Apr - 15


A constitutional finding that former President Zuma acted irrationally, unconstitutionally and illegally in constructively associating SA with the decision to disband the SADC Tribunal following the Tribunal’s landmark decision that the Zimbabwean land reform offended basic and fundamental rule of law and constitutional principles has given impetus for the aggrieved farmers to seek compensation from the SA government on the basis that their quest for compensation was thwarted by this decision.

Afriforum is leading this legal challenge whose moral foundation is premised on the fact that SA as a signatory of the SADC Treaty has an obligation to promote, protect and uphold the rule of law at all material times and the precedent in respect of the SADC Tribunal does not bode well for the protection of property rights.

The SA ConCourt ruled in favour of the white farmers having examined the facts in the cause and more importantly that no alternative remedies existed in Zimbabwe and the SADC Tribunal offered relief that could not be obtained in Zimbabwe.

President Mnangagwa’s administration has indicated that compensation is now on the cards in Zimbabwe but evidently this application is a confirmation that the litigants have no faith in this move.

It is not clear what approach the SA government under President Ramaphosa will take in response to this application especially having regard to the cosy diplomatic relationship between the SA and Zimbabwean government as evidenced during the recent Bi-National Commission meetings held in Harare in which the implications of this judgment was at the fore of the discussions.

This case is pregnant with a number of implications including the role of SA in ensuring that laws and measures that offend SA public policy cannot be given support and life by any SA authorities.

It is also the case that the issue of equity in the land reform programs in Southern Africa has to be dealt with in accordance with rule of law principles.

The expectation that President Mnangagwa would reverse the Mugabe logic that land was stolen from blacks and as such no compensation for land dispossessions was in the interests of equity and justice.

The challenge that SA faces on the land question is daunting and a ruling on this matter will foreshadow the options available to the SA government on this matter.

If the SA courts order the government to compensate the Zimbabwean farmers, then an argument will also be asserted that the proposed s 25 amendment of the SA Constitution offends the values and principles entrenched in the Constitution and as such expropriation without compensation falls outside the perimeter of Constitutionalism.

If there was any doubt why Afriforum has chosen to associate itself with this dispute, it will become clear what is at stake when this matter unfolds in Court.

It can already be discerned that the December gift to the Zimbabwean white farmers is also a disguised conundrum that has far reaching public policy implications.

Only time will tell. In the meantime, it is important to fasten seatbelts and let the matter be unpacked to its finality.

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