Sokwanele (Harare)

21 September 2012

Southern Africa: Supreme Court of Appeal in South Africa Confirms SADC Tribunal Ruling Binding, Zimbabwean Government Must Pay Costs

South Africa's Supreme Court of Appeal in Bloemfontein handed down a 23-page judgment today (September 20, 2012) in the appeal of the Zimbabwe government against the North Gauteng High Court's registration and enforcement of a SADC Tribunal ruling and the subsequent attachment of Zimbabwe government-owned property in Cape Town.

The Southern African Development Community (SADC) Tribunal, the region's highly respected court, had in November 2008 ruled in the Campbell case, a landmark test case, that Zimbabwe's land reform processes were racist and that farmers ought to have been compensated for their farms.

In June 2009, the tribunal followed up its ruling with a contempt ruling and costs order, a financial penalty levied against the Zimbabwe government. The costs, determined by the Registrar of the tribunal, were US$5,816.47 and ZAR112,780,13.

Despite being subject to the jurisdiction of the tribunal, the Zimbabwe government declined to pay the costs.

This resulted in an application to the North Gauteng High Court by three Zimbabwean farmers, Louis Fick, Richard Etheredge and the late Mike Campbell, to have the ruling and costs order recognised in South Africa.

After the judge ruled in their favour, AfriForum's legal representative, Willie Spies, who acted as the farmers' attorney, said that the door was open for the sale of Zimbabwe government properties in Cape Town that AfriForum had seized in 2010.

The Zimbabwe government's appeal against the North Gauteng High Court ruling was heard last month by the Supreme Court of Appeal (SCA) in Bloemfontein on August 27.

In today's ruling, the SCA dismissed the Zimbabwe government's appeal with costs, which included the costs of two counsel.

Despite the Zimbabwe government's claims to the contrary, the SCA confirmed in its judgment that, according to the SADC Treaty, the decisions of the Tribunal were final and binding.

Appeal Judge R W Nugent said that, according to Article 32 of the SADC Treaty, "Decisions of the Tribunal shall be binding upon the parties to the dispute in respect of that particular case and enforceable within the territories of the Member States concerned." South Africa is a SADC member state.

The unanimous SCA judgment by a full bench of five judges also held that Zimbabwe's contention that it was not bound by the amendments of the SADC treaty had no merit.

The planned sale will make international legal history as it is believed to be the first sale in execution of property belonging to a state that has committed gross human rights violations.

Background

The litigation began when a Zimbabwean farmer, Mike Campbell, approached the SADC Tribunal in Windhoek in October 2007 after the Zimbabwe Government started prosecuting him for living in his home and farming.

The hearing, comprised of five judges from various southern African states, ruled in November 2008 that the Zimbabwean land reform process was illegal and racist and that Campbell and 77 other farmers who intervened in his application should be left in peace and their property rights restored.

In the run-up to the proceedings before the SADC Tribunal, the elderly Campbell, his wife, Angela, and son-in-law, Ben Freeth, were abducted, brutally assaulted by war veterans and intimidated in order to force them to abandon their action before the tribunal.

They nevertheless proceeded and won the case.

Part of the final and binding judgment read: "By unanimity, the Respondent [the Zimbabwe government] is directed to take all necessary measures, through its agents, to protect the possession, occupation and ownership of the lands of the Applicants."

Tragically, the case cost Campbell his life. Due to the severity of the injuries he sustained during the abduction, which were compounded by previous assaults, Campbell's health deteriorated rapidly.

He never recovered from this trauma or from his violent eviction in 2009 from the farm he had built up into a highly successful enterprise. He passed away in April 2011.

Mount Carmel farm was transferred into Campbell's company name in 1999, 19 years after independence, following the receipt of a "certificate of no present interest". This meant that the government, which had first option on any sale, did not require it.

Despite this, numerous efforts were made by the Mugabe government from July 2001 to seize the profitable farm. It was the largest mango-growing enterprise in the country and generated significant export revenue.

In September 2009, Campbell's house was burnt down with everything in it. His crops, which were all ready for harvest, as well as tractors and other equipment, were stolen by an octogenarian former Cabinet Minister, Nathan Shamuyarira. Campbell left the farm with nothing.

Freeth's house had been burnt down three days previously, along with farm workers' homes and their linen factory. Some of the workers were also beaten violently and sustained broken bones, while other farm workers were jailed.

Although the SADC tribunal subsequently found the Zimbabwe Government to be in contempt of court, nothing was done to bring back the rule of law.

Commenting on the SCA ruling, Freeth said: "This is another landmark day on the road towards justice and the rule of law in Zimbabwe. We want to thank our legal team and AfriForum for assisting us with this critical case and for helping us attach a Zimbabwe government-owned property in Kenilworth, Cape Town, to pay our legal costs. Most of all we thank God."

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