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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

SAKWE BALINTULO as personal
representative of SABA BALINTULO, TONY
BRUTUS as personal representative of
DENNIS VINCENT FREDERICK BRUTUS,
MARK FRANSCH as personal representative
of ANTON FRANSCH, ELSIE GISHI,
LESIBA KEKANA, ARCHINGTON
MADONDO as personal representative of
MANDLA MADONDO, MPHO ALFRED
MASEMOLA, VIMBA WISEMAN MBELE
as personal representative of MICHAEL
MBELE, MAMOSADI CATHERINE
MLANGENI, REUBEN MPHELA,
THULANI NUNU, THANDIWE SHEZI, and
THOBILE SIKANI,

MDL No. 02-md-1499 (SAS)
02 Civ. 4712 (SAS)
02 Civ. 6218 (SAS)
02 Civ. 1024 (SAS)
03 Civ. 4524 (SAS)

[PROPOSED] THIRD AMENDED
COMPLAINT
JURY TRIAL DEMANDED

CLASS ACTION

Plaintiffs,
v.
FORD MOTOR COMPANY AND
INTERNATIONAL BUSINESS MACHINES
CORPORATION,
Defendants.

Plaintiffs, on behalf of themselves and all other individuals similarly situated, for their
Third Amended Complaint state as follows:
I.

NATURE OF THE CASE
1.

Plaintiffs bring this class action under the Alien Tort Claims Act, 28 U.S.C.

§ 1350, against United States corporations that aided and abetted the South African security
forces, as defined herein, for the specific purpose of facilitating and participating in a joint
criminal enterprise in furtherance of the crimes of apartheid; extrajudicial killing; torture;
prolonged unlawful detention; denationalization; and cruel, inhuman, and degrading treatment in

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violation of international law. Class Plaintiffs are the personal representatives of victims, or
were themselves direct victims, of the aforementioned crimes perpetrated by the security forces
of the apartheid regime between 1960 and 1994.
2.

Defendants are United States companies that provided not only practical

assistance to the South African security forces, but also material, logistical, and other practical
support in the form of specialized military vehicles, technology, and computer equipment, which
purposely facilitated the commission of said crimes. Defendants collaborated with the security
forces of South Africa’s apartheid regime, resulting in the abuses that Plaintiffs suffered. In
return, Defendants benefited from apartheid and, consequently, the violence and terror that was
used to maintain and enforce it at the expense of Plaintiffs and the putative class members
discussed herein.
3.

Defendants are United States corporations which directed and controlled the

operations of their subsidiaries and agents around the world and in South Africa, particularly by
making critical decisions in the United States related to Plaintiffs’ claims. Defendants
intentionally and knowingly facilitated and enabled the commission of crimes in violation of
customary international law by the apartheid security forces (including military and police)
through sales and lease of technology and specialized vehicles, as well as with management,
technical advice, maintenance, and expertise to enforce the human rights abuses of Apartheid.
This practical assistance facilitated effective enforcement of apartheid, including
denationalization and the torture and killings of certain Plaintiffs and Class Members.
4.

Defendants knew that the actions of the South African security forces constituted

violations of international norms toward Plaintiffs and the classes and violations of the United
States interest in embargoing the trading of goods and services to the Apartheid Security forces,

2

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but nevertheless acted to aid and abet the South African security forces with the purpose of
facilitating those crimes. In fact, Defendants vigorously opposed United States efforts to prevent
them from providing support and goods from the United States to Apartheid South Africa, and
acted to circumvent United States sanctions.
5.

Beginning in 1950, the world community and the United States condemned

apartheid and the acts of violence and terror committed by the South African security forces to
enforce and maintain apartheid as crimes in violation of fundamental, internationally-recognized
human rights. The world community and the United States specifically identified the
manufacturers of vehicles and the technology corporations that designed and supported the racial
passbook systems, as closely connected to the South African security forces and their violent
acts. Defendants’ involvement violated international law and constituted purposeful
participation in and/or aiding and abetting of the crimes of apartheid; extrajudicial killing;
torture; prolonged unlawful detention; denationalization; and cruel, inhuman, and degrading
treatment.
II.

JURISDICTION AND VENUE
6.

This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1350, the Alien

Tort Claims Act (“ATCA”), and 28 U.S.C. § 1367 for any additional claims not otherwise
covered by the ATCA.
7.

This matter was originally brought in the Eastern District of New York, where

venue was proper pursuant to 28 U.S.C. § 1391.
8.

The matter was consolidated for pretrial proceedings by the Judicial Panel on

Multidistrict Litigation and was transferred to the Southern District of New York.

3

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III.

DEFINITIONS
9.

Apartheid literally means “separateness.” 1 Apartheid is defined by the Rome

Statute of the International Criminal Court as “inhumane acts . . . committed in the context of an
institutionalized regime of systematic oppression and domination by one racial group over any
other racial group or groups and committed with the intention of maintaining that regime.” 2
Article II of the International Convention on the Suppression and Punishment of the Crime of
Apartheid defines apartheid as a system that includes murder; the infliction of serious bodily or
mental harm; torture or cruel, inhuman, and degrading treatment; and the institution of measures
calculated to prevent a racial group from participation in the political, social, economic and
cultural life of a country, in particular by denying the group or groups basic human rights or
freedoms. 3 Apartheid is a variant of genocide.
10.

“Apartheid regime” refers to the country of South Africa during the period 1948

to 1994, when that country was ruled by the National Party.
11.

“Bantustan” refers to the barren, rural areas where Blacks were restricted or

forcibly resettled. These areas were also called “homelands” or rural reserves. “Bantustan”
comes from the word “Bantu,” an isiXhosa and isiZulu word that was co-opted during apartheid
and used by some white South Africans as a derogatory term to refer to Black Africans. 4

1

Robert Ross, A Concise History of South Africa 115 (Cambridge University Press: 1999).

2

Rome Statute of the International Criminal Court, art. 7(1)(j), July 17, 1998, 2187 U.N.T.S.
90, 37 I.L.M. 999.
3

International Convention on the Suppression and Punishment of the Crime of Apartheid, 1015
U.N.T.S. 243, art. II.
4

Kevin Danaher, In Whose Interest? A Guide to U.S. – South Africa Relations (Washington,
DC: Institute for Policy Studies, 1985) at 107.

4

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12.

“Black” refers to all African, Indian, and “Coloured” South Africans unless

otherwise indicated.
13.

“Coloured” is used as a synonym for “mixed race.”

14.

“Genocide” is defined, in part, as “deliberately inflicting on the group conditions

of life calculated to bring about its physical destruction in whole or in part.” 5
15.

“Plaintiffs” includes all named class representatives.

16.

“SAP” refers to the South African Police.

17.

“SADF” refers to the South African Defense Force.

18.

“Security forces” includes the South African military, paramilitary, police, special

operations, intelligence, anti-riot, and other security units.
IV.

PARTIES
A.

Plaintiffs

19.

Sakwe Balintulo is the personal representative and brother of Saba Balintulo,

who was murdered by the SAP on March 15, 1973. On that day, Mr. Balintulo and fifteen
friends were walking in the road, when the SAP opened fire on them. Mr. Balintulo was first shot
in the leg and then shot three more times in the torso. The gun shots killed Mr. Balintulo as well
as his fifteen friends.
20.

Tony Brutus is the personal representative and son of Dennis Vincent Frederick

Brutus who was detained and shot by the SAP. The recipient of a doctoral degree and numerous
honorary doctorates, in 1961, Dr. Brutus was banned from teaching, publishing poetry, and
attending gatherings. In 1963, Dr. Brutus was arrested in Johannesburg while on his way to

5

Convention on the Prevention and Punishment of the Crime of Genocide Art. 2(c), Dec. 9.
1948, 78 U.N.T.S. 277.

5

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attend a meeting of the South African Non-Racial Olympic Committee, of which he was
president. The police transported him to a prison in a security vehicle. When released on bail,
Dr. Brutus fled to Swaziland and Mozambique, was arrested by the Portugese secret police, and
was turned over to the SAP. In September 1963, Dr. Brutus attempted to escape but was shot
through his back by the South African Secret Police. He was hospitalized in Fort Prison Hospital
until December 1963. Dr. Brutus was sentenced to eighteen months hard labor in Leeuwkop
Prison in January 1964, was transferred to Robben Island Prison in March 1965, and in July 1965
was placed under house arrest until July 1966. Additionally, Dr. Brutus was denied South
African citizenship because of racial classification as a black person. Dr. Brutus, who served on
the faculties of the University of Denver, Northwestern University, and the University of
Pittsburgh, testified three times before United Nations (“UN”) committees on apartheid issues.
Dr. Brutus passed away in December 2009.
21.

Mark Fransch is the personal representative and brother of Anton Fransch, who

was murdered by the SAP and the SADF in September 1989, when he was 20 years old. Mr.
Fransch was a member of the African National Congress (“ANC”). SAP and SADF officers said
that Mr. Fransch was a “dog” and that they would kill him. When Mr. Fransch was staying at a
house on Church Street in Crawford, thirty to forty officers, some of whom arrived in a Casspir
vehicle, repeatedly shot into the house, killing Mr. Fransch and leaving flesh and hair on the
wall.
22.

Elsie Gishi was shot by the SAP on December 26, 1976. On that day, as Ms.

Gishi returned from work, she found a group of youths protesting in her township. There was a
heavy police and military presence. The officers kicked in the door of her house and one soldier
shot Ms. Gishi from a Casspir vehicle. Multiple bullets entered her back and remain lodged in

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her chest and arms. One bullet lodged in her throat. Another bullet is lodged inside a bone in
her left arm and, as a result, she can no longer lift her left arm and the entire left side of her body
is lame. She can no longer bathe herself or do other washing. The three remaining bullets cause
her respiratory dysfunction and kidney problems. Ms. Gishi is permanently disabled and
continues to suffer as a result of the shooting. She is currently bedridden.
23.

Lesiba Kekana was tear gassed during numerous student gatherings in 1985 and

1986. Mr. Kekana was unlawfully arrested by soldiers driving a Casspir vehicle. He was
fingerprinted and detained without trial from June 1986 to February 1987. During his detention,
he was tortured. Additionally, Mr. Kekana was denied South African citizenship because of
racial classification as a black person. Mr. Kekana still suffers from the torture and abuse.
24.

Archington Madondo is the personal representative and father of Mandla

Madondo, who was murdered by the SADF on July 10, 1986. Mandla Madondo was sent by his
father to buy some bread. While he was standing with friends outside the shop, he was shot to
death by South African soldiers who were driving down the street in a Casspir vehicle. Mandla
Madondo was just 16 years old when he died. His twin brother, Thamsanqa, was arrested shortly
after Mandla’s murder and was imprisoned for one year without a trial.
25.

Mpho Alfred Masemola was arrested and detained without trial for two months

in 1982 for not having a passbook. Between 1982 and 1984, Mr. Masemola was monitored and
under 24-hour surveillance because of his involvement organizing boycotts and with a banned
organization. Mr. Masemola was then imprisoned on Robben Island from August 11, 1985 to
1990. During his time in detention, Mr. Masemola was beaten so badly that his arm was broken
and had to be in a plaster cast for one year. He was also hit with iron bars while in detention for
passbook violations. Mr. Masemola was tear gassed at school, during riots, and in his prison

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cell. Mr. Masemola spent one year in solitary confinement without treatment for his broken arm.
The police also shot Mr. Masemola. He still has bullet fragments lodged in his head that cause
severe headaches. The bullet fragments cannot be removed. Additionally, Mr. Masemola was
denied South African citizenship because of racial classification as a black person. Mr.
Masemola still suffers from the torture.
26.

Vimba Wiseman Mbele is the personal representative of Michael Mbele, born

on October 31, 1944, was politically active in a union as a shop steward and was also a United
Democratic Front member. Mr. Mbele was arrested twice for passbook violations after moving
from the Transkei region of South Africa to KwaZulu Natal in 1973 without appropriate
authorization. Then, in 1986, the Special Security Police detained Mr. Mbele, transported him
by a security vehicle to prison, and tortured him on account of his political activities. For three
straight days police beat and shocked Mr. Mbele with electric pipes, then choked him with a
rubber tire. As a result of his torture, Mr. Mbele lost his hearing. Mr. Mbele’s suffering
continued for eleven more months as police placed him in solitary confinement. Additionally,
Mr. Mbele was denied South African citizenship because of racial classification as a black
person. Mr. Mbele recently passed away.
27.

Mamosadi Catherine Mlangeni was arrested, detained, and fined for not having

a passbook on as many as eight different occasions. Each time, she would be transported to
prison by a security vehicle, detained for a period of days, and forced to pay 200 rand to be
released. There was never a trial for any of these violations. On many of these occasions Ms.
Mlangeni was also beaten by the security forces. Ms. Mlangeni believes she was monitored.
The police would stop her and say things that indicated they knew who she was. Sometimes,
only a day after she was released from jail, the police would re-arrest her. Sometimes it was the

8

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same police officers, while at other times it was their colleagues. Ms. Mlangeni was even
stopped and told by the police that they were going to get her or her son, Bheki Mlangeni. In
1984 and again in 1986, Ms. Mlangeni was placed under house arrest for two to three months
due to her son’s status as an enemy of the state. Ms. Mlangeni was constantly harassed by
police, who were trying to capture Bheki Mlangeni. The Security Branch came to her home
once, asking for her son, then hit and kicked her and destroyed her property when she told them
that Bheki Mlangeni was not there. Bheki Mlangeni was murdered in front of his family by a
parcel bomb that was planted in the earphones of a walkman on February 15, 1991.
Additionally, Ms. Mlangeni was denied South African citizenship because of racial classification
as a black person. Ms. Mlangeni still suffers from these abuses.
28.

Reuben Mphela was detained and transported by security vehicle to a prison

several times between 1976 and 1982 for failing to produce a passbook. On these occasions, the
SAP came to arrest him at work. He was beaten, kicked, and made to jump like a frog. Mr.
Mphela’s family was traumatized by his imprisonment. He still suffers as the result of his
injuries.
29.

Thulani Nunu was shot by the SAP in 1985 when he was just six years old and

living in the Nyanga Bush. It was night time and the SAP was raiding houses and shooting at
youth with tear gas and live ammunition from Hippo military vehicles and vans. Panicked by the
noise and the tear gas that filled his house, Mr. Nunu ran outside. The police fired at him from a
Hippo vehicle and struck him in the head and hand. As a result of his injuries, Mr. Nunu lost
60% of the use of his hand. Because of his head wound, Mr. Nunu has permanent visual and
hearing impairment. He still suffers from these injuries.

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30.

Thandiwe Shezi was tortured and raped by the Security Police. On September 8,

1988, the police stormed into Ms. Shezi’s home and beat and strangled her in front of her
daughter. They then took Ms. Shezi in a security vehicle to the Alexander Police Station where
they tortured her further. She was handcuffed and a wet sack was tied over her head. She was
then taken to a room where she was electrocuted for twenty minutes. Next she was raped
repeatedly by four police officers. In addition to physical torture, the police also psychologically
tortured Ms. Shezi. The police forced Ms. Shezi to watch as they smashed another prisoner’s
penis in a drawer. When the prisoner screamed out in pain they wanted Ms. Shezi to laugh. On
one occasion, the police took Ms. Shezi outside, stripped her naked and tied her to a tree. They
smeared her legs with butter, opened them wide, and threw ants all over her. The ants crawled
into her vagina. On at least one occasion, while Ms. Shezi was being electrocuted, acid was
poured over her head. Because of the torture, Ms. Shezi could not eat solid food for almost a
month. Additionally, Ms. Shezi was denied South African citizenship because of racial
classification as a black person. She still suffers from the physical and mental effects of the
torture and sexual assault.
31.

Thobile Sikani was repeatedly detained, tortured, and shot by the SAP. The

police shot Mr. Sikani in 1983, while he was attending a funeral for four of his friends. Without
warning, the SAP opened fire on the funeral procession. Mr. Sikani was carrying the coffin of
one of his friends when he was shot in the back and the left leg by the SAP. In 1986, the SAP
transported Mr. Sikani by a security vehicle and fingerprinted and detained him at the Bishop
Lavis Police Station because he was chairperson of the ANC Youth League. The SAP officers
beat Mr. Sikani for hours and placed his scrotum and testicles in a machine that caused
excruciating pain and made Mr. Sikani pass out. The SAP transferred Mr. Sikani in a security

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vehicle to other facilities where the torture continued. At Bellville-South Police Station, an SAP
officer inserted needles under Mr. Sikani’s finger nails to coerce Mr. Sikani into talking about
the ANC, but Mr. Sikani refused. Mr. Sikani was then taken to the hospital and treated for his
injuries. After his treatment, the SAP took him back to the Wynberg Police Station where he
was detained for five months without trial. In 1987, Mr. Sikani was again detained at the
Wynberg Police Station for two months and tortured. At one or more times during his
detentions, Mr. Sikani was transported in a Casspir military vehicle. In 1988, Mr. Sikani was
attending a welcome home rally for the ANC leadership when the police shot tear gas with a
pumpgun into Mr. Sikani’s face. Additionally, Mr. Sikani was denied South African citizenship
because of racial classification as a black person. Mr. Sikani’s stomach swelled up and he was
rushed to the hospital. Mr. Sikani still suffers from the torture and abuse.
B.

