The SADC Tribunal Lives On… Kind Of.

Background

Earlier this year, the HSF wrote of the disbanded Southern African Development Community Tribunal (SADC Tribunal) as follows:

“(The Tribunal) ruled in 2007 and 2008 that Zimbabwe’s … Land Reform Programme was racist and violated property rights and the right of access to justice… The SADC Tribunal pronounced that Zimbabwe had to pay compensation… Mugabe… simply ignored the Tribunal, later launching a campaign … to further a stance amounting to non-compliance (with) enforceable rulings on human rights violations. [1]”

The SADC Tribunal was established as far back as 1992, but was only staffed and became operational in 2005 [2]. However, following the decisions in 2007 and 2008, and subsequent to the Mugabe regime’s campaign to have it shut down, the SADC (Heads of State) Summit ordered a review of its functions in 2010, suspended its activities in 2011 and completely disbanded it in 2012 [3].

South Africa, with its progressive Constitution and commitment to the rule of law and human rights, was legitimately expected to oppose such a move. Many believe our lack of opposition was, in large-part, owing to political considerations. It was at that time that then Home Affairs Minister, Nkosazana Dlamini-Zuma was making a second attempt to win the AU Chairmanship, after having failed to win outright on the first ballot. The Zuma administration, in need of securing a major foreign policy victory, could not afford to isolate essential support from Zimbabwe and others within the region. Botswana, who was also expected to oppose the move, strangely supported the Tribunal’s closure on the grounds of national sovereignty, despite its contrary support for the International Criminal Court’s indictment against Sudanese President Omar Al-Bashir [4] [5] [6] [7].

Whatever the real reason for shutting down the SADC Tribunal, the consensus seems to be that the Mugabe-led campaign was successful and that SADC leaders acquiesced for self-interested reasons despite the decision being unlawful [8] [9] [10].

Status of SADC Tribunal Findings

The decision to shut down the SADC Tribunal raised a fundamental question as to whether its findings were binding and enforceable.

Given that the Tribunal was the only avenue to access justice, the status of its findings prior to foreclosure are an essential bulwark against the overwhelming power that the Zimbabwean Government has assumed in bullishly implementing its contested and divisive land reform programme.

Government of Zimbabwe v Fick

This was settled before South Africa’s Constitutional Court (CC) in its seminal finding handed down on 27 June 2013.

The matter came before the CC as an appeal against a decision of the Supreme Court of Appeal (SCA). The SCA itself dismissed an appeal against a prior ruling of the North Gauteng High Court (High Court).

The High Court was approached by the disposed farmers (first - third respondents in the CC) for the registration and enforcement of the costs order, in South Africa, previously given by the Tribunal against Zimbabwe for its persistent non-compliance with the Tribunal’s previous orders about land reform. The High Court found in their favour and issued a writ of execution against Zimbabwe’s immoveable property.

Zimbabwe then unsuccessfully applied to the High Court for the rescission of the order, which application was dismissed. Zimbabwe appealed further, unsuccessfully, to the SCA.

Mogoeng CJ (with Moseneke DCJ, Froneman J, Khampepe J, Mhlantla AJ, Nkabinde J, Skweyiya J, van der Westhuizen J concurring), writing for the majority, granted leave to appeal on the basis that this case raised important constitutional issues pertaining to access to courts and our own commitment to upholding and enforcing multilateral treaties to their full extent.

In dismissing the appeal with costs, Mogoeng CJ held that the duty to develop and apply our own common law, so as to allow the enforcement of foreign judgments within South Africa, was a constitutional duty created post-1994, notwithstanding the injunctions created by the SADC Treaty to enforce judgments of the Tribunal.

Mogoeng CJ also found that the objections raised by Zimbabwe with respect to the Tribunal’s lack of jurisdiction to hear the matter, and pronounce upon it in the first place, as being without merit, given that the Tribunal’s establishing Treaty was properly adopted internationally and within South Africa and, further, that Zimbabwe had submitted to the Tribunal’s jurisdiction [11].

In a concurring minority judgment, Zondo J agreed with the majority save for the fact that he disagreed with their reasoning that where a litigant has chosen specific grounds for impugning the jurisdiction of a court, it may not in later proceedings attack the jurisdiction of the first court on new or fresh grounds, which he held is too widely stated in the main judgment.

In a dissenting minority judgment, Jafta J held that he would have dismissed the application for leave to appeal on the basis that it is not in the interests of justice. He further differed with the main judgment on the need to develop the common law since, in his view, the Supreme Court of Appeal had already done and dealt with the matter satisfactorily. In his view, the prospects of success for the CC to rule differently to the SCA were non-existent [12].

The effect of the CC judgment is that whilst the Tribunal may no longer exist, its decisions are legal and binding and can be enforced within South Africa. To the disposed farmers it means that something may now be done to restore their dignity as the Zimbabwean Government is finally held accountable under the rule of law.

Reaction to Constitutional Court Findings

Reaction to the findings of the CC has been overwhelmingly positive.

