“It is very difficult to hold politicians, as opposed to directors of corporations, liable for their actions for the simple reason that they are not acting in their personal capacities”.

I was thinking more of the likes of Thint, BAE etc. Not politicians.

It is very difficult to hold politicians, as opposed to directors of corporations, liable for their actions for the simple reason that they are not acting in their personal capacities. Theoretically it is supposed to be easier since they occupy public offices but it is more difficult. They could argue that according to intelligence gathered at the time, national security was under threat hence they bought more arms and that it was “not reasonably foreseeable to reasonable men in their positions” that the relevant basic rights would be infringed (this is a delictual standard that must be met before a court can order that there is liability).

Moreover, there is that refuge for scoundrels called ‘separation of powers’ doctrine. Our courts tend to restrain themselves in cases which could impinge on this doctrine which is entrenched in our Constitution and the one of the arms deal could involve the said doctrine. Remember buying arms is situated within the executive not the judiciary. Basically, it would be difficult to prove that the buying of arms was unjustified and therefore unlawful, since such decisions lie at the heart of the executive and within the protection of the doctrine of separation of powers recognised in our Constitution.

Lastly, there is the issue of proximity or causal link between the buying of arms and the abuse of basic rights. This means that the (unjustified) buying of arms has to be so connected to the abuse of the basic rights such that it could be said that the abuse would not have resulted “but for” the buying of arms. In delict or torts it is called causation and has two legs; (a) legal and (b) factual causation. As you can imagine in this case, it could be very difficult to prove.

Disclaimer: The above post comprises a very simplified version of our delict law and does not focus on international law where the position is less clear and I am too lazy to check it from Prof Dugard’s latest edition of his book on public international law.

@ Sne – would that change if it were to be established that the consequence of the arms deal was so profound that people were deprived of basic rights and that the primary motivation behind the arms deal was not military threat (bear in mind that President Mbeki rained outrage on then Anglo chairman Tony Trahar for saying “political-risk issue is starting to diminish – though I am not saying it has gone”)?

I think it would be difficult since the arms deal has not resulted in any crime against humanity or human rights abuse of any kind, recognised in international law. They would have to adhere to local delictual or tort laws. Now that would be difficult but doable.

It is always a problem that foreign govts enjoy sovereign immunity.

As for foreign corporations involved in the arms deal, that is an interesting question. The US has specific legislation restraining its corporates from bribery abroad. I am not sure whether, e.g. Germany has such too,

http://www.timeslive.co.za/news/article268685.ece

If the Khulumani group is successful, will that possibly open the way for action by some concerned South African group in the future against those foreign corporates/governments involved in the arms deal?

LOL! Indeed. The man is rightfully said to need to “try to find his footing on the ground instead” by Dmitri. Good posting all round.