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How Zimbabwean’s land case ended up in South Africa’s legal system

The Business Day DISPOSSESSED Zimbabwean farmer Mike Campbell was able to take his case to the judiciary in South Africa because of the Southern African Development Community (Sadc) Tribunal decision, pronounced before it was dissolved, which found Zimbabwe to have been in violation of the Sadc Treaty. Zimbabwe was in contempt of court for refusing to adhere to that ruling. “The petitioners, Campbell and Co, sought to have the SADC judgments enforced in a South African court,” says Nicole Fritz, director of the Southern Africa Litigation Centre. “They could do so because of longstanding traditions that allow it,” she said. “If the implications of the ruling need to be enforced outside the territory of the state in which the order was given, you can seek to have the judgment enforced in the other state. The petitioner did not have to be a South African and enforcement of the tribunal ruling can be effected in South Africa, and because Zimbabwe has certain property holdings in South Africa.” Does this presage a slew of cases to be taken up by South African courts? No, it does not, says Jeremy Gauntlett, a senior counsel in South Africa. This was because the tribunal issued only a few judgments before it was shut down. In South Africa, the Campbell case was won in the Pretoria High Court by the petitioners and this was challenged by Zimbabwe in the Supreme Court of Appeal. It lost the appeal and announced it would seek a hearing at the Constitutional Court, stalling the sale in execution of its South African commercial properties. Leave to appeal and merits are expected to be heard on February 28. Zimbabwe’s attorney-general, Johannes Tomana, expressed disappointment at the outcomes of the hearings in South Africa. “We have spent a lot of money fighting in the South African courts and it all comes down to the fact that South Africa is disrespecting the diplomatic immunity that governs relations between sovereign states and is defying a directive by regional leaders to stop the work of the tribunal. The South African courts are just playing politics.” Mr Tomana opted for a final fling of the South African judicial dice by taking the matter on appeal to the Constitutional Court. “Zimbabwe’s intention to appeal in the Constitutional Court means that the sheriff will wait for the outcome of Zimbabwe’s approach to the court,” Ms Fritz points out. “If the court decides it is not a constitutional matter and that there will not be a hearing, that will then be that and the execution of property order will be carried out.” Zimbabwe was ordered by the tribunal to pay the legal costs only. Why this limitation? What about compensation for the seized farms? Ms Fritz hazards the supposition that “while the Sadc Tribunal ordered that just compensation for the confiscated land be paid, it did not determine what such compensation would be. “This is in line with deference afforded sovereign executives and jurisdictions by supranational courts. They would be loath to make an order not knowing what the budgetary implications for the applicable state would be.” And that is where the legal battle in South Africa now rests. It will end if the Constitutional Court declines to hear Zimbabwe’s appeal or joined once more if it does. Meanwhile, the erstwhile judges of the tribunal have registered their anger and distress at not receiving their outstanding and severance remuneration after the court’s dissolution. Justice Ariranga Pillay has demanded that the Sadc council and summit “should face up to the consequences of their acts and do the decent and honourable thing in the circumstances and pay fair and adequate compensation for the prejudice, both material and moral, caused to the president and members of the tribunal whose term of office was not renewed”. Disagreements over such compensation, he says, must be referred to mediation or arbitration in the interests of justice.

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