[Cure-news] Supreme Court Won't Hear Apartheid Lawsuit

[Ida Hakim]

Supreme Court Won't Hear Apartheid Lawsuit

By DAVID STOUT
Published: May 13, 2008
nytimes

WASHINGTON: Indeed, the wheels of justice sometimes grind slowly. And 
sometimes they move in reverse, or lurch forward almost on their own.

So it was at the Supreme Court on Monday, when the court announced  
that, because of some 21st-century conflicts of interest, it was unable 
to consider a lawsuit based on an 18th-century law and involving the 
bygone 20th-century apartheid era in South Africa.

The high court's inability to take up the case means that the 
long-running lawsuit will go on, much to the displeasure of several 
dozen  corporations, because a decision handed down in October by the 
United States Court of Appeals for the Second Circuit, in Manhattan, 
will stand as the last word on the issue.

The Second Circuit reinstated the human rights suit against a list of 
American, Canadian and European corporations "on behalf of all persons 
who lived in South Africa between 1948 and the present and who suffered 
damages as a result of apartheid." The Second Circuit overruled a 2004 
federal district court ruling dismissing the suit for lack of jurisdiction.

The suit is based on the Alien Tort Claims Act, a law enacted in 1789 
that was meant to protect American ships from pirates and American 
diplomats from attack overseas. In throwing out the suit in 2004, Judge 
John E. Sprizzo wrote that courts must be "extremely cautious in 
permitting suits here based upon a corporation' s doing business in  
countries with less than stellar human rights records," and that such 
suits could have "significant, if not disastrous, effects" on trade.

The corporate defendants, among them Citigroup, General Electric, 
I.B.M., General Motors and ExxonMobil, had hoped to persuade the Supreme 
Court to adopt Judge Sprizzo's view and declare that the Second Circuit 
appeals court was wrong. The Bush administration and the current South 
African government sided with the corporations.

But the Supreme Court issued a brief order on Monday saying that it 
could not intervene in the case. The reason was eye-catching: Four of 
the court's nine members had to sideline themselves because of conflicts.

It is not uncommon for, say, a single member of the high court to sit 
out a case because of an apparent or potential conflict, leaving the 
other eight to decide it. But Monday's mass recusal, which left the high 
court unable to muster a quorum of six justices,was the first in memory 
to be based on conflicts of interest.

Chief Justice John G. Roberts Jr. and Justices Stephen G. Breyer and 
Samuel A. Alito Jr. could not take part because they own stock in some 
of the companies involved. Justice Anthony M. Kennedy does not, but his 
son Gregory is a managing director at Credit Suisse, one of the 
defendants, so he recused himself as well.

The Supreme Court's inability to take up the case, known as American 
Isuzu Motors v. Ntsebeza, allows it to go forward, although there is 
always the possibility that the corporations could gain a dismissal of 
the case at the trial level. The Supreme Court development could also 
renew debate over judges and their investments in a truly global economy.

"There is a problem with judges getting into situations where they have 
to recuse themselves," Ronald Rotunda, an expert on judicial
ethics at George Mason University's law school in Fairfax, Va., said in 
an interview with Bloomberg News. "I think the answer is, they
ought to sell the stock and buy mutual funds."

The corporations' lead lawyer, Francis Barron, said, "We are 
disappointed that recusals made the court unable to hear the case and
correct the Second Circuit majority's clear legal errors," Bloomberg 
reported.

If Monday's development was dismaying to the big corporations, it 
brought elation to the three groups of plaintiffs, who are suing over
the way they were treated between 1948 and the end of apartheid in South 
Africa in 1994.

"We are delighted," Shirley Gunn, a board member of the Khulumani 
Support Group, which represents some 36,000 claimants, told
Reuters. "It's a victory, and we are very, very happy."