Defendants

32.

Defendant Ford Motor Company (“Ford”), an international automobile giant, is

organized and incorporated under the laws of Delaware. Headquartered in Dearborn, Michigan,
Ford does business in New York State and has offices in New York State.
33.

Defendant International Business Machines Corporation (“IBM”) is a global

leader in manufacturing computer systems, software, networking systems, storage devices, and
microelectronics. IBM is headquartered in New York State and does business in New York State.
V.

CLASS ACTION ALLEGATIONS
34.

Class Plaintiffs bring this action pursuant to Rules 23(a), (b), and (c) of the

Federal Rules of Civil Procedure. Plaintiffs seek certification of the following distinct classes:
a.

Extrajudicial Killing Class: All persons who are the surviving personal

representatives—including parents, spouses, children, siblings, and dependents—
of persons who were subject to extrajudicial killing by South African security
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forces during the period from 1960 to 1994. Class representatives: Sakwe
Balintulo, personal representative of Saba Balintulo; Mark Fransch, personal
representative of Anton Fransch; and Archington Madondo, personal
representative of Mandla Madono;
b.

Torture Class: All persons who were themselves and/or who are the

personal representatives of persons who were subject to torture and rape by South
African security forces during the period from 1960 to 1994. Class
representatives: Lesiba Kekana, Mpho Alfred Masemola, Vimba Wiseman Mbele
personal representative of Michael Mbele, Mamosadi Catherine Mlangeni,
Thandiwe Shezi, and Thobile Sikani;
c.

Detention Class: All persons who were themselves and/or who are the

personal representatives of persons who were subject to prolonged unlawful
detention for pass violations or other alleged Apartheid offenses by South African
security forces during the period from 1960 to 1994. Class representatives: Tony
Brutus personal representative of Dennis Vincent Frederick Brutus, Lesiba
Kekana, Mpho Alfred Masemola, Vimba Wiseman Mbele personal representative
of Michael Mbele, Mamosadi Catherine Mlangeni, Thandiwe Shezi, and Thobile
Sikani;
d.

Cruel Treatment Class: All persons who were themselves and/or who are

the personal representatives of persons who were subject to cruel, inhuman, and
degrading treatment by South African security forces during the period from 1960
to 1994. Class representatives: Elsie Gishi, Lesiba Kekana, Mpho Alfred
Masemola, Vimba Wiseman Mbele personal representative of Michael Mbele,

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Mamosadi Catherine Mlangeni, Reuben Mphela, Thulani Nunu, Thandiwe Shezi,
and Thobile Sikani;
e.

Denationalization Class: All persons who were themselves and/or who are

the personal representatives of persons who were stripped of their South African
nationality and/or citizenship by South African security forces during the period
from 1960 to 1994. Class Representatives: Tony Brutus personal representative
of Dennis Vincent Frederick Brutus, Lesiba Kekana, Mpho Alfred Masemola,
Vimba Wiseman Mbele personal representative of Michael Mbele, Mamosadi
Catherine Mlangeni, Thandiwe Shezi, and Thobile Sikani.
35.

The members of each of these classes are so numerous that joinder of all members

is impractical. The exact number and identities of all class members is not currently known, but
Plaintiffs believe that each proposed class numbers in the thousands. For example, according to
the ANC, the South African security forces were responsible for over 12,000 civilian deaths and
20,000 civilian injuries in the period from 1990 to late 1993 alone. 6 Between 1960 and 1990,
over 80,000 opponents of apartheid were detained for up to three years without trial, including
approximately 10,000 women and at least 15,000 children under the age of 15. 7 A 1988 report
noted:
Anti-apartheid and human rights groups, such as the Detainee Parents
Support Committee (DPSC), have accused the security forces of
widespread brutality, including torture of detainees, assaults, killings and
rape, as well as, on occasion, the wanton destruction of property. More
than 3,000 blacks reportedly have died in the violence of the last three
6

African National Congress First Submission to the Truth and Reconciliation Commission,
Aug. 1996, at 25 [heareinafter First Submission].
7

Kenneth Christie, The South African Truth Commission 21-22 (St. Martin’s Press, Inc., 2000).
Max Coleman (ed.), A Crime Against Humanity: Analysing the Repression of the Apartheid State
xi-xii (Mayibube Books, 1998).

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years, many of them in confrontations with the security forces. More than
20,000 political opponents of the white regime have been imprisoned,
including several thousand children. 8
36.

There are questions of law and fact that are common to members of each distinct

class or to members of all classes, including, but not limited to:
(a) whether and to what extent United States Defendants provided practical assistance to
the South African security forces for the purpose of facilitating the crimes of apartheid;
(b) whether and to what extent United States Defendants purposefully substantially
assisted the South African security forces in maintaining and enforcing apartheid through
campaigns of violence and terror, including committing the crimes of extrajudicial killing;
torture; prolonged unlawful detention; denationalization; and cruel, inhuman, and degrading
treatment;
(c) whether and to what extent Defendants knew of the violence and terror perpetrated by
the South African security forces, benefited from the system of apartheid and the crimes with and
by which it was maintained and enforced, and continued to provide pracitical assistance for the
purpose of facilitating the commission of those crimes;
(d) whether and to what extent Defendants aided and abetted or otherwise participated in
or were liable for the crimes committed by the South African security forces;
(e) whether the system of apartheid enforced by the South African security forces is
actionable under the Alien Tort Claims Act as a tort in violation of international law;
(f) whether the conduct of the South African security forces constituted extrajudicial
killing, torture, prolonged unlawful detention, denationalization, and/or cruel, inhuman, and

8

Investor Responsibility Research Center, Inc., Social Issue Service, Proxy Issue Report, Sales
to Strategic Entities in South Africa (Feb. 23, 1988), at G-10.

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degrading treatment and is actionable under the Alien Tort Claims Act as a violation of
international law;
(g) whether each plaintiff class is entitled to compensatory and/or punitive damages
and/or equitable relief, and the proper measure thereof;
(h) whether these actions against the class members were committed by the apartheid
state with the complicity of Defendants, either by aiding and abetting or purposely participating
in a joint criminal enterprise; and
(i) whether and to what extent Plaintiffs’ claims against U.S. corporations providing
material assistance to South African security forces in contravention of U.S. foreign policy touch
and concern the territory of the United States.
37.

Plaintiffs’ claims are typical of those of their respective class(es) in that they

(and/or the decedents they represent) were civilians who suffered extrajudicial killing, torture,
prolonged unlawful detention, denationalization, and/or cruel, inhuman, and degrading treatment
by reason of the conduct of the South African security forces during the time period in which
Defendants provided assistance to those forces.
38.

Class Plaintiffs will fairly represent the interests of their respective class(es)

because it is in their best interest to prosecute the claims alleged herein to obtain full
compensation due to them for the conduct of which they complain. Class Plaintiffs have no
interests that conflict with or are contrary to the interests of other class members.
39.

Class Plaintiffs will adequately represent their respective class(es) in that they are

represented by counsel with extensive experience in international human rights and class action
litigation.

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40.

Pursuant to Fed. R. Civ. P. 23(b)(3), questions of law and fact common to the

members of the class predominate over any questions affecting only individual members, and a
class action is superior to other available methods for the fair and efficient adjudication of the
controversy.
41.

In the alternative, certification of particular issues pursuant to Fed. R. Civ. P.

23(c)(4) is appropriate with respect to those issues identified in paragraph 36 and/or other
significant common issues as resolution of these issues would significantly and materially
advance this litigation, reduce the range of issues in dispute, and promote judicial economy.
VI.

BACKGROUND FACTS APPLICABLE TO ALL COUNTS
42.

In 1948, the National Party won control of the South African government, using

apartheid as its primary electoral platform. 9 The National Party then passed a series of laws to
implement and institutionalize apartheid.
A.

Apartheid-Era Laws

43.

Apartheid is a crime against humanity. 10 It is a system of “inhumane acts . . .

committed in the context of an institutionalized regime of systematic oppression and domination
by one racial group over any other racial group or groups and committed with the intention of
maintaining that regime.” 11 It is a system that depends on systematic violence and acts of terror,
including murder; the infliction of serious bodily or mental harm; torture; or cruel, inhuman, and

9

Steven Debroey, South Africa: Under the Curse of Apartheid 188, 191 (University Press of
America, Inc., 1990).
10

Rome Statute of the International Criminal Court, art. 7(1)(j), July 17, 1998, 2187 U.N.T.S.
90, 37 I.L.M. 999.
11

Id. at art. 7(2)(h).

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degrading treatment; as well as institutional methods of disenfranchisement and segregation, for
its maintenance and enforcement. 12
44.

Apartheid-era laws classified all South Africans according to one of four races—

white, “Coloured,” Asiatic (Indian), and Native (African) 13—and then designated specific
residential and business areas for the sole use of particular racial groups. The majority of the
land was reserved for whites. As a result, non-whites were forcibly removed from their homes.
45.

The Bantu Authorities Act of 1951 provided for the establishment of separate

rural areas or homelands called “Bantustans” for most Africans to live according to their often
bureaucratically-imposed tribal identity. 14 “[T]he dilemma of Bantustan policy in the final
analysis was one in which the contradiction of the apartheid attempt to confine black settlement
to rural homelands along with the need to secure black, cheap labour power in the cities, created
the repression, the hatred and the patterns which would lead to spiraling violence in later
years.” 15
46.

The government required all Africans over the age of 16 to carry passbooks,

which included their Population Registration identity card, their fingerprints, and pages for any
history of government opposition, labor control, and employer signatures. 16 These regulations

12

International Convention on the Suppression and Punishment of the Crime of Apartheid, 1015
U.N.T.S. 243, art. II.
13

Nigel Worden, The Making of Modern South Africa, Third Edition 108 (Blackwell Publishers
Ltd., 2000).
14

Christie, supra note 7, at 20.

15

Id. at 25.

16

Id. at 5 “Natives Act.”
17

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were referred to as “pass laws.” Without the proper documentation, no African could legally
enter or remain in an urban area. 17
47.

These laws restricted the freedom of movement of Africans so as to channel

workers where employers need cheap labor, facilitated the policing of workers, allowed the
“weeding out” of the unemployed and “troublemakers,” confined and barricaded the “surplus
population” in the rural slums of the Bantustans, and stripped Plaintiffs and Class Members of
their nationality and citizenship. 18
48.

The pass laws were an instrument of coercion and control dating to the prior

century “to have a hold on the native whom we have brought to the mines … a most excellent
law … which should enable us to have complete control of the Kaffirs.” 19
49.

In addition to controlling movement and access to urban areas, the apartheid laws

zoned residential and business districts on a racial basis. 20 Amenities—including cinemas,
restaurants, sports facilities, and public vehicles—were also officially segregated.
50.

Job reservation laws excluded Africans from better paid, more skilled categories

of work. 21 Master and Servant laws made it a crime—punishable by imprisonment—for Black

17

Bentley J. Anderson, The Restoration of the South African Citizenship Act: An Exercise in
Statutory Obfuscation, 9 Conn. J. Int’l L. 295, 310.
18

Robert Davies, Dan O’Meara and Sipho Dlamini, The Struggle for South Africa 171 (Zed
Books, 1985).
19

African National Congress Submission to Special Truth and Reconciliation Commission on
the Role of Business, Nov. 1997, at 2 (quoting the President of the Chamber of Mines at the end
of the last century) [hereinafter Role of Business]. “Kaffir” is a derogatory term for Africans.
20

Davies, et al., supra note 18, at 172.

21

Id. at 174; see, e.g. Native Building Workers Act (1951), Industrial Conciliation Act (1956).
18

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workers to break an employment contract by, inter alia, desertion, insubordination, or refusing to
carry out an employer’s command. 22
51.

Laws banned relations between races. 23 The Immorality Amendment Act, barring

intercourse between the races, 24 led to the jailing of over 6,000 people between 1950 and 1966. 25
The government also prohibited interracial marriages in 1949.
52.

The apartheid government also enacted laws to suppress dissent. In 1956, the

Riotous Assemblies Act was passed, granting the Minister of Justice wide powers to control
public gatherings and to prohibit a gathering if he deemed that it posed a threat to the peace. 26
The Act further allowed the police to disperse with force any gathering that took place in
violation of its prohibition. 27
53.

In 1960, the Prime Minister gained power under the Unlawful Organizations Act

to ban the ANC and the Pan-Africanist Congress. 28 Other African organizations later were

22

Role of Business, supra note 19, at 2. The laws remained on the books until 1977.

23

See Worden, supra note 13, at 107. An Amendment to the Prohibition of Mixed Marriages
Act was passed in 1968 to make void any illegal marriage by a South African, even if it took
place outside of South Africa.
24

The ban on intercourse between whites and Africans already was in place prior to this Act,
which extended the ban to all non-whites. The Act was further tightened in 1967. Brian Bunting,
The Rise of the South African Reich, Chapter Nine: South Africa’s Nuremberg Laws 21 (Penguin
Africa Library, 1969).
25

Id. at 3 (discussing statistics of Minister of Justice in Parliament).

26

Other related legislation included the Internal Security Act of 1950, the Gatherings and
Demonstrations Act of 1973, and the Dangerous Weapons Act of 1968. See Janine Rauch and
David Storey, Policing of Public Gatherings and Demonstrations in South Africa 1964-1994.
27

Id. at 9.

28

Bunting, supra note 24, at 14. The Unlawful Organizations Act also increased the fines and
physical punishment under the Riotous Assemblies Act.

19

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banned under the Affected Organizations Act 29 and the Internal Security Act, which also banned
all political meetings during April 1, 1986 – March 31, 1987 as part of a State of Emergency. 30
B.

The Violence and Terror of Apartheid

54.

“What was involved (in apartheid) was far more than simply the implementation

of what the world regarded as a criminal policy. What was of even greater significance was the
use of criminal means to defend apartheid. The massive powers given to the state to control
people’s lives and deny them their basic rights were not enough. They were supplemented by
every species of common law crime, including systematic and organized murder, fraud,
kidnapping and torture.” 31
55.

“Some 16.5 million South Africans were criminalised and harassed under the pass

laws . . . . Four million people were forcibly removed from their homes and land during the
heyday of apartheid social engineering. Three hundred apartheid laws were put on the statute
books to control and disadvantage black South Africans from the cradle to the grave.” 32
56.

Under the pass laws, failure to produce a passbook on demand was an arrestable

offense regardless of how legally and how long one may have been living in an urban area. In
1976 alone, 250,000 Africans were arrested under the pass laws and related influx control laws,
according to the Africa Fund.

29

David Webster and Maggie Friedman, Repression and the State of Emergency: June 1987 –
March 1989. Glenn Moss and I. Obery (eds.), State and Politics 26-27 (Ravan Press Ltd., 1989).
30

Id. at 163. For a list of banned organizations, see Webster and Friedman, supra note 29 at 2627.
31

This quote was taken from the foreword to the Idasa “Truth and Reconciliation in South
Africa” 1994 conference proceedings. See Christie, supra note 7, at 15.
32

Paul Connerton, How Societies Remember 1-4 (Cambridge University Press, 1989); see, e.g.,
Christie, supra note 7, at 13.

20

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57.

According to the apartheid government’s own statistics, 2,419,675 people were

arrested or prosecuted under the pass laws between 1974 and 1985. 33
58.

The emergence of rural resistance was met with banishment—62 individuals were

removed from where they lived and relocated across the country to areas where they knew noone and were prevented from any kind of employment.
59.

It has been estimated that 12 million Blacks were unlawfully arrested and

convicted in summary trials between 1948 and 1985 for pass violations. 34
60.

Resistance to apartheid reached a turning point in 1960. On March 21, 1960, a

crowd of between 7,000 and 20,000 gathered in Sharpeville to protest against the pass laws. The
demonstrators marched to the municipal police station to turn in their pass books. The police
opened fire on the crowd, using machine guns and automatic weapons. Sixty-nine people were
killed and 186 wounded, many of them women and children and most shot in the back as they
ran from the gunfire. 35
61.

That same day, police fired on a crowd of 10,000 demonstrators in Langa, killing

two people and wounding 49 others. 36
62.

Following Sharpeville, the state called its first State of Emergency. In the three

months following the March 1960 State of Emergency declaration, police detained over 10,000
people and arrested a further 10,000, primarily on the charges of pass violations. 37

33

International Defense and Aid Fund for Southern Africa, Apartheid: The Facts 48-49 (1991).

34

Kevin Hopkins, Assessing The World’s Response To Apartheid, 10 U. Miami Int’l & Comp.
L. Rev. 241, 247 (2001-2002).
35

Christie, supra note 7, at 27-28; Steve Clark (ed.) Nelson Mandela Speaks: Forging a
Democratic, Nonracial South Africa 275 (Pathfinder, 1993).
36

Id.

