farmers from expropriation of their property, South Africas SAPA news agency quoted one of that countrys top law firms as saying.
The agency said the law firm believed that there the bilateral agreement, which still has to be ratified by Zimbabwes Parliament to become effective, does not offer protection to investors and farmers who lost property before the trade pact was signed.
“The treaty offers South Africans with investments in Zimbabwe the best protection yet,” Werksmans Attorneys director Roger Wakefield told SAPA in a statement last week.
Wakefield added: “There is no doubt that this provision gives South African investors much more clout to protect their assets in Zimbabwe.” The treaty protected investors affected by expropriation after November 27 2009, the date on which the agreement was signed.
“Although it does not assist South Africans who have already lost investments in Zimbabwe, the Bilateral Investment Promotion and Protection Agreement does at least provide protection [in future].”
According to the treaty agreement, investments may not be nationalised or expropriated, except for public purposes, under due process of the law, on a non-discriminatory basis and for prompt, adequate and effective compensation.
“Secondly, any investor affected by expropriation will have the right to state their case in a court of law or other independent and impartial forum.”
It also gives investors the right to settle disputes with the government of the host country by turning to the Washington-based International Centre for the Settlement of Investment Disputes.
The Johannesburg High Court more than a week ago ordered the South African government to compensate Free State farmer Crawford von Abo for property seized from him in Zimbabwe.
Local authorities had failed to provide diplomatic protection when Mugabe’s government seized 11 of Von Abo’s farms in Zimbabwe.
Although damages had yet to be calculated, they could amount to R500m.
Von Abo, who began farming in Zimbabwe 50 years ago, was arrested for “trespassing” on his main farm in 1997. He spent time in a Zimbabwean jail as the then sole ruling party Zanu (PF) cracked down on white farmers and expropriated their land.
Wakefield said a bilateral treaty, legally binding on two governments, carried much more weight than other mechanisms, such as the SADC tribunal, “which have to date proved toothless in enforcing compensation orders”.
In November 2008, the tribunal ruled the Zimbabwean government had wrongfully removed 78 white farmers from their land. It ordered the government to compensate the farmers for their losses.
The Zimbabwean government however refused to comply, saying the tribunal had no authority over Zimbabwe. In September last year Zimbabwe formally withdrew from the tribunal’s jurisdiction.Post published in: Economy