COMPENSATION AND INTERNATIONAL LAW
Opinion by Wynand Hart
INTRODUCTION
While we find ourselves in a very desperate situation as commercial farmers that have lost our properties to the so called Fast Track Land Reform Programme, there are certain rulings that have taken place in International Law that have a significant impact on our right to claim full and fair compensation. For many of us it seems that the idea of International Law is as farfetched as acquiring real estate on the moon, but certain events bring this ideal situation within our reach.
THE NEW ZIMBABWEAN CONSTITUTION
The Current Constitution clearly refers to the role of International Law and the Impact of International Law on the constitution of Zimbabwe and on the fact that all legal judgements should be guided by International Law where applicable.
THE MIKE CAMPBELL CASE
Secondly the Legal strategy that was implemented by the late Mike Campbell ensured that all local legal remedies had been exhausted and that the SADC Tribunal could deal with the matter on the basis of International Law. Although the Tribunal was dismantled the ruling stands and is part of International law.
RULINGS ON SIMILAR SITUATIONS IN THE COMMONWEALTH
In the same manner, there have been certain legal judgements made in International courts that have a direct impact on the situation that we find ourselves in.
The first one I would like to mention is the case below.
This report was taken from an article recently published in the New Indian Express.
In a significant judgment, the Supreme Court has held that if compensation for land acquired under the 1894 act has not been paid to the land owner or deposited with a competent court and retained in the treasury, then the acquisition would be deemed to have lapsed and would be covered under the 2013 law entitling the landowners to higher compensation.
However, the only rider is that such an award of compensation should be five years or more prior to the enactment of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, which was notified on Jan 1, 2014.
“The deposit of compensation amount in the government treasury is of no avail and cannot be held to be equivalent to compensation paid to the landowners/persons interested,” said a bench of Justice R.M.Lodha, Justice Madan B. Lokur and Justice Kurian Joseph in their recent judgment.
“Under section 24(2) (of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013), land acquisition proceedings initiated under the 1894 (Land Acquisition) Act by legal fiction, are deemed to have lapsed where award has been made five years or more prior to the commencement of 2013 act and possession of the land is not taken or compensation has not been paid,” the court said.
The court’s ruling came while addressing the question what is the “true meaning” of the expression: “compensation has not been paid” occurring in Section 24(2) of the 2013 act.
The court said that the 1894 Land Acquisition Act being “an expropriatory legislation has to be strictly followed. The procedure, mode and manner for payment of compensation are prescribed in Part V (sections 31-34) of the 1894 Act. The collector, with regard to the payment of compensation, can only act in the manner so provided”.
“It is settled proposition of law that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden,” the court said while dismissing the plea by Pune Municipal Corporation challenging the Bombay High Court verdict by which it has quashed the acquisition of 43.94 acres for development of a Forest Garden.
The award for the compensation for acquiring these lands was made Jan 31, 2008, and notices were issued to the landowners to receive the compensation but since they did not receive the compensation, the amount (Rs.27 crore) was deposited in the government treasury.
“Can it be said that deposit of the amount of compensation in the government treasury is equivalent to the amount of compensation paid to the landowners/persons interested? We do not think so,” the court said answering its own poser.
(In such cases as mentioned above one should ignore rulings or judgements that specifically relate to that countries domestic law and focus on the parts that form part of International Law.)
In the Case reported on above in the New Indian Express the part that relates to our specific situation is the part that is highlighted.
What this means in practice is that unless the law is implemented to the letter the process is not legal and is therefore not valid. .
Why is this important for us?
Firstly at no time during the process of compulsory Acquisition has the Government of Zimbabwe respected or implemented International Law.
This resulted in the current situation that farmers find themselves in. Despite the fact that some farmers have been deprived of their land for up to fourteen years they have had no payment of compensation.
Secondly the government of Zimbabwe chose to disregard all Court rulings that were made at the early stages of the process when farmers challenged the government to adhere to its own laws when implementing the Fast Track Land Resettlement Process.
We can effectively conclude that the government of Zimbabwe disregarded the legal responsibilities, principles, policies and conditions relating to Compulsory Acquisition in Zimbabwe law but more particularly in International Law when it chose to implement the Fast Track Land Resettlement Process.
The next issue I would like to deal with is the matter of valuation.
This information is taken from the following link:
I would recommend that people read the article and disregard for the purpose of this discussion, the parts that are not related to the situation that we find ourselves in, however I would like to highlight the following issues from this article by the World Bank.
WHAT IS THE CORRECT METHOD OF VALUATION?
The standard practice for the valuation of Compensation for Compulsory Acquired land in Zimbabwe is the DRC method or the Depreciated Replacement Cost Valuation.
Of paramount importance is the fact that the commonly accepted and practiced method of valuation for Compulsory Acquisition based on and guided by International Law is an Open Market valuation.
To put this into perspective a property must be valued at the best price on the open market given the fact that the owner had the opportunity and time to advertise the property on the open market and that the sale could take place in a normally functional willing seller willing buyer situation.
Should there be no functional active open market then the parties may agree to apply the “Replacement Cost Valuation Method”.
Such a method is applied to calculate the real cost of replacing the property and all directly related losses, with another property of similar value, potential and character.
Based on Precedent in International Law it is clear that we should continuously strive to fully compensate all the losses suffered as a result of the dispossession.
The article states as follows
ASSESSING THE FAIR MARKET VALUE OF LOST ASSETS
A common legislative approach is to define market value as the amount a willing buyer would pay a willing seller on the open market where some choice exists. There are several reasons this calculation might be difficult to make in a given setting (particularly when it comes to land values as opposed to other non-land assets). In some areas, formal land markets may be non-existent or extremely thin, especially in rural areas. Some legal systems disallow the sale of particular categories of land or place severe limits on such sales. Underlying rights, as we have seen, may
WHAT IS A REPLACEMENT COST VALUATION
International norms such as those promoted by the World Bank, IFC and others refer to “replacement cost” as the appropriate benchmark for valuation of assets. This is also a term found in a minority of national laws (11).
Where land markets are robust, replacement cost and fair market value should be roughly equivalent. But as noted above, fair market value may be defined at the national level in a way that does not ensure that compensation will be adequate to acquire equivalent assets. In such contexts, a focus on “replacement costs” at least in theory shifts attention usefully
When it comes to non-land assets such as housing and other improvements, a replacement cost approach also ensures that the depreciation of lost assets are not taken into account in the calculation of compensation, and that transaction costs associated with the purchase of new assets are covered.
From this final paragraph it is clear that the depreciation of the asset must not be deducted of the value of the compensation.
CONCLUSION
It is important that as Zimbabwean commercial farmers we have to remain confident of legal action. However legal action must have a goal other than appearing in court.
For us to understand the correct goals we must understand the role of International Law and the impact it has on our legal rights.
In this case that I have dealt with our goal is to achieve Compensation by restoring our property rights and basic human rights utilising Zimbabwean law where effective but not to remain ignorant to the benefits of International Law and external legal action.
Unless we fully understand our right to International Law and we insist on the application of rulings relevant to our cause in International Law we will always be dealt with as individuals that are effectively second class citizens.