37

Webster and Friedman, supra note 29, at 141.
21

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63.

The ANC described the resistance that began in the 1970s as follows:
The early 1970s witnessed a slowdown in the economy and increased
privations among the black population. Spontaneous as well as organized
mass resistance began to surface for the first time in a decade. . . .
Faced with internal mass upsurge, the response of the regime was brute
force: detention, closure of institutions, brutal suppression of
demonstrations and strikes; and in 1976, cold-blooded shooting of
unarmed pupils. The actions of the regime on 16 June 1976, and in the 18
months following this eruption, brought out in bold relief the
determination of the apartheid regime to deny human rights at all costs.
Notes taken during a Cabinet meeting by Jimmy Kruger, at the time
Minister of Police, reveal an extraordinary level of self-delusion, or the
deliberate denial of reality in order to justify murder:
“10.8.76.
Unrest in Soweto still continues. The
children of Soweto are well-trained. (…) The
pupils/students have established student councils.
The basic danger is a growing black consciousness,
and the inability to prevent incidents, what with the
military precision with which they act. The
Minister proposes that this movement must be
broken and thinks that police should perhaps act a
bit more drastically and heavy-handedly which will
entail more deaths.
Approved.
As the decade came to a close, there was an attempt on the part of the state
to employ a new approach grounded in “total strategy”, an explicit
commitment to mobilize military, economic, physical and psychological
resources in defense of the existing order. It brought senior police,
Defense Force and intelligence officers directly into the formulation and
implementation of government policy, through the State Security Council
and the National Security Management System…. 38

38

African National Congress document, The National Party and the Anatomy of Repression in
South Africa, 1984 – 1994 at 4.6 found at http://www.anc.org.za/ancdocs/misc/trc04.html (last
visited Sept. 30, 2008)

22

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64.

In response to the Sharpeville massacre and the growing trend of government

resistance, the SAP instituted Divisional Anti-Riot Units to deal with crowd control. 39 In 1975,
the Divisional Anti-Riot Units gave way to new counter-insurgency units, dedicated to crowd
and riot control. 40
65.

Before 1984, the SAP were primarily responsible for controlling the resistance.

But as the unrest spread from the townships around Johannesburg to the rest of the country,
SADF troops were deployed. In July 1985, a State of Emergency was declared in riot torn
targeted areas. 41
66.

After 1985, the SADF, supplemented by the SAP, was deployed in most Black

townships. The SADF was responsible for enforcing emergency regulations which included a
ban on protest gatherings. The SADF was also deployed to force Black students who were
boycotting classes back to school. 42
67.

On June 12, 1986, Minister of Law and Order Louis La Grange imposed yet

another State of Emergency. By June 1987, 26,000 people had been detained, equaling the total
detained under all previous emergencies and legislation for the past 26 years. 43

39

Rauch and Storey, supra note 26. Furthermore, in 1964, the Defence Amendment Act
provided for the SAP to call upon the Citizen Force and Commandos in the event the police
needed support in suppression of civil unrest. As of 1967, all white 17-year olds would serve in
the Citizen Force or Commandos.
40

Id.

41

Investor Responsibility Research Center Inc., supra note 5, at G-10.

42

Id.

43

Webster and Friedman, supra note 29, at 142.

23

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68.

In 1991, the Internal Stability Division, a division of the SAP mobilized to handle

racial unrest, was introduced under the government of President Frederick William de Klerk. By
the 1990s, a total of 72 riot units existed, 30 of them dedicated to the homelands. 44
69.

These special Internal Stability Division riot units used offensive tactics and

heavy weaponry, such as batons, teargas, automatic weapons, shotguns, and handguns. 45 They
relied heavily on armored vehicles for crowd control. 46 According to a report of the TRC, “the
training and equipment of riot police, and the deployment ratios of these policemen relative to
the size of the crowds that they confronted, were all based on the assumption that crowds would
be controlled and dispersed through the use of force.” 47
70.

The riot units viewed the use of lethal force as an acceptable and routine means of

crowd control, and were responsible for most of the apartheid-era killings. 48 “As the external
environment in which they operated took on the character of a low-intensity civil war, their
training, equipment, and methodology became increasingly militarized.” 49 The TRC report
noted that the riot policing function “was in direct contrast to reforms being made to public order
policing methods elsewhere in the democratic world at this time.” 50
71.

A panel of doctors from the National Medical and Dental Association who treated

detainees after their release found that 83 percent of released detainees exhibited signs of

44

Rauch and Storey, supra note 27.

45

Description of Weapons from CSVR, see Rauch and Storey, supra note 27, at 15–17, Exhibit

G.
46

Rauch and Storey, supra note 27.

47

Id.

48

Id. at 1.

49

Id.

50

Id. at 4.

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physical abuse, and 25 percent of the released detainees alleged sexual abuse. Of those
examined (ranging in age from 14 to 45), 95 percent showed symptoms of post-traumatic stress
disorder. Detention time ranged from 4 hours to 315 days. 51
72.

Evidence from court records and lawyers indicates that the practice of torture to

secure admission of guilt was common. 52
73.

The torture of detainees was the result of training and indoctrination, not the work

of aberrant individuals. Many women detainees suffered sexual abuse. The families and friends
of detainees were frequently subjected to sustained harassment and surveillance. 53
74.

The violent, criminal acts committed by the apartheid regime were intended to

cause death or serious bodily injury to civilians and the purpose of such acts was to intimidate
and coerce the civilian population.
75.

Systematic violence, including extrajudicial killing, torture, prolonged unlawful

detention, denationalization, and cruel, inhuman, and degrading treatment, was an integral and
indispensable element of apartheid employed by the security forces to maintain and enforce the
system.

51

See Webster and Friedman, supra note 29, at 167-68. Webster further notes that the DPSC
(Detainee Parents Support Commission, which was renamed the Human Rights Committee of
South Africa in 1995), the organization that created these reports, distinguishes between police
custody and detention. Detention referring to those people held under security or state of
emergency legislation, while police custody refers to people held under criminal legislation even
if the motive for custody ostensibly is for political arrest. Id. at 168.
52

Controls on Exports to South Africa: Hearings Before the Subcommittees on International
Economic Policy and Trade and on Africa of the H. Comm. on Foreign Affairs, 97th Cong, 2d
Sess. Feb. 9 and Dec. 2, 1982 at 21 (statement of Goler Teal Butcher on Behalf of the Lawyers’
Committee for Civil Rights Under Law).
53

First Submission, supra note 6, at 2-3.

25

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76.

Between 1990 and the end of 1993, over 12,000 civilians were killed and at least

20,000 injured by the security forces of apartheid South Africa. Many of the victims were
women and children. The numbers of assassinations of anti-apartheid leaders also increased,
from 28 in 1990, to 60 in 1991 and 97 in 1993. 54
77.

In 1993, negotiations led to an agreement on the date for non-racial elections, and

Nelson Mandela, as leader of the ANC, called for the lifting of economic sanctions.
78.

Apartheid officially ended in 1994 with the first universal suffrage general

election and the election of Nelson Mandela.
C.

Truth and Reconciliation Commission Findings

79.

The South African TRC was set up by the Government of National Unity under

the Promotion of National Unity and Reconciliation Act to assess and begin to heal the damage
inflicted by apartheid. Led by Archbishop Desmond Tutu, the TRC had a multiracial staff of
more than 60, which pursued its mandate through three committees: the Amnesty Committee,
the Reparation and Rehabilitation (R&R) Committee, and the Human Rights Violations
Committee. The TRC began its hearings on April 15, 1996 through 2002, although the Amnesty
Committee continued to decide cases after that date. The Final Report was released in March
2003.
80.

The TRC specifically found that “Certain businesses were involved in helping to

design and implement apartheid policies. Other businesses benefited from cooperating with the
security structures of the former state.” 55

54

Id. at 25.

55

Vol. 4, Ch. 2 of TRC “Institutional Hearing: Business and Labor,” Findings Arising out of
Business Sector Hearings, ¶ 161.

26

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81.

The TRC also found that “Business failed in the hearings to take responsibility for

its involvement in state security initiatives specifically designed to sustain apartheid rule. This
included involvement in the National Security Management System. Several businesses, in turn,
benefited directly from their involvement in the complex web that constituted the military
industry.” 56
82.

The TRC identified as participants in apartheid “businesses that made their money

by engaging directly in activities that promoted state repression,” 57 such as companies that
“provided armored vehicles to the police during the mid-1980s,” 58 as would companies in the
armaments industry: “the moral case against the armaments industry is essentially that business
willingly (and for profit) involved itself in manufacturing products that it knew would be used to
facilitate human rights abuses. . . .” 59
83.

In September 2009, the South African Government sent a letter to the Honorable

Judge Shira A. Scheindlin indicating that it does not object to the litigation of Plaintiffs’ claims
against U.S. companies supplying goods and/or services to Apartheid security forces in U.S.
courts. 60

56

Id. at ¶ 166

57

Id. at ¶ 26.

58

Id.

59

Id. at ¶ 75.

60

See Letter from J.T. Radebe, MP, Minister of Justice and Constitutional Development to U.S.
District Ct. Judge Shira A. Scheindlin, Sept. 1, 2009.

27

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VII.

UNITED STATES AND INTERNATIONAL ANTI-APARTHEID POLICIES
PROVIDED DEFENDANTS WITH NOTICE AND KNOWLEDGE OF THE
ACTIVITIES OF THE APARTHEID SECURITY FORCES
84.

Beginning in 1950, the world community and the United States condemned

apartheid as a crime against humanity and instituted a variety of sanctions against South Africa.
United Nations resolutions reflected this emerging consensus among civilized societies.
Individual nations passed laws in response to the resolutions and in conformity with their
objectives. Private and transnational organizations took similar steps to implement the
objectives of the resolutions.
85.

These actions over a span of 40 years explicitly placed businesses involved in the

financial and economic support of the security forces’ abuses of the apartheid government on
notice that their involvement violated international law and constituted purposeful participation
in a crime against humanity.
86.

For example, in 1960, the U.N. Security Council issued a Resolution deploring

“the situation arising out of the large-scale killings of unarmed and peaceful demonstrators
against racial discrimination and segregation in the Union of South Africa,” and called upon
South Africa to abandon apartheid. 61
87.

On November 6, 1962, the General Assembly called on member states to refrain

from exporting arms and ammunition to South Africa, which would be used to increase
“ruthlessness involving violence and bloodshed.” 62
88.

Less than one year later, on August 7, 1963, the Security Council adopted

Resolution 181 condemning the arms build-up in South Africa and calling on all States and their

61

S.C. Res. 134, U.N. Doc. S/RES/134 (Apr. 1, 1960).

62

G.A. Res. 1761, U.N. Doc. A/Res/1761(XVII) (Nov. 6, 1962).

28

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domestic corporations to “cease forthwith the sale and shipment of arms, ammunition of all types
and military vehicles to South Africa.” 63
89.

In 1968, the General Assembly declared apartheid to be a crime against humanity:
Reiterates its condemnation of the policies of apartheid practiced by the
Government of South Africa as a crime against humanity; ….
Expresses its grave concern over the ruthless persecution of opponents of
apartheid under arbitrary laws . . . . 64

90.

The General Assembly specifically “condemn[ed]”
the main trading partners of South Africa, and the activities of those
foreign financial and other interests, all of which, through their political,
economic and military collaboration with the Government of South Africa
and contrary to the relevant General Assembly and Security Council
resolutions, are encouraging that Government to persist in its racial
policies. 65

91.

In 1972, The Security Council passed a Resolution urging Member States to

observe the arms embargo against South Africa. 66
92.

The International Conference of Experts for the Support of Victims of

Colonialism and Apartheid in South Africa met in Oslo, Norway, in 1973. The Conference
adopted the following program of action:

63

The Security Council reaffirmed this Resolution in December 1963 and included all
shipments of any materials that might be used to build arms or ammunition. The Resolution
again was strengthened in July 1970. Security Council Resolution, Question Relating to the
Policies of Apartheid of the Government of the Republic of South Africa, See S.C. Res. 181, U.N.
Doc. S/RES/181 (Aug. 7, 1963); S.C. Res.,182 U.N. Doc. S/RES/182 (Dec. 4, 1963); S.C. Res.
282, U.N. Doc. S/RES/282 (July 23, 1970).
64

G.A. Res. 2396, U.N. Doc. A/RES/2396 (XXIII) (Dec. 2, 1968).

65

Id.

66

S.C. Res. 311, U.N. Doc. S/RES/311 (Feb. 4, 1972). Also in 1972, the General Assembly
declared that “the United Nations has a vital interest in securing the speedy elimination of
apartheid.” See G.A. Res. 2923, U.N. Doc. A/RES/2923 E (XXVII) (Nov. 15, 1972).

29

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(68) The international arms embargo should be fully implemented by all
States, and the Security Council should expose those States which violate
it, especially France, and secure their compliance. The Security Council
should take further action to prevent the importation or arms from South
Africa by other States. The Security Council should also examine all other
forms of military co-operation with South Africa and take appropriate
action. 67
93.

Following discussions relating to the Conference’s findings, the General

Assembly adopted the International Convention on the Suppression and Punishment of the Crime
of Apartheid. 68 The Convention declared apartheid a crime against humanity, and all
participants in apartheid as criminals, whether they were organizations, institutions, or
individuals. Article II of the Convention defined apartheid as:
[s]imilar policies and practices of racial segregation and discrimination as
practiced in southern Africa, shall apply to the following inhuman acts
committed for the purpose of establishing and maintaining domination by
one racial group of persons over any other racial group of persons and
systematically oppressing them:
a. Denial to a member or members of a racial group or groups of the right
to life and liberty of person:
1. By murder of members of a racial group or groups;
2. By the infliction upon the members of a racial group or groups
of serious bodily or mental harm, by the infringement of their
freedom or dignity, or by subjecting them to torture or to cruel,
inhuman or degrading treatment or punishment;
3. By arbitrary arrest and illegal imprisonment of the members of
a racial group or groups; . . .
b. Persecution of organizations and persons, by depriving them of
fundamental rights and freedoms, because they oppose apartheid.
67

The Programme of Action Adopted by the International Conference of Experts for the
Support of Victims of Colonialism and Apartheid in South Africa (Oslo, April 9-14, 1973), G.A.
Res. 9061, U.N. Doc. A/RES/9061 (May 7, 1973).
68

International Convention on the Suppression and Punishment of the Crime of Apartheid, 1015
U.N.T.S. 243.

30

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94.

Article III of the Convention described who would be held responsible for

committing the acts outlined in Article II.
International criminal responsibility shall apply, irrespective of the motive
involved, to individuals, members of organizations and institutions and
representatives of the State, whether residing in the territory of the State in
which the acts are perpetrated or in some other State, whenever they:

95.

a.

Commit, participate in, directly incite or conspire in the
commission of the acts mentioned in article II of the present
Convention;

b.

Directly abet, encourage or cooperate in the commission of the
crime of apartheid. 69

Following the submission of the Preliminary Report of July 14, 1976, by the

Special Rapporteur to the Special Committee against Apartheid, the General Assembly adopted a
Resolution condemning “the collaboration of … those foreign economic interests which
maintain and/or continue to increase their collaboration with the racist regimes in southern
Africa, especially in the economic, military and nuclear fields.” 70
96.

In 1976 and again in 1977, the Security Council by Resolution condemned

apartheid and specifically the South African Government for “its resort to massive violence
against and killings of the African people, including schoolchildren and students and others
opposing racial discrimination.” 71 The Security Council demanded an end to the violence
against and repression of Black people and to release all political prisoners. 72

69

International Convention on the Suppression and Punishment of the Crime of Apartheid, 1015
U.N.T.S. 243, art. III (emphasis added).
70

G.A. Res. 31/33, U.N. Doc. A/RES/31/33 (Nov. 30, 1976).

71

S.C. Res. 392, U.N. Doc. S/RES/392 (June 19, 1976).

72

S.C. Res. 417, U.N. Doc. S/RES/417 (Oct. 31, 1977).

31

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97.

In 1977, the Security Council once again called for an arms embargo against

South Africa, but this time made it mandatory by invoking Chapter VII of the U.N. Charter. 73
98.

In November 1979, the United Nations Special Committee Against Apartheid in

South Africa co-sponsored an International Seminar on the Role of Transnational Corporations
in South Africa. The Seminar expressed the view that “transnational corporations bear a major
share of responsibility for the maintenance of the system of apartheid, for strengthening the
repressive and military power of the racist regime and for the undermining of international action
to promote freedom and human dignity in South Africa.” 74
99.

