How Zimbabwean’s land case ended up in SA’s legal system
BY TOM NEVIN, JANUARY 28 2013, 08:33
DISPOSSESSED Zimbabwean farmer Mike Campbell was able to take his case to
the judiciary in South Africa because of the Southern African Development
Community (Sadc) Tribunal decision, pronounced before it was dissolved,
which found Zimbabwe to have been in violation of the Sadc Treaty.
Zimbabwe was in contempt of court for refusing to adhere to that ruling.
“The petitioners, Campbell and Co, sought to have the Sadc judgments
enforced in a South African court,” says Nicole Fritz, director of the
Southern Africa Litigation Centre.
“They could do so because of longstanding traditions that allow it,” she
said.
“If the implications of the ruling need to be enforced outside the territory
of the state in which the order was given, you can seek to have the judgment
enforced in the other state. The petitioner did not have to be a South
African and enforcement of the tribunal ruling can be effected in South
Africa, and because Zimbabwe has certain property holdings in South Africa.”
Does this presage a slew of cases to be taken up by South African courts?
No, it does not, says Jeremy Gauntlett, a senior counsel in South Africa.
This was because the tribunal issued only a few judgments before it was shut
down.
In South Africa, the Campbell case was won in the Pretoria High Court by the
petitioners and this was challenged by Zimbabwe in the Supreme Court of
Appeal. It lost the appeal and announced it would seek a hearing at the
Constitutional Court, stalling the sale in execution of its South African
commercial properties. Leave to appeal and merits are expected to be heard
on February 28.
Zimbabwe’s attorney-general, Johannes Tomana, expressed disappointment at
the outcomes of the hearings in South Africa. “We have spent a lot of money
fighting in the South African courts and it all comes down to the fact that
South Africa 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 tribunal. The South African courts are just playing
politics.”
Mr Tomana opted for a final fling of the South African judicial dice by
taking the matter on appeal to the Constitutional Court.
“Zimbabwe’s intention to appeal in the Constitutional Court means that the
sheriff will wait for the outcome of Zimbabwe’s approach to the court,” Ms
Fritz points out. “If the court decides it is not a constitutional matter
and that there will not be a hearing, that will then be that and the
execution of property order will be carried out.”
Zimbabwe was ordered by the tribunal to pay the legal costs only. Why this
limitation? What about compensation for the seized farms? Ms Fritz hazards
the supposition that “while the Sadc Tribunal ordered that just compensation
for the confiscated land be paid, it did not determine what such
compensation would be.
“This is in line with deference afforded sovereign executives and
jurisdictions by supranational courts. They would be loath to make an order
not knowing what the budgetary implications for the applicable state would
be.”
And that is where the legal battle in South Africa now rests. It will end if
the Constitutional Court declines to hear Zimbabwe’s appeal or joined once
more if it does.
Meanwhile, the erstwhile judges of the tribunal have registered their anger
and distress at not receiving their outstanding and severance remuneration
after the court’s dissolution.
Justice Ariranga Pillay has demanded that the Sadc council and summit
“should face up to the consequences of their acts and do the decent and
honourable thing in the circumstances and pay fair and adequate compensation
for the prejudice, both material and moral, caused to the president and
members of the tribunal whose term of office was not renewed”.
Disagreements over such compensation, he says, must be referred to mediation
or arbitration in the interests of justice.
Ben Freeth: Response to Jonathan Steele’s article
(See http://www.zimbabwesituation.com/jan25_2013.html#Z23)
Dear Sir,
I am writing in response to Jonathan Steele’s article of the 23rd January
regarding the “good news from Zimbabwe” in relation to agriculture.
Mr. Steele quotes from a new book which asserts that agricultural production
in Zimbabwe “is now back to the levels of the late 1990’s.” He praises the
authors because “they have the courage to criticize Amnesty International
for exaggerating the plight of the farm workers.”
With approximately 1.7 million people needing to be fed – partly by the
British tax payers – yet again in Zimbabwe in 2013, why does Mr. Steele not
try to account for the factual discrepancy? If production was really back to
where it was in the late 1990’s, Zimbabwe would be exporting food rather
than needing food aid.
Is it ethical in the British journalistic world to quote propaganda that is
not factual – and praise the propaganda writers for their courage? If it is,
I would suggest Zimbabwean and British journalistic ethics are perhaps very
similar.
Maybe Mr. Steel would like to come on a tour and see with his own eyes what
is happening on the ground. I would be very happy to take him to Mount
Carmel Farm where we were evicted from 3 years ago by a “new farmer” [an
octogenarian former Cabinet Minister] – to see our burnt houses, our broken
tractors, our looted sheds, our dying orchards and our victimized farm
workers…
Yours sincerely,
Ben Freeth [author of “Mugabe and the White African”].
