Since 2008, the Clinic has been co-counsel in Ntsebeza, et al. v. Daimler AG, et al. (In re South African Apartheid Litigation), a major coporate ATS suit against Daimler, Ford, General Motors, and IBM for the support and assistance they provided to the South African apartheid government to commit human rights violations. The plaintiffs are South African citizens who have brought claims against these corporations for aiding and abetting apartheid, extrajudicial killing, torture, cruel, inhuman or degrading treatment, and denationalization.
Since late 2005, the Clinic has been involved in various aspects of the litigation, with faculty and students conducting more than a dozen trips to South Africa to work on the case since 2006.
The plaintiffs prevailed on the motion to dismiss in April 2009, and the case is currently on appeal before the Second Circuit.
Background on the case
The Ntsebeza case is one of two pending suits—the other is known as the Balintulo or Khulumani case—which are proceeding through the courts together and are collectively referred to as In re South African Apartheid Litigation.
Originally, numerous complaints were filed in 2002 around the United States against dozens of corporate defendants. The cases were consolidated in the Southern District of New York and dismissed by the district court there in 2004. The Clinic began to support the Ntsebeza legal team in 2005 by providing legal research and assisting to draft appellate briefs. On appeal, the Second Circuit’s 2007 decision reversed the district court, recognized the viability of aiding and abetting claims under the ATS, and allowed the plaintiffs an opportunity to amend their original complaints.
Following the appellate ruling, the Clinic joined the case as co-counsel. We contributed legal research and drafting to the opposition to the defendants’ petition for a writ of certiorari in early 2008. Lacking a quorum, the Supreme Court could not grant the petition and affirmed the Second Circuit’s ruling. We were then extensively involved in drafting the amended complaint, which was filed in October 2008.
The Clinic has continued to play a role in all aspects of the litigation, including the briefing and oral argument on the motion to dismiss, on which plaintiffs prevailed in April 2009. We have also worked to oppose the defendants’ emergency appeal to the Second Circuit, which was briefed in late 2009, argued in January 2010, and is currently pending.
The U.S.-based legal team is led by Paul Hoffman of Schonbrun, De Simone, Seplow, Harris & Hoffman, LLP and includes Judith Brown Chomsky of the Law Offices of Judith Brown Chomsky, and Diane Sammons and Jay Rice of Nagel Rice LLP. The South African-based legal team is led by Advocate Dumisa Ntsebeza and includes attorneys John Ngcebetsha, Gugulethu Madlanga, and Medi Mokuena, and Advocate Michael Osborne.
Amended Ntsebeza Complaint (2008)