Following acts of police violence against student demonstrators, the Security

Council adopted a Resolution supporting the arms embargo and condemning the violence in
South Africa:
1. Strongly condemn[ed] the racist régime of South Africa for further
aggravating the situation and its massive repression against all opponents of
apartheid, for killings of peaceful demonstrators and political detainees and for its
defiance of General Assembly and Security Council resolutions . . .
3. Reaffirm[ed] that the policy of apartheid is a crime against the
conscience and dignity of mankind and is incompatible with the rights and dignity
of man, the Charter of the United Nations and the Universal Declaration of
Human Rights and seriously disturbs international peace and security; . . .
11. Request[ed] the Security Council Committee . . . to redouble its
efforts to secure full implementation of the arms embargo against South Africa by
recommending by 15 September 1980 measures to close all loop-holes in the arms
embargo, reinforce and make it more comprehensive. 75
100.

73

The U.N. General Assembly declared by Resolution that:

S.C. Res. 418, U.N. Doc. S/RES/418 (Nov. 4, 1977).

74

Charles Peter Abrahams, The Doctrine of Odious Debts (Rijks Universiteit Leiden, Aug.
2000) at 79 (citing Transnational Corporations in South Africa and Namibia, The Review –
International Commission of Jurists, No. 36-39 (1986-87), at 34).
75

S.C. Res. 473, U.N. Doc. S/RES/473 (June 13, 1980).

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continuing political economic and military collaboration of certain
Western states and their transnational corporations with the racist regime
of South Africa encourages its persistent intransigence and defiance of the
international community and constitutes a major obstacle to the
elimination of the inhuman and criminal system of apartheid in South
Africa. . . . 76
101.

The General Assembly adopted a Resolution in December 1983 “reaffirming that

apartheid is a crime against humanity” and strongly condemning the apartheid regime for its
repression and brutal acts of torture, murder, and terror. The Resolution specifically criticized
“transnational corporations and financial institutions that have increased political, economic and
military collaboration with the racist minority regime of South Africa despite repeated appeals
by the General Assembly. . . .” 77
102.

In 1984, the General Assembly adopted another Resolution “vigorously”

condemning
transnational corporations and other organizations which maintain or
continue to increase their collaboration with the racist regime of South
Africa, especially in the political, economic, military and nuclear fields,
thus encouraging that regime to persist in its inhuman and criminal policy
of brutal oppression of the peoples of southern Africa and denial of their
human rights. 78

76

General Assembly Resolution, Policies of Apartheid of the Government of South Africa:
Situation in South Africa, G.A. Res. 36/172 A, U.N. Doc. A/RES/36/172 A (Dec. 17, 1981).
Further, the United Nations General Assembly proclaimed the year 1982 as International Year of
Mobilization for Sanctions Against South Africa. General Assembly Resolution, Policies of
Apartheid of the Government of South Africa, International Year of Mobilization for Sanctions
Against South Africa, see also G.A. Res. 36/172 B, U.N. Doc. A/RES/36/172 B (Dec. 17, 1981).
77

G.A. Res, 38/39, U.N. Doc. A/RES/38/39 A (Dec. 5, 1983).

78

G.A. Res. 39/15, U.N. Doc. A/RES/39/15 (Nov. 23, 1984).

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103.

The Security Council further condemned apartheid as “a system characterized as a

crime against humanity” including the “continued massacres of the oppressed people, as well as
the arbitrary arrest and detention of leaders and activists of mass organizations….” 79
104.

In 1984, the General Assembly again condemned the increasing violence of the

Apartheid regime. 80
105.

In 1985, the Security Council urged states to prohibit “all sales of computer

equipment that may be used by the South African army and police.” 81
106.

In 1986, the Security Council urged:
States to take steps to ensure that components of embargoed items do not
reach the South African military establishment and police through third
countries; . . .
all States to prohibit the export to South Africa of items which they have
reason to believe are destined for the military and/or police forces of South
Africa, have a military capacity and are intended for military purposes,
namely, aircraft, aircraft engines, aircraft parts, electronic and
telecommunication equipment, computers and four-wheel drive vehicles. 82

107.

The General Assembly in 1989 adopted another Resolution regarding the

supportive ties of international corporations with South Africa, noting that “the maintenance of
the apartheid economy and the expansion of military and police expenditures substantially

79

S.C. Res. 556, U.N. Doc. S/RES/556 (Oct. 23, 1984).

80

General Assembly Resolution, Policies of Apartheid of the Government of South Africa:
Comprehensive Sanctions against the apartheid regime and support to the liberation struggle in
South Africa, G.A. Res. 39/72 A, U.N. Doc. A/RES/39/72 A (Dec. 13 1984). These voluntary
sanctions were renewed in 1985. General Assembly Resolution, Policies of Apartheid of the
Government of South Africa: Comprehensive Sanctions against the apartheid regime and
support to the liberation struggle in South Africa, G.A. Res. 40/64 A, U.N. Doc. A/RES/40/64 A
(Dec. 10, 1985).
81

S.C. Res. 569, U.N. Doc. S/RES/569 (July 26, 1985).

82

S.C. Res. 591, U.N. Doc. S/RES/591 (Nov. 28, 1986).

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depend on the supply of further credits and loans by the international financial community . . .
.” 83
108.

These United Nations resolutions as well as the accompanying domestic

legislation of individual states singled out the manufacturers vehicles and the technology
corporations that designed and supported the passbook systems to enforce racial segregation and
the suppression of dissent, and provided specific forewarnings that their assistance to the security
forces of the South African apartheid regime knowingly and intentionally aided and abetted torts
in violation of international law.
109.

The United States adopted numerous export regulations to reduce the supply of

strategic goods, technologies, and financing to the security forces of the apartheid regime.
110.

In 1963, the United States adopted an arms embargo against South Africa, except

for existing contracts.
111.

In 1971, the Department of Commerce enacted regulations stating: “In conformity

with the United Nations Security Council Resolution of 1963, the United States has imposed an
embargo on shipments to the Republic of South Africa of arms, munitions, military equipment,
and materials for their manufacture and maintenance.” 84
112.

This ban remained in effect until 1978, when it was expanded to cover a broader

range of goods and technologies destined for use by the apartheid security forces. The revised
regulations stated:
An embargo is in effect on the export or re-export to the Republic of South
Africa or Namibia of any commodity, including commodities that may be
exported to any destination in Country Group V under a general license,
where the exporter or reexporter knows or has reason to know that the
83

G.A. Res. 44/27, U.N. Doc. A/RES/44/27 (Nov. 22, 1989).

84

15 C.F.R. § 385.4 (1971).

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commodity will be sold to or used by or for military or police entities in
these destinations or used to service equipment owned, controlled or used
by or for such military or police entities. 85
113.

Under the U.S. regulations, “A validated export license [was] required for the

export to the Republic of South Africa and Namibia of any instrument and equipment
particularly useful in crime control and detection . . . .” 86
114.

In 1981, the list of commodities subject to the U.S. embargo specifically included
vehicles specially designed for military purposes, such as military mobile
repair shops; all other specially designed military vehicles; engines,
including those modified for military use; pneumatic type casings (tires)
constructed to be bullet proof or to run when deflated; specially designed
components and parts to the foregoing; [and] pressure refuellers. 87

115.

Likewise, the embargo applied to “Specialized machinery, equipment, gear, and

specially designed parts and accessories therefore specially designed for the examination,
manufacture, testing, and checking of the arms, ammunition, appliances, machines, and
implements of war; components and parts for ammunition; nonmilitary shotguns, barrel length
18 inches and over; [and] nonmilitary arms, discharge type.” 88
116.

In the technology sector, the Export Administration Regulations of 1982 provided

that
An embargo is in effect on the export or reexport to the Republic of South
Africa or Namibia of technical data . . . where the exporter or reexporter
has reason to know that the technical data is for delivery to or use by or for
the military or policy entities. In addition, users in the Republic of South
Africa of technical data must be informed in writing at the time of export
or reexport that the data may not be sold or otherwise made available,

85

15 C.F.R. § 385.4 (1979) (emphasis added).

86

15 C.F.R. § 385.4 (1979).

87

15 C.F.R. § 379 (1981).

88

Id.

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directly or indirectly, to the military or police entities in these
destinations. 89
117.

Export licenses were required under United States regulations for any computer

exported to government consignees. Licenses were awarded “on a case by case basis for the
export of computers which would not be used to support the South African policy of
apartheid.” 90
118.

U.S. law also regulated the role of the banking sector in supporting apartheid. In

1978, the Export-Import Bank Act of 1945 was amended to state:
In no event shall the Bank guarantee, insure, or extend credit or participate
in the extension of credit (a) in support of any export which would
contribute to enabling the Government of the Republic of South Africa to
maintain or enforce apartheid; (b) in support of any export to the
Government of the Republic of South Africa or its agencies unless the
President determines that significant progress toward the elimination of
apartheid has been made . . . . or (c) in support of any export to other
purchasers in the Republic of South Africa unless the United States
Secretary of State certifies that the purchaser has endorsed and has
proceeded toward the [elimination of apartheid]. 91
119.

The United States strongly condemned apartheid and restricted exports, from

financing to commodities, that would substantially assist the South African government in
maintaining or enforcing apartheid. As the 1983 Export Administration Regulations succinctly
stated: “Authorizations for exports, reexports, sales to or for use by or for military or police
entities in the Republic of South Africa will be denied except for medical supplies and similar
goods.” 92

89

15 C.F.R. § 385.4 (1982).

90

Id.

91

Pub. L. No. 95-630, 1978 HR 14279 (1978) (codified at 12 U.S.C. 635(b) (1978)).

92

15 C.F.R. § 385.4 (1983).

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120.

To ensure the embargo’s efficacy, the Department of Commerce adopted a broad

definition of the term “military or police entities.” Commerce declared that “It is the
Department’s position that the following are police or military entities: ARMSCOR, Department
of Prisons, Bureau of State Security, South African Railways Police Force, and certain municipal
and provincial law enforcement officials such as traffic inspectors and highway patrolmen.” 93
121.

The United States maintained broad export restrictions against South Africa until

1994, the year South Africa held its first universal suffrage general elections.
122.

During the relevant period, Defendants were on notice that the security forces of

the apartheid regime in South Africa were abusing the Black South African population.
123.

Defendants, with the purpose of facilitating these abuses, provided substantial

assistance to the security forces of the apartheid regime of South Africa.
VIII. AIDING AND ABETTING: PURPOSE, INTENT, AND SUBSTANTIAL
ASSISTANCE
A.

The Apartheid Security Forces Relied on United States Corporations to
Carry Out the Violence of Apartheid

124.

The security forces of the apartheid regime enlisted the aid of United States

corporations, including Defendants, to provide the means and methods to carry out the violence
and terror necessary to maintain and enforce apartheid.
125.

Apartheid was “more than the programme of one political party.” 94 Business

interests were
active participants and initiators in constructing a political and economic
system which, in the end, was classified in international law as a crime
against humanity. . . . The period of extreme repression, from 1960
onwards, was intended to save the system that protected privilege based on

93

15 C.F.R. § 385 (1981).

94

Role of Business, supra note 19, at 1.

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race, thereby continuing to guarantee business its exclusive place in the
South African economy and society. 95
126.

The South African security forces depended on foreign sources for advanced

technology, materials, goods, and services in four strategic sectors—banking, armaments,
technology, and transportation—that substantially assisted the regime to perpetuate apartheid and
commit systematic acts of violence and terror against Plaintiffs and members of the classes,
including extrajudicial killing; torture; prolonged unlawful detention; denationalization; and
cruel, inhuman, and degrading treatment.
127.

Certain businesses, including Defendants, played an important role in South

Africa’s defense of Apartheid from “civil unrest,” cooperating closely with and providing
financial, logistical and other material support to the security forces of the apartheid regime.
128.

In 1977, P.W. Botha, then Minister of Defense, discussed the National Security

Management System in a Defense White Paper: “The resolution of the conflict in the times in
which we now live demands interdependent and coordinated action in all fields: military,
psychological, economic, political, sociological, technological, diplomatic, ideological, cultural,
etcetera.” 96
129.

In May 1980, South African Prime Minister P.W. Botha appointed business

leaders to a Defense Advisory Board. Botha told the House of Assembly that the Defense Force
had succeeded in obtaining the goodwill and cooperation of business leaders and said:
[W]e have obtained some of the top business leaders in South Africa to
serve on the Defense Advisory Board in order to advise me from the
inside, not only about the armaments industry, but also about the best
methods to be applied within the Defense Force … I want to unite the
95

Id. The ANC noted that several core measures of apartheid were actively promoted by
important business groups.
96

First Submission, supra note 6, at 9.

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business leaders of South Africa, representative as they are, behind the
South African Defense Force. I think I have succeeded in doing so. 97
130.

The South African security forces performed the wrongful acts of apartheid;

extrajudicial killing; torture; prolonged unlawful detention; denationalization; and cruel,
inhuman, and degrading treatment that caused Plaintiffs’ injuries.
131.

From the time of the Sharpeville Massacre in 1960 until the fall of apartheid in

1994, it was common knowledge that the security forces of the regime were engaged in violent,
criminal acts; that these acts were intended to cause death or serious bodily injury to civilians;
and that the purpose of such acts was to intimidate and coerce the civilian population.
132.

U.S. corporations, including Defendants in South Africa used loopholes to

undermine the goals of the U.S. arms embargo and assist the South African security forces with
the purpose of facilitating these violations of international law. As the U.S. mission in Pretoria
to the State Department acknowledged: “It is our understanding that most U.S. firms have been
able to continue sales by shifting to non-U.S. sources for components,’ cabled an official to the
State Department.” 98 Defendants were part of an overall criminal enterprise at the time they
provided assistance.
133.

Defendants’ assistance to the apartheid security forces’ acts of violence and terror

spanned several decades. During this time, Defendants, acting from their respective
headquarters in the United States, provided various forms of practical support to the security
forces in a consistent and repeated manner—they made regular deliveries of equipment from the
United States to South Africa and provided long-term design and maintenance services.
Defendants persisted in this course of conduct to purposely facilitate the violent ends to which
97
98

Abrahams, note 74, at 65 (emphasis added).
Automating Apartheid at 65.

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their assistance was put, fully cognizant of the well-publicized and universally-condemned
atrocities committed by the security forces in South Africa.
B.

IBM

134.

IBM’s complicity in implementing and perpetuating apartheid and

denationalization in South Africa and the Bantustans, including Bophuthatswana, was directed
from the United States; machinery and technology, as well as technical support, came from the
United States for these purposes; IBM was intent on supplying hardware and software to South
Africa, including to support denationalization, as demonstrated by IBM first trying to prevent
U.S. sanctions on the apartheid regime and later trying to circumvent the U.S. embargo; IBM’s
support for apartheid contradicted U.S. foreign policy at the time; and IBM’s effort to portray its
equipment as dual-use was misleading, as the company supplied hardware and software with the
intent to violate international law and for the purpose of denationalizing black South Africans. 99
i.

135.

IBM Directed and Controlled its South African Policies from the
United States, Exported Supplies from the United States, and Acted to
Circumvent the United States Sanctions Regime

IBM is a global leader in manufacturing computer systems, software, networking

systems, storage devices, and microelectronics. IBM Corp. is headquartered in New York State
and does business in New York State. The South African subsidiary, IBM-SA, operated as the
agent and/or alter ego of IBM Corp. at all times relevant to this complaint.

99

Sources of information in this memorandum of law are based on public sources, which are
cited, or interviews, which are not cited just as they would not be in a complaint.

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136.

IBM is and was a centralized corporation, 100 directed from U.S. headquarters. 101

Its Board of Directors, which meets in the United States, is responsible for supervising the
company’s overall affairs.
137.

At all relevant times, the code of business conduct, standards, and values for IBM

directors, executive officers, and employees globally were set by IBM in the United States.
138.

IBM headquarters provided personnel policies for employees throughout the

company, including in South Africa. 102 Adoption of the Sullivan Principles is a specific example
of how IBM’s United States headquarters controlled and directed its South African policy. 103
139.

For a significant time period, IBM controlled nearly half of the South African

computer industry 104—it was the largest computer supplier in South Africa, with total annual
sales estimated at 300 million rand.
140.

IBM’s relationship with the apartheid regime began in 1952, when IBM-SA

received its first order for an “electronic tabulator.” This tabulator was the first step in the

100

See Thomas W. Malone, Making the Decision to Decentralize, WORKING KNOWLEDGE (Mar.
29, 2004), available at http://hbswk.hbs.edu/archive/4020.html#1 (citing Louis V. Gerstner Jr.,
Who Says Elephants Can’t Dance? Inside IBM’s Historic Turnaround (New York:
HarperBusiness, 2002), 12-13, 57-62, 68-70).

101

Implicit in IBM’s public claim that it applied the Sullivan Principles in South Africa is that it
could direct the personnel and policies of its operations there. Ranjay Gulati, REORGANIZE FOR
RESILIENCE. (Harvard Business School Publishing Corporation, 2009). See also IBM Highlights,
1885-1969, available at http://www-03.ibm.com/ibm/history/documents/pdf/1885-1969.pdf.
102

IBM Highlights, 1885-1969 (discussing expansion of nondiscrimination policy in 1961).

