- Originally published in the Times Newspapers Limited on September 28, 2004
Copyright 2004 Times Newspapers Limited
By: Jon Robins
Michael Hausfeld, a US lawyer, is bringing a case through the American
courts against multinationals that did business in South Africa, Jon
Robins reports
WHAT responsibility does
IBM have for South Africans beaten and tortured under apartheid? A
connection might not be apparent but Michael Hausfeld, an American
lawyer, is arguing that there is one.
The
computer giant is one of 20 multinationals (including British ones such
as Barclays Bank) being sued via the US courts under an arcane
18th-century statute for their role in supporting a racist regime.
Last week Hausfeld, who was a leading lawyer in the legal action
against the Swiss banks for Holocaust survivors, filed an amicus brief
-or legal opinion -in a New York court on behalf of the Khulumani
Support Group (the name means "speak out" in Zulu). "The decisions made
by this court will shape the future of human rights litigation," he
argues. "They will reverberate beyond the courthouse walls to the ears
of officials and private (citizens) across the world."
Certainly, the document will be hard to ignore, as much as the South
African Government would like to. Archbishop Desmond Tutu, other
members of the South African Truth and Reconciliation Commission and
dozens of international human rights groups are signatories. The reason
for its timing is a ruling by the US Supreme Court (Sosa v
Alvarez-Machain) on the Alien Tort Claims Act 1789. That controversial
legislation allows companies to be sued in the American courts for
human rights breaches committed anywhere in the world.
"The Supreme Court has determined that there are classes of permissible
cases under the law, and Khulumani clearly sits within those
traditional and historic classes," says Hausfeld, a partner in Cohen,
Milstein, Hausfeld & Toll, a plaintiff class action firm. He
estimates that there are "tens of thousands" of South Africans with
potential claims on a database being compiled by Khulumani.
The lawyer argues that the only thing standing in the way of "an
automatic acceptance" of the case is the strident opposition of the
South African Government.
Penuell Maduna,
the Justice Minister, called on the US courts in July last year to
reject the case. "The Government accepts that corporate South Africa is
already making a meaningful contribution to the broad national goal of
rehabilitating the lives of those affected by apartheid," he wrote.
The Khulumani lawsuit is not the only apartheid action. Ed Fagan,
another prominent lawyer who also made the headlines for his role in
the Nazi reparation cases, is seeking $ 20 billion in compensation.
Fagan also announced a class action against Lloyd's of London this year
by US citizens who claim descent from slaves who are suing for
compensation as a result of it allegedly underwriting the ships used in
the slave trade.
On the face of it the
Khulumani action is the most credible of the apartheid claims and also
looks likely to be a crucial test for the 1789 Act. "One of the reasons
that we have so strongly pursued this litigation is because the
legislation really needs to be accepted in the international
community," Hausfeld argues. "There is no reason why fundamental human
rights are only litigated in the US. If the courts in the US seem to
recognise that these rights are universal then every judicial system
should have regard."
The lawyer has no
time forFagan's Lloyd's action. "Not only does it not have legs, I
don't think it has any other body parts either," he quips.
So what, if anything, has IBM got to do with apartheid? The allegation
is that the company supplied computers that enabled the regime to
create the notorious passbook system. "Under what circumstances is
technology neutral," Hausfeld asks, "if IBM was given the problem of
how the South African Government kept track of, controlled and
dominated their black population? Then they come up with the passbook
system as a technical solution and they created not just the hardware
but the software. Do they have a responsibility?" IBM has declined to
comment.
British human rights lawyers have been following the South African litigation.
Martyn Day regards the 1789 Act as "the most progressive and
prohuman-rights law on the US statute books". Day, who met Hausfeld
when he represented the British Poles in the Nazi reparation cases,
recalls being "massively impressed" by the lawyer. "To the extent that
the apartheid claims have a serious side, he's the guy who represents
that," he says.
The US lawyers were
accused of "hijacking" the Swiss bank dispute, ignoring diplomacy in
favour of attention-grabbing litigation. Notoriously Fagan escorted his
Holocaust survivor clients to the doorstep of the European financial
institutions they were suing. "It was the lawsuits that brought about
results that were unachieved and unachievable in the diplomatic
process," Hausfeld says. That action was personal for Hausfeld, who
acted for his clients pro bono. His own father fled Germany in 1940
when he came to New York but most of his family were killed by the
Nazis.
Hausfeld has no direct connection
with South Africa. How does he persuade South Africans that he, a US
lawyer, is not co-opting their cause? "It has been hard work to go into
South Africa and make people understand that it's their claim, and
their leaders understand it's a legitimate effort," he says. "That's
where our time has been focused, on giving people comfort that this is
their case."
A WINNER
MiCHAEL HAUSFELD'S clients include native Alaskans hit by the 1989
Exxon Valdez oil spill, minorities in a $ 176 million racial-bias suit
against Texaco and theHolocaust families that sued the Swiss banks.
Stuart Eizenstat, a fellow lawyer, said of that case: "Hausfeld could
be sweetness and light one moment and anger and darkness the next. He
was unpredictable and at times unreasonable...But he was central to any
successful negotiation because he had a keen sense of where the bottom
line was."