Former President Zuma rebuked by the SA ConCourt on the mischief in respect of the SADC Tribunal Decision

Former President Zuma was yesterday rebuked by the Constitutional Court (Concourt) for acting unlawfully, irrationally and unconstitutionally together with other leaders of the Southern African Development Community (SADC) when they decided under pressure from the Zimbabwe government to suspend and dissolve the SADC Tribunal’s activities.

The Concourt ruled in favour of a group of Zimbabwean farmers assisted by AfriForum, a non-state actor established to protect minority rights.

The group of Zimbabwean farmers after exhausting domestic legal and constitutional remedies approached the SADC Tribunal who mandate at the time included the resolution of legal and constitutional disputes at a supranational level.

At the core of the dispute between the said farmers and the Zimbabwe government was the issue of land expropriation without compensation.

The farmers were land holders and as a consequence of the land reform program, their right, title and interest to land was alienated pursuant to a constitutional amendment permitting the government to expropriate such land without paying any compensation.

The farmers approached the SADC Tribunal seeking a declaration by the tribunal that the expropriation of land without compensation was racist and illegal.

Subsequent to the SADC Tribunal decision, the matter was brought before the SADC heads of states who decided to amend the mandate of the Tribunal to limit it to the interpretation of SADC treaties and protocols.

“The Concourt decision is timely and appropriate. It follows the decision by the US Senate Foreign Relations Committee on 6 December 2018 to keep the sanctions on Zimbabwe on the grounds that although the rhetoric coming from Zimbabwe after the July 2018 elections is positive, implementation is a big challenge.

The fact that this judgment takes place after more than a year since the removal of former President Mugabe suggests that President Mnangagwa is of the same view that the expropriation of land without compensation is just, constitutional, lawful and rational.

This matter could easily have been resolved out of court if President Mnangagwa wanted this to happen. The challenge of land reform is not only a Zimbabwean matter but is very much an issue for South Africa to confront and the testing of the tolerance of the South African judiciary to the expropriation without compensation is significant.

This ruling has effectively placed the land reform program of Zimbabwe under the spotlight of the SA judiciary. It is ironic that President Ramaphosa during his recent visit to the European Union called for the sanctions imposed on Zimbabwe to be lifted unconditionally.

However, when regard is had to the fact that President Mnangagwa has yet to acknowledge that land is property and its expropriation without compensation infringes on the bill of rights entrenched in the Constitution.

Zimbabwe’s development partners have called on Zimbabwe to respect its 2013 Constitution and if this is done, the mistakes of the land reform program will surely be rectified and resolved to finality.

We have been fighting to have the Reconstruction of State Indebted Insolvent Companies repealed to no avail. Our experiences have shown that there seems to be no known address in Zimbabwe where the issue of constitutionalism and the rule of law is being aggressively and positively pursued. There exists no political will to reform and put Zimbabwe on a constitutional path.

This law permits the Minister of Justice to issue an extrajudicial order that has the same effect as the order used to expropriate land without any judicial involvement.

In respect of this law, the judiciary’s role is reduced to that of rubber stamping the order and actions of the Minister and his appointed agents.

The South African lower courts have surprisingly enforced this penal and expropriatory law. This judgment is instructive:

In this matter, Willis J who presided over the matter brought by SMM Holdings Private Limited (SMM) was asked to take cognisance of the fact that this company’s control and management had been divested from its shareholders and directors pursuant to the operation of a decree promulgated by former President Mugabe.

Instead of refusing to recognize the local standi of a company that had been extrajudicially converted into an organ of state, the Learned Judge ruled on paragraph 17 of the judgment as follows: “I did so on the basis that even if it were the case that the first defendant’s shares had been appropriated in terms of this Zimbabwean legislation, I was far from confident that, in our law, such a ‘socialist’ measure by a foreign state would not be recognised by the courts exercising authority over the High Court.”

In addition, the Learned Judge stated in paragraph 22: “In dismissing the application in question, I said (and I remain convinced that I am correct in this regard), that I was far from confident that these courts would act in the manner that the defendants had argued that they should with regard to the alleged expropriation of the first defendant’s shares in the plaintiff by the government of Zimbabwe.

He also stated on paragraph 28 of the judgment that: “In his written heads of argument presented at the end of the case, the first defendant further submitted that ‘it is common cause that the real driving force behind this litigation is the government of Zimbabwe’. This is not correct. He also submitted that ‘There is no dispute on the fact that the Reconstruction Act (of Zimbabwe) is a penal law and allows the government to superimpose itself as a party on commercial transactions’. This, too, is incorrect,” said Mr. Tapuwa Chitambo, the Secretary General of Friends of SMM (FOSMM), a not-for-profit human rights group.

Mr. Kallie Kriel, CEO of AfriForum, said: “The court judgment was not only a victory for the Zimbabwean farmers and for AfriForum, but also for everybody who believes that leaders should be held liable if they contribute to enabling violation of the right of ownership as a basic human right by expropriation without compensation and defeating legal action against it.”

He also pointed out that AfriForum would now consult with the Zimbabwean farmers represented by the organisation with a view to filing a claim for damages against the South Africa government.

Dr. Daniel Shumba, a Presidential candidate in the 2018 elections and a former ZANU-PF Politburo member and Member of Parliament, said: “We are encouraged that AfriForum has taken an active interest in pushing the agenda of constitutionalism and rule of law in Zimbabwe forward.

I have commented previously about my concern about South Africa’s hypocritical diplomatic stance on Zimbabwe whereby the posture by President Ramaphosa is that of support to a regime that does not respect the rule of law yet proclaim to the world that its land reform program will be implemented within the confines of the law.

We are confused that the executive branch of the SA government seems supportive to the actions of the Zimbabwean government whereas the message from the highest court in SA seems to be clear and unambiguous with the exception of Willis J and other rulings in respect to the legality and constitutionality of the Reconstruction Act, an act whose attack caused me to be unprocedurally removed by ZANU-PF from parliament before my terms ended.”

Mr Kriel also said that: “Now that the highest court in South Africa has found that Zuma as head of state had acted unlawfully to the detriment of Zimbabwean farmers, it means that the South African government could be held liable for the losses suffered by farmers because of South Africa’s action to suspend the activities of the SADC tribunal.”

He also sad that: “This action should also send a clear message to the South African government that AfriForum will not hesitate to use international legal processes to ensure that leaders who in any way assist in enabling expropriation without compensation, eventually may be held responsible.

The High Court in Pretoria earlier this year found that Zuma had acted unlawfully and unconstitutionally when he and other heads of state of the SADC suspended the proceedings of the SADC tribunal and subsequently completely dissolved the tribunal. Because the finding by the high court affected a presidential action, it had to be ratified by the Constitutional Court.

The court application initially was launched by the Law Society of South Africa.

AfriForum assisted the Zimbabwean farmers who had been affected by the land grab process in Zimbabwe, including Ben Freeth and Luke Tembani, subsequently joined the court application.

Mr. Freeth, the son-in-law of Mike Campbell, was one of the driving force with his father in law of the landmark application to the SADC tribunal (at the time seated in Windhoek, Namibia) against the legality and constitutionality of the Zimbabwean land reform program.

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