African judges defend Rule of Law
Southern African tribunal and national courts uphold rights of Zimbabwe’s expropriated white farmers to receive compensation
A 1992 Treaty established the Southern African Development Community (“SADC”) to promote growth and development. All subcontinental countries up to Tanzania and DRC are members. The Treaty declares that member states must observe human rights and the Rule of Law, and not discriminate on racial or ethnic grounds.
The Treaty established a Tribunal to ensure adherence to the Treaty by adjudicating disputes referred to it. It also established a Summit of heads of government that would adopt a Protocol setting out the Tribunal’s powers.
The Summit in 2000 adopted a Protocol stating that the Tribunal had jurisdiction not only in disputes between states, but also between individuals or companies and states.
In 2005, Zimbabwe amended its Constitution to provide for State expropriations of agricultural land. Compensation would not be payable for the land, only for improvements. Access to the courts to challenge expropriations was expressly denied.
White farmers whose lands were expropriated approached the SADC Tribunal in Windhoek for relief. In 2008, the Tribunal, consisting of five eminent judges from different SADC member states, ruled that (although the SADC Treaty mentions neither expropriation nor compensation) the dispute concerned human rights and the Rule of Law, that Zimbabwe had discriminated on racial grounds by expropriating only white farmers’ land and by denying them access to court, and that those farmers were entitled to compensation.
Zimbabwe refused to comply with the ruling. The farmers again approached the Tribunal, which, in 2009, found that Zimbabwe had not complied and ordered Zimbabwe to pay the farmers’ legal costs. Zimbabwe ignored the costs order as well.
The farmers then applied to the Pretoria high court to enforce the SADC Tribunal’s costs order in South Africa. Zimbabwe filed notice to oppose, but then withdrew it on the grounds that it was a sovereign state immune from the jurisdiction of South African courts.
Yet the court in 2010 granted the farmers leave to enforce their SADC costs order against Zimbabwe in South Africa. The court registrar issued a writ to the farmers authorising the sheriff of Cape Town to attach and sell certain properties there owned by the Zimbabwe government and to distribute the proceeds to the farmers.
Zimbabwe applied to the Pretoria court for suspension of the writ and reversal of its order granting the farmers leave to enforce the SADC costs order. The court dismissed Zimbabwe’s application in 2011.
Zimbabwe then appealed to the Supreme Court of Appeal in Bloemfontein, arguing that South African courts had no jurisdiction. The Court of Appeal in 2012 dismissed this argument, holding that Zimbabwe had submitted to SADC jurisdiction by appearing in the Tribunal and arguing its case, and that this sufficed for the farmers to enforce the Tribunal’s order in South Africa. The Court of Appeal held that the SADC Treaty and Tribunal Protocol were binding on Zimbabwe and conferred jurisdiction on the Tribunal over the farmers’ claims, that South African common law about enforcing foreign court judgments in South Africa extended to judgments of international tribunals, and that the SADC Tribunal’s costs order was thus enforceable against Zimbabwe in South Africa.
Zimbabwe then appealed to the Constitutional Court in Johannesburg. That Court held that Zimbabwe’s agreement to be bound by the Tribunal Protocol, including its provision that States must take measures to ensure execution of Tribunal decisions, was a waiver of Zimbabwe’s right to rely on its sovereign immunity from South African court jurisdiction.
The Constitutional Court noted that, although our Enforcement of Foreign Judgments Act applies only to judgments of foreign national courts, the common law should be extended to allow judgments of international tribunals to be enforced in South Africa.
If the SADC Tribunal’s orders cannot be enforced locally when human rights and the Rule of Law had been violated, the right of access to courts would be hollow. Zimbabwe had denied the farmers access to its courts and compensation. South Africa was obliged by the SADC Treaty to facilitate the enforcement of human-rights orders against a state.
The Constitutional Court accordingly dismissed Zimbabwe’s appeal. The SADC Tribunal’s costs order was enforceable in South Africa, and the writ of execution authorising the sale of Zimbabwe’s Cape Town properties and distribution of proceeds to the farmers could be carried out.
Back to politics. When the SADC Tribunal in 2009 found that Zimbabwe had not complied with its first judgment, the Tribunal referred the matter to the SADC heads-of-government Summit for appropriate action.
Astoundingly, the Summit announced in 2011 that the Tribunal would hear no more cases until its Protocol had been reviewed, and the Summit would not reappoint or replace Tribunal judges whose term of office ended. As a result, the Tribunal no longer had a quorum and stopped functioning.
In 2012, the SADC Summit resolved that the Tribunal’s mandate should be confined to disputes between member States, and individuals and companies should no longer have access to it. In 2014, the Summit adopted a revised Protocol which purported to restrict the Tribunal’s jurisdiction to disputes between States.
Outraged, the SADC association of law societies resolved that its constituent law societies should each challenge in their national courts the SADC heads-of-government Summit’s adoption of the revised Protocol restricting the Tribunal’s jurisdiction.
Pursuant to that resolution the Law Society of South Africa applied in 2015 to the Pretoria high court for an order setting aside President Zuma’s decision to participate in the SADC Summit’s 2011 suspension of the Tribunal and that his signing of the 2014 revised Protocol was unlawful.
In March 2018 that court agreed with the Law Society. The President, by signing the new Protocol, had violated the Treaty and the Tribunal’s first Protocol, and undermined SADC’s key institution for ensuring compliance with the Treaty. The President had no authority to participate in revision of the Protocol without first obtaining Parliament’s consent, and his failure to do so was unlawful.
The court set aside the President’s actions and asked the Constitutional Court to confirm its decision. The South African government has appealed.
Gary Moore is a South African lawyer and senior Free Market Foundation researcher