103

As of 1979 both IBM and IBM South Africa had signed the Sullivan Principles. Elizabeth
Schmidt, DECODING CORPORATE CAMOUFLAGE, 61 (Institute for Policy Studies, 1980) Appendix
I “Signatories to the Sullivan Principles”.

104

Paul N. Edwards & Gabrielle Hecht, History and the Technopolitics of Identity: The Case of
Apartheid South Africa, 36 J. S. AFR. STUD. 630 (2010).

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automation and expansion of the population control program, which became increasingly
sophisticated until the collapse of the apartheid regime.
141.

IBM did not have research and development or manufacturing facilities in South

Africa but directed and controlled its operations in South Africa from the United States. Indeed,
between 1960 and 1980, South Africa had no indigenous domestic computer industry and was
entirely dependent on outside sources for all computerized operations. 105
142.

IBM’s export from the United States to South Africa of equipment, expertise, and

training on how to use and maintain its technology substantially assisted apartheid. 106
143.

Rep. Howard Berman, the sponsor of legislation to ban computer sales to South

Africa, testified in 1985 that:
Computers are essential to the South African government’s pervasive
control over every aspect of existence for every black individual. From
the age of sixteen, all Africans must carry passbooks indicating where they
have permission to live and work and whether they are allowed to live
with their families . . . . Computers help in the collection, retrieval and use
of this information . . . . As the South African economy and population
grew, political leaders became concerned that a growing white manpower
shortage would inhibit the implementation of apartheid. Computers have
helped solve that problem. Moreover computers have enabled the South
African government to strengthen its grip on the population and intensify
apartheid enforcement over recent years. Pass law arrests doubled between
1980 and 1982. Political detentions have increased sharply . . . . Armed
with more thorough and more readily available information on black
residents, the government has accelerated forced removals of whole
communities from so-called ‘black-spots’—areas where black families

105

Lawrence Litvak et al., SOUTH AFRICA: FOREIGN INVESTMENT AND APARTHEID, 50 (Institute
for Policy Studies 1978), see also Edwards and Hecht, at 619, 630-31 (2010) (“In 1975,
Management magazine surveyed the entire computer inventory of S.A., tallying 1,119 machines
and guessing the true total at about 1,500.”).
106

NARMIC/AMERICAN FRIENDS SERVICE COMMITTEE, AUTOMATING APARTHEID: U.S.
COMPUTER EXPORTS TO SOUTH AFRICA AND THE ARMS EMBARGO, 10-12 (1982) (“Automating
Apartheid”). Even if some sales did not technically violate the embargo, some sales specifically
were designed to denationalize and help enforce apartheid.

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have lived for generations, but which the government has declared
‘white’. 107
144.

“South Africa really needs U.S. companies in certain industries, particularly high

tech industries and computers,” IBM’s representative told investigators from the House
Subcommittee on Africa in 1984. 108
145.

A “lack of access to foreign technology could cripple South Africa, as [U.S.

government] cable point[ed] out. The incapacitation of a single computer would necessitate
‘having to find hundreds of bookkeepers who are not available on [the] labor market.’” 109
146.

As of 1986, South Africa relied on imported mainframe computers. 110 As a

computer industry official in South Africa explained: “We’re entirely dependent on the United
States. The economy would grind to a halt without access to the computer technology of the
West.” 111
147.

The South African government, including its security forces, recognized the

importance of the computer support as well; it developed ways to get around sanctions regimes
and also sought to develop more self-sufficiency over time.

107

Testimony of U.S. Rep. Howard Berman Before the H. Comm. on Foreign Affairs, 99th Cong.
(reprinted in Cong. Rec. Apr. 18, 1985).

108

Richard Knight, U.S. Computers in South Africa, The Africa Fund, 1986, available at
http://richardknight.homestead.com/files/uscomputers.htm.

109

Automating Apartheid at 9.

110

Some personal computers were assembled locally, the parts were imported. See Knight, U.S.
Computers in South Africa.

111

Interview with C. Cotton, Managing Director, Burroughs South Africa, in Johannesburg,
South Africa (Mar. 3, 1971), at 3.
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148.

This dependency on foreign technology companies made IBM’s U.S.-based

decisions about its South African policy all the more important. 112
149.

In the United States, IBM opposed shareholder resolutions related to

divestment 113 and advocated for a sanctions regime that would allow it to support the South
African government’s implementation and enforcement of apartheid, thereby interfering with
U.S. foreign policy. 114

112

Edwards and Hecht at 630-31 (noting also that monitoring such U.S. exports and restrictions
could be done with relative ease).
113

Edwards and Hecht at 630-31 (“From 1972 on, activist minority shareholders introduced
disinvestment resolutions at every annual IBM stockholder meeting.”). For example, in 1975,
church-related stockholders asked IBM to stop selling computers to South Africa, contending
that the computers helped the government implement the pass system. Kevin Danaher, IN
WHOSE INTEREST? A GUIDE TO U.S.-SOUTH AFRICA RELATIONS 116 (1984).
At its 1987 annual meeting—the year that IBM “divested” from South Africa, see infra Part
IV.C, IBM also overwhelming voted down a resolution sponsored by anti-apartheid activists that
would have banned the sale of IBM products. See John Pickles and Jeff Woods, “Undermining
Disinvestment: From a Marginal Propensity to Invest to a Propensity to Invest in the Margins,”
Africa Today, Vol. 37, No. 2, Dismantling Apartheid: Problems and Possibilities (2nd Qtr.,
1990), at 72.
114

In November, 1977 following the passage of a mandatory arms embargo resolution by the UN
Security Council, the Carter administration announced new curbs affecting computer sales to
South Africa, that prohibited, in furtherance of the administration’s policies “supporting human
rights,” the sale, direct or indirect, of any U.S. commodities or technical data to military or
police entities in South Africa. See Knight, U.S. Computers in South Africa. During the early
years of the Reagan administration, the sanctions were loosened. See Automating Apartheid at
61-62. When the Export Administration Act became law in July 1985, it contained a clause that
enacted the controls that had been in effect under President Reagan also issued an executive
order in September 1985 banning computer sales to the military, police, prison system and
national security agencies. In 1986, Congress passed the Comprehensive Anti-Apartheid Act,
prohibited the export of computers, software, and other technology for the use of South Africa
government entities associated with apartheid and the extension of new loans or credit to such
entities. See Pub. L. No. 99-440, 100 Stat. 1086, §§ 301-23 (1986).

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150.

IBM decided to maintain maximum flexibility for continued sales to the apartheid

government despite the fact that its operations supported unlawful behavior that the U.S.
government sought to prevent. 115
151.

For example, after the adoption of the 1978 regulations that would have curbed

sales to South Africa, IBM pushed for a system that lacked enforcement and interpreted
flexibility in the sanctions regime. 116
152.

Senior officials in the United States from the home offices of IBM registered their

opposition to the 1978 sanctions and asked that the ban be lifted. 117
153.

IBM sought to help the apartheid structures “adjust to the threat posed by trade

sanctions” and elude the goals of the embargo, for example, by making plans to switch to nonU.S. supply stocks and pledging to help the South African government overcome shortages of
strategic goods by deceptive means. 118
154.

In 1978, a year after the UN Resolution imposing a mandatory arms embargo on

South Africa, IBM’s South African sales jumped 250%.

115

Automating Apartheid at 7-8 (discussing lack of direct presence but continuous and conscious
effort to pursue sales in South Africa); id. at 9-12 (discussing concerted effort to oppose 1978
sanctions so as to allow sales to South African military and police).

116

Id. at 62.

117

Id. at 9-10; id. at 10 (new regulations allowed computer sales that did not “contribute
significantly to security operations”); id. (U.S. components could be sold to “security forces from
foreign countries” if “they are incorporated in a larger system and make up no more than twenty
percent of it”); id. (re-export and re-sale of “insubstantial portions” of goods also allowed “if the
commodities would not play a major role in security operations”); id. (computer and similar
products generally “considered favorably for export unless they would be used to enforce
apartheid.”).

118

Id. at 71.

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155.

The practical effort of the opposition to restrictions was that U.S. corporations—

like IBM—were “setting the actual operating parameters of the embargo.” 119
156.

This “left enough of South Africa’s supply conduits intact so as to insure that the

Pretoria regime will have continued access to computers, communications gear, electronics and
security equipment.” 120
157.

IBM repeatedly misled the U.S. government and its own shareholders about the

true nature of its activities in South Africa to circumvent domestic criticism.
158.

The Chairman of IBM, Frank Cary, noted at IBM’s 1977 annual meeting: “I have

said time and again that we have investigated each instance brought to our attention where there
was any reason to believe IBM computers might be used for repressive purposes, and we have
found no such use.” 121 However, at the same meeting, IBM confirmed that its machines stored
the data of colored, Asian, and white South Africans. 122
159.

On another occasion, IBM stated that it would continue to service computers in

the South African Department of Defense. 123 Jack Clark, head of IBM South Africa, said that it
would do so by using parts already in South Africa. 124 IBM was therefore able to continue to
support apartheid while giving the appearance of compliance with the U.S.-imposed embargo.

119

Id.

120

Id. at 62.

121

Richard Leonard, Computers in South Africa: A Survey of U.S. Companies, at 4.

122

Id.

123

E. Drake Lundell, Jr., Churches Hit IBM Inaction on Rights in South Africa,
COMPUTERWORLD, May 29, 1978; see also Richard Leonard, IBM Update: Still Computing
Apartheid, 16 ICCR Brief 3A (1987), available at http://kora.matrix.msu.edu/files/50/304/32130-1363-84-cic%20No5-87%20opt.pdf (quoting Jack F. Clark, former manager of IBM South
Africa, as stating “There will be no change in the supply of IBM products.”).
124

Id.

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160.

In an advertisement in a software catalog published in South Africa in 1980,

IBM’s General Systems Division marketed a “Law Enforcement System.” In response to
inquiries about the package, an IBM spokesperson did not deny that the police system was
available in South Africa but said that it marketed this product via “direct proposals” as opposed
to “passive” advertising in publications. 125
161.

This admission caused a scandal and IBM subsequently denied placing the ad or

selling the software. 126 Only after the existence of the package was publicly disclosed did IBM
begin to insist that it was not available in South Africa. The company was unwilling or unable to
say how the law enforcement software appeared in the South African computer publication. 127
162.

IBM made many arguments in the United States defending its support of

apartheid.
163.

IBM asserted that South African government agencies used IBM computers only

for “administration” and not for repressive use. 128 This claim ignored the nature both of the
government and the tasks it performed, such as denationalization of an entire ethnic group.

125

Automating Apartheid, at 9-10 (providing citations to cables). Victor R. Macdonald, IBM
vice president, omitted this key fact from his letter. IBM originally leased this system to the
Interior Department. The South African government may have subsequently purchased it
outright, but it would still have needed spare parts from IBM.

126

Testimony from the American Friends Service Committee Concerning U.S. Controls on
Exports to South Africa: Hearing Before the Subcomm. on Afr. and the Subcomm. On Int’l Econ.
Policy & Trade of the H. Comm. on Foreign Affairs, 97th Cong. (1982) (statement of Thomas
Conrad, Staff Researcher, American Friends Service Committee), available at
http://kora.matrix.msu.edu/files/50/304/32-130-1A83-84AFSC_SA_Testimony_feb9_1982_opt.pdf.
127

Id.

128

Barnaby J. Feder, “IBM Is Shedding South Africa Unit; Pressure Is Cited,” The New York
Times, Oct. 22, 1986.

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164.

In 1985, Chairman Akers explained: “If we elect to leave it will be a business

decision. What other kind of decision would it be? We are not in business to conduct moral
activity, we are not in business to conduct socially responsible action. We are in business to
conduct business.” 129
165.

IBM also asserted that its equipment was not essential or significant and that

legitimate purposes overshadowed any risk of harm, even while IBM acknowledged that its
equipment facilitated racial separation and denationalization. 130 In fact, IBM was determined to
circumvent the United States sanctions regime and made plans to camouflage its operations
through deceptions arranged with affiliates in other countries. 131
166.

IBM acknowledged that it intended to use overseas subsidiaries to supply

embargoed goods and services to the South African security forces and that it supplied non-U.S.made parts to some embargoed South African agencies that were not permitted to receive U.S.
equipment.

129

David Sanger, “South African Prospects Leave I.B.M. Chief Glum,” New York Times, April
1986.

130

Automating Apartheid at 15 (“When questioned about IBM’s role in the expansion of [the
pass] system, an IBM official replied, ‘We feel that the fact that it is being done with computers
hasn’t any appreciable overall effects on the apartheid situation. This pass system could be done
in many other ways besides computers.”). Id. at 45 (discussing Infoplan, and IBM sales to it,
which IBM maintained were legal and did not support military projects). Id. at 52-55 (discussing
IBM’s deep connections with the military-industrial complex in South Africa, including “top
explosives manufacturers”). Id. at 66 (discussing IBM training facility in Johannesburg, which
includes training for Infoplan and CSIR (which is part of the military-industrial complex). Since
much of computer technology is about know-how, this efforts supports apartheid as much as
equipment sales.
131

Id. at 9, 63-65.

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167.

Computer Weekly reported IBM’s statement that it would continue to supply spare

parts and service to any affected South African military or police computers as long as supplies
lasted. 132 IBM justified these transactions by arguing that U.S. regulations did not restrict them.
168.

In 1987, Akers said that IBM had sold its assets in South Africa and that IBM’s

South Africa representative no longer sold directly to the police or military. 133 Implicit in Akers’
assertion is that, even after IBM’s sale of assets to a newly created company, that company still
followed U.S.-directed policies.
169.

This interpretation is consistent with the statement of the former head of IBM

South Africa, who became head of the newly formed company:
The former manager of IBM South Africa, Jack F. Clarke will be managing
director of the new independent company. In full page advertisements in major
South African papers, Clarke has gone out of his way to reassure IBM’s South
African customers that they will still be able to buy IBM computers and other
products. “The new company will hold the sole franchise for IBM in South
Africa, and has a supply and service contract with IBM. . . . There will be no
change in the supply of IBM products,” he wrote in a personally signed letter.
Annual sales are estimated at over $200 million, the largest by far of any
computer company in South Africa. IBM computers will continue to dominate
the South African market. 134
170.

Years of IBM’s actions make evident that IBM pursued business in a manner

directly contrary to the intent of the U.S. embargo and sanctions regime, and IBM’s own public
statements indicate that decisions about its South African operations, including business with

132

Computer Weekly, United Kingdom, March 31, 1978.

133

William Howard, South Africa Resolution is Defeated, PALM BEACH POST, Apr. 26, 1988, at
6B, available at
http://news.google.com/newspapers?nid=1964&dat=19880426&id=4iMjAAAAIBAJ&sjid=js4F
AAAAIBAJ&pg=2658,4149529.

134

Knight, U.S. Computers in South Africa.
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institutions involved in implementing apartheid and denationalization, were made in the United
States.
ii.

171.

IBM Participated in a Criminal Enterprise by Providing Practical
Assistance to the Apartheid Security Forces With the Purpose of
Facilitating the Perpetration of Apartheid Human Rights Abuses

Despite sanctions and international condemnation of supplying technology to the

South African security forces and government, Defendant IBM and its subsidiary and alter ego,
International Business Machines South Africa Limited (“IBM-SA”), made policy, management,
investment, sales, and operational decisions that purposefully supported and facilitated sales,
leases, and services to advance the goals of apartheid. By providing computer technology,
systems, software, hardware, and training, IBM participated in a criminal enterprise to sustain
the apartheid regime and facilitate the apartheid security forces’ control and repression of the
black population.
172.

IBM sought contracts that would achieve these ends and then executed those

contracts in order to maintain its business in South Africa as well as to accomplish the goals of
apartheid.
173.

The South African security forces used computers supplied by IBM to restrict

Black people’s movements within the country, to track non-whites and political dissidents, and
to target individuals for the purpose of repressing the Black population and perpetuating the
apartheid system.
174.

IBM purposefully assisted in the implementation of apartheid by producing race-

based identity documents used to: (1) strip Plaintiffs of their nationality and citizenship; (2)
restrict their travel in and out of South Africa; and (3) facilitate discrimination and the
geographic separation and segregation of the races into impoverished and isolated tribal areas
known as homelands or “Bantustans.”
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a.
175.

Book of Life

South African law required citizens to carry either a passbook or a “Book of

Life,” depending on the person’s racial classification. These books were used in conjunction
with specially-designed, state-of-the-art electronic databases that stored information on the
individual’s race, employment status, criminal history, and residence.
176.

By the late 1970s, the South Africa National Intelligence Service maintained

extensive computer files on government opponents. Through IBM systems, these computer files
could be accessed instantaneously for research or reference purposes related to government
dissidents.
177.

In the early 1980s, an average of more than 70 people were arrested each day for

pass law violations. IBM’s computer systems and software substantially assisted the unlawful
detention, torture, rape, and cruel, degrading treatment of many South African citizens, including
class members.
178.

