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White farmers continue with legal challenge

Augustine Mukaro



FARMERS have continued to challenge the controversial Land Acquisition Act seeking to make government comply with its own laws concerning the right to s

eek recourse to the courts and its obligation to pay fair and timely compensation for the improvements on acquired properties. They are also insisting that the government observes constitutional provisions barring racial discrimination.


The farmers — who have challenged the government in both local and international courts — said in all their challenges they have raised the three issues which have most marred the land reform programme.


John Worswick, chairman of Justice for Agriculture (JAG), a militant wing of white commercial farmers who lost their land, said the farmers are demanding the return of the rule of law, property rights and timely compensation in terms of damages and improvements.


JAG has filed hundreds of court challenges against the government, in some cases winning, but the state ignored the judgments.


“We have challenged government in all local courts demanding a return to the rule of law and reinstatement of property rights so that we can go back to our farms without interference,” Worswick said.


“We are demanding compensation in terms of damages to the farms, loss of profit during the time when we were disturbed from production, deprivation of our homes and sources of income. We want government to pay for relocation costs of both the farmers and their workers.”


He said there should be a meaningful resettlement programme driven by the need for land without politicisation.


“A meaningful land reform that empowers people with title is necessary for both commercial and communal farming.”


Worswick said the farmers were geared to take government to international courts.


“We are already at the Sadc Tribunal with one case,” he said. “We would soon be taking other cases to the African Union before proceeding to the International Court in Rome and in The Hague.”


Worswick said the violations the farmers were raising were exactly the same as those raised by the Dutch nationals in their case at the International Centre for the Settlement of Investment Disputes (ICSID) in Washington in 2005. The farmers are demanding that government uphold Bilateral Investment Promotion and Protection Agreements (Bippas). Under the agreement, government had promised to pay full compensation to Dutch nationals in the event of a dispute arising out of an investment in Zimbabwe.


Ben Freeth — who has challenged government’s land acquisition programme from the magistrates courts to the High Court, Supreme Court and is now in the process of taking his case to the Sadc Tribunal — said the acquisition violated the Constitution of Zimbabwe and many other regional and international charters and protocols which Zimbabwe ratified.


“We are seeking a declaration that the failure by the government to comply with its own laws concerning the obligation to promptly and without unreasonable delay pay compensation for the improvements on applicants’ property is a violation of the Sadc Treaty principles, terms, conditions and objectives,” Freeth said in court papers submitted to the Tribunal. “The denial of compensation and timing of payment for improvements is demonstrably unfair, irrational, manifestly unreasonable and offends Article 4 of the Sadc Treaty.”


He said the farmers are also seeking to interdict government from compulsorily acquiring farms without recourse to the due process of law as promulgated in Constitutional Amendment 17, a development directly at variance with the principles, terms, conditions and objectives of the Sadc Treaty.


Freeth said the amendment removed the rights of the aggrieved to equal treatment before the law; the right to a fair hearing before an independent court or tribunal; the right not to be discriminated against because of race or place of origin; the right to protection of property; and the right to receive prompt, fair and adequate compensation concerning an expropriation of property by the state.


“The provisions of Section 16(9b) of the Constitution in terms of which it is specifically enacted that nothing in Section 16 of the Constitution of Zimbabwe shall affect or derogate from any obligation assumed by the state in terms of any convention, treaty or agreement acceded to, concluded or executed by or under the authority of the President with one or more foreign states or governments or international organisations.”


Freeth said he was seeking a “declarator” that in its effect and implementation, the identification of white farmers only is racially discriminatory and therefore invalid.


He said this contention was based on the facts that from the year 2000, the process of acquiring land for resettlement purposes by the government was directed solely at so-called white persons, regardless of any other factors such as their proper use of the land, their contribution to the national economy, their citizenship, their length of residence in Zimbabwe or any factor other than the colour of their skin.


The Commercial Farmers Union (CFU) says it would continue to engage the government despite loss of court cases.


CFU vice president Deon Theron said at the weekend that the CFU would continue negotiations with the government on behalf of its members.


“As CFU we will encourage our members that we keep on engaging with the government and look for ways in which we can put these cases to finality,” said Theron.


“We don’t want to get tied up in individual cases but we want to find ways of breaking the impasse and make sure that we reach a compromise with government.”


The last remaining white farmers now face an uncertain future after Chegutu magistrate Tinashe Ndokera last week ruled that those still on targeted farms after a September 30 deadline to vacate the properties were in breach of the law.


Any white farmer still on his land would be deemed to be trespassing on state property, resulting in a number of farmers being taken to court last week charged with defying the government order to vacate their properties. The CFU has over the years tried to engage the government over the takeover of farms without success.


The government has since the beginning of the year given conflicting signals on the fate of remaining white farmers, with some officials saying they would be allowed to stay and others saying they would be evicted.


Nonetheless, evictions have continued sporadically.


This has often led to contradictory statements from Vice-President Joseph Msika and Lands and Land Reform Minister Didymus Mutasa, with the latter insisting that no white farmers would be allowed on the land after December 31.


Msika has without success told Mutasa to stop new farm seizures, arguing that chasing away the few white farmers left in the country was not helpful to the agriculture sector or food security and was no longer in sync with the popular mood in the ruling Zanu PF.

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