American Trial Lawyers
Take Aim at Beleaguered South African Economy
by John Meredith
A New Visions Commentary
paper published October 2003 by The National Center for Public
Policy Research, 501 Capitol Ct., N.E., Washington, DC 20002,
202/543-4110, Fax 202-543-5975, E-Mail Project21@nationalcenter.org,
Reprints permitted provided source is credited.
America's 34-million African-Americans
should be outraged by the campaign of economic blackmail that
a handful of profit-driven personal injury lawyers are waging
against the financially beleaguered Republic of South Africa.
Against the expressed wishes of the revered
Nelson Mandela and President Thabo Mbeki, the lawyers are filing
class-action lawsuits in courts against U.S. corporations who
did business in South Africa during apartheid - unjustly claiming
that their mere presence in the country aided and abetted that
nation's racist government.
In fact, the companies being sued were
signers of the Sullivan Principles on fair labor principles,
which Mandela and Mbeki credit with embarrassing laggard European
and Asian firms to improve their human rights practices.
The fact that the litigation jeopardizes
badly needed foreign investment in South Africa hasn't deterred
the already wealthy American lawyers who stand to walk away with
millions of dollars if they are successful.
That would be a disaster for South Africa,
a nation of 43 million with a 37 percent unemployment rate and
50 percent of the population living under the poverty line. The
situation is made much worse by the country's incredible AIDS
pandemic: 20.1 percent of the adult population have the debilitating
disease and 360,000 men, women and children die from it annually
The American personal injury lawyers
- virtually all of them multi-millionaires - have a strategy
that is downright self-serving, to say the least.
Their first tactic is to make outrageous
charges against the corporations, using the resulting media frenzy
of negative publicity to bully them into signing a lucrative
Those businesses with backbone enough
to seek "justice" encounter the lawyers' fallback strategy
which is to proceed with trials before friendly, hand-picked
judges who foster multi-million dollar jury verdicts.
In either case, poor black South Africans
will get what amounts to peanuts - very small compensation for
participating in a lawsuit that leaves their stagnant economy
with even fewer jobs as foreign companies delay new investment
and expansion plans, and, in some cases, shutter their factory
doors and leave.
Ironically, the lawsuits against more
than 30 U.S. corporations do not contain any specific allegations
that the companies committed human rights violations in South
Far from it. All of the firms instituted
non-discriminatory fair employment policies that provided black
workers with good salaries and fringe benefits, safe working
conditions and the right to join labor unions. And all of the
companies, it should be noted, have better than average minority-hiring
records at their facilities in the United States.
The personal injury lawyers are suing
the American companies under the Alien Tort Claims Act, a law
enacted in 1789 to prevent pirates from disposing of booty in
The law, which allows foreign plaintiffs
to litigate in U.S. courts, lay dormant for some 200 years, before
the lawyers managed to convince a judge that it might be used
to sue American companies with investments in South Africa
The South African government vigorously
opposes that twisted interpretation. In effect, asking the lawyers
to cease and desist.
Mandela is particularly upset by the
lawyers' suggestion that outsiders - U.S. courts thousands of
miles away - can do a better job at remedying the wrongs of apartheid
than South Africa's own Truth and Reconciliation Commission,
which considers claims and grants reparations to apartheid victims.
"South Africans are competent to
deal with issues of reconciliation, reparation and transformation
amongst themselves without outside interference, instigation
or instruction," Mandela said recently. "We have dealt
with our political transition in that manner and we are capable
of dealing with other aspects of our transformation in similar
Penuell Maduna, South Africa's Minister
of Justice, warns that the U.S. lawsuits threaten foreign investment
in his country, and notes that "we talking to the very same
companies named in the lawsuits about investing in post-apartheid
The Bush Administration agrees and has
filed a brief seeking to limit ATCA lawsuits in U.S. courts on
the grounds they pose a direct threat to national security and
foreign policy interests and could hinder America's war against
Federal judges should respect the wishes
of Presidents Mbeki and Bush in this matter and rule such lawsuits
have no standing in U.S. courtrooms.
To do less is to embrace a paternalistic
theory that smacks more than faintly of colonialism and racism.
It's time to end the lawyers' quest for
jackpot justice at the expense of U.S. foreign policy interests
and South Africa's desperate need to revive a habitually decaying
(John Meredith is a member
of the African-American leadership network Project 21 and many
community-based non-profit groups. Comments may be sent to Project21@nationalcenter.org.)
Note: New Visions Commentaries reflect the views of their author,
and not necessarily those of Project 21.
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