JOHANNESBURG South Africas main opposition party, the Democratic Alliance (DA) this week lambasted that countrys justice minister Jeff Radebe, for his comment that he had requested a legal opinion on the reach of the SADC Treaty regarding land grabs in neighbouring Zimbabwe.
Jeff Radebe, who is South Africas Minister of Justice and Constitutional Development, is seeking legal opinion on the SADC Treaty and its related institutions in light of Harares continued disregard of the SADC Tribunals rulings with regard to Zimbabwean land grabs on two separate occasions.
He also wants to know about the enforceability of those rulings in both Zimbabwe and South Africa, as mandated under international law, but Wilmot James, the DAs Member of the SADC Parliamentary Forum on Monday demanded an explanation from Radebe.
We must ask what his underlying motives are. Is he trying to trump the SADC Tribunal and both domestic courts? Why does he wish to reassess the Tribunals powers? Is he aware of the fact that if South Africa is party to such a move, there will be an international legal uproar? I have written to the Minister outlining my concerns and requesting an explanation of how he intends to deal with the possible implications of his actions, said James.
The Government of Zimbabwe has repeatedly failed to comply with the rulings of the Southern African Development Communitys (SADC) Judicial Tribunal to take all measures to return land seized from South African farmers – Mike Campbell, Luis Fick and Richard Etheredge under the guise of land reform.
The Judicial Tribunal twice found the Government of Zimbabwe to be in contempt of its, but President Robert Mugabe has literally refused to co-operate, claiming that the ruling is against his efforts of addressing racial imbalances of the colonial era.
In a parliamentary question to Minister Radebe, I asked whether the SADC Justice Ministers considered the ongoing failure of the Government of Zimbabwe to comply with the judgment and orders of the Tribunal; the refusal of Zimbabwes High Court to register the Tribunals rulings and, finally, whether SADC Justice Ministers would resolve to bring a resolution of the issue to the SADC Heads of State,
added James.
It turns out that the SADC Justice Ministers met on the 27-31 August 2009 but could not arrive at a decision as there were divergent views on the legitimacy and enforceability of the Tribunals rulings. Radebes department prepared an opinion on whether the SADC Protocol on the Tribunal has come into force and, whether or not it has come into force in the Republic of Zimbabwe. I had not had sight of the opinion.
In his letter to Radebe on Monday, James wanted to know whether the SADC Ministers of Justice/Attorneys-General met as planned in Kinshasa April 26-30 2010, whether the legal opinion prepared by his Department on the failure of Zimbabwe to comply with the SADC Tribunals rulings was presented at the meeting and whether there were recommendations emanating from the meeting that will be presented to the forthcoming SADC Heads of State meeting in Windhoek this month.
The fact is that the Tribunal has held in a final ruling (there is no appeal under the SADC Treaty and Protocol) that it has jurisdiction over Zimbabwe and that the Protocol is binding on it; that J Patel in the Gremara High Court ruling on 25 January 2010 upheld the Protocol as a matter of Zimbabwe domestic law and that J Rabie did the same as a matter of South African law, both of which have not been subject to appeal.
As such, there should be little need for an opinion on the legal status of the Tribunal and the enforceability of its rulings. Minister Radebe should explain precisely how he will reconcile this fact with his actions.
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