Will a US court case set right South Africa's apartheid past?

A group of South Africans has brought suit against 20 multinational corporations, alleging that they were complicit in violent abuses during apartheid. It appears these companies would rather rewrite than confront their apartheid history.

In 1993, having spent the entirety of his adult life fighting apartheid, Nelson Mandela was presented with an uneasy proposition. In exchange for amnesty for some of the most ruthless perpetrators of apartheid, the white-ruled National Party would agree to move one step closer to democratic elections. His decision, and the course that South Africa has charted since, is now the stuff of hagiography – a story of forgiveness, reconciliation, and unfailing pragmatism.

But a recent court case in America has unearthed a darker narrative, one of unrequited promises and corporate injustice. The question is, will the case force corporations to confront their apartheid history, or will they succeed in rewriting it?

The case began when a large group of South Africans brought suit against 20 corporations, including multinational giants Daimler, Shell, General Motors, IBM, and Rheinmetall Group. The victims allege that the corporations were complicit in a range of violent abuses during the apartheid era, including rape and torture.

The corporations, for their part, are wary of mounting damage claims and keen to avoid the stigma of apartheid. They hope to cripple the case on procedural grounds – and a recent ruling by the Second Circuit has dramatically increased their chance of success in this regard.

But the defendants' rhetoric also contains a more insidious assertion. The issue of apartheid, they suggest, has already been resolved by South Africa domestically. Digging these issues back up now would only subvert the peaceful transition to democracy that Mr. Mandela, and many others, have sacrificed so much for.

The difficulty with this argument is that it turns out to have very little basis in fact. Although South Africa's Truth and Reconciliation Commission (TRC) was intended to facilitate forgiveness, its mandate was not limited to that objective.

The TRC included a committee specifically devoted to economic reparations. More important, the performances of the few businesses that participated in the hearings on that topic were disappointing, and, at times, the companies were deliberately uncooperative.

Desmond Tutu, the TRC chairman, lamented the "glaring absences" in the business community's testimonials. Given the lack of engagement, in fact, he was forced to conclude that the business hearings "did not mean the end of the process, as there was the question of restitution and repairing the wrongs done."

While the TRC recommended that the South African government apply a punitive reparations tax to corporations, no such tax ever materialized. The new government, headed by Mandela's successor, determined that foreign investment was critical to economic growth and shied away from actions that might deter first-world investors. As a result, corporate harms that took place during apartheid fell almost entirely beyond the reach of any formal culpability.

The past's hold on the present cannot be ignored

Although the court case features events that are now long past, it would be a mistake to evaluate them outside the context of present-day South Africa. Almost 17 years after Mandela's democratic revolution, South Africa remains a nation of extreme inequality. The unofficial unemployment rate is 36 percent, and in 2009, according to some measures, it overtook Brazil as the country with the most economic inequality in the world. Apartheid's system of racial classification contained an explicit economic rationale: confining black workers to menial labor to ensure enduring profit margins for a white-controlled economy. The effects have been lasting.

Because the circumstances of the past affect the decisions of the present, it is important to reflect history accurately. The progress of reconciliation and forgiveness cannot disguise what still amounts to an incomplete set of remedies. The current apartheid litigation presents a revived opportunity for victims to obtain justice. While it may yet stumble on procedural grounds, it should not be cut short on the basis of a revisionist historical narrative.

Julian Simcock is a student at the Harvard Kennedy School of Government and Stanford Law School. He lived in South Africa in 2006 and 2007.

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