Britain’s Mugabe-phobia has obscured the good news from Zimbabwe
With elections looming the media will resume their old crisis lines,
ignoring the positive results of the land occupations
Jonathan Steele
guardian.co.uk, Wednesday 23 January 2013 19.30 GM
Elections will be held in Zimbabwe later this year, leading with grim
predictability to another bout of Mugabe-phobia in the British media. The
trigger for the presidential and parliamentary poll was the deal struck last
week between the 88-year-old president and the leader of the rival Movement
for Democratic Change, the rime minister Morgan Tsvangirai, on a new
constitution.
After months of wrangling the two men, who have been running the country in
an uneasy coalition for the last four years, agreed on a text. It has not
yet been published, so doubt remains on whether it reduces the president’s
power in favour of parliament, as the MDC wanted. But whatever it contains,
the document will have to be put to a referendum.
Then follow elections, and there are already strong hints that they could
again be marked by violence. Mugabe seems determined to stand once more,
admitting he is vulnerable but saying he will fight like “a wounded beast”.
Meanwhile, a group of 58 civil organisations last week condemned what they
called a “well-calculated and intensive” assault on human rights activists
and journalists as voter registration gets under way.
As passions risk becoming inflamed again and the old battle positions resume
in Britain’s media as well as Zimbabwe’s, the danger is that long-term
trends get overlooked. Good news has just emerged from Britain’s last former
African colony that shows that the land occupations and evictions of white
farmers by angry veterans of the liberation struggle that was the big
Zimbabwe story of a decade ago did not destroy the country’s agriculture, as
so often claimed. Far from it, production is now back to the levels of the
late 1990s and more land is under cultivation than was worked by white
farmers.
The evidence is contained in Zimbabwe Takes Back Its Land, a book based on
several research studies in various parts of the country. The authors look
at Zimbabwe’s first land reform right after independence in 1980, which was
not so fiercely contested, as well as the changes sparked by the veterans’
occupations in the late 1990s, which Mugabe’s Zanu-PF party originally
ignored but later took over and turned into a political weapon.
The authors criticise Mugabe’s economic mismanagement, which led to
hyperinflation between 2005 and 2008. It was not the land reform that caused
hyperinflation, but bad economic decisions. They say the introduction of the
US dollar by the unity government four years ago brought a quicker economic
recovery and hence greater benefits for farm producers than anyone expected.
They have the courage to criticise Amnesty International for exaggerating
the plight of farm workers who were forced off formerly “white” land taken
over by Africans, and say that by 2011 the number of people working on
resettlement land had increased more than fivefold, from 167,000 to over a
million.
They have a go at a prominent BBC report which, they say, fell for the myth
of a cornucopia when white people ran most of commercial agriculture and a
“black disaster” thereafter. White farmers never used all the land they had
taken. In the years just before minority rule collapsed, in spite of
generous government subsidies, 30% of white farmers were insolvent and
another 30% only broke even. Some 66% of arable land was lying fallow.
After the occupations in 2000, although some new African farmers reverted to
subsistence agriculture, a growing number have been moving into commercial
farming and there has even been a healthy return to the land by urban black
people. In part this is because land is still highly prized in Zimbabwe and
the desire to recover it was so crucial an element, ideologically and
emotionally, in the struggle against white settlement. Indeed, the authors
start their book with an arch reminder of an earlier generation of war
veterans who evicted farmers and burnt their houses. They included the
former Rhodesian white minority leader Ian Smith and other champions of
white minority rule who got their economic start in life in 1945 by defining
African farmers as squatters and throwing them – without compensation – off
land that the foreign settlers’ government designated as the exclusive
preserve of white people. “Regaining the land was central to the
independence struggle in a way that was never the case in Mozambique and
South Africa … Mozambique’s urbanised elite simply do not think of farming,”
they write.
In spite of the progress of recent years the book argues that Zimbabwean
farming still faces major challenges of investment shortages and training.
It takes a generation for farmers to master their land and 10 years is too
short a period to judge the complete success of the occupations. But the
record is far better than the outside world gives credit for. While Zimbabwe
Takes Back Its Land focuses on a specific controversy, its challenge to
conventional wisdom and stereotyping offers wider lessons. It is a reminder
that crisis coverage, even when accurate, is only a part of what the media
should be about. Follow-ups and reports on long-term trends are equally
needed.
• Jonathan Steele covered Zimbabwe’s elections in 2000 for the Guardian