14 MAY 2010
EXECUTIVE NEWS
We spoke last week about the vicious assault on a Centenary farmer and his wife. The latest news is that their recovery has been extremely slow and they should continue to be in our prayers.
As at this stage the police have not arrested anyone so the reward for information leading to the capture of the accused has subsequently been increased to US$15 000. The only information which we have is that the accused was wearing a blue Peterhouse School tracksuit top with a rowing club insignia on it.
Our week again began with a report of another farmer and his wife in Gweru being viciously attacked, tied up and robbed. This time a member of the now armed group shot the farmer in the shoulder, which was fortunately only a flesh wound and he is out of danger.
There is a gang who is carrying out this spate of robberies and assaults who have now committed 7 similar crimes albeit not only against our farmers in all cases. Two of the other incidents were not against our farming community.
The worrying thing though is that they have stolen several weapons during their spate of robberies which makes them even more dangerous. The brazen attacks seem to be taking place almost on a weekly basis, which is very unsettling because no one knows who will be the next victim.
One of the members of this gang was recently arrested in lower Gweru and found to be in possession of a stolen digital camera, which the gang had used to take some 54 pictures of themselves with. The printed pictures are now in possession of the police as evidence but although the suspects are now known to the police no arrests have yet been made.
The information is also used to assist our community in that we can pre-ward them of any possible disruptive activities in their districts, or nationally.
Both the above matters have been brought to the attention of senior police officers at Police General Headquarters in Harare in an effort to seek their assistance.
We once again remind all of you out there that it is vitally important for all information on any incidents or court cases to be reported to Mike Clark at the Union – [email protected] – who records all the information. This is essential, especially in cases like those described above so that we are in a position to build a global picture of like incidents which would assist in the investigations and tracking down of the criminals.
There has also been a slight increase in new beneficiaries arriving on properties who are demanding the immediate eviction of farmers.
There is absolute confusion at the moment as there is a complete variation of the approach of the powers that be, not only between officials in different provinces but even within the provinces themselves.
Whilst in some provinces the powers that be are making moves which seem to indicate that they are identifying farmers whom they say should remain on the farms, yet in others they are hell bent on removing the last of our farmers from the land. In one province some 40 new offer letters for unknown beneficiaries was shown to a farmer who was told that the ‘land reform programme’ is going ahead at full steam.
It is for this reason that the Commercial Farmers’ Union’s application was made in the Supreme Court for a moratorium on evictions and prosecutions of our farmers. We did receive one of the seven respondent’s Notice of Opposition and Responding Affidavit a month ago and we are almost ready with our answering affidavits for inclusion in our response. It is our hope that we will be in a position to file these today and then we await for the matter to be called to court for a hearing.
With our past experience with the courts on land issues some may view our application with some scepticism, but this week we saw the judgment on the allegations of treason and terrorism made against the Deputy Minister of Agriculture designate being rejected by the Court.
Secondly we had another case against a farmer, who was being prosecuted under the Gazetted Land (Consequential Provisions) Act, acquitted. The magistrate ruled that his deal to surrender one farm to keep the other, which was confirmed by the Administrative Court, had been enacted and therefore could not be superseded by any Act of Parliament. He went further to say that the Administrative Court is superior to the Magistrates Court therefore he could not overrule their order.
Last week President Deon Theron also managed to get a spoliation order against a new beneficiary who was causing problems on his farm. This was based on his previous order supporting the stay of execution of his mother’s eviction order following their prosecution under the Gazetted Land (Consequential Provisions) Act.
There is also some hope that a deal has been signed for the financing of the proposed land audit to be conducted as per the Global Political Agreement. The modalities and implementation strategies are currently being discussed.
The following bulletin which discusses the Indigenisation Regulations requirements has been distributed by Business Information Zimbabwe (BIZ). This is reproduced with the permission of Howard Dean who wrote the article. We have since been informed that the new deadline is 30th June 2010:
New ‘deadline’ of Saturday 15th May to submit indigenisation form
The current situation is as we have reported in previous Bulletins – the indigenisation regulations in Statutory Instrument 21 of 2010 remain in effect until formally amended by another SI. The only ‘change’ is the announcement by the minister at a press conference on 20th April (a week after the first ‘deadline’ expired) that the new deadline for companies to submit Form IDG 01 (a scanned copy of which we sent you on 8th March for your information) had been extended to 15th May. It is of a piece with this hasty legislation that no-one seemed to have realized the 15th fell on a Saturday, normally a non-working day for the civil service – or at least a day when civil servants are not required in their offices. Perhaps the Ministry will be open next Saturday.
Strictly speaking, this extension required the gazetting of an SI to amend the reference to ‘within 45 days from the fixed date’ in section 4(1) of SI 21 to ‘within 75 days’. This was not done.
However, it was actually unnecessary to extend the ‘deadline’ anyway – because (as we have noted in earlier Bulletins) no penalty is laid down in the regulations for not meeting the 45-day, now 75-day, deadline.
Penalties only arise in the following circumstances. In terms of section 4(4), if any business had not submitted the form by mid-April (and since reportedly only ‘at least 400’ are reported to have done so, obviously very many more did not), at his leisure (i.e. no time-frame is given in the regulations) and at his discretion, the minister could then indicate which businesses should submit the form and after that they have another 30 days to send in the form. If by that deadline a business that has been specifically told to send in the form has not done so, then the penalties may be invoked.
So rather than ‘extend’ the first penalty-less deadline of mid-April, the minister could have done nothing – and thereafter at his leisure decide whether and when to exercise his discretion.
Various factors were probably involved in moving the ‘deadline’.
Firstly, saving face.
