ConCourt ruling deals blow to Zimbabwean farmers’ R2 billion claim

Twenty-five Zimbabwean farmers and companies stripped of their land have lost a claim for nearly R2 billion in damages after the Constitutional Court in South Africa ruled on Monday that the matter had prescribed (run out of time).

The matter ended up in SA courts because the Southern African Development Community (SADC) Tribunal, to which SA was a signatory, was disbanded in 2011 when it ruled against Zimbabwe and its unlawful treatment of dispossessed farmers. Former SA president Jacob Zuma supported the dissolution of the tribunal.

The farmers were frustrated in their efforts to find redress in the Zimbabwe courts, so they turned to the SA courts on the grounds that the SADC Treaty, which established the tribunal, was binding on both SA and Zimbabwe.

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They argued that both countries were duty-bound to assist in the execution of the tribunal’s decisions.

The so-called 2014 Protocol was adopted with the support of SA, effectively abolishing the right of private individuals to bring disputes before the tribunal.

Only disputes between member states would henceforth be entertained.

The farmers have waged a 15-year legal battle, backed by AfriForum, to get this far.

Not giving up

Willie Spies of Hurter Spies Attorneys, which represented the farmers, says the decision by the ConCourt is a disappointment, but the campaign for justice will not end there. “We’ve been involved in this case for 15 years, and we may have to walk another 15 years. Justice is something you keep on pursuing.”

One possibility being considered is to campaign for the reinstatement of SADC Tribunal.

“We need human rights courts that cross borders. It’s not a quick fix, but it is something we cannot abandon,” says Spies.

He adds that there is international precedent for the legal action being pursued by the farmers. International arbitrations dealing with dispossession were brought by Dutch and German citizens (the Von Pezold and Funnekotter cases) and were decided against the Zimbabwe government.

Zanu-PF Sandton branch chair and prominent lawyer Advocate Simba Chitando says the ConCourt ruling was correct as the damages claim has prescribed, but that does not preclude the farmers from claiming against the Zimbabwe government for improvements to the land, but not the land itself as the land was unlawfully taken from the indigenous majority during colonisation.

“The unsuccessful claimants in the South African Courts ought to have taken advantage of the opportunity the Zimbabwean government provided them,” says Chitando.

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“Millions of dollars in recompense have already been paid out for land improvements. The land issue is closed. Zimbabwe is on an unprecedented growth trajectory. The recent Zimbabwean investment summit [held in Joburg] is evidence of that. It is time to look forward to a bright future for Zimbabwe.”

Spies counters that this is insufficient as international legal principles make clear that “the farmers are entitled not just for improvements, but for land itself”.

“Farming is an enterprise and the land on which it operates is an integral part thereof.”

‘Master plan’

The ConCourt previously criticised the SADC 2014 Protocol as “a master plan that was devised by the [SADC] Summit at the instance of the Republic of Zimbabwe”.

“Clearly, Zimbabwe did not want to comply with the unfavourable decisions made against it by the Tribunal. It then crafted a strategy that would be fatal to the possibility of the Tribunal ever embarrassing it again.”

In its efforts to paralyse the tribunal, “Zimbabwe had a willing ally in South Africa, as represented by our President,” ruled the ConCourt in 2018.

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“The non-appointment of new judges and non-renewal of expired terms was a scheme designed to ensure that the Tribunal would not function because it would not be quorate. Added to this mix was the decision to impose a moratorium on the referral of individual disputes to the Tribunal and the signing of the Protocol that seeks to essentially make this state of affairs permanent.”

That ConCourt judgment in 2018 found Zuma’s signing of the 2014 Protocol to be unconstitutional, unlawful and irrational, and directed him to withdraw his signature.

Latest judgment

This latest judgment by the same court dealt with the issue of damages and the argument by the state that the claim of nearly R2 billion had prescribed.

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The ConCourt ruled that the farmers’ claims fell due by August 2014 when Zuma signed the 2014 Protocol and would therefore have prescribed three years later in terms of the Prescription Act.

The farmers argued that their claim against the state was still alive and would remain so until the ConCourt issued its 2018 ruling in a case brought by the Law Society of SA against the government ordering the president to withdraw his signature from the 2014 Protocol.

The state attacked the farmers’ amended particulars of claim as “vague and embarrassing”, and raised a number of exceptions (objections) challenging the notion that SA owed a legal duty to foreigners who lost money outside SA, and that there was no claim that Zuma had acted wrongfully in signing the 2014 Protocol.

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The ConCourt found that the previous high court ruling in favour of the farmers should have dismissed the condonation (late filing) application on the grounds that the debts in question were prescribed. The parties were ordered to pay their own costs in the case.

This article was republished from Moneyweb. Read the original here