Even their comrades have forgotten them.

The victims and survivors were directly and indirectly damaged by the actions of companies supporting the security forces and policies of the apartheid government — such as Daimler, Ford, General Motors, IBM, Rheinmetall and others: including banks and oil companies.

But who should continue to be red carded? The victims? Or the businesses who profitted (hugely) from apartheid?