27 November 2009

Johannesburg — A RULING in the North Gauteng High Court yesterday paved the way for the signing today of a historic bilateral investment protection treaty between Zimbabwe and SA.

The ruling, which confirmed a settlement reached between the Department of Trade and Industry and farmer Louis Fick, binds SA's government to honouring the terms of a landmark property rights ruling by the Southern African Development Community (Sadc) Tribunal.

A controversial clause in the bilateral agreement, whose text has been kept tightly under wraps, excluded historical claims arising from Zimbabwe's controversial land reforms, Trade and Industry Minister Rob Davies confirmed this month. Tenure rights of all existing and future investments would be secured.

Business Unity SA (Busa) said yesterday it would not participate in today's signing ceremony in Harare because there had been no formal consultation on the treaty between organised business and SA's government.

Secrecy surrounding the agreement created uncertainties "that are particