Tomana plots SA constitutional court appeal
26/09/2012 00:00:00
by Business Day
ATTORNEY General, Johannes Tomana, says he is preparing to file an appeal at
SA’s Constitutional Court, after a judgment of the Supreme Court of Appeal
last week cleared the way for an auction of Zimbabwean property in Cape Town
to satisfy a debt owed to white former farm owners.
The protracted legal battle between the farmers, supported by
nongovernmental organisation AfriForum, and the Zimbabwean government could
sour diplomatic relations between the two countries.
“We have spent a lot of money fighting in the South African courts and it
all comes down to the fact that SA is disrespecting the diplomatic immunity
that governs relations between sovereign states and is defying a directive
by regional leaders to stop the work of the (Southern African Development
Community) Tribunal,” Tomana said.
“The foreign affairs ministry will be handling our next course of action, as
we have had many properties attached in SA, which is a violation of our
diplomatic presence there. The South African courts are just playing
politics.”
The appeal court last week ruled in favour of farmers Louis Fick, Richard
Etheredge and Michael Campbell, represented by AfriForum. The organisation
represents nearly 80 white commercial farmers seeking compensation after
they were evicted from their farms by Zanu (PF)-linked war veterans in 2000.
In a landmark judgment in November 2008, the Southern African Development
Community (Sadc) Tribunal found that Zimbabwe’s farm seizures were racist,
and violated the right of access to courts and property rights. It ruled the
farmers had to be compensated. But Zimbabwe refused to implement the order
and refused to appear before the tribunal in successive applications to
force it to comply.
After the Zimbabwe high court refused to enforce the tribunal’s order, the
farmers turned to the South African courts, asking for the order to be
recognised in SA and for the court to authorise the attachment of certain
properties owned by the Zimbabwean government, to be sold to satisfy the
tribunal’s costs order.
The order was granted by the North Gauteng High Court, in the absence of an
opposing argument from the Zimbabwean government. Months later, Zimbabwe
tried to get the order rescinded but failed in the high court, prompting its
appeal to the Supreme Court of Appeal.
Zimbabwe’s Cape Town property was targeted as it was being rented out and
AfriForum argued that it was generating revenue.
Tomana said the legal argument being prepared for the Zimbabwean government’s
Constitutional Court appeal would centre on the fact that the Sadc Tribunal
had been disbanded.
This would render the appeal court ruling to have “neither the basis nor the
jurisdiction” to give the green light to the auction of the Cape Town house.
“The Sadc Tribunal was disbanded last month and the courts are clearly in
defiance of the resolution passed by Sadc leaders who agreed to nullify the
tribunal and all its previous judgments,” Tomana said.
Zimbabwean Justice, Legal and Parliamentary Affairs Minister Patrick
Chinamasa said yesterday the farmers’ case had “no merit”. And senior Zanu
(PF) leader Didymus Mutasa said on Monday Zimbabwe was a “victim” of SA’s
justice system.
A Zanu (PF) sympathy group, Resources Exploitation Watch, is raising funds
for the next round of the legal battle, as the cash-strapped unity
government is unlikely to be able to afford it on its own.
Resources Exploitation Watch spokesman Tafadzwa Musarara said yesterday the
organisation was urging that more resources be “mobilised” so the
attorney-general’s office could mount a legal fight against AfriForum.
“We also want the government to buy back these properties should the sale of
the same occur,” Musarara said.
Last week’s judgment was the second high-profile ruling handed down by a
South African court this year against President Robert Mugabe’s government.
In May, the North Gauteng High Court ruled that SA was obliged under
international law to arrest the perpetrators of human rights violations in
Zimbabwe – should they visit SA.
The Southern Africa Litigation Centre brought the case following the torture
of 15 Movement for Democratic Change activists captured in a police raid at
its Harvest House headquarters in 2007.