A sign on a farm in Zimbabwe at the height of land invasions of white-owned farms by war veterans.
PRETORIA - Former Zimbabwean farmers who lost their farms are asking the Gauteng High Court, Pretoria to give them the go-ahead to claim compensation against the South African government.
The farmers intend to cumulatively claim about R2 billion from the South African government after then-president Jacob Zuma signed a SADC resolution in 2014 that removed its tribunal’s powers over member states.
This came in the wake of Zimbabwe’s land dispute, and after the farmers had turned to the tribunal to be compensated for losing their farms.
The then Law Society of South Africa earlier challenged the role Zuma and the government played in the closure of the tribunal.
Some of the commercial farmers who were dispossessed of their farms by former Zimbabwean president Robert Mugabe were also among those who joined the legal challenge.
The high court at the time ordered that the president had to withdraw his signature to the decision that removed the tribunal’s powers.
The Constitutional Court subsequently confirmed this order and found that “the president’s decision to render the tribunal dysfunctional is unconstitutional, unlawful and irrational.”
The farmers turned to the tribunal as they could not turn to their own country for compensation following the expropriation of their land.
But Zuma and other SADC leaders signed a protocol in 2014, which stripped the tribunal of its powers.
In doing this, the courts found, he, among others, infringed on the right of South African citizens to access justice in terms of our Bill of Rights.
It limited the jurisdiction of the SADC Tribunal to disputes only between member states and no longer between individual citizens and states in the SADC region.
The SADC Tribunal was established in 2005 to resolve disputes involving southern African states and their citizens.
In 2009, Zimbabwe challenged the legitimacy of the tribunal on the basis that it had not been established according to international law norms. This came after the tribunal had criticised Zimbabwe’s land reform and ruled that the Zimbabwe government restore the land of the farmers who had turned to it.
It was also ruled that Zimbabwe had to compensate them for the loss they had incurred.
This led to the protocol being revised, and the removal of the tribunal’s power to hear disputes brought by citizens against states.
Its mandate was restricted to hear disputes between SADC member states only.
As Zuma was one of the signatories to the resolution and the courts found that his signature on the 2014 Protocol was constitutionally invalid, the farmers now want to claim the compensation they say the tribunal would have ordered Zimbabwe to pay them, from the SA government.
Government, however, said the alleged damage was based on a loss suffered abroad (the inability of the SADC Tribunal, based in Namibia, to receive, hear and determine claims against Zimbabwe) had nothing to do with the SA government.
It also objected to the claim stating that most of the plaintiffs were Zimbabweans and had no relationship with the SA government.
The farmers, in asking that their claims be allowed to proceed, said the Constitutional Court had found that Zuma, with certain other SADC heads of state, intentionally terminated their access to the only regional international human rights court.
They said, the government should now compensate them and their claim should be allowed to proceed in this court.
Judgment was reserved.