SYDNEY KAWADZA A SOUTH African Supreme Court of Appeal (SCA) ruling could see Zimbabwe shelling out R2 billion (US$126 million) in compensation to white former commercial farmers whose land was violently taken over during the fast-track land reform programme beginning in 2000.
The appeal which overturned a High Court ruling was delivered this month.
Zimbabwean commercial farmers had approached courts claiming damages against the South African government.
They approached the North Gauteng High Court in Pretoria in 2019 claiming R1,9 billion after former South African President Jacob Zuma signed a Sadc resolution which dissolved a tribunal which was expected to handle the matter.
The farmers argued that the logical option for South Africa was to ensure the Sadc tribunal was reinstated for them to pursue their case.
This came in the wake of a land dispute leading to former commercial farmers turning to the Sadc tribunal seeking compensation through the landmark Campbell case.
The appellants include 11 farmers and 14 companies linked to the farmers who lost their farms during the government’s chaotic land reform.
Another 24 farmers, according to the South African civil rights group, AfriForum, joined the case while their papers have already been submitted.
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In the Gauteng High Court case heard virtually in November 2020, judgment was reserved and the Supreme Court of Appeal hearing was held in Bloemfontein on May 5 this year.
The farmers argued in the court that the logical option for the South African government was to ensure that the Sadc tribunal is reinstated so that the farmers can lodge an appeal with the Zimbabwean government.
According to the AfriForum legal representative Willie Spies, the exception had to do with the allegation that the farmers failed to show a causal link between the closure of the tribunal and the losses suffered by the Zimbabwean farmers.
“The farmers appealed the granting of
the exception filed and the Supreme Court of Appeal today found in the farmers’ favour.
“The effect of this judgement is that the road is now clear for the farmers to pursue their claims for damages against the South African government as a result of the complicity in the process that led to the demise of the Sadc Tribunal,” Spies said.
In an interview yesterday, the farmers’ spokesperson Ben Freeth hailed the judgement.
“The Constitutional Court in South Africa in another judgement had found that President Zuma at that particular time had acted against the rule of law, against the South African constitution, in fact, irrationally, in being a part in destroying the Sadc Tribunal alongside Robert Mugabe.
“We will have to put in our cases now as to what that compensation will look like in terms of amount. But there have been damages relating to President Zuma as president of South Africa in stopping people from accessing the court of last resort in the Sadc community,” Freeth said.
He, however, cast doubts on whether the Zimbabwean government would pay the compensation to farmers.
“Zimbabwe will try and string us along as long as it possibly can but what we have is a final and binding judgement against the Zimbabwe government in the Sadc Tribunal which was delivered on 20 November 2008 which the Zimbabwe government can never run away from whoever is in power,” Freeth added.
Freeth said the farmers will lean on the SCA judgement against the South African government for their part in taking away the Sadc Tribunal.
“It will put a lot of pressure on the South African government to come back to and establish that Sadc Tribunal rather than a lot of these claims coming their way from Zimbabwe.”
In its ruling on May 20 this year in the case of Luke Tembani and Others versus the President of the Republic of South Africa and Another in Case no 167/2021, the SCA handed down a judgement in which it upheld an appeal and struck a cross-appeal from the roll, in each instance with costs, against a judgement of the High Court.
The litigation has its genesis in Zimbabwe’s ambitious land and agrarian reform programme.
According to the ruling, some farmers, including South African citizens, who had lost their land due to the implementation of the programme, turned to the Sadc Tribunal, which concluded that Zimbabwe breached certain obligations under the Sadc Treaty and ordered it to pay fair compensation.
The Tribunal was effectively disabled and unable to function.
According to the ruling, in August 2014, the Sadc Summit adopted a new protocol which abolished access by all private individuals to the Tribunal.