The Ghost of the SADC Tribunal Comes Back to Haunt Zimbabwe

Introduction 

In 2014, the Helen Suzman Foundation (‘HSF’) raised alarm over amendments to the SADC Tribunal Protocol [1]. These changes meant the regional body’s judicial remit was severely restricted; limiting it to hearing disputes between state parties only. Previously, it was a court of last resort in all disputes, including those between individuals and governments.

This sale, then, comes at a time when SADC member states, including South Africa, face increasing domestic pressure to restore the Tribunal to its full status [2]. Notwithstanding economic pressures on Zimbabwe, and criticism aimed at the South African Government for its dubious commitment to its international obligations, the satisfaction of the Tribunal’s original order is a victory for the rule of law.  

Background

The HSF observed that the 2012 Protocol amendments were introduced at the behest of the Zimbabwean Government, in response to an adverse costs order made against it by the Tribunal. 

The costs order arose out of the Tribunal’s finding that Zimbabwe’s racially-motivated non-compensatory land reform policies were arbitrary and in violation of various SADC instruments. 

The Tribunal ruled that Zimbabwe had to compensate dispossessed white farmers. After Zimbabwean authorities demurred, an application was launched in South Africa for sale in execution of various properties owned by the Zimbabwean Government in satisfaction of the Tribunal’s order.  This order was ultimately confirmed and enforced by the South African Constitutional Court (‘CC’) which ruled, in 2013, in Government of Zimbabwe v Fick [3], that it was bound to satisfy the Tribunal’s order. This was the case even though the Protocol had subsequently been amended to oust individuals’ ability to launch claims. 

In an attempt to frustrate the CC’s order, Zimbabwe changed the status of the property in question so that was protected by diplomatic immunity. This change meant that the property could not be attached for a sale in execution by South African authorities [4].

Developments 

In September 2015, eNews Channel Africa (‘ENCA’) reported that:

‘International legal history (would) be made … when the first sale in execution of a Zimbabwean property in South Africa takes place … After a five-year legal battle, a property belonging to the Zimbabwe government – 28 Salisbury Road, Kenilworth, Cape Town – would be auctioned because the Zimbabwe government failed to honour cost orders of South Africa’s High Court, Supreme Court of Appeal, and Constitutional Court … After unsuccessful attempts by the Zimbabwe … to rescind the registration of the judgment in South Africa (on condition of diplomatic immunity), the Sheriff of Cape Town (proceeded) … it would be the first time in history that a decision of a human rights tribunal in Africa led to the sale of property of a country that had been guilty of human rights abuses.’ [5]
 

Zimbabwe’s eventual capitulation, in rescinding diplomatic immunity, can be explained by a variety of factors.  Notably, President Robert Mugabe’s call for meaningful re-engagement with the West comes hot on the heels of China’s recent economic troubles, and his Finance Minister, Patrick Chinamasa, failing to get a generous loan from the Asian powerhouse, [6]. Coupled with domestic political uncertainty around his future [7] [8] [9], Harare’s willingness to submit can justifiably be construed as an attempt to win itself some goodwill. Pretoria, and South Africans, should also take note

Whether Pretoria, which initially joined the Zimbabwean’s attempts to prevent the sale, has put additional pressure on Harare is unknown.  But, in the light of the Zuma administration’s humiliating defeats in the North Gauteng High Court (‘NGHC’) over its handling of the failed Al-Bashir arrest [10], the possibility cannot be ruled out. 

The Zuma Government is set to argue before the Supreme Court of Appeal that its domesticated obligations in terms of the Rome Statute, to arrest individuals suspected of committing war crimes, are non-binding.  This argument is likely to fail [11]. Apart from the NGHC’s reasoning in the Al-Bashir’s matter, the CC, in Fick [12], has already settled the supposed tension between the conduct of international affairs, on one hand, and domesticated treaty obligations, on the other.  If the courts are consistent in their application of existing jurisprudence, it is likely that the appeal will fail, because, once domesticated, international obligations become as binding as national law. The South African Government would be foolish to find itself in contempt.

Considering, too, that, like its Tanzanian counterparts, South African NGOs are set to launch an application to set aside Pretoria’s decision to support the 2012 Protocol amendments [13] domestic pressure may have caused our diplomats to, unusually, reign in Zimbabwe.  As ENCA notes the case will be heard early next year. [14]

Conclusion

Whatever the reason for the change in attitude by both Harare and Pretoria, this is a victory for the rule of law. As a responsible member of the international community, South Africa is compelled to uphold its international treaty obligations. This is especially the case where those obligations are domesticated and become part of our applicable laws. The Constitution of the Republic of South Africa entrusts that our Government will respect all laws that it is subject to and, where it fails, that it will defer to the courts’ authority to enforce them. This is implicit in the rule of law. Accordingly, the HSF welcomes the fact that the CC’s judgment and the Tribunal’s order is finally being given effect to, despite the diplomatic difficulties that may arise. 

Kameel Premhid 
Legal Researcher 
kameel@hsf.org.za 

References
[1] http://hsf.org.za/resource-centre/hsf-briefs/the-sadc-tribunals-disappointing-rebirth. 
[2] https://www.newsday.co.zw/2015/09/21/government-property-goes-under-the-hammer/. 
[3] http://www.saflii.org/za/cases/ZACC/2013/22.html. 
[4] http://mg.co.za/article/2013-07-05-00-zimbabwe-shuts-door-on-asset-seizure.
[5] https://www.enca.com/south-africa/legal-history-be-made-zim-property-goes-auctioned. 
[6] http://www.dailynews.co.zw/articles/2015/08/26/re-engagement-is-vital. 
[7] http://www.newzimbabwe.com/news-19947
Mujuru+under+pressure+to+form+party/news.aspx.  
[8] http://nehandaradio.com/2015/02/27/mugabe-under-pressure-from-military-over-grace/. 
[9] http://www.thestandard.co.zw/2015/09/20/mugabe-speech-blunder-details-emerge/. 
[10] http://mg.co.za/article/2015-09-16-govt-denied-leave-to-appeal-al-bahir-case.
[11] http://www.rdm.co.za/politics/2015/06/22/al-bashir-how-government-broke-its-own-laws. 
[12] Note 3.
[13] Note 5. 
[14] Ibid.