IBM claimed that it would not knowingly sell equipment to customers who would

use it to further repression, but, in fact, IBM pursued contracts with the purpose of supporting the
implementation of apartheid, including the “Book of Life” and the Bantustan identity documents.
Although IBM was outbid for the contract to provide technology to produce the African
passbook in 1965, 135 IBM hardware served as the electronic memory bank for a large part of
South Africa’s national identity system.
179.

IBM provided the South African Department of the Interior (“DOI”) with a

specially-designed, computerized population registry. IBM supplied the software and database

135

Litvak at 52.

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design as well as the hardware to run the system on two IBM mainframes that stored details on
seven million citizens. 136
180.

The “Book of Life” enabled authorities to classify individuals as coloured, Asian,

Indian, or other, to determine their rights in accordance with their movement, employment, and
other status, and also had to be carried at all times. 137 The Group Areas Act, which controlled
the movements of coloureds and Asians and allowed the government to suppress them, could not
have been enforced without the Book of Life. 138
181.

IBM knew that the Book of Life had no legitimate purpose other than to restrict

the movement of black South Africans, facilitate discrimination and segregation, and strip
Plaintiffs and Class Members of their nationality and citizenship.
182.

Thomas Conrad of the American Friends Service Committee, an authority on

corporate involvement in apartheid, testified that
for several years IBM has knowingly rented a Model 370 computer system
to the South African Department of the Interior which is used for the
regime’s national identity system. The IBM machine stores files on seven
million people the regime has designated as coloreds, Asians, and whites. .
. . Since IBM owns the equipment and leases it to the government, it
could withdraw from the arrangement, but has declined to do so. 139
136

At least one-third of IBM’s business was with the government, including the use of an IBM
computer by the Department of Prisons and two IBM systems used in the population registration
system known as the Book of Life. The newsletter quotes IBM Chairman Frank Cary. IBM
Workers United, IBM: Speak Up! The Truth about the Company in South Africa (Johnson City,
New York, 1979), available at
http://africanactivist.msu.edu/document_metadata.php?objectid=32-130-14BA.
137

Litvak at 52.

138

Litvak at 52 (citing n.80).

139

Controls on Exports to South Africa: Hearings before the Subcomms. on International
Economic Policy and Trade and on Africa of the H. Comm. on Foreign Affairs, 97th Cong. 72
(1982) (statement of Thomas Conrad, American Friends Service Comm.); see also Economic
Sanctions and their potential Impact on U.S. Corporate Involvement in South Africa: Hearing
before the Subcomm. on Africa of the H. Comm. on Foreign Affairs, 99th Cong. 22 (1985)
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183.

During the 1970s, new computers and peripheral equipment were added to expand

and upgrade the system’s capability. IBM supplied multiple Model 370/158 mainframe
computers to the DOI. The DOI used the IBM system to process and store a vast quantity of
information about the designated population, including identity numbers, racial classification,
residence, and place of work. The system also contained a history of government opposition.
The same IBM computer served as the basis for the “Book of Life,” an identity document issued
to all those covered by the database. The IBM system was used to track racial classifications and
movement for security purposes.
184.

The IBM computerized population registry was specially designed for the South

African security forces. Its function was to provide practical assistance to the South African
security forces in implementing and enforcing the racial pass laws and other structural
underpinnings of the apartheid system, such as the suppression of political dissent. IBM customtailored this product to perform that function at the highest level for the apartheid regime.
185.

As of 1976, at least one third of IBM business in South Africa was done directly

with the South African government. IBM computers were used by the Department of Defense,
the Department of the Interior, and the Bantu Administration Boards, the local administrators of
apartheid. The apartheid government was IBM’s largest single customer in South Africa. 140
186.

IBM’s 370 computer was used by many South African government agencies,

including the Department of the Prime Minister, the Department of Statistics, and the
Department of Prisons, which was widely known to hold and torture political prisoners without

(statement of Dr. Jean Sindab, Executive Director, Washington Office on Africa) (testifying that
an IBM computer was used by the regime to maintain the pass system for the “Colored”
population).
140

Automating Apartheid, at 6.

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trial. These agencies, which were a significant component of the apartheid state apparatus, relied
on IBM computers for their administration.
187.

The Bantustans represented the ultimate goal of apartheid: the creation of a white

majority South Africa through denationalization of the black majority, who were forced to
become citizens of “independent” homelands (Bantustans) comprising 13% of the undesirable
rural land that had been a part of South Africa. The administrations of at least one Bantustan—
Bophuthatswana—relied on IBM System 3/10 computers. 141
188.

Bophuthatswana was accorded nominal independence, as a putatively sovereign

state, in 1977, and established some indicia of statehood, including the capacity to have
“citizens”. This status was forced upon black South Africans of Tswana descent as part of the
exercise of denationalization that was both the foundation and goal of Grand Apartheid—the
permanent physical separation of the races. The Bophuthatswana government imposed identity
documents and passports on those who were denationalized.
189.

For this purpose, the Bophuthatswana government used IBM computers and

systems, including both hardware and software. Bophuthatswana government employees
working with IBM computers and systems were trained in an IBM-specific programming
language.
190.

IBM ran training courses for government employees in Johannesburg and

Bophuthatswana. The courses also covered the proper use and maintenance of IBM machines.
Programmers who attended these courses were government employees.

141

Id. (also discussing use of same computer in Gazankulu, though that Bantustan never attained
full “independence.”).

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191.

Some computer programs run by the Bophuthatswana government on IBM

machines were developed and written in-house with the assistance of IBM employees. When
government employees encountered difficulty with their machines or programs, IBM employees
assisted in troubleshooting and repairing problems.
192.

By 1978, IBM actively participated in creating a new identity book for the

Bophuthatswana government by developing a sub-system to produce the identity book. IBM
developed both the hardware and software, used to create the Bophuthatswana identity
document.
193.

Once IBM had developed the system, it was transferred to the Bophuthatswana

government for implementation. IBM employees trained Bophuthatswana government
employees to use the IBM machine and program to produce identity documents. IBM was
contacted when problems arose with the identity book system and IBM employees would fix
problems.
194.

The identity documents produced for the Bophuthatswana government contained

the name, sex, racial classification, ethnic origin, and residential and/or postal address of the
individual. Bophuthatswana residents were required to carry the Bophuthatswana identity
documents produced by the Bophuthatswana government with the active and intentional
participation of IBM.
195.

In addition to effecting denationalization, the Bantustan system that IBM helped

to establish resulted in other violations against black South Africans, including deprivation of
property, education, and employment, division of families, restrictions on travel, and restrictions
on political activities.

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196.

Other homeland governments, including, but not limited to, Gazankulu, KwaZulu,

Lebowa, Transkei, Ciskei, and Venda also used IBM hardware and software to produce identity
documents.
197.

IBM officials in the United States maintained that the Interior Department

installation for the Book of Life was not objectionable because it did not cover the black
population; this assertion was intended to obscure the fact that IBM’s hardware played a key role
in facilitating the very system of racial classification that made apartheid possible. 142 Moreover,
the implication is clear that the origin of the machinery was the United States.
198.

In a 1982 letter to the State Department, IBM admitted its machines were used for

the national identity system maintained by South Africa’s Interior Department. This system was
the basis for the “Book of Life” which, along with the passbook, facilitated the racial
classifications that made apartheid possible. 143
199.

IBM purposely facilitated the implementation of apartheid by producing race-

based identity documents and sorting and storing information in databases used to strip Plaintiffs
of their South African nationality and citizenship and force upon them citizenship in
“independent” Bantustans—impoverished and isolated tribal areas—created for the very purpose
of isolating and suppressing the black population, as well as to restrict Plaintiffs’ travel in, out,
and within South Africa. The Bantustan system facilitated discrimination and the geographic
separation of the races in South Africa on a massive scale, depriving blacks of their South
African citizenship and associated rights, including participation in the South African economy.

142

Litvak at 52.

143

See Thomas Conrad, Letter to the Editor, Machines that Help Make Apartheid Run, N.Y.
TIMES, May 18, 1985, available at http://www.nytimes.com/1985/05/18/opinion/l-machines-thathelp-make-apartheid-run-249678.html.
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No foreign government ever accorded diplomatic recognition to any Bantustan. By supporting
and implementing this fictitious administrative separation, IBM purposely facilitated
denationalization, including the forced relocation of blacks to inhospitable areas, separation of
families, and severe restrictions on food, medicine, educational, and employment opportunities,
by improving the effectiveness and efficiency of race separation.
200.

IBM intentionally facilitated the denationalization of Plaintiffs and Class

Members. Plaintiffs were stripped of their South African nationality and citizenship, restricted in
their ability to travel in to, out of, and around South Africa, and discriminated against by being
forcibly geographically separated and segregated into homelands on the basis of race.
201.

IBM knew that the normal market for these technologies was the security forces

or government agencies utilizing security forces services. Any sales or agreements IBM entered
into with general government entities were done with the intention that all equipment and
technology linked to the passbook and Book of Life systems would ultimately be used by the
security forces to enforce the oppressive laws of apartheid, often through violent means. In
persisting with voluminous and repetitious sales of computer equipment and technologies linked
to the passbook and Book of Life systems to the apartheid regime, IBM intentionally facilitated
ongoing atrocities in South Africa.
b.
202.

IBM Support to South African Defence Force (“SADF”)

In order to facilitate the government’s ability to procure strategic equipment for

the security forces after the mandatory embargo took effect, the apartheid government resorted to
the use of a “dummy” front organization to procure sensitive equipment for the security forces.
Infoplan, a Pretoria-based data processing corporation offered hardware, software, computer
training and services, acted as such a conduit.

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203.

After the imposition of the mandatory embargoes in 1977 and 1978, IBM shifted

much of its business with the South African government to Infoplan. While IBM supplied
Infoplan with parts, services, education and technical data which were not covered by the U.S.
embargo, Infoplan in turn transferred this equipment and expertise to the SADF.
204.

Directly and indirectly, IBM was a top supplier for the SADF. The SADF

inventory of IBM computers included model 360s (for instance, a model 360 was installed at the
Simontown Naval Installation) and model 370s.
205.

IBM rented at least seven computers to Leyland-South Africa, a firm that

produced Land Rovers for the security forces and the police. IBM also rented several computers
to a explosives manufacturer, the African Explosives and Chemical Industries, Ltd. (“AECI”).
AECI reportedly had specialized in the manufacture of riot control gas, napalm, and nerve gas
that were used against Plaintiffs and class members. At least four AECI installations use IBM
hardware. For instance, AECI employs an IBM computer at its Modderfontein facility, where
the company reportedly made the tear gas used against demonstrators at the Soweto massacre.
206.

For much of the equipment leased to the South Africans, IBM provided

maintenance and service on the equipment over the term of the lease. IBM’s regular servicing of
the apartheid government’s computer systems, in addition to its custom design of certain
products, demonstrates how closely IBM collaborated with the South African government in
implementing and improving the enforcement of the racial pass laws and sustaining the apartheid
system.
207.

IBM’s services were performed according to manuals originated in, created by,

and distributed from IBM in the United States.

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208.

IBM conceded that the equipment and services it supplied to South Africa may be

used for repressive purposes, noting that “It’s not really our policy to tell our customers how to
conduct themselves.” 144
209.

IBM was fully aware of Infoplan’s relationship to the South African security

forces when it supplied equipment and services to Infoplan after the imposition of the 1978
embargo.
210.

The South African government also used computers supplied by IBM in defense

research and arms manufacture.
211.

The South African government used computers supplied by IBM to supply

ammunition and supplies to military units. For instance, beginning in 1977, the SADF operated
an automated military logistics system—using IBM equipment—to supply ammunition and other
military supplies to military units.
212.

In South Africa, the Armaments Development and Production (“ARMSCOR”)

state enterprise was developed by the apartheid regime in the late 1960s to “promote and coordinate the development, manufacture, standardisation, maintenance, acquisition, or supply of
armaments.” 145
213.

Due to the secrecy of these activities, not all facts are presently known. However,

it is known that ARMSCOR worked closely with private companies, to ensure that the security
forces of the apartheid regime acquired the armaments and military equipment it needed to

144

Erin MacLellan, U.S. Business Debates South Africa Ties Limits on Computer Exports are
Difficult to Enforce, Washington Post, Aug. 25, 1985.
145

Armaments Development and Production Act 57 of 1968.

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suppress dissent and control the population despite the international arms embargoes. The
businesses linked to ARMSCOR also included Defendant IBM. 146
214.

The ANC noted that many of the companies working with ARMSCOR were

foreign: “many of the local private sector corporations were not involved in the genuine
development of these war materials. They were more often useful conduits for foreign
technologies, helping the apartheid state to evade the UN arms embargo.” 147
215.

The influx of armaments and related equipment, services, and expertise to

ARMSCOR and the rest of the apartheid regime substantially assisted the suppression of dissent,
the control and manipulation of the African population, and systematic violence against
dissidents and non-whites in violation of international law.
216.

IBM made profits which they knew could only come from their encouragement of

the security forces’ illicit operations through the sale of computer equipment and technologies
designed to implement and enforce the oppressive policies of apartheid. By reaping these
profits, IBM acquired a stake in the criminal venture of the apartheid regime.
217.

IBM provided the South African security forces with the technology and services

to enforce apartheid by force; extrajudicial killing; torture; prolonged unlawful detention;
denationalization; and cruel, inhuman, and degrading treatment against Plaintiffs and members
of the classes intending that the technology and those services would be (or only could be) used
in connection with that purpose.

146

COSATU Submission to the Truth and Reconciliation Commission Hearings on Business
and Apartheid at 17.

147

Role of Business, supra note 19, at 8.

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iii.
218.

IBM Camouflaged its Continued Assistance of the Apartheid Security
Forces in Order to Avoid Sanctions

IBM pursued business in South Africa in a manner directly contrary to the intent

of the U.S. embargo and sanctions regime. IBM directed IBM offices elsewhere in the world to
continue to provide the same services, including those that facilitated denationalization and
separation of the races. IBM engaged in subterfuges to disguise its violations of international
and U.S. sanctions so that it could continue to assist the apartheid regime and continue to profit
from that collaboration. In so doing, it embraced the goals and purposes of the South African
security forces to advance apartheid, including the separation of the races.
219.

Although IBM formally withdrew from South Africa in 1987, it intentionally

continued to support the security forces’ repressive enforcement of apartheid and
denationalization.
220.

In 1986, IBM announced its intention to sell its South African holdings, although

it would continue to license and distribute its products in the country. IBM said that it would sell
its subsidiary, which it operated for 34 years, in 1987 for an undisclosed price to a new company
established “for the benefit of the employees of IBM South Africa.” 148 Company spokespersons
said this was done so that the newly independent company could fulfill IBM South Africa’s
existing contractual responsibilities.
221.

While IBM itself would no longer have assets, capital, or employees in South

Africa, the new company signed multi-year contracts to import and sell IBM products, services,

148

South Africa History Online, The Company, IBM, re-forms in South Africa, (Oct. 21, 1986),
available at http://www.sahistory.org.za/dated-event/company-ibm-re-forms-south-africa.

62

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and technologies. 149 The same IBM employee, Jack Clarke, who headed IBM South Africa,
headed the new company. 150
222.

After divestment, IBM ensured that its West German subsidiary and the Japanese

company Hitachi could supply parts to service embargoed IBM equipment. 151
223.

Although IBM claimed to “sell” its South African subsidiary, IBM stated that it

would provide a loan allowing local investors to buy the subsidiary. IBM retained a buy-back
option to the new company as a term of the sale. The new entity was run by the person who was
the general manager of IBM South Africa prior to the sale. IBM continued to sell its products,
parts and services through the new company and continued to be the top supplier of computers to
South Africa after the “divestiture.” Around 1992, IBM purchased a 24% stake in the local
distributor of IBM products.
224.

After IBM publicly announced it was leaving South Africa, a letter was sent to

customers by the Managing Director of IBM South Africa stating that “there will be no change to
the supply of IBM products.” 152 As one IBM dealer explained at the time, “Nothing has really
changed except that IBM no longer has to account for its presence in South Africa.” 153

149

IBM also would profit from interest on loans it made to the South African buyers of the
subsidiary. Id.
150

Wall Street Journal, August 24, 1987.

151

Rita Arditti, et al., SCIENCE AND LIBERATION 204 (1980), available at
http://books.google.com/books?id=rE4SnULjDgQC&pg=PA204&lpg=PA204&dq=ibm+west+g
erman+subsidiary+hitachi+south+africa+embargo&source=bl&ots=V1YBG79BUc&sig=8sY5u
mobUsRtMd9CGAaa31DtNY&hl=en&sa=X&ei=DMeIU_qmDeHEsATRx4C4Dw&ved=0CCgQ6AEwAA#v=onepage&q
=ibm%20west%20german%20subsidiary%20hitachi%20south%20africa%20embargo&f=false.
152

Letter of J.F. Clarke, Managing Director, IBM South Africa, entitled “Notice to the
Customers and Associates of IBM Throughout South Africa.”

