south africa: a right to reparations through legal action

Key decisions taken at the Civil Society Conference on Reparations

The civil society reparations conference, "Opening Civil Society Dialogue
on Reparations", was held in Randburg on 27 and 28 August 2003. It was
attended by some 50 organisations, including those of a national and more
localised character and ranging from organisations interested in reparations
to others actively bringing together people around reparations-related
issues.

The conference had its origins in Government's response to the Truth and
Reconciliation Commission (TRC) in April this year, to which Jubilee and
Khulumani responded by announcing a call to South Africans to come
together to develop an alternative position on reparations to that
announced by Government. The South African Council of Churches
(SACC) also indicated an intention to hold a conference and efforts were
made to work towards a single civil society event.

These efforts were hampered by tensions, leading to a meeting convened
by Archbishop Ndungane resulting in the establishment of a steering
committee to organise the conference. A Jubilee preparatory event,
including 35 organisations, was held on the dates originally scheduled for
the conference, namely 18 and 19 July 2003.

The steering committee was comprised of the Anti-Privatisation Forum
(APF), the Congress of South African Trade Unions (COSATU), the
Environmental Justice Networking Forum (EJNF), Jubilee South Africa,
the Khulumani Support Group, the National Congress of Trade Unions
(NACTU), the National Land Committee (NLC), the National Religious
Leaders Forum (NRLF), the SACC, the South African National Civic
Organisation (SANCO), the South African NGO Coalition (SANGOCO)
and the Womens National Coalition (WNC).

The conference was opened by Archbishop Njongonkulu Ndungane. The
Minister of Justice, Penuell Maduna, presented Government's position on
reparations and Advocate Dumisa Ntsebeza and Father Michael Lapsley
critiqued the TRC and Government's response to the TRC and spoke to
the lawsuits filed in the United States.

Khulumani presented their critique of Government's response to the TRC.
Jubilee and the Apartheid Claims Taskforce described the process
towards and developments in relation to the lawsuits. COSATU, the
Landless Peoples Movement (LPM), EJNF, the APF and SANCO talked
to reparations and the workplace, land, the environment and the
community.

The final sessions of the conference identified areas of agreement amongst
the participating organisations. In the first instance, organisations reached a
common understanding on who the "victims" are, what constitutes
reparations and who should pay. Then the conference reached decisions in
relation to responses to the TRC, the lawsuits and a reparations
movement.

Who are the "victims"?

The negative connotation of the word "victims" was raised and alternative
terms such as those affected or survivors were suggested as being more
appropriate.

The following were described as affected people:
~ People directly affected by Apartheid violence, including police and
military brutality
~ All other South Africans more "indirectly" affected by Apartheid
~ People dispossessed of their land
~ People removed to make way for dams
~ People forced to move for plantations
~ People dispossessed of their land before 1913
~ Workers suffering low wages and appalling working conditions
~ People in the townships
~ People affected by mining pollution, including those suffering ill health as
a result
~ Workers and communities affected by industrial pollution
~ Fisherfolk
~ People victimised in the post-1994 period
~ Affected people throughout the Southern African region

The structural, psychological and physical aspects of damage were raised.

This was not seen as a definitive or an exhaustive definition of those
affected.

What constitutes reparations?

It was agreed that reparations has a monetary component that is both
legitimate and necessary.

Other forms of reparations were mentioned, including:
~ Individual and collective reparations
~ Targeted reparations and reparations for the whole society
~ Debt cancellation as a form of resources for reparations
~ Exhumation and reburial
~ Memorials
~ The forms of reparations identified in Volume 5 of the TRC report
~ Uncovering the truth
~ Historical documentation
~ Rewriting our history
~ Education
~ Reparations as an element of change to a more equitable society

Development was seen as a form of repairing historical inequities, but it
was stressed that general government policies and development activities
are not a substitute for other forms of reparations.

Who should pay and who should effect reparations?

It was agreed that the money is there and that all those who benefited from
Apartheid should pay.

More specifically, business, local and foreign, should pay.

