15 August 2010

Statement by SADC Tribunal Rights Watch

STATEMENT

Attorney-General Johannes Tomana misleads NewsDay readers

South Africa’s North Gauteng High Court ruled on Wednesday that the Government of Zimbabwe is responsible for the wasted costs of an urgent court application erroneously brought against three Zimbabwean farmers and AfriForum.

This ruling has been inaccurately reported on by NewsDay in an article titled “Government unmoved by SA land ruling”, published on August 13.

The journalist quoted Attorney-General Johannes Tomana extensively but failed to contact the Zimbabwean farmers concerned or their legal representative, Willie Spies of AfriForum, for comment.

SADC Tribunal Rights Watch responds to the article, and to the statements by the Attorney-General Tomana as follows:

The South African court order did not “oblige Harare to pay staggering amounts of money demanded by three dispossessed white farmers as reparation for delayed compensation”. The ruling was for legal costs that had been incurred unnecessarily by the farmers.

The Zimbabwe Government’s error was that it had lodged the urgent application because it believed an auction of Zimbabwe Government-owned properties in Cape Town, scheduled for 27 July and 10 August 2010, had been organised by AfriForm and the farmers.

This was in fact not the case. Although the farmers were the first to attach the properties via AfriForum, the auctions were in fact organised by German Banking Group KFW Bank Gruppe. The bank attached the properties in order to collect a judgment debt of €40m (about R400m).

AfriForum attached the properties after the SADC Tribunal in Windhoek had issued a costs award (or “taxation award” as it is known in legal terminology) in favour of the farmers (the complainants).

The Tribunal ruled that the Zimbabwe government was “in breach, and contempt, of the decision of the Tribunal of 28 November 2008 in the matter of Mike Campbell and 78 Others v The Republic of Zimbabwe (Case No SADC (T) 02/07).

The Tribunal ruled that the costs award was to be agreed to by both parties and asked the Zimbabwe Government to come to an agreement with the complainants regarding their senior advocates’ legal fees and travel costs.

However, some two days before the taxation day, the Deputy Attorney-General of Zimbabwe handed the Tribunal a letter from the Minister of Justice of Zimbabwe challenging the jurisdiction of the SADC Tribunal which had already been covered in the main Judgment which is final and binding.

The Tribunal therefore proceeded with awarding costs based on the bill of costs presented by the farmers’ legal representative in Windhoek. The costs award, stamped by the SADC Tribunal, was for US$5,816.47 or R112,780 13.

A further costs order related to the Government of Zimbabwe being found to be in contempt of the Tribunal on 15 July will be heard on 23 August.

The costs award of US$5,816.45, awarded purely for legal costs, is neither a “staggering amount”, nor was it awarded for “delayed compensation”, as the article claims in the opening paragraph.

Furthermore, it cannot be described as “security costs”.

The article reported that Attorney-General Tomana said government would appeal the ruling, arguing the “security costs” were too much.

The journalist went on to quote Mr Tomana as saying that “the three farmers are basing their argument on the judgement by the SADC Tribunal, which reverses the land reform.”

This is also not correct. The SADC Tribunal ruled that Zimbabwe’s land reform programme had not been in accordance of the rule of law and the human rights standards laid down in the SADC Treaty.

It also ruled that Zimbabwe had violated the Treaty by failing to pay the dispossessed farmers fair compensation.

According to NewsDay, Mr Tomana said the three farmers were offered money, but refused to accept it.

“Accepting the money would mean accepting acquisition of their farms. What the three farmers want is not money, but for the government to return the farms,” Mr Tomana continued.

We refute Mr Tomana’s claim that Louis Fick, Mike Campbell and Richard Etheredge were offered money – either for their farms or for improvements made on the land.

In fact, there is no money for compensation in the government’s 2010 budget, nor in any other budgets in recent years.

The farmers want the rule of law to be upheld in Zimbabwe and for the rulings of the SADC Tribunal to be respected.

Since being forced off their land, the farmers have no income and no pensions. Both Campbell and Etheredge are elderly and Campbell, as a result of the vicious beating he sustained in June 2008, is in poor health.

Ironically, even Constitutional Amendment Number 17 [not Constitutional Amendment 18 as the journalist erroneously reported], which converted all land acquired during the fast-track land reform programme into state property without any right to challenge the validity of acquisitions in any court, gave dispossessed farmers a right to claim compensation for improvements, is not being honoured by the Zimbabwe Government.

Until recently, there hasn’t even been a compensation committee in place, despite lawyers’ letters having been written over several years asking who constituted Zimbabwe’s compensation committee.

The journalist’s statement that a majority of the farmers have not been compensated is misleading. The reality is that considerably less than 1 percent of farmers have been compensated since the year 2000; and in recent years none of the dispossessed farmers have received compensation.

If SADC’s recognition of the ruling made by its Tribunal has given the affected farmers an opportunity to claim compensation plus the costs of delayed reparations as the article indicates, this is most encouraging.

At this stage however, the only beneficiary of the Zimbabwe Government-owned properties is the German Bank.

The answer to Mr Tomana’s question regarding the legality of selling state-owned properties is that they can be attached and sold to cover legal and other costs – unless they are covered by the Vienna Convention which requires host countries to protect diplomatic property and personnel.

We request that NewsDay prints this statement in full in order to correct the serious misconceptions created by the Mr Tomana and the inaccurate reporting of the NewsDay journalist.

ENDS

Ben Freeth
Spokesman for SADC Tribunal Rights Watch
Cell: +263 913 929 138
E-mail: freeth@bsatt.com