JOHANNESBURG - The Bilateral Investment Promotion and Protection Agreement (BIPPA) between Zimbabwe and South Africa, set to be signed on November 27 in Harare, excludes farms that have been expropriated during the chaotic "land reform" programme. South Africas Trade and Industry Minister, Rob Davies, has stated that the bilateral agreement with Zimbabwe would provide security for any South African investment in any sector, including agriculture, from now on.
244 South African farmers whose land was seized during the land invasions are threatening legal action against the South African government for excluding them from the agreement.
At 14h00 on Thursday 26 November, an application by lawyers representing AfriForum and Louis Fick, Vice President of the Commercial Farmers’ Union (Zimbabwe), to halt the signing of the BIPPA, will be heard by the High Court in Pretoria.
Attached, for information, is a 10-page legal opinion document on the proposed BIPPA produced by Advocate Jeremy Gauntlett SC for the Commercial Farmers’ Union.
In the introduction, Mr Gauntlett notes:
“Of significance is the fact that the BIPPA which is aimed at providing security of tenure to South African investments in Zimbabwe expressly excludes past claims arising from Zimbabwes post-2000 land seizure measures, despite the fact that such claims have been upheld by the relevant international court. The question for consideration is whether entering into a bilateral treaty which purports to exclude liability arising (the SADC Tribunal has held, in its final award on 28 November 2008) in terms of an existing multilateral treaty constitutes a breach of South Africas legal obligations. For the reasons provided below, we answer the question in the affirmative.”
In the conclusion, Mr Gauntlett notes:
“In our view, thus, if the Government of South African proceed to conclude the BIPPA and in terms thereof purports to immunise Zimbabwe from its international law liabilities, the South African government would act contrary to the principles of the SADC Treaty and other international instruments, and in violation of the South African Constitution, and may in law be interdicted against doing so. This is particularly so if, as must be inferred, it has negotiated the terms of the BIPPA without taking independent legal advice regarding its ability to do so in the light of the final SADC Tribunal award of November 2008, the Tribunals referral to the SADC Summit of June 2009, and the pending application next week in Harare to register the Tribunals award for enforcement under the domestic law of Zimbabwe.”
Post published in: Economy