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Legal breakthrough for Zimbabwe farmers
SADC Tribunal Rights Watch/AfriForum
June 27, 2013

Two important developments have now taken place in the legal campaign to ensure that Zimbabwe is unable to escape its international-law obligations arising from its land seizure programme.

Today the Constitutional Court dismissed Zimbabwe’s appeal against South African court orders authorising the attachment of Zimbabwean Government property in execution of awards by the SADC Tribunal. Chief Justice Mogoeng held: “Lawful judgments are not to be evaded with impunity by any State or person in the global village.”

The Constitutional Court held that South Africa, like Zimbabwe itself, was bound to give effect to awards of the Tribunal. It noted that Zimbabwean farmers had lost their land without compensation pursuant to an “agrarian reform programme”. It held that the Tribunal’s jurisdiction was founded on the rule of law, and that the aggrieved farmers had properly had recourse to the Tribunal’s protection.

The second development is that South Africa, as a SADC member State, has formally conveyed to the African Commission in The Gambia that it will not be advancing argument on the merits of the case brought by the Zimbabwean farmers before the Commission. The farmers had lodged a challenge to the decision by SADC members to suspend the Tribunal’s operation following its series of awards against Zimbabwe.

The application asked for an order that would ensure the SADC Tribunal would continue to function, as established by Article 16 of the SADC Treaty.

The application was filed on behalf of Luke Tembani, a dispossessed Zimbabwean commercial farmer, and Ben Freeth, son-in-law of the late Mike Campbell of Mount Carmel farm in Zimbabwe, against the 14 SADC governments.

The applicants submitted that closing the SADC Tribunal to individual access deprived 250 million inhabitants of SADC countries of access to the only international-law court in the region when justice systems have failed them in their own countries. The effect of the closure is to prevent the Tribunal from hearing cases where governments had committed human rights violations and domestic law has offered no relief.

In a letter sent by the South African Embassy in Addis Ababa, Ethiopia, on June 20 to the African Commission, the embassy said that the South African government would not be making any Submission on the Merits of the Communication. The embassy also confirmed that the South African government would “abide by the decision of the Commission on the Communication.”

The African Commission will deliberate on the issue. The case may proceed further to the African Court.

“If the European Court was dissolved following an executive decision by the Heads of State of Europe without any democratic process, the world would be outraged,” commented Freeth.

“Why is it that when an international regional court in Africa gets dissolved, and 250 million African citizens become subject to the whims of various autocratic governments without recourse to justice when domestic justice systems fail them, the world is so deafeningly silent?” he asked.

“I am an old man, a committed Christian who contributed to food security in Zimbabwe and who built a church and school on my farm for the benefit of the community,” Tembani said. “I am devastated by the injustice committed against me and my family in Zimbabwe which has left us destitute.”

“I am calling for Africans and the world to raise their voices so that younger Africans in the future may be protected from the injustices that continue to take place without recourse. It’s time that those who care about the poverty and hunger in Africa speak out for justice and the rule of law so that Africa’s potential can be unlocked and its people can thrive,” Tembani concluded.

Background Information

The Luke Tembani case

Luke Tembani (76), a successful black commercial farmer, took his case to the SADC Tribunal in June 2009 after the farm he bought in 1983 was sold by the Agricultural Bank of Zimbabwe in 2000 without any court hearings.

In August 2009, the Tribunal ruled that the repossession and sale of Tembani’s farm to recoup an outstanding loan during a period of soaring interest rates - to which the bank was unable to put an exact figure - was illegal and void.

The court noted that Tembani’s proposal to sell of a viable section of the farm to cover the debt had been turned down by the bank. The judges ruled that he should remain on his farm where he had built a church and a school which provided free education to 321 pupils.

In defiance of the Tribunal ruling, Tembani and his family were evicted two months later and Tembani’s two primary school-going children were forced out of school. Following the collapse of the Zimbabwe dollar, all of Tembani’s savings were eroded and he now struggles to feed his family and educate his children.

The Campbell case

In October 2007, after exhausting all legal remedies under domestic jurisdiction, the late Mike Campbell filed a case with the Tribunal contesting the acquisition of his farm which had been transferred legally in 1999 with a certificate of no interest* from the Zimbabwean government.

In March 2008, 77 additional Zimbabwean commercial farmers were granted leave to intervene. Interim relief similar to that given to Campbell on December 13, 2007 was granted to 74 of the farmers since three were no longer residing on their farms.

Eight months later, on November 28, 2008, the Tribunal ruled that the land reform programme was racist and unlawful and that the Zimbabwe government had violated the SADC treaty by attempting to seize the 77 white-owned commercial farms. In response, Lands and Land Reform Minister, Didymus Mutasa said the government would not recognise the ruling.

*Certificate of No Interest: Under the Zimbabwean law, farmers who wished to sell their farms had to first offer them to the government at a market price. When the government declined to purchase such farms, it issued the farmers with the “certificate of no interest” and the farmers could proceed to sell their farms on the open market. The government purchased some 3.8 million hectares of farmland in that way between 1980, the year of Zimbabwe’s formal independence from Great Britain, and the commencement of the fast track land reform programme.

Further background:

The Gondo Case [victims of organised violence and torture in Zimbabwe]

The SADC Tribunal awarded damages of nearly US$17 million to nine Zimbabwean torture victims, in a landmark ruling that exposed Harare's continued and flagrant disregard of the rule of law.

The judgement handed down on 9 December 2010 followed a case in which the victims of organised violence and torture (OVT), assisted by the Zimbabwe Human Rights NGO Forum, sued the Zimbabwean government for failing to comply with the orders of the country’s High Court.

Previously, Barry Gondo and eight other victims had successfully claimed compensation in the High Court of Zimbabwe but the government of Zimbabwe had refused or neglected to pay compensation.

Statement by the SADC Lawyers Association following the decision of the SADC Extraordinary Summit to extend the suspension of the SADC Tribunal - 20 July 2011.
http://www.polity.org.za/article/statement-by-the-sadc-lawyers-association-following-the-decision-of-the-sadc-extraordinary-summit-to-extend-the-suspension-of-the-sadc-tribunal-20072011-2011-07-20

Implications of the decision to review the role, functions and terms of reference of the SADC Tribunal 4 November 2010. http://www.ditshwanelo.org.bw/SADCOPINIONfinal4%20Nov%202010.pdf

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