Whilst the media has noted that the CC’s ruling does not amount to a judgment on the land reform policy, they have noted that the logic utilised by the CC strongly supports that the re-establishment of the SADC Tribunal.

The Mail & Guardian, under the heading ‘Re-emopower SADC Tribunal,” writes that the ruling is a “resounding yes” and that the Zimbabwean Government can finally be made to adhere even though the Tribunal has been disbanded. The MG states that this decision should spur SADC members to restore this powerful institution as a means to deliver justice [13] [14].

Similar sentiments were expressed in The Citizen [15], EyeWitnessNews [16], Business Day [17] [18] and Namibia’s New Era [19].

The HSF is of the firm belief that the CC’s ruling was legally and morally correct. Whilst we do not comment on the domestic situation in Zimbabwe nor on the complexity of the land reform debate, we are delighted that the CC’s ruling is a triumph for the rule of law.

AfriForum Challenge before the African Union

Another challenge offers dispossessed farmers another glimmer of hope, by focusing on the legality of the decision to shut down the SADC Tribunal in the first place.

AfriForum, acting on behalf of disposed farmers Luke Tembani and Ben Freeth sought to challenge the decision before the African Commission and, before the African Court of Human Rights. Whilst this application was originally opposed by the South African Government, AfriForum our government will no longer do so [20].

This means that the AfriForum challenge now faces one less hurdle in its attempt to re-establish the Tribunal.

The outcome of this challenge must be carefully monitored as it will be instructive of the political will that exists among African leaders to give effect to institutions that support  the rule of law.

Conclusion

The disposed farmers scored a partial victory before the CC. Whilst the Zimbabwean authority’s property may now be executed to recover costs, the lack of compensation, the continued defiance of Zimbabwe and the capitulation of SADC leaders in allowing the Tribunal to be shut down, are still grave concerns. To paraphrase Mogoeng CJ, Africa will continue to be thought of as a dark continent with little regard for human rights if our leaders make commitments to human rights which they conveniently forget when it becomes politically convenient. The HSF hopes that with the remaining challenges concerning the Tribunal’s closure, and with adequate pressure from South Africa and others in the case of Zimbabwe, the rule of law will be given real meaning and that the institutions that were put in place to protect it, will be given the means and ability to do so.

NOTES

[1] http://www.hsf.org.za/resource-centre/hsf-briefs/the-sadc-tribunal-the-rule-of-power-versus-the-rule-of-law-the-tribunal-tragedy
[2] http://www.sadc-tribunal.org/pages/history4.htm
[3] http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=194574&sn=Detail&pid=71619
[4] http://www.dailymaverick.co.za/article/2012-07-16-top-five-priorities-in-the-new-au-chairs-inbox#.UdGOC_lTByw
[5] http://www.bbc.co.uk/news/world-africa-18846210
[6] http://www.iol.co.za/news/africa/selfish-jz-allowed-mugabe-to-kill-sadc-tribunal-1.1479714#.UdGYEPlTByw
[7] http://www.da.org.za/newsroom.htm?action=view-news-item&id=7310
[8] http://mg.co.za/article/2012-09-07-00-sadc-leaders-duplicitous-in-axing-tribunal
[9] http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=330066&sn=Detail&pid=71619
[10] http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=350172&sn=Detail&pid=71619
[11] http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=144634&sn=Detail&pid=71619.
Earlier this year, Advocates JJ Gauntlett SC and FB Pelser opined that the decisions were binding, given: (1) Zimbabwe was a signatory to the SADC Treaty and was thus submitted to the Tribunal’s authority; (2) Zimbabwe was bound by the additional Protocol which it signed; (3) further, by submitting itself to the jurisdiction of the Tribunal in previous instances, it accepted the Tribunal’s power; and (4) that officials in the Zimbabwean Government accepted that much as being true. These arguments found favour with the CC.
[12] http://www.constitutionalcourt.org.za/site/FIC.htm
[13] http://mg.co.za/article/2013-06-28-editorial-re-empower-sadc-tribunal
[14] http://zimbabweelection.com/2013/06/28/zimbabwe-may-forfeit-sa-property/
[15] http://www.citizen.co.za/citizen/content/en/citizen/local-news?oid=442098&sn=Detail&pid=334&Zimbabwe-loses-appeal-against-costs-award
[16] http://ewn.co.za/2013/06/27/ConCourt-ruling-on-Zimbabwean-assets
[17] http://www.bdlive.co.za/national/2013/06/28/farmers-lawyers-to-sell-zimbabwe-governments-r3.5m-cape-town-property
[18] http://www.bdlive.co.za/national/2013/06/27/sas-top-court-dismisses-zimbabwes-appeal-in-dispossessed-farmers-case
[19] http://www.newera.com.na/articles/51966/SADC-needs-more-teeth
[20] http://www.polity.org.za/article/sa-statement-by-afriforum-and-the-sadc-tribunal-rights-watch-on-legal-breakthrough-for-zimbabwe-farmers-28062013-2013-06-28
 

Kameel Premhid – kameel@hsf.org.za
Intern
Helen Suzman Foundation