GHOST OF THE SADC TRIBUNAL HAUNTS ZIMBABWE IN SOUTH AFRICA’S CONSTITUTIONAL COURT

Salc : Caroline James

A group of Zimbabwean farmers dispossessed of their land in Zimbabwe’s controversial land redistribution policy will face off against the Zimbabwean government in the South African Constitutional Court today. This is the final stage of a long, protracted legal battle through the Zimbabwean courts, the SADC Tribunal and finally the South African judicial system.

After the Zimbabwean courts refused to hear their claim the farmers approached the SADC Tribunal seeking an order declaring the confiscation of their land unlawful and discriminatory on the basis of their race. The SADC Tribunal found in favour of the farmers and ordered the government to pay fair compensation to those farmers whose land had been expropriated and to desist from interfering in the possession of the farmers not yet evicted. Despite the Tribunal ruling that the government was in contempt of court the Zimbabwean officials continuously refused to adhere to their obligations under the Tribunal’s judgment. It was the Zimbabwean government’s unhappiness in the Tribunal’s finding that set in motion the process that resulted in the disbanding of the SADC Tribunal last year.

The issue that the Constitutional Court is faced with today is not whether or not the land policy was lawful or discriminatory; it is solely about whether judgments of a regional court, the Tribunal, can be enforced by South African courts. The farmers’ legal case in South Africa has been an attempt to attach property owned by the Zimbabwean government in South Africa in execution of the costs order handed down by the SADC Tribunal. The Supreme Court of Appeal ruled last year that judgments of the Tribunal should be treated as a foreign judgment – which can always be enforced in South Africa, and that the Zimbabwean government was not immune from civil action in this matter.

This case raises interesting questions about the relationship between regional and domestic courts and states’ obligations under regional and international treaties they are party to.

For a bit of background see below for SALC’s blog following the decision of the Supreme Court of Appeal, and the papers for the Constitutional Court are available here.

 

PAY UP ZIMBABWE, ORDERS SOUTH AFRICA’S SUPREME COURT – SEPTEMBER 2012

While civil society is still reeling from SADC’s recent decision to strip southern Africa’s regional court, the SADC Tribunal, of the ability to serve the interests of the region’s citizens, the Supreme Court of Appeal, seemingly unperturbed by recent events, confirmed that judgments of the now-defunct Tribunal are enforceable in South Africa. The SCA confirmed that property belonging to the Zimbabwean government may be attached and sold in execution of a cost order handed down by the SADC Tribunal.

This judgment is the latest act in a protracted drama. In 2008 the SADC Tribunal, SADC’s regional judicial body, found the Zimbabwean land reform policy to be unlawful and directed the government to pay fair compensation to the farmers who had brought the application after being dispossessed of their land. The Zimbabwean government persistently refused to comply with the orders of the Tribunal – despite contempt proceedings being brought against it by the farmers – instead claiming that they were not bound as the Tribunal had not been correctly constituted. The Zimbabwean complaint to SADC in respect of these cases set in motion the sequence of events that culminated in the dismantling of the Tribunal at the SADC Summit in August.

The farmers had attempted to have the Tribunal judgment registered and enforced in Zimbabwe but the High Court of Zimbabwe held that to do so would be contrary to public policy as it would amount to a contradiction of the land reform clause in the Constitution which had been endorsed by the Supreme Court. The farmers then launched proceedings in the North Gauteng High Court to attach property in Cape Town belonging to the Zimbabwe government in order to obtain their costs. The High Court judgment was in the farmers’ favour and the government then appealed to the SCA.

The SCA made it clear that the Tribunal had been properly constituted at the time it issued the judgment in question, and that the Zimbabwean government was therefore bound by the decision. The Court also dismissed the Zimbabwean government’s argument that, as a foreign government it was immune from civil suits in South Africa citing the fact that the state had waived its immunity by expressing submitting itself to the SADC Tribunal litigation.

What is of particular interest is that the SCA accepted that as foreign judgments can be recognised and enforced under South Africa’s common law there is no reason to treat a judgment of the Tribunal, a regional court, any differently. The possibility of litigants using South Africa, and other domestic jurisdictions in the region, to ensure compliance with other regional court judgments is cause for optimism. Seen in the context of a series of cases in South Africa, such as the recent Zimbabwe Torture Case, where the courts have come to the rescue of Zimbabweans who have no other place to turn the fact that this avenue remains available is heartening.

Ironically however, the SCA judgment comes in the wake of the SADC Summit decision in August 2012 disbanding the Tribunal and declaring that a new Tribunal Protocol be adopted, one which will see individual access by aggrieved citizens taken away. It is encouraging to see the South Africa judicial arm of government recognising the authority of the Tribunal decisions and enabling enforcement of the judgments which gives a degree of legitimacy to the Tribunal. It demonstrates the strength of the separation of power between the executive and the judiciary in South Africa – that despite the executive’s indifference to the future of the Tribunal the country’s courts will continue to respect its judgments, without falling prey to political puppetry.

The Zimbabwe government has indicated that it intends taking this matter on appeal to the Constitutional Court. The attorney-general explained that as the Tribunal has been disbanded the Zimbabwean government does not believe South African courts can uphold its rulings. However, in disbanding the Tribunal the SADC Summit did not, at least officially, justify that decision on the basis that the Tribunal had been illegally constituted or that the decision would apply retrospectively, rendering the judgments of Tribunal invalid. Therefore it appears that although the Tribunal no longer exists in the form that it did, when this case was heard the Tribunal was operating within its mandate.

With the Tribunal no longer operational, and the Zimbabwean courts declining to enforce the Tribunal decision, this judgment provides what may be the only mechanism through which the farmers can receive their compensation. However, as this judgment would not have been possible without the initial Tribunal decision in the farmers’ favour it illustrates the stark reality that without the Tribunal other victims of human rights violations will have no forum to turn to in order to vindicate their rights in the face of a hostile government.

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