Government has a major responsibility, and needs to identify mechanisms
to increase income from business.

Foreign governments that supported Apartheid and business activity in
contravention of sanctions also have an obligation to make reparations.

It was noted that reparations is a complex issue but that this should not
deter us from addressing the complexities. On the contrary, it is important
to locate individual struggles for reparations within the broader context and
for people, communities and organisations to support each other's
struggles as part of the broader struggle for reparations.

Responses to the TRC:

The conference agreed that Government's response to the TRC
recommendations is inadequate. The amount of R30 000 is less than a
quarter of the amount recommended by the TRC as long ago as 1998.
The announcement that 19 000 are due to receive this amount fails to
address the vast numbers of people affected. The TRC recommendations
themselves are absolutely minimal, representing less than one half a percent
of the national budget and fall well short of what could be provided.

Khulumani made various proposals for structures and services to meet the
needs of those affected, including the establishment of a reparations desk
at the highest level, better resourcing of the National Prosecuting Authority
and the inclusion of victim representatives in all memorialisation projects.

The conference endorsed the spirit of these and other proposals made
during the conference. Due to time considerations, the conference could
not consider the proposals in detail. The consolidated proposals were
circulated in written form and all organisations agreed to forward detailed
comments on the specific proposals.

Lawsuits:

The conference stressed the right of all affected South Africans to legal
action in any court that best represents their interests anywhere in the
world.

The conference recognised that lawyers have to take their mandate from
the plaintiffs and that the conference had no powers in this regard. The
conference encouraged lawyers to work together in the best interests of all
affected.

Participants expressed their openness to dialogue, mediation and
settlement and encouraged Archbishop Ndungane to take the lead in
dialogue.

But the conference noted the antagonistic approach of business. It
condemned business for its failure to respond positively to the invitation to
address the conference and identified this as a slap in the face. The
conference also noted that Government is taking the side of business, as
evidenced by its affidavit to the US court calling for the dismissal of the
lawsuits.

The conference expressed support for the litigation in the United States
against Apartheid-supporting foreign companies. The spokesperson for the
SACC indicated that the SACC can't pronounce on the specific lawsuits
before the US courts.

It was stressed that those affected in South Africa must lead the legal
process, that organisation on the ground in support of the lawsuits must be
strengthened, that the lawsuits must be located within a broad view of
reparations and that they must be embedded in a reparations movement.

It was noted that current litigation is only the beginning and that those that
aided and abetted Apartheid, both foreign and local, must make
reparations.

It was noted that dialogue or mediation requires a fundamental change of
approach by business and government. This includes full disclosure by
business of their activities. It was stressed that any mediation or settlement
on a specific claim should not close the door on other potential claimants'
rights to pursue the legal route. The need to unpack what is meant by
mediation was identified.

The conference demanded that Government withdraws its affidavit to the
US court. It agreed to look into the constitutionality of the Government's
approach in making the affidavit and to the possibility of a civil society
affidavit to the court.

The conference agreed on the need for more dialogue and increased levels
of cooperation amongst the participating organisations. It agreed on the
need for more education around and pamphlets on the lawsuits.
Participants agreed to deepen grassroots support for the lawsuits and
work towards maximum unity.

A Reparations Movement

The conference agreed to work towards building a reparations movement.
It was agreed that this movement should including different organisations,
enhance communication and relationships between the organisations and
support each other's struggles.

The conference agreed that the Apartheid Debt and Reparations Task
Team should act as a point of coordination for the movement and that it
should be expanded to include organisations not currently part of the task
team. Partners of the Interfaith Mission in Southern Africa and the South
African Reparations Movement indicated an interest in participating, the
Freedom of Expression Institute highlighted the need to address the role of
the media under Apartheid and the conference agreed on the need to
avoid confusion between the reparations movement and the South African
Reparations Movement.

It was agreed that the task team should carry forward work in progress
and tasks arising from the conference.

The conference was informed of the call by the President's Office for a list
of participants to the conference and expressed its condemnation of this
approach as an invasion of participants' rights.