The Constitutional Court today found in favour of a group of Zimbabwean farmers assisted by AfriForum, that former President Jacob Zuma was acting unlawfully and unconstitutionally when he together with other leaders of the Southern African Development Community (SADC) took part in the suspension and dissolution of the SADC tribunal’s activities.
According to AfriForum, the Zimbabwean farmers whose land had been expropriated without compensation by the Zimbabwean government, were denied, through Zuma’s unlawful actions, their right to claim compensation through the SADC tribunal after this tribunal had found that the Mugabe regime’s expropriation of land without compensation was racist and illegal.
According to Kallie Kriel, CEO of AfriForum, the court judgment was not only a victory for the Zimbabwean farmers and for AfriForum, but also for everybody who believes that leaders should be held liable if they contribute to enabling violation of the right of ownership as a basic human right by expropriation without compensation and defeating legal action against it.
Kriel pointed out that AfriForum would now consult with the Zimbabwean farmers represented by AfriForum with a view to filing a claim for damages against the South African government. “Now that the highest court in South Africa has found that Zuma as head of state had acted unlawfully to the detriment of Zimbabwean farmers, it means that the South African government could be held liable for the losses suffered by farmers because of South Africa’s action to suspend the activities of the SADC tribunal,” Kriel added.
According to Kriel, this action should also send a clear message to the South African government that AfriForum will not hesitate to use international legal processes to ensure that leaders who in any way assist in enabling expropriation without compensation, eventually may be held responsible.
The high court in Pretoria earlier this year found that Zuma had acted unlawfully and unconstitutionally when he and other heads of state of the SADC suspended the proceedings of the SADC tribunal and subsequently completely dissolved the tribunal. Because the finding by the high court affected a presidential action, it had to be ratified by the Constitutional Court.
The court application initially was launched by the Law Society of South Africa. Several Zimbabwean farmers who had been affected by the land grab process in Zimbabwe, including Ben Freeth and Luke Tembani, subsequently joined the court application, assisted by AfriForum.
Freeth is the son-in-law of Mike Campbell, who made history in 2008 with a successful application to the SADC tribunal (at the time seated in Windhoek, Namibia) against Robert Mugabe’s Zimbabwean government. The tribunal then found that the Zimbabwean land reform process was illegal and racist, ordering Mugabe to stop it.
In reaction, however, Mugabe ignored the tribunal’s interdict and instead convinced the rest of the SADC leaders to dissolve the tribunal. In this way, the promotion of human rights and the rule of law were dealt a major blow and Zimbabwean farmers were denied the opportunity to claim compensation through the SADC tribunal.