An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
Published in Business Day on 13 January 2009
THE apartheid reparation cases in the US courts continue this week amid news that similar cases are now being prepared in Europe. The corporations that have been sued in the US have done everything in their power to resist these claims and the hearing this week is the latest in a long series of appeals against court judgments in favour of the claimants.
It is an understatement to say that big business, abroad and in SA, has generally spoken out against these claims — it condemns them in the strongest possible terms. Daimler- Chrysler has gone so far as to say that it will terminate most — if not all — of its operations in SA should the claim against it proceed.
Business’s dismay with the reparation cases is, of course, hardly surprising to anyone familiar with the capitalist fundamentals of big business. Big business makes big profit — that is its raison d’etre. The degree to which big business will voluntarily contribute to charity or take responsibility for other social ills depends on whether such activities will contribute to the overall maximisation of shareholder wealth.
From this point of view, the idea of reparation is repulsive because it would signify an admission of responsibility for apartheid era atrocities; it would signify that somehow the maximisation of shareholder profit during apartheid was undue.
The ultimate message of neoliberal capitalism of this ilk is often formulated in the ambiguous slogan that “capital” — the disembodied idol of big business — is not, and cannot be expected to be, moral. This also forms the basis of business’s appeal in the courts this week: corporations are not moral agents. Given that this is the general mantra of neoliberalism, it is no wonder that the only way to get business to take social responsibility is to force the “moral agents” — the people who form and associate in these businesses — to do so by legal means.
When SA was in the first moments of its transition from totalitarian rule to constitutional democracy, big business feared for a moment that the new government would put two and two together and realise the huge role capital had played in extending the life of the military industrial complex.
Big business feared that the new government ( brimming as it was with former “communists”) was going to get it into its head to hold it to account for some of the atrocities, such as, for example, the one that happened at Gencor’s Kinross mine on September 15 1986. That morning more than 170 workers were killed in an underground polyurethane fire. Of these, 152 were black. The mine published only the names of the dead white workers. The deceased black workers were identified only according to their ethnic group.
By December 1997, when the Truth and Reconciliation Commission (TRC) concluded its three days of hearings on the role of the business sector in the perpetration of what is an officially recognised crime against humanity, it was clear that big business had nothing more to fear. The hearings took, for most part, the form of a to-and-fro about whether apartheid was good or bad for capitalism. Now and again, the question regarding undue benefit was raised but business repeatedly declared its indignation with any suggestion that apartheid allowed profits to soar.
The TRC did not have the power to order big business to pay social reparation to the amount of billions of rands — it could only recommend this to the government. This it did. The government decided to ignore the recommendations. After all, the Berlin Wall had fallen, philosopher Francis Fukuyama had declared neoliberal democracy as the “end of history”, and SA needed to take its place in the global village.
So the “reparation” that was forced on big business took the form of affirmative action and black economic empowerment. It remains doubtful whether these have succeeded or are succeeding in bringing about the kind of redistribution of wealth that can be said to address the structural inequalities left by apartheid.
In the meantime, business has had to rely as recently as a year ago on a “socialist style” bail-out to save capitalism. It seems that state intervention is acceptable to the corporate hegemony only when it is ultimately geared at resuscitating the “free” market.
In the same week that the apartheid reparations cases are in the news, speculation is mounting that apartheid- era perpetrators, such as Eugene de Kock, will be given a presidential pardon — which is conceptually not very far removed from amnesty.
One of the strongest and most valid criticisms of the TRC process was that there was nothing in it that would countervail for victims the benefits perpetrators received through amnesty. That criticism is as applicable now as it was to the TRC more than 10 years ago.
The Zuma administration has indicated its support for the apartheid reparation cases — which is a step in the right direction, one supposes, if judged against the vehement opposition the Mbeki administration displayed against these claims.
Nevertheless, it seems that the South African government is assuming the stance that reparations are tolerable — as long as it is not actively involved in the process . Only time will tell whether it is pardons or real reparation that win the day. Needless to say, my money is on reparations.
– Barnard-Naudé is associate professor of jurisprudence at the University of Cape Town and a director at the Institute for Justice and Reconciliation.BACK TO TOP