Disowned farmers Louis Fick, Richard Etheredge and the late Michael Campbell, assisted by civil rights group AfriForum, in February last year scored a legal victory when the High Court in Pretoria registered a ruling of a Southern African Development Community Tribunal (SADC) that Zimbabwe’s land reform programme was racist and unlawful.
The registration of the SADC ruling opened the way for the farmers to attach Zimbabwean government-owned properties in South Africa to pay for cost orders granted in their favour.
The farmers also obtained a court order so that papers in its registration application could be served on Zimbabwean officials in Harare. They obtained four writs of attachment against properties owned by Zimbabwe’s government in South Africa.
The attachment of the properties prompted Zimbabwe to launch applications for the rescission of the judgements, claiming diplomatic immunity. All three farmers were violently expelled from their farms. Campbell, who was severely beaten up by farm invaders, died aged 78 earlier this month.
Lawyers for the Zimbabwe government, Patric Mtshaulana SC, argued that a South African court did not have jurisdiction to register the SADC rulings, on the basis of sovereignty, and in terms of the Foreign States Immunity Act. He said although Zimbabwe had given notice of its intention to oppose the registration application, it did not take part “as a final expression of claiming its immunity”.
He said the High Court in Pretoria should have confirmed Zimbabwe’s privilege by refusing to adjudicate the matter, which was also not served properly on the government. According to Mtshaulana, it was “not appropriate” for the court to have granted the order, and was premature as Zimbabwe had raised the question of jurisdiction with the SADC (Zimbabwe felt SADC rulings did not apply to it).
According to SAPA, Jeremy Gauntlett, SC, appearing for the farmers, described Zimbabwe’s application as “an out-of-time, outside-the-rules-appeal-in-drag”. Gauntlet said Zimbabwe had opposed the application, but then withdrew and allowed matters to take their course, and should not now be allowed to nitpick through court papers in an attempt to appeal.
“They did not think their properties and aircraft were at risk…This application is a misconceived tactic by a cynical and confused litigant,” he said.
Gauntlett argued that Zimbabwe’s attempts to rely on sovereignty ignored the fact that Zimbabwe, like all SADC members, had consented in advance to awards of the SADC Tribunal being registered in SADC courts. Judge Roger Claassen reserved judgement.Post published in: Politics