SOUTH African legal consultants have said if the government of South Africa proceeds to conclude the proposed Bilateral Investment Promotion and Protection Agreement (Bippa) with the government of Zimbabwe thereby immunising Zimbabwe from its international law liabilities it would be going against South African law. By signing the Bippa -- aimed at providing security of tenure to South African investments in Zimbabwe but which expressly excludes past claims arising from Zimbabwe's post-2000 land seizures -- the South African government would act contrary to the principles of the Sadc Treaty and other international instruments, and in violation of the South African constitution, and may in law be interdicted against doing so, the consultants, Mssrs Jeremy Gauntlett and FB Pelser said in a legal opinion published this week.

They were consulting for the Commercial Farmers Union on the proposed conclusion of the Bippa between that country and Zimbabwe in Harare today.

Both countries are members of Sadc and are bound by international and constitutional law obligations impacting on Bippas.

Of particular significance, the consultants said, was the fact that the Bippa seeks to give the Zimbabwean government immunity from prosecution for post-2000 land seizure measures, despite the fact that such claims have been upheld by the relevant international court.

The consultants accuse the South African government of negotiating the terms of the Bippa without taking independent legal advice regarding its ability to do so in the light of the final Bippa Tribunal award of November 2008, the Tribunal's referral to the Bippa Summit of June, and the pending application rejected this week in Harare to register the Tribunal's award for enforcement under the domestic law of Zimbabwe.

The High Court could not hear the case on Tuesday after Justice Barat Patel upheld an application by Justice minister Patrick Chinamasa that Gauntlett cannot practise law in the country.

Gauntlett said by entering a bilateral treaty which purports to exclude liability arising in terms of an existing multilateral treaty constitutes a breach of South Africa's legal obligations.

He said the proposed exclusionary clause in the Bippa impacts on legal proceedings concluded at international law level.

The proceedings are also currently sub judice in Zimbabwe on the national law level, and are further subject to consideration by the Sadc Summit on the international political level.

The Tribunal in a separate final ruling in June 2009 has held the government of Zimbabwe to be in breach of its orders of November 28 2008, and formally referred this defiance to the Sadc Summit for consideration of consequential measures under the Treaty.

During 2007 various members of the Commercial Farmers Union instituted legal proceedings in the Sadc Tribunal after exhausting existing remedies in Zimbabwe. The proceedings were based on the fact that they were either already expropriated or stood to be expropriated without compensation, as a result of Zimbabwe's land seizure measures, purportedly authorised by amendment to the property clause in the Bill of Rights in Zimbabwe's constitution.

On November 28 2008 the Tribunal upheld the farmers' case. It held that Zimbabwe's land reform exercise was in breach of international human rights norms and the rule of law as entrenched by the Sadc Treaty. The Tribunal condemned the land reform exercise on all three bases contended.

The Tribunal said the land reform programme constituted racial discrimination, because the measures did not relate to criteria of land use or need, but targeted only so-called white farmers and benefited designated cronies and a class of political chefs.

"The programme amounted to expropriation on an arbitrary basis and without compensation; and it ousted courts' jurisdiction to adjudicate on human rights infringements," said Gauntlett.

The Tribunal ordered the government of Zimbabwe to take all necessary measures to protect the possession, occupation and ownership of farmers not yet expropriated and to pay compensation to those already expropriated.

But, Gauntlet said, the farm invasions continued in Zimbabwe not only with impunity, but with active state involvement. The farmers again approached the Tribunal, this time for an order declaring that the government of Zimbabwe was in breach of the order of November 28 2008 and that the matter be referred to the Sadc Summit for it to consider appropriate measures. The farmers also succeeded in this and the Tribunal made a punitive costs order against the government of Zimbabwe. Nevertheless farm invasions intensified, and instances of destruction of property and physical assaults increased.

In order to ensure effective protection in Zimbabwe in terms of the relief granted by the Sadc Tribunal, application was made to the High Court of Zimbabwe to register the Tribunal's ruling as provided for under the Protocol to the Tribunal but that could not be done this week on the technicality that foreign lawyers could not practise in Zimbabwe.

It is likely to be still sub-judice today, which is the date for the proposed signing of the Bippa.

"Therefore it is against this background -- namely a ruling by the relevant international court, pending proceedings before the relevant national court and deliberation thereon by the Sadc Summit -- that the question of the legality of concluding the Bippa is posed," said Gauntlett.

Both international law and national law impose duties on South Africa which impact on it entering the proposed Bippa.

Being members of Sadc, both Zimbabwe and South Africa have their international law obligations governed by the Sadc Treaty on sub-regional level in addition to other principles operating regionally and globally.

In terms of the Sadc Treaty, member states are bound to honour human rights and to further the rule of law. Member states are also obliged to co-operate with and assist the institutions of Sadc, like its Tribunal.

Further, member states are obliged to refrain from taking any measures "likely to jeopardise the sustenance of Sadc principles", which include advancing the rule of law and human rights. The Treaty further requires that states take all steps necessary to ensure the uniform application of the Treaty.

"Therefore, said Gauntlett, entering a bilateral treaty which excludes liability imposed by the Sadc Tribunal constitutes a clear violation of these duties. The exclusionary clause subverts the Tribunal's order and detracts from the Tribunal's status.

It also jeopardises the human rights culture prevailing in Sadc and dilutes the rule of law and remedies for breaches of human rights. Moreover, exemptions of liability under Sadc law granted by member states between themselves in terms of bilateral treaties impede a uniform implementation of the Sadc principles.

This is contrary to the treaty, which constitutes the supreme law among its member states.

The African Charter, which is the regional instrument binding on South Africa, also imposes a duty on states to ensure that human rights violations are redressed effectively. The African Commission held that "any person whose rights are violated [should] have an effective remedy as rights without remedies have little value."

Gauntlett argued that human rights norms operating within the wider African region require states to give effect to human rights and their protection, and obliges states not to compromise judicial remedies by exclusionary clauses which grant impunity to human rights violations.

Also, obligations under global international law proscribe exemption of liability for human rights infringements as envisaged under the Bippa.

He said it was clear that international law recognises the obligation to make full reparation for any injury flowing from an international wrongful act, and acknowledges the principle that victims of human rights infringements are entitled to an effective remedy. Exclusionary clauses clearly compromise this. As such the Bippa falls foul of international law on account of compromising the Tribunal's order.

From a national law perspective, the principles relating to diplomatic protection are of particular relevance. The various international law obligations referred to above find resonance in South African domestic law.

The term "diplomatic protection" includes not only all state action to prevent a threatened violation of international law, but also action aimed at remedying violations after the event.

The South African High Court has held that the commitment to the promotion and protection of fundamental human rights, democracy, justice and international law had to underpin the state's foreign relations policy.

The state could not "remain silent when a member state commits the most egregious violations of any of the fundamental human rights enshrined in these instruments". Instead, government had to act positively "when an egregious violation of the very fundamental human rights, enshrined in the document it has ratified, is being committed by a member state.

Therefore, said Gauntlett, entering a Bippa that contains a compensation clause whose operation is restricted to prospective violations of human rights only, is contrary to the South African constitution.

"It is to be noted that this judgment is final, and that its correctness has been accepted by government in subsequent proceedings before the Constitutional Court."

He said by entering the proposed Bippa with the exemption clause, the government's constitutional duty to give diplomatic protection is breached.