The Citizen, December 16, 2018

Ten farmers have served notice they will claim R1.9 billion, and there are thousands more where they came from.

A report in Afrikaans weekly Rapport today reveals that at least 10 farmers plan to put in a compensation claim for nearly R2 billion against the South African taxpayer over their losses in Zimbabwe.

They reportedly served notice to the government on Friday of their plan to claim R1.9 billion for the SA state’s complicity in their suffering.

The 10 farmers are among an estimated 4,000 white farmers who lost their land to land grabs in the neighbouring country over the past two decades. The amount of R1.9 billion is based on the lost value of their properties and the trauma associated with it.

They, and another 68 farmers, won a Southern African Development Community (SADC) Tribunal case in 2009 that ordered the Zimbabwean government under then president Robert Mugabe to compensate them and to end the theft of land. The tribunal, headquartered in Windhoek, Namibia, ruled that Zimbabwe had violated SADC treaty law, but the Zimbabwean government simply ignored the ruling.

Zimbabwe is a SADC member, as is South Africa.

The white farmers are unhappy that Zuma was complicit in stripping the SADC Tribunal of its powers to hear the claims of individuals.

Chief Justice Mogoeng Mogoeng damningly found this week in the Constitutional Court, in a case brought by farmers supported by AfriForum, that Zuma had had no right in 2014 to co-underwrite a protocol that neutered the powers of the tribunal.

AfriForum’s CEO, Kallie Kriel, said after the ruling that he would consult Zimbabwean farmers on taking the South African government to court to claim compensation.

“Now that the highest court in South Africa has found that Zuma, as head of state, had acted unlawfully to the detriment of Zimbabwean farmers, it means that the South African government could be held liable for the losses suffered by farmers because of South Africa’s action to suspend the activities of the SADC Tribunal,” he said.

Applicants in the case included the Law Society of SA, four individuals and two companies. They were represented by Lawyers for Human Rights (LHR). The Southern African Litigation Centre and Centre for Applied Legal Studies had joined as friends of the court.

President Cyril Ramaphosa was ordered to withdraw Zuma’s signature, in a confirmation of an earlier order made by the High Court in Pretoria.

Said Mogoeng in the majority judgment that was supported by six other justices: “The president’s decision to render the tribunal dysfunctional is unconstitutional, unlawful and irrational. And so is his signature. The appropriate remedy is simply to declare his [Zuma’s] participation in arriving at that decision, his own decision and signing of the protocol, constitutionally invalid, unlawful and irrational.”

The Zimbabwean government had removed its courts’ jurisdiction over expropriation without compensation cases, making the tribunal the last option for the aggrieved farmers.

Mogoeng added in the ruling: “It is fundamentally about challenging the expropriation of land without compensation and the intended removal of the tribunal’s jurisdiction to determine the validity of that kind of land expropriation that was done in terms of the Constitution of Zimbabwe.”

Zuma and other SADC leaders cynically stripped the tribunal of its powers to avoid the chance that an outside institution could again hold sway over member governments’ actions and decisions.

A SADC summit four years ago resolved to suspend the operations of its tribunal by not replacing members whose terms had expired or were expiring, so that it could no longer quorate. SADC leaders also signed a moratorium on referring individual cases to the tribunal, and Zuma participated in this.

Mogoeng said Zimbabwe had concocted this plan and Zuma had been its willing ally.

“The president signed a protocol that unabashedly sought to put us and the people of SADC in a position that is worse than before,” said Mogoeng. “In signing the protocol, the president was effectively issuing a very serious threat to all citizens that their right of access to justice through the tribunal was going to be taken away.

“He was, in reality, announcing to SADC and the world at large that a critical aspect of what defines our constitutional democracy will no longer be respected, protected, promoted or fulfilled.”

Zimbabwean President Emmerson Mnangagwa’s government earlier this year said it had allocated $53 million (R762 million) to compensate white farmers whose land was taken.