The long-delayed hearing of the court case against South African President Jacob Zuma and his ANC government for their role in the closure of the regional human rights court, the Southern Development African Community’s SADC Tribunal in 2012, has been set down for 5-7 February 2018.
It will be held at the High Court in Pretoria. The Law Society of South Africa launched the application in April 2015 to declare the actions of President Zuma, as well as the Minister of Justice, Michael Masutha, and the Minister of International Relations and Co-operation, Ms Maite Nkoana-Mashabane, unconstitutional in relation to the 2014 Protocol.
Under the original Protocol on the SADC Tribunal, signed in August 2000 by the SADC Heads of State, both individual persons and companies could bring a case against a member state. The only stipulation was that they must first exhaust all available local remedies, or have been unable to proceed through national courts.
The Protocol as it now stands, limits the jurisdiction of the SADC Tribunal to disputes only between member states, thus denying the 277 million people living in the SADC region access to justice when the courts in their own countries have failed to dispense justice.
The applicants in the case are the Law Society of South Africa, which speaks nationally on behalf of the attorneys’ profession and various human rights groups.
On July 24, 2015, four dispossessed Zimbabwean commercial farmers and two Zimbabwean agricultural companies applied to join the case. They are represented by civil rights group AfriForum.
The farmers were denied the right to seek justice in their own country through policies and measures that deprived them of their property rights and failed to uphold their human rights – and those of their workers – during the illegal and violent farm invasions.
All four successfully participated in various court cases before the SADC Tribunal and in all cases, the Tribunal ruled against the Zimbabwe government.
Ben Freeth, who with his late father-in-law, Mike Campbell, took Mugabe to the SADC Tribunal in Windhoek, Namibia, over the illegal acquisition of Campbell’s Mount Carmel farm in 2007 and won the landmark court case the following year, is one of the four farmers. Freeth is also spokesperson for SADC Tribunal Rights Watch.
“Despite winning our court cases, the closure of the Tribunal in 2012 resulted in our being unable to take the cases further,” said Freeth. “The next step would have been to get taxable awards against the Zimbabwe government for their flagrant contempt of those judgments.”
Similar court bids to that of the Law Society of South Africa to stop the ratification of the 2014 SADC Protocol were launched by other law societies and Bar councils in their countries.
The 2014 Protocol was finally endorsed by nine of the 15 Member States during the SADC Heads of States Summit held in Victoria Falls, Zimbabwe in August 2014. These were: DRC, Lesotho, Malawi, Mozambique, Namibia, Seychelles, Zambia, South Africa and Zimbabwe.
However, for this Protocol to enter into force, it is required that at least 10 Member States representing two-thirds ratify it. Since then, no single Member State has ratified the Protocol.
Since South Africa’s internationally supported and acclaimed transition to democracy nearly 24 years ago, the government has come in for growing criticism for its failure to uphold human rights.
Of especial concern are the government’s plans under President Zuma to withdraw from the International Criminal Court (ICC).
The February hearing in Pretoria will be one of the most important cases for the rights of SADC citizens and will also provide South Africa with an opportunity to reclaim its former moral high ground. Failure to do so will reflect very negatively both on President Zuma and his government.
The four Zimbabwean farmers and two Zimbabwean agricultural companies who successfully joined the case:
Luke Tembani, Ben Freeth, Richard Etheredge and Chris Jarrett as well as Tengwe Estates (Pvt) Ltd and France Farm (Pvt) Ltd. In the past, they successfully participated in various proceedings before the SADC Tribunal. In several cases the Tribunal ruled against the Zimbabwean Government and found that the government has violated their human rights in many different ways through policies and measures which deprived the farmers of their property rights.
Founding Affidavit of the Law Society of South Africa, 11 March 2015: