HARARE – South Africa President Jacob Zuma will tomorrow appear in the High Court in Pretoria for his role in the closure of Southern African Development Community (Sadc) Tribunal after it ruled in favour of 78 white farmers fighting against the seizure of their land by former president Robert Mugabe’s government.
The case piles pressure on the under-fire Zuma who is facing a no-confidence vote scheduled for February 22 after Parliament speaker Baleka Mbete assented to a request from the opposition Economic Freedom Fighters (EFF), though she refused to hold the vote before the president’s state of the nation address on February 8.
Although Zuma, 75, retains the support of a faction within the African National Congress (ANC), he no longer holds a top post since he was replaced as leader of the ruling party in December by Cyril Ramaphosa, the deputy president, 65, who has been lobbying the ANC’s national executive to force Zuma to resign.
Zuma has been dragged to court to answer charges that he backed the Zimbabwe government’s refusal to comply with the Sadc Tribunal’s 2008 ruling to return confiscated land or compensate white farmers for lost property during Mugabe's often violent land grabs.
Subsequently, Zuma and his ANC government caused the closure of the regional human rights court based in Windhoek, Namibia, in 2012.
Since 2010, Zuma and Mugabe unfurled an effective lobbying campaign at several Sadc heads of State and government meetings, challenging the Tribunal’s capacity to hear individual applications.
The Sadc tribunal reported Zimbabwe, several times, to the 15-nation regional bloc for non-compliance with court orders, continued human rights abuses and violation of the Sadc Treaty, of which Zimbabwe was a signatory.
In August 2012, at a key Sadc heads of State and government meeting in Maputo, Zuma and Mugabe prevailed, and the Tribunal had its jurisdiction to hear individual cases terminated after deciding just 16 cases — 11 of them on Zimbabwe — in its short lifetime.
This effectively ended the Sadc Tribunal’s role as a human rights tribunal, confining it to resolving inter-State disputes under Sadc treaties.
The Tribunal had become “inconvenient” for the Sadc heads of State and government by issuing decisions that were too “independent”’ from their wishes.
The Law Society of South Africa then lodged an application in April 2015 to declare the actions of Zuma, as well as the South Africa minister of Justice, Michael Masutha, and the minister of International Relations and Co-operation Maite Nkoana-Mashabane unconstitutional in relation to the 2014 Sadc Protocol.
Under the original Protocol on the Sadc Tribunal, signed in August 2000 by the 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.
Four dispossessed Zimbabwean commercial farmers and two Zimbabwean agricultural companies have also joined the case lodged by the Law Society of South Africa, which speaks nationally on behalf of the attorneys’ profession and various human rights groups.
The Zimbabwean litigants are represented by civil rights group AfriForum. The four Zimbabwean farmers and two Zimbabwean agricultural companies who successfully joined the case are Luke Tembani, Ben Freeth, Richard Etheredge and Chris Jarrett as well as Tengwe Estates (Pvt) Ltd and France Farm (Pvt) Ltd.
All these litigants successfully participated in various proceedings before the Sadc Tribunal.
Freeth, who with his late father-in-law, Mike Campbell, took Mugabe to the Sadc Tribunal over the illegal acquisition of Campbell’s Mount Carmel Farm in 2007 and won the landmark court case the following year, has become spokesperson for pressure group Sadc Tribunal Rights Watch.
Earlier in 2004, the now late national hero Nathan Shamuyarira, a former Cabinet minister, had claimed Mount Carmel.
“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.”
The evicted white farmers have reportedly tabled a $9 billion compensation claim before new Zimbabwe President Emmerson Mnangagwa, for assets expropriated during the chaotic land grab.
Since South Africa’s internationally supported and acclaimed transition to democracy nearly 24 years ago, the government under Zuma has come in for growing criticism for its failure to uphold human rights.
Of special concern is Zuma’s plan to withdraw from the International Criminal Court (ICC).
Zuma was last year forced to formally revoke his withdrawal from the ICC after the same High Court blocked the government’s bid to pull out of the Hague-based war crimes tribunal.
Pretoria announced its intention to leave in 2015 after the ICC criticised it for disregarding an order to arrest Sudanese President Omar Hassan al-Bashir, accused of genocide and war crimes when he visited South Africa. Bashir denies the accusations.
Tomorrow’s 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 Zuma and his government.