The minister understandably wouldn’t want to publicly back down on the regulations. So while he has said they will be refined, at the same time he and others have also said, ‘We are going ahead with the law’. Left unclear, probably deliberately, is whether this refers to the main Act or the subsidiary regulations in their original form. As we said in our Bulletin of 15th April, we think the Act will remain as it is but the regulations will be changed.
Secondly, psychological pressure, or brinkmanship.
Brinkmanship is a term used in politics to describe the tactic of advancing to the very brink of war but not engaging in it. This latest chimurenga appears to be between targeted sections of the business community and those seeking cheap equity in selected businesses.
One may speculate the thinking on these ‘deadlines’ went something like this – “Let’s go eyeball-to-eyeball with the ‘non-indigenous’ and see who blinks first; if enough of them send in their forms” (and no-one can check on that, of course), “we can say, ‘Look, what’s the problem, people are complying, so obviously they don’t have any difficulty with the noble aims blah blah’.” Of course, conveniently ignored would be the fact that compliance was most likely motivated by fear of penalties.
But to re-iterate, no penalties can be invoked until the Minister follows the procedure laid down in section 4(4) of the existing regulations, as explained above.
Amendment of the regulations is reportedly impending. Part of the retreat from the one-size-fits-all-circumstances in SI 21 may well involve attempts to advance on other fronts – specifically by including in the amendment details of an ‘indigenisation levy’ and ‘sector-specific/sector-sensitive’ committees that have already been the subject of ministerial announcements.
Obviously, an important element in regard to any amendment is whether it will be gazetted before next week’s ‘deadline’ of 15th May. However, the deadline is really only of psychological significance, since there is no penalty for non-compliance at this stage.
In upcoming bulletins in this series we shall look at what the law says about two other matters on which the minister has reportedly spoken (but in this connection, for perspective, we urge you to look back at the fifth paragraph in the Follow-up bulletin sent to you on 15th April) –
- A threat to ‘suspend operating licences’. In the Herald of 21st April (but consider the source) this statement appeared (in connection with those who don’t comply with section 4(4)): “The minister is empowered in terms of the law to suspend their operating licence,” Minister Kasukuwere said.
We hesitate at this stage to say he is mistaken but can’t see where he got this from. We’ll investigate further.
- An indigenisation levy. Levies are provided for in section 17 of the Indigenisation & Economic Empowerment Act (Act No. 14/2007, Chapter 14:33 of the Statute Law). We’ll go into this in more detail in a future bulletin – but note at this point that the indigenisation minister (1) first requires ‘the approval of the minister responsible for finance’ and (2) ‘a statutory instrument may not be made (imposing levies) unless a draft has been laid before and approved by resolution of Parliament’. So we are unlikely to see a repeat of the haste attending SI 21.
ARAC INFORMATION
Tuesday’s farmers’ meeting was well attended with around sixty people present.
Of particular interest was the update on the ongoing initiative by VP Charles Taffs on compensation and a report back by VP Louis Fick on the SA farmers’ group action. We have requested summaries of these reports for feed back to you. The discussion that followed prompted a question regarding recovery and compensation from the floor.
Former President Doug Taylor–Freeme was asked to respond. In his reply he suggested that recovery/production was a prerequisite to compensation and that as many farmers were no longer interested in returning to their farms, the land they held was therefore no longer contested and production to promote recovery should be encouraged. It was not clear whether this is a personal opinion or a direction suggested to him by other parties interested in investing in recovery.
Suggestion that compensation and recovery/production should be delinked was quickly quashed by Charles Taffs who clearly stated the position that as secure tenure was the fundamental basis for investment, the satisfactory closure of the compensation question was not something to be sidelined in the recovery process.
We at ARAC strongly support this position and believe that to divorce recovery and compensation would not serve our members best interests. We would be happy to receive comment from you in this regard.
The meeting was treated to a most interesting talk by Joe Levy who some of us may have met in the world of finance. His talk was however on a different line and very motivating and well received by those present. He referred back to a period ten years ago when most of us probably felt that we were in control of the four pillars of our lives: namely, physical, financial, emotional and spiritual.
The trials of the last ten years have tested us all and we have emerged from them and survived because we are strong. However for most of us the perceptions of our daily life is that we have lost control of much to do with those four pillars and for many depression and an over focus on what we can do nothing about has robbed us of the vital energy that contributes to a happy life.
He suggested that a right mindset would help restore the sense of control. A refocus on areas that we do have control over is the first step in recovery. Setting daily goals on what we can achieve is a good start. He referred to fear as the fundamental obstacle that we all face in approaching change. However Inaction is the food of fear and to do nothing is a sure way to enable uncertainty to undermine us. The facts are that regardless of our own personal truth, nothing will happen unless we take action and choose to take control.
Remember that our experience of survival is a measure of our resilience and we have the power to dump what we do not control and fight the fear within by taking action. This brings smiles and happiness to our lives. Optimism comes from within people and the choices they make.
I was still reflecting on all this when a friend who has been through it all since being evicted called into the office this morning. He said the talk had helped him sit up and take a fresh more positive look at life. We all can benefit from the reminder that we are able to control our mind set and what we focus on. The journey has many routes but reaching the destination requires a positive outlook.
The upcoming talk by Robin Banks promises to be an opportunity to recharge our batteries, if you haven’t considered it yet, why not get a ticket for yourself and other significant persons in your life, we are promised a good evening and at the least will see plenty of friends there. Tickets available through Shayne in the ARAC office and June in the Director’s office.
For further information contact Shayne or Ben at [email protected] or phone +263 4 309800/19 ext 249 or +263 4 309867
Best regards, the ARAC Team.
COMMENTS AND VIEWS
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