153

ICCR Brief Vol. 16 No. 5p. 3A 1987. “According to a management letter leaked to The
Financial Times, IBM operations would continue as normal through the creation of a locally63

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225.

Newspapers reported that “[a] letter leaked from IBM’s Johannesburg offices

reveals that IBM’s pull-out from South Africa is not all it seems. Users are being reassured that
IBM products and services will be freely available from the company established as a result of
IBM selling off its subsidiary. And the letter boasts that the lack of restrictions will leave it free
from international pressure . . . . This has been interpreted as evidence that IBM’s withdrawal
was aimed at dodging international disapproval and as a means of taking political heat off IBM
in the US.” 154
226.

These arrangements violated the letter and spirit of U.S government restrictions,

since parts would be made under IBM patents registered in the United States. It is clear that
IBM intended—as it had for years—to continue, uninterrupted, its supply of goods and services
to the South African security forces, contrary to the intent and policy of U.S. regulations and U.N
Declarations.
C.

FORD

227.

Ford was not merely a passive investor in South Africa but rather provided

vehicles to purposely support specific unlawful violence against black South Africans, including
Plaintiffs and those similarly situated. Ford provided such support knowing that the international
community and the United States viewed vehicle and vehicle parts sales to the security forces as
critically linked to the enforcement of apartheid and violence against black South Africans.

owned company to handle IBM’s business; the letter also claimed: ‘[T]he new company will be
able to respond with greater flexibility than a wholly-owned IBM subsidiary. In the current
international climate such flexibility will clearly be to our customer’s advantage.’” Pickles and
Woods, at 72.
154

IBM Leak Reveals No Change in SA, Datalink, Jan 29, 1987; Philip Basset, Unions claim IBM
Operations Still Continuing in South Africa, Financial Times, Jan 14, 1987 (IBM “has in practice
not withdrawn from its South African operations, in spite of its decision last October to disinvest
in the country”).

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228.

Ford U.S.’s complicity in implementing and perpetuating apartheid in South

Africa was directed from the United States; management, machinery, and technology came from
the United States for the purpose of supporting the apartheid security apparatus in its repression
of black South Africans and anti-apartheid activities; Ford’s conduct contradicted U.S. foreign
policy at the time; and Ford intentionally sought to circumvent U.S. law.
i.

229.

Ford Directed and Controlled its South African Policies from the
United States, Exported Equipment from the United States, and Acted
to Circumvent the United States Sanctions Regime

Defendant Ford Motor Company (“Ford”) and is an American multinational

automaker based in Dearborn, Michigan, near Detroit, whose Michigan headquarters at all
relevant times has directed the operations of its subsidiaries globally; it includes a global
automotive group with a single president, who was also an executive vice-president from the
headquarters. 155
230.

Ford supplied vehicles, parts, and other equipment to the apartheid security

forces. This equipment was specifically designed for the purposes of, and was in fact used for,
transporting, arming, and protecting military personnel in offensive actions against Plaintiffs and
Class Members. The equipment was used to patrol townships to target political opponents,
repress the African population, quell public displays of dissent, and brutalize and kill many
citizens as described herein.
231.

At all relevant times, Ford vehicles and components were developed and

produced wherever it was best equipped to do so. 156

155

See, e.g., 1987 Annual Report, at 5, 8.

156

Id. at 8.

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232.

Ford controlled its South African operations through Ford Motor Company of

South Africa (Pty) Ltd. (“Ford South Africa”), which was formed in 1933. It was a whollyowned subsidiary of Ford Motor Company of Canada, Ltd. (“Ford Canada”), which was itself
76% owned by Ford.
233.

In 1985, Ford merged a subsidiary of Ford Canada with Amcar Motor Holdings, a

unit of the Anglo American Corporation, to form the South African Motor Corporation
(SAMCOR).
234.

After the merger, Ford had a 42% stake in SAMCOR, with the rest held by Anglo

American. 157 In November 1987, Ford announced that it would dispose of its share in SAMCOR
by selling it to Anglo American and creating a trust for SAMCOR employees. 158
235.

Although Ford was formally divested of its stake in SAMCOR, Ford allowed

SAMCOR to continue “to use its trade name and . . . provide[d] parts, vehicles and management
assistance.” 159 Ford transferred tens of millions from the payment it received from the sale
directly to SAMCOR.
236.

Ford became the major shareholder again in 2000 and then renamed SAMCOR,

Ford of South Africa. 160

157

John Battersby, South Africa Sale by Ford Will Give Blacks Big Stake, N.Y. Times, June 15,
1987.

158

Id.

159

Ford to dispose of its stake in South Africa’s Samcor, The Wall Street Journal Europe, Nov.
25, 1987 WSJ (emphasis added).

160

Deon Sonnekus, Samcor becomes Ford of Southern Africa, News24, Aug. 21, 2000, available
at: http://www.news24.com/xArchive/Archive/Samcor-becomes-Ford-of-Southern-Africa20000821.

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237.

Foreign companies, including Ford, historically dominated the auto industry in

South Africa, and by the late 1970s, of the ten auto companies in South Africa, only one was
South African owned. 161
238.

In 1978, Ford’s sales in South Africa were estimated at $288 million and its

investments were valued at $119 million.162 At that time, with the auto industry in a downturn
and the South Africa government seeking to minimize companies in the industry to ones that
could be more stable and profitable, “GM and Ford [were] two of the best-capitalized car
manufacturers, possessing the resources to sit out a transition and emerge strong.” 163
239.

During all relevant times, key decisions about investments, policy, and operations

in South Africa were made by Ford in the United States.
240.

Thus, despite the tightening of U.S. trade sanctions in February 1978, Ford U.S.

still announced a “large infusion[] of capital into its South African subsidiary. Ford injected $8
million for upkeep and retooling.” 164
241.

Ford U.S. made policy, management, investment, sales, and operational decisions

with the purpose of supporting the apartheid security forces, including with sales of specialized
vehicles designed for controlling by force the black population of South Africa. 165

161

Kenneth Propp and Desaix Myers III, “The Motor Industry in South Africa,” South Africa
Review Service: Industry Sector Report (February 1979) by the Investor Responsibility Research
Center (IRRC), at 2-4, 6. Ford built the first assembly plant in the country in 1923 and was the
market leader in 1977 and second in 1978. Id. at 7. In 1978, Ford’s sales in South Africa were
estimated at $288 million and its investments were valued at $119 million. Id.

162

Id.

163

Id. at 10.

164

Id. at 20 (noting also that “company has been constrained to inject foreign capital into
operations that now do not return much on their already large assets.”).

165

Id. at 18 (“Disclosures by GM and Ford about the volume of their sales to the police and
military indicate that even if these sales [to the defense and police] do not represent a large
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242.

At all times, both Ford South Africa’s and SAMCOR’s business activities were

directed by Ford in Michigan. 166 Ford adopted the Sullivan Principles, for example, regarding
operations in South Africa. 167
243.

Ford regularly sent U.S. delegations to South African facilities and provided

experts for work on new installations there. Ford also sent employees to deal with Human
Resource issues and to establish HR programs such as “Zero Defects.”
244.

Management personnel were transferred from one part of Ford to another. For

example, the general manger of Ford South Africa was appointed and sent from Ford in Detroit
and went on to other jobs in Ford outside South Africa.
245.

Similarly, Lewis Booth, the general manager of SAMCOR, started in 1978 with

Ford of Europe, went to Dearborn, Michigan from 1993 to 1996, then to SAMCOR, and

proportion of the companies’ aggregate sales, both the automakers and the government consider
them important. Obviously, motor vehicles and tires are central to the maintenance of a prepared
defense and police establishment. GM especially has been anxious to preserve its supplier
relationship with the government, as have the major tire manufacturers, despite current
restrictions on such sales imposed by the U.S. government. The companies appear to believe
that the government’s perception of whether they are willing to cooperate in car and truck sales
outweighs the actual volume of sales.”).
166

Ford Motor Co. (1989) Form 10-K 1989 (stating Ford operates in South Africa though
SAMCOR).

167

“The Motor Industry in South Africa,” at 14. Ford executives also implicitly acknowledged
direction from the headquarters for its activities in South Africa. In a July 1979 meeting with a
religious taskforce, Ford officials, including William Broderick, the Vice President for
international and government affairs for Ford in the United States, explained the company’s
actions in South Africa. Ford officials said that the loss of police and military contracts would
lead to layoffs and potentially a consumer boycott of Ford. Broderick further stated that UN
Security Council Resolutions did not prohibit the sale of non-military vehicles or equipment. See
Renate Pratt, IN GOOD FAITH: CANADIAN CHURCHES AGAINST APARTHEID 43 (Canadian
Corporation for Studies in Religion, 1997), available at
http://books.google.com/books?id=KlI0T9N7NzcC&pg=PA42&lpg=PA42&dq=ford+apartheid
&source=bl&ots=ZTidIy_iZV&sig=S9I1B0YFO6csH5tZ8GUXSoVXlI4&hl=en&sa=X&ei=inN
_U5XhLs6osASGtICgAQ&ved=0CC0Q6AEwAThu#v=onepage&q=ford%20apartheid&f=false

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subsequently became president of Asia Pacific and Africa Operations for Ford as of January 1,
2000. 168
246.

Ford acknowledged that it was able to and did impose policies on its operations

globally. In addition to claims about its implementation of the Sullivan Principles of nondiscrimination, Ford controlled its major global policies, including it employment policies,
ethical business policies and code of conduct. 169
247.

Ford U.S.’s involvement in specific South African employee matters

demonstrates its involvement from the United States. Plaintiff Thozamile Botha, a former
SAMCOR employee, was banned in South Africa. 170
248.

While in exile, a Ford lawyer who liaised with Ford South Africa took Botha to

Ford Headquarters in Michigan. She was a lawyer representing Ford and interviewed Botha over
two days. She showed him a letter from Ford South Africa to Ford headquarters referring to
Botha, which read, “[v]ery intelligent, hard working, if he could be on our side.”
249.

The author of the letter was the Head of Personnel/Human Resources in South

Africa, Fred Ferreira, who was also a member of the Broederbond. Although she only showed
Botha one letter, Ford had a file on him in the United States that included other documents.

168

Biography of Lewis Booth, Ford Motor Co., U.S. Dept. of State, available at http://20012009.state.gov/e/eeb/ace/2001/80311.htm.

169

Ford Motor Co. (1989) Annual Report 1986, at Unnumbered “Centers of Excellence”, 10, 20,
41; Ford Motor Co. (2012) Sustainability Report: Environmental Management 2012, available at
http://corporate.ford.com/microsites/sustainability-report-2011-12/blueprint-governancemanagement-environmental; Ford Motor Co. (2012) Sustainability Report: Ethical Business
Practices 2012, available at http://corporate.ford.com/microsites/sustainability-report-201112/blueprint-governance-sustainability-ethical. See also Penske Corp., Case Study: Ford Motor
Company (2010), available at
http://www.penskelogistics.com/pdfs/01_ford_case_study_updated.pdf (describing Ford’s
structure).
170

See Pratt, IN GOOD FAITH CANADIAN CHURCHES AGAINST APARTHEID.

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250.

The files and communications kept in the Michigan headquarters about Plaintiff

Botha reveal that Ford monitored specific employees inside the plant, which indicates a tight
level of control over its operations in South Africa.
ii.

251.

Ford Participated in a Criminal Enterprise by Providing Practical
Assistance to the Apartheid Security Forces With the Purpose of
Facilitating Perpetration of Apartheid Human Rights Abuses

Defendant Ford had a long record of strategic vehicle and parts sales to the South

African security forces during apartheid. Ford’s vehicles were used by the South African
security forces to patrol African townships, homelands, and other areas, as well as to arrest,
detain, and assault suspected dissidents, violators of pass laws, and other civilians.
252.

Ford knew that its role in South Africa was significant to the continued operations

of Ford South Africa and its successors. Ford specifically supported the military and police,
which one U.S. official noted in discussing the purposes of the embargo were, “the instruments
most directly concerned with the enforcement of apartheid.” 171
253.

Because of their strategic importance, some industries were designated as

National Key Points, and as such, there was a particularly close relationship between these
corporations and South African security forces. Defendant Ford, as an automobile manufacturer,
would have been designated as a National Key Point.

171

“The Motor Industry of South Africa,” at 19. See also id at 6 (noting that the Financial Mail
arms and armaments were not only goods of importance to South African Department of
Defence as “motor vehicles . . . are among the strategic materials produced by foreign-controlled
firms.”). See also id. at 18.

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254.

Ford support was significant: “[B]etween 1973 and 1977 [Ford] sold 128 cars and

683 trucks directly to the South African Ministry of Defense and 646 cars and 1,473 trucks to the
South African police.” 172 Ford sold at least 1,582 F series U.S.-origin trucks to the police. 173
255.

Ford explicitly acknowledged that its support for the South African police and

military was essential to Ford’s broader business interests in South Africa. 174 Ford continued to
supply “parts to the military and policy despite the 1978 Commerce Department regulations that
prohibit the sale of any American commodity to the South African police or military.” 175
256.

In February 1978, the United States Department of Commerce issued regulations

that prohibited Ford from supplying passenger vehicles to the South African security forces,
because some of Ford’s passenger vehicles contained U.S.-made parts. 176
257.

The 1978 sanctions regime was created to eliminate “gray areas” and ensure that

American supplies were not flowing to vehicles used by, or increasing the “operational capacity
of,” the South African security forces. 177

172
173

Id. at 4.
Id.

174

Id. at 18.

175

Elizabeth Schmidt, Decoding Corporate Camouflage, at 61.

176

15 C.F.R. § 385.4 (1979); see supra ¶ 112.

177

“The Motor Industry in South Africa,” at 12 (“At the same time, the administration has sought
to ensure, in the words of one official, that ‘the United States should act in no way to increase the
operational capacity of the South African military and police.’ Responding to South Africa’s
arrests and bannings in October 1977, the Commerce Department on Feb. 16, 1978, issued its
regulations designed to curb sales of products and technology to the South African policy and
military. . . . The intent of the 1978 restrictions is to tighten up ‘grey area’ sales to South Africa.
‘Grey area’ items encompass materials of a non-military nature that could be converted on short
notice to military or police use such as light airplanes, specialized computer systems, certain
electronic components and strategic spare parts.”).

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258.

Despite the prohibitions, Ford continued to supply vehicles to the South African

security forces with the purpose of facilitating apartheid crimes. Ford denied that its continued
sales to the South African security forces ran counter to the U.S. prohibitions, on the basis that
the vehicles did not contain parts or technical data of U.S. origin. 178
259.

From its own statements, Ford acknowledged that it controlled the South African

plant from the United States, including supply chain policy and sales to South African forces. 179
Ford intended to continue this supply and support to maintain relations and business, even to the
extent that these activities purposefully facilitated oppression.
260.

Ford claims that it lost some sales to certain South African security forces as a

result of the February 1978 regulations, but the effects of those losses were minimal. 180 Ford’s
sales to the South African security forces continued. 181
261.

Occasionally these sales were temporarily halted by sanctions imposed by foreign

governments. For example:
In the mid-1960s, Ford bid on a contract to supply four-wheel drive
vehicles to the government. But the Canadian government refused to issue
an export permit to Ford’s Canadian subsidiary, which was to supply the
vehicles, on the grounds that the items might violate the then nonmandatory UN arms embargo against South Africa. 182
262.

In 1986, as justification for its continued sales to the South African security

forces, Ford explained that if it refused to supply military vehicles to the security forces, it could

178

Letter from Sidney Kelly to Shareholder (May 8, 1980) (“Kelly Letter”) at 1.

179

Id. at 15.

180

Karen Rothmeyer, U.S. Motor Industry in South Africa: Ford, General Motors and Chrysler,
The Africa Fund 1979, p. 8.
181

Kelly Letter, supra note 178, at 1 (“FSA sells a small number of non-US origin civilian
vehicles to the Police and Military”).

182

Rothmeyer, supra note 180, at 12.

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lose all government sales in South Africa, which could in turn render the company economically
unviable in South Africa. 183 Ford catered to the security forces’ demands in order to protect its
other profitable operations with other branches of the apartheid regime.
263.

Ford sold its products to the South African security forces through a central

government purchasing authority. The central authority purchased vehicles for use by the
security forces.
264.

The Comprehensive Anti-Apartheid Act of 1986 prohibited any U.S. entity from

engaging in any form of cooperation with the South African security forces except for activities
that were reasonably designed to facilitate collection of necessary intelligence. 184
265.

Despite the 1986 Act, Ford, in addition to supplying strategic security-force

equipment, assisted with its repair and maintenance. Ford’s cooperation with and practical
assistance to the South African security forces for the servicing of military vehicles demonstrates
its close collaboration with the apartheid regime in maintaining and enforcing apartheid.
266.

In addition to vehicles, parts, and maintenance, Ford supplied the South African

security forces with the necessary technology and skills to design and improve security force
vehicles. This purposeful support for the apartheid regime was clear from its specialization of
vehicles for the South African police.
267.

