Case pending: practices of inclusion and exclusion in a class of plaintiffs

Abstract

Apartheid victims have had a difficult standing in South Africa in the years that followed the Truth and Reconciliation Commission (TRC). In the government's perspective, the TRC had conclusively dealt with apartheid victimhood. Consequently, when victims turned to US courts in the early 2000s to sue multinational companies for their role in the perpetration of apartheid- era crimes, they faced everything from scepticism to hostility. From a different perspective, many scholars shared this scepticism, fearing the individualising power of the law. But contrary to the TRC, these apartheid litigations, as class actions, offer individual victims the chance to make their claims collectively.With the help of the extended case method, this article shows how both victims and courts struggle with the difficult relationship between structural reasons, collective action and individually experienced harm. I enquire into the logics of the law as produced in courts and into lived experience of apartheid-era victimhood in today's South Africa and suggest a refinement of theories of legalisation.