SA top court dismisses Zimbabwe’s appeal in dispossessed farmers’ case

By Ernest Mabuza

SOUTH Africa’s Constitutional Court on Thursday dismissed an appeal by Zimbabwe to rescind a costs order against it made by the Southern African Development Community (Sadc) Tribunal and enforced by a South African court. 

This case began in 2007 when three Zimbabwean farmers challenged the country’s land-reform policy before the tribunal, asking for a ruling that the dispossession of their farms by their government without compensation was unlawful.

The tribunal — which hears cases that citizens of Sadc countries bring against their governments after all domestic legal avenues have been exhausted — found in favour of the farmers and ordered Zimbabwe to pay compensation for the confiscated farms.

When Zimbabwe failed to comply with the compensation order, the farmers approached the tribunal for further relief. It found Zimbabwe guilty of contempt and ordered it to pay the costs of the applicants — another order that Zimbabwe ignored.

Next the farmers approached the courts in South Africa. They applied for an order allowing them to serve the notice of motion for the registration of the costs order in South Africa. That order was granted in March 2010.

A year later, the farmers’ lawyers attached a property owned by the Zimbabwean government in Kenilworth, Cape Town, worth just more than R2m, to cover the costs order granted by the tribunal.

Zimbabwe applied to the high court to have both the costs order of the tribunal and the writ by the court rescinded. This application was denied. Its appeal to the Supreme Court of Appeal was also dismissed.

In its judgment on Thursday, the Constitutional Court dismissed Zimbabwe’s application for the rescission of the writ.

In a majority judgment, Chief Justice Mogoeng Mogoeng said article 32 of the Sadc Tribunal protocol obliged member states to facilitate the enforcement of judgments and orders of the tribunal.

“It also makes these decisions binding and enforceable within the territories of the states concerned,” he said.

Justice Mogoeng said subject to compliance with the law on the enforcement of foreign judgments in force in South Africa, Zimbabwe was duty-bound to act in accordance with the provisions of article 32.

He also developed the common law on the enforcement of foreign judgments and orders to apply to those of the tribunal. He said the South African common law on the enforcement of foreign civil judgments had, thus far, been developed to provide only for the execution of judgments made by domestic courts of a foreign state.

Justice Mogoeng said the common law did not apply to the enforcement of judgments of the tribunal and there was no other legal provision for the enforcement of such decisions in South Africa.

“This then gives rise to the need to develop the common law of South Africa to pave the way for the enforcement of judgments or orders made by the tribunal. This development of the common law extends to the enforcement of judgments and orders of international courts or tribunals, based on international agreements that are binding on South Africa,” he said.

In a separate judgment, Justice Chris Jafta said he would have dismissed the application for leave to appeal on the basis that it was not in the interest of justice to grant leave.

“In essence, therefore, this matter is about rescission of the orders granted by the high court with Zimbabwe’s deliberate indifference,” he said.

Justice Jafta said that in its oral and written argument before the Constitutional Court, the Zimbabwean government had failed to address the question of whether the requirements for rescission of a writ had been met. Business Day