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Letter to the Law Society of Zimbabwe
Ben Freeth
February 18, 2010

Dear Sir

Re: Mr. Mlotshwa-s request for a public statement by the Law Society:

Mr. Mlotshwa wrote to yourselves on the 1 February alleging that I was in contempt of Justice Patel-s judgment and asking you to: "issue a public statement condemning the unwarranted attack on the Independence of the Judiciary and in particular on the integrity of the Honourable Mr. Justice Patel."

Mr. Mlotshwa credits the Saw Society for having "always issued statements based on matters of principal, in particular the preservation of the rule of law as well as the independence and integrity of the profession."

Mr. Mlotshwa has taken particular offence to the final paragraph in the SADC Tribunal Rights Watch statement that says "the Judge, in his attempt to legalise a program of ethnic cleansing has joined the ranks of other judges under dictatorial regimes such as NAZI Germany or Stalinist Soviet Union and left Zimbabweans more exposed than ever to further abuse by the Zimbabwean Government."

From this statement Mr. Mlotshwa fallaciously believes that I have "effectively labelled Justice Patel a "NAZI judge." I did not say that. I have said that he is a judge serving under a dictatorial regime (having left its Cabinet as the President-s acting Law Officer to rejoin the Bench); that he has sought to legalise what the Tribunal held (just like ethnic cleansing) to be in conflict with international law; and that the effect of his ruling is to leave Zimbabweans yet more exposed to the human rights abuses clearly found by the Tribunal. No part of that is untrue.

Mr. Mlotshwa is clearly not a friend of justice in the SADC Tribunal. On one occasion, in the presence of other legal practitioners for the Applicants, he most unprofessionally stormed out of chambers of the Judges in the SADC Tribunal building when things weren-t going his way (they had just ruled against him); and having himself taken over Rydings school in the name of "land reform," he is not keen that the SADC Tribunal Judgment should be upheld. He has been the subject of complaints to the Law Society in the past himself.

It is my belief it is important that the Law Society indeed does make a statement concerning the Patel judgment. The issues at stake in Justice Patel-s judgment regarding the registration of the SADC Tribunal judgment relate to:

1. Whether the rule of law should be allowed to be revived in Zimbabwe after amendment 17 denied the right even for a hearing in any court regarding the acquisition of somebody-s property.
2. Whether racial and other discrimination issues should be allowed to persist in the land reform program.
3. Whether the Zimbabwe Government should pay compensation to those that have had their homes and businesses taken from them.

Justice Patel says that the land reform program is "public policy" and justifies his non-registration of the SADC tribunal judgment on the premise that he has to support "public policy" because public policy is for the "public good."

It is important that it is pointed out here that there were various anomalies relating to the hearing:

1. Advocates Gauntlett SC and Pelser were inexplicably denied registration to argue the case both by the Minister of Justice and then by Justice Patel. As far as I know there is no precedent for this in the history of Zimbabwe. Not only had Mr Gauntlett - a former chairman of the SA Bar and a Judge of Appeal in another SADC country - frequently been admitted by Judge Patel-s colleagues before, but on the very same day - 18 November 2009 -as the Minister refused his assent to Mr Gauntlett on the grounds that South Africa is not a "reciprocating country" with Zimbabwe, he granted it (Judge Patel was told) to another South African senior counsel (not of course appearing against the Government). Judge Patel did not so much as address this in his ruling. For what reason would two upstanding and highly qualified African advocates be denied access to argue a simple case of registering an International Judgment? The denial of access by Zimbabweans to external legal assistance - a long tradition before and after Stella Madzimbamuto-s challenge to the Smith regime - is a serious matter; I ask the Law Society to investigate it urgently.

2.The argument that Justice Patel uses to block the registration regarding the SADC Tribunal Judgment running counter to "public policy" and the "public good" was never advanced in the court hearing by the Zimbabwe government representatives or anyone else. If it had been, the effects regarding the suffering that the chaotic land reform program had produced in displacing perhaps a million people, bringing the country into a desperate food-insecure position, the horrific unemployment, the downstream collapse of the economy and the social infrastructure relating to health and education and all the other effects, would have been brought out to show that it has not in fact been for the "public good." How indeed, can fundamental rule of law ousters; blatant discrimination; and the taking of private property without any compensation, be something that a judge can support on the facile argument that it is simply "public policy" to do these things?

If the Law Society is to help protect human rights and safeguard "the preservation of the rule of law" in Zimbabwe I believe it is incumbent on it to express its serious concern about the Patel Judgment refusing the registration of the SADC Tribunal awards, vigorously and widely.

3. Mr Mlotshwa is astute not to disclose to the Law Society his own interest. It is pertinent to point out here that Mr. Mlotshwa is well aware of the flagrant human rights abuses and rule of law break down on the commercial farms in Zimbabwe.

One of his clients, Minister Nathan Shamuyarira, took over our farm, Mount Carmel, against Zimbabwe High Court orders and the SADC Tribunal orders. In the last year his thugs have beaten our workers very severely, some sustaining broken bones, and they have been stopped from working since April 2009. We have been evicted by his men with guns; our houses with all our possessions have been burnt down along with some of our workers houses with all their possessions; our tractors and other farm equipment has all been stolen; all our crops have been stolen before our eyes to the extent that we could not reap one cob of maize or one mango or orange or sunflower head; the hay bales were burnt; the 40,000 fruit trees on the farm have not been irrigated, sprayed, pruned or fertilised.

A visit to the farm today will show this once very productive farm to be in dereliction with no crops having been planted.

Not one of the perpetrators of these crimes has been arrested by police despite numerous reports to them. Indeed it is common knowledge that Gilbert Moyo and the other perpetrators of our abduction, severe beating and attempted murder in 2008 that Mr. Mlotshwa refers too, are now walking free. They have never been brought to trial.

The Law Society will know that this kind of breakdown in the rule of law remains widespread in Zimbabwe. High Court orders are not being upheld by the police in situation after situation on the commercial farms and tens of thousands of people in the farmer and farm worker community have lost their livelihoods and in many cases their homes and other possessions in recent months.

If we care about our people and our country, we have a clear public duty to help prevent the people within the judicial system from sliding into the totalitarian logic that appears to be prevalent within Zimbabwe and which is the same kind of logic that drove Andrey Vyshinsky, Stalin-s show trial prosecutor general, to write in his textbook, Judicial Organisation in the USSR in 1939:

"The laws of the Soviet power are a political directive and the work of the Judge amounts not just to the application of the law in conformity with the needs of bourgeois judicial logic, but to the application of the law as a political expression of the Party and the Government . . . .the judge must be a political worker, rapidly and precisely applying the directives of the Party and the Government."

The strong voice of the Law Society in defence of human rights and the rule of law in Zimbabwe is greatly needed. If Zimbabwe-s police force is going to allow this kind of rule of law break down we need defenders of the rule of law to come out powerfully against this very destructive "public policy" that Justice Patel appears to support.

Lastly, I would suggest that the Law Society would be concerned to upheld freedom of a speech as a constitutionally-protected right, and that it would hold (on what I understand is strong legal precedent) that this specifically includes the right to criticise judgments. If Judge Patel believes I have violated his rights, he has civil and criminal law remedies. Mr Mlotshwa has no entitlement (unless this interest, too, is not disclosed) to speak for him.

Yours sincerely

Ben Freeth.

Email: freeth@bsatt.com

cc
Southern African Development Community Lawyers- Association
West African Bar Association.
Pan African Lawyers- Union
Coalition for an Effective African Court on People-s and Human Rights
International Commission of Jurists.
Amnesty International
Human Rights Forum
Gerald Mlotshwa

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