Notably, into the 1980s, Ford sold vehicles that did not need to be “converted” by

the apartheid government for military or police use but were already specialized before leaving
the plant in South Africa. Tags on cars being produced on the line in South Africa would

183

Rothmeyer, supra note 180, at 13; Richard Knight, “Sanctions, Disinvestment, and U.S.
Corporations in South Africa,” in Sanctioning Apartheid (1990, Robert E. Edgar, ed.).

184

White Wheels of Fortune: Ford and GM in South Africa, Interfaith Center on Corporate
Responsibility, Vol. 8 No. 6 1989, at 3A.

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indicate which cars were intended for the South African police or government. The engines in
some of these models were more powerful than in other cars, and they were only made for the
police or the government.
268.

In particular, Ford built a limited number of XR6 model Cortinas known

as “interceptors” that were sold almost exclusively to the police. The XR6 was special because it
had three Weber model double carburetors, as opposed to all other Cortinas that had only one
double carburetor.
269.

Boxes of parts including nuts, bolts, and carburetors to be used in the specialized

vehicles would arrive from overseas, mainly from Ford, and receive expedited treatment to get
them to the plant. 185
270.

Ford continued to assist the apartheid regime intending that their equipment and

technology was being used to commit violations of international law.
271.

Ford’s support for the security forces of the apartheid regime extended beyond the

mere supply of specialized military vehicles.
272.

The military vehicles, equipment, and services that Ford supplied to the South

African security forces were intentionally designed to practically enable the security forces to
track and attack civilians, patrol communities, and terrorize the Black population with the
purpose of perpetuating the oppressive apartheid regime. In the hands of the apartheid security
forces, the equipment supplied by Ford had an inherent capacity for harm and was particularly
susceptible to harmful and illegal use under international law.

185

“The Motor Industry in South Africa,” at 15 (discussing import of carburetors).

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273.

Ford knew that the normal market for these vehicles was the security forces. The

vehicles were deliberately pre-equipped with armor and military fixtures and designed for easy
modification by the security forces to add additional defensive and offensive features.
274.

Ford entered into agreements with the apartheid regime with the intention that this

equipment would ultimately be used by the security forces to enforce the oppressive laws of
apartheid, often through violent means. Ford persisted with voluminous and repetitious sales of
such equipment and service agreements despite their knowledge that such sales and services
provided practical assistance to the South African security forces which had a substantial effect
on perpetrating ongoing atrocities in South Africa.
275.

Ford also worked in deliberate cooperation with security forces to repress anti-

apartheid and union activists. South African police and military regularly visited and entered
industrial plants.
276.

Employees in the South African plants were disciplined by Ford for anti-apartheid

activities outside of work, and employees active in workplace organizing were arrested by the
police and security forces, questioned about their activities based on information supplied by
Ford, and tortured and imprisoned.
277.

Ford, thus, purposely supported the repression of anti-apartheid activists and

cooperated with and benefited from government repression of blacks who supported unions.
278.

Ford vehicles provided substantial assistance to the apartheid security forces in

Soweto. The student-led Soweto Uprising on June 16, 1976, to protest mandatory Afrikaans
language instruction in schools, led to violent suppression by the security forces. Women and
children were shot and killed. Ford military trucks were used as part of the military protocols in
Soweto.

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279.

Ford vehicles were used in other security force operations across South Africa. In

August 1985, the funeral of Mrs. Victoria Mxenge, a human rights attorney whose husband was
a slain human rights lawyer, precipitated confrontations in Duncan Village. The security forces’
violent response to anti-apartheid unrest lasted through the month of August and became known
as the Duncan Village Massacre. During that time, security forces shot and killed at least
nineteen Duncan Village residents, and injured many more. Ford vehicles were critical to the
coordination, monitoring of gatherings, collecting intelligence, and information to advance the
crackdown and violence in Duncan Village.
280.

At times during the massacre, entrances to the Duncan Village township were

sealed off and security forces in vehicles manufactured by Ford patrolled the area.
281.

At a mass burial service for victims of the massacre held later in August, security

forces once again opened fire on attendees resulting in additional injuries and deaths. Security
forces continued to perpetrate violence against Duncan Village residents at least through 1986.
Security forces relied on vehicles manufactured by Ford for coordination, monitoring the black
population’s activities, gathering information, and transportation throughout this time period.
282.

The Langa Massacre occurred in Uitenhage, near Port Elizabeth, on March 21,

1985. A group of people from the area peacefully assembled that morning to march to a funeral.
The police blocked the road in the center of Uitenhage with armored vehicles and ordered the
crowd to disperse. When the crowd did not immediately respond, the police opened fire, fatally
shooting 36 and injuring many others. The TRC later conducted an investigation of the event
and concluded that the South African Police “resorted to grossly excessive means to achieve this,
using unjustified deadly force, and that they are accountable for the gross human rights

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violations.” Security forces active at this time relied on vehicles manufactured by Defendant
Ford for coordination, monitoring activities, intelligence gathering, transport, and protection.
283.

By making profits which they knew could only come from their encouragement of

the security forces’ illicit operations through the sale of vehicles, parts, designs, and services,
Ford acquired a stake in the criminal enterprise that was the apartheid regime.
284.

Ford provided the South African security forces with vehicles and services for the

purpose of assisting enforcement of apartheid by force; extrajudicial killing; torture; prolonged
unlawful detention; denationalization; and cruel, inhuman, and degrading treatment against
Plaintiffs and members of the classes.
iii.
285.

Ford Camouflaged its Continued Assistance of the Apartheid Security
Forces in Order to Avoid Sanctions

As set forth above, the general manger of Ford South Africa became the head of

SAMCOR.
286.

After SAMCOR was created, Ford continued its seamless operation in South

Africa through SAMCOR.
287.

Ford created the fiction of this formally separate company to use its trade name

and provided SAMCOR with parts, vehicles, managerial assistance, and capital derived from
Ford’s sale of its interests. Nothing changed except the names and stamps on boxes.
288.

As Ford spokesman William J. Goodell, speaking from Detroit, said in 1987,

“Samcor needs Ford’s participation to be a viable company…They produce Ford-designed
vehicles. They need the Ford name on vehicles to sell them.” 186

186

Ralph Vartabedian and Michael Parks, Ford Discussing Plans to Divest in South Africa: Firm
Would Give 24% Stake to Workers, But Maintain a Presence, June 15, 1987.

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289.

Even after Ford announced it was “withdrawing” from South Africa, Ford

continued to sell components to SAMCOR and allowed SAMCOR to use its trade name. 187
“[W]e are committed to supporting [SAMCOR’s] continued operation and the employment of its
people,” said Ken Brown, spokesman for Ford. 188
290.

When apartheid ended, Ford voided the fiction and stepped back into the place it

claimed to have left by buying a 45 percent stake in SAMCOR following the demise of
apartheid. These maneuvers revealed Ford’s maintenance and control of its business activities,
including its purposeful support for and imposition of apartheid, while circumventing and
undermining U.S. policy.
IX.

EQUITABLE TOLLING
291.

Equitable tolling applies to all of Plaintiffs’ claims not within the applicable

statute of limitations because there was no practical, safe, or effective way for Plaintiffs to bring
these claims without risk of retaliation by the apartheid state prior to 1994. In addition,
Defendants’ refusal to cooperate with the TRC and provide a full accounting of their connection
to the violations alleged in this complaint tolls the running of the statute of limitations with
respect to Plaintiffs’ claims.
292.

There were and are no effective domestic remedies for Plaintiffs to exhaust in

South Africa against these Defendants for these claims.
X.

CLAIMS FOR RELIEF
FIRST CLAIM FOR RELIEF
(APARTHEID AS A CRIME AGAINST HUMANITY)

187

Janet Braunstein, Ford Leaving South Africa But Not Abandoning SAMCOR, Associated
Press, Nov. 25, 1987.

188

Id.

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(AGAINST BOTH DEFENANTS)
293.

The allegations set forth in the above paragraphs are realleged and reincorporated

by reference as if fully set forth below.
294.

Plaintiffs, all members of the proposed Extrajudicial Killing Class, all members of

the proposed Torture Class, all members of the proposed Detention Class, all members of the
proposed Cruel Treatment Class, and all members of the proposed Denationalization Class seek
relief from crimes against humanity committed by the apartheid state with the complicity of
Defendants, either directly and/or through their agents and alter egos, either by aiding and
abetting or participating in a joint criminal enterprise with the South African security forces.
295.

The acts described herein constitute the crime of apartheid and offenses

committed in furtherance of or ancillary to that crime in violation of the Alien Tort Claims Act
(28 U.S.C. § 1350), international law, and the common law of the United States.
296.

The crimes against humanity for which Defendants are liable are intentional acts

that were purposely committed as part of widespread or systematic attacks directed against a
civilian population.
297.

The acts which form the basis of Defendants’ liability for crimes against humanity

include apartheid itself as well as murder, deportation or forcible transfer of population,
revocation of nationality, imprisonment or other severe deprivation of physical liberty in
violation of international law, torture, the persecution against any identifiable group or
collectivity on political, racial, national, or ethnic grounds, and/or other inhumane acts of a
similar character intentionally causing great suffering or serious injury to body or to mental or
physical health.

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298.

Each single act constitutes a crime against humanity because it was committed

within the context of widespread or systematic attacks against a civilian population. In addition,
apartheid itself has been long recognized as a crime against humanity.
299.

Defendants provided assistance to the South African security forces through

material, logistical, financial, and/or other means of practical support, to purposely facilitate
violations of international norms toward the Plaintiffs and the classes.
300.

Defendants’ practical assistance to the South African security forces had a

substantial effect on the perpetration of its criminal and tortious activities and was provided with
the purpose of facilitating those activities.
301.

Plaintiffs and the members of the classes they represent suffered injuries as a

result of Defendants’ actions.
302.

The Defendants’ actions were committed with knowing and reckless disregard for

Plaintiffs’ rights. As a result, Plaintiffs are entitled to an award of punitive damages against each
Defendant.
SECOND CLAIM FOR RELIEF
(DENIAL OF THE RIGHT TO A NATIONALITY)
(AGAINST DEFENDANT IBM)
303.

The allegations set forth in the above paragraphs are realleged and reincorporated

by reference as if fully set forth below.
304.

Denationalization Plaintiffs, on behalf of themselves and the Denationalization

Class they represent seek relief from the denial of the right to a nationality committed against
him by the apartheid state with the complicity of Defendant IBM acting either directly and/or
through their agents and alter egos, and either by aiding and abetting or engaging in a conspiracy
or joint criminal enterprise. Defendant IBM conspired with the apartheid security forces.

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305.

Denationalization Plaintiffs the Denationalization Class they represent were

stripped of their South African nationality and citizenship, were restricted in their ability to travel
in to, out of and around South Africa, and were discriminated against by being forcibly
geographically separated and segregated into homelands on the basis of race.
306.

Defendant provided assistance to the South African security forces through

material, logistical, financial, and/or other means of practical support, to purposely facilitate
violations of international norms toward the Plaintiffs and the classes.
307.

Defendant’s practical assistance to the South African security forces had a

substantial effect on the perpetration of its criminal and tortious activities and was provided with
the purpose of facilitating those activities.
308.

Denationalization Plaintiffs the Denationalization Class suffered injuries as a

result of Defendant IBM’s actions.
309.

Defendant IBM’s actions were committed with knowing and reckless disregard

for Plaintiffs’ rights. As a result, Plaintiffs are entitled to an award of punitive damages against
Defendant IBM.
THIRD CLAIM FOR RELIEF
(EXTRAJUDICIAL KILLING)
(AGAINST DEFENDANT FORD)
310.

The allegations set forth in the above paragraphs are realleged and reincorporated

by reference as if fully set forth below.
311.

Extrajudicial Killing Plaintiffs on behalf of themselves and the Extrajudicial

Killing class they represent, seek relief from extrajudicial killings committed against them by the
apartheid state with the intentional complicity of Defendant acting either directly and/or through

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their agents and alter egos, and, either by aiding and abetting or engaging in a conspiracy or joint
criminal enterprise. Defendant conspired with the apartheid security forces.
312.

Defendant provided assistance to the South African security forces through

material, logistical, financial, and/or other means of practical support, to purposely facilitate
violations of international norms toward the Plaintiffs and the classes.
313.

Defendant’s practical assistance to the South African security forces had a

substantial effect on the perpetration of its criminal and tortious activities and was provided with
the purpose of facilitating those activities.
314.

These Plaintiffs and the Extrajudicial Killing class they represent suffered injuries

as a result of these Defendant’s actions.
315.

Defendant’s actions were committed with knowing and reckless disregard for

Plaintiffs’ rights. As a result, Plaintiffs are entitled to an award of punitive damages against
Defendant.
FOURTH CLAIM FOR RELIEF
(TORTURE)
(AGAINST DEFENDANT FORD)
316.

The allegations set forth in the above paragraphs are realleged and reincorporated

by reference as if fully set forth below.
317.

Torture Plaintiffs, on behalf of themselves and the Torture Class they represent,

seek relief from torture committed against them by the apartheid state with the intentional
complicity of Defendant Ford, acting either directly and/or through its agents and alter egos, and
either by aiding and abetting or engaging in a conspiracy or joint criminal enterprise. Defendant
conspired with apartheid security forces.

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318.

The tortures described herein were inflicted deliberately and intentionally for

purposes that included, among others, punishing the victims or intimidating the victim or third
persons.
319.

Defendant provided practical assistance to the South African security forces

through material, logistical, financial, and/or other means of practical support, to purposely
facilitate violations of international norms toward the Plaintiffs and the classes.
320.

Defendant’s practical assistance to the South African security forces had a

substantial effect on the perpetration of its criminal and tortious activities and was provided with
the purpose of facilitating those activities.
321.

Plaintiffs and the class they represent suffered severe mental and physical injuries

as a result of these Defendant’s actions.
322.

Defendant’s actions were committed with knowing and reckless disregard for

Plaintiffs’ rights. As a result, Plaintiffs are entitled to an award of punitive damages against
Defendant.

FIFTH CLAIM FOR RELIEF
(CRUEL, INHUMAN OR DEGRADING TREATMENT)
(AGAINST BOTH DEFENDANTS)
323.

The allegations set forth in the above paragraphs are realleged and reincorporated

by reference as if fully set forth below.
324.

Cruel Treatment Plaintiffs and the Cruel Treatment Class they represent suffered

injuries as a result of Defendants’ actions that constitute cruel, inhuman or degrading treatment
(CIDT).

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325.

The acts described herein had the intent and the effect of grossly humiliating and

debasing the Plaintiffs, forcing them to act against their will and conscience, inciting fear and
anguish, and/or breaking their physical or moral resistance.
326.

The acts described herein constitute CIDT committed against the Plaintiffs by the

apartheid state with the complicity of Defendants, acting either directly and/or through their
agents and alter egos, and, either by aiding and abetting or engaging in a conspiracy or joint
criminal enterprise; or committed directly by the Defendants themselves. Each Defendant
conspired with the apartheid security forces.
327.

Defendants provided assistance to the South African security forces through

material, logistical, financial, and/or other means of practical support, to purposely facilitate
violations of international norms toward the Plaintiffs and the classes.
328.

Defendants’ practical assistance to the South African security forces had a

substantial effect on the perpetration of its criminal and tortious activities and was provided with
the purpose of facilitating those activities.
329.

All Plaintiffs and the classes they represent suffered injuries as a result of

Defendants’ actions.
330.

The Defendants’ actions were committed with knowing and reckless disregard for

Plaintiffs’ rights. As a result, Plaintiffs are entitled to an award of punitive damages against each
Defendant.

XI.

PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray that judgment be entered against the Defendants as

follows:
(a)

Granting Class Plaintiffs class action certification;

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(b)

Declaring that Defendants aided and abetted the commission of a tort in violation
of international law enforceable in this court as federal common law and the law
of nations;

(c)

Awarding Class Plaintiffs compensatory and punitive damages arising out of the
unlawful behavior of Defendants;

XII.

(d)

Disgorging Defendants’ profits;

(e)

Awarding the costs of bringing this action; and

(f)

Granting such other further relief as shall seem just to the Court.

JURY DEMAND
Plaintiffs hereby demand a jury trial on all issues so triable.

Dated: August 8, 2014

/s/ Michael D. Hausfeld
Michael D. Hausfeld
mhausfeld@hausfeldllp.com
Kristen M. Ward
kward@hausfeldllp.com
Hausfeld LLP
1700 K St. N.W. Suite 650
Washington, D.C. 20006
(202) 540-7200

Jeannine M. Kenney
jkenney@hausfeldllp.com
Hausfeld LLP
1604 Locust St., 2nd Floor
Philadelphia, PA 19103
(215) 985-3270
Counsel for Plaintiffs

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CERTIFICATE OF SERVICE
I, Kristen M. Ward, hereby certify that on August 8, 2014, a copy of Plaintiffs’ Proposed
Third Amended Complaint was filed and served on all parties of record by way of CM/ECF.

/s/ Kristen M. Ward
Kristen M. Ward

86