26 November 2009

A South African court has ordered the government to protect the land rights of its citizens in Zimbabwe, as well as to respect the rulings of the human rights court of the Southern African Development Community (SADC).

The decision in the High Court in Pretoria comes after an urgent application was filed on behalf of South African farmers, whose right to their government's protection had been excluded in a proposed bilateral investment protection agreement (BIPPA) between South Africa and Zimbabwe.

The agreement, which is still to be made public, was set to only offer protection to South African investors in all areas, from the date of signing. Controversially, the South African Trade and Industry Minister admitted that the agreement would not include a 'retrospective' clause on land, therefore excluding protection on all South African owned land expropriated by the Zimbabwe government during the so-called land 'reform' programme.

The court application was brought forward by civil rights group AfriForum and more than 200 farmers, led by Louis Fick, a South African farmer in the middle of a land wrangle with Zimbabwe's deputy Reserve Bank Governor Edward Mashiringwani.

Fick is one of more than 70 farmers who were awarded legal protection of their land through SADC Tribunal last year. The Tribunal ruled that the farmers had been unlawfully deprived of their property and that the Zimbabwean government should restore their rights or compensate them. But the ruling has been completely ignored, and the Tribunal itself snubbed by the government, which has been charged with contempt.

The proposed BIPPA essentially meant that South Africa would be party to allowing the SADC ruling to be flouted by Zimbabwe, despite both countries being signatories to the SADC treaty. As a result, South Africa's reputation as a law-respecting country was on the line, as the agreement would effectively immunise Zimbabwe from facing penalty for sanctioning the illegal takeover of land.

The South Africa government on Thursday quickly reached a settlement with the farmers, giving assurances that it plans to respect and honour the SADC Tribunal's rulings and to protect victims of the unlawful land grab campaign still continuing in Zimbabwe. In court papers, the government's legal representatives wrote that the text of the BIPPA, which is still being kept secret, did not "purport to grant immunity to Zimbabwe for any human rights violations."

AfriForum's legal representative on Thursday called the ruling a 'victory', explaining the court order "opens the way for registering the SADC Tribunal's judgments in South Africa and to pursue other remedies."

There are remaining concerns however, as the actual terms of the BIPPA, which is still to be signed on Friday in Harare, have not yet been made public. South Africa's Trade and Industry minister has already revealed that the agreement with Zimbabwe would not have been possible with a 'retrospective' clause, and it is unlikely the agreement will have changed in any way. The South African government at the same time has made no move in the past to protect its citizens in Zimbabwe.

Last year, a Pretoria judge took the South African government to task for not protecting the rights of a citizen whose farm was taken over in the so-called land 'reform' programme.

Free State farmer Crawford von Abo won his court battle against the then President Thabo Mbeki, the Foreign Minister Nkosazana Dlamini-Zuma and the Trade and Industry Minister Mandisi Mpahlwa, to get compensation from the South African government for not acting on his behalf to protect his rights to his land in Zimbabwe.

Judge Bill Prinsloo noted that the government's excuses for lack of action over the previous six years had been 'feeble' and pointed out that Germany, France and Denmark had intervened successfully on behalf of their citizens who owned agricultural land in Zimbabwe.

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