South African farmers and former Zimbabwean farmers dispossessed by land grabs in that country won an important victory after the Constitutional Court upheld an earlier judgement that Zimbabwean-owned property in SA be seized to pay a punitive costs order.
This brings the farmers one step closer to being able to claim compensation for land grabs. The case was originally brought before the Southern African Development Community (SADC) Tribunal in 2008. After the tribunal was disbanded the farmers approached the SA courts because Zimbabwe refused to compensate them, although this had been ordered by the tribunal.
The case was then registered in the North Gauteng High Court which found that property owned by the Zimbabwean government in Cape Town should be sold to satisfy a punitive costs order granted by the tribunal. The Zimbabwean government appealed, but the Supreme Court of Appeal in Bloemfontein upheld the ruling last year. Despite a second appeal, the Constitutional Court has upheld the judgement.
This will be the first time in international legal history that a state that committed gross human rights violations is effectively punished by the attachment and sale of its property. The Constitutional Court held that SA, like Zimbabwe, was bound to give effect to awards of the tribunal, that the tribunal’s jurisdiction was founded on the rule of law and that the aggrieved farmers had recourse to the tribunal’s protection.
Willie Spies, legal representative for AfriForum, which supported the Zimbabwean farmers in the legal process, said the court case set the precedent that it is possible to enforce the rulings of the SADC Tribunal in SA. “This will give us more bargaining power when we ask for compensation for farmers who have lost their land.” But the battle has just begun as the farmers can only start fighting for compensation once the tribunal is reinstated.
“Hence we are taking the matter to the African Commission on Human Rights to refer it to the African Court and then have the tribunal put back in place,” said Spies. The same week that Zimbabwe lost the appeal, SA, that had supported the dissolving of the tribunal, made a surprise move to support the commission’s decision.
“This is quite a milestone and we suspect it is as a result of the ruling. Pressure is mounting for Zimbabwe to compensate farmers because it needs economic stability and this can’t be achieved without property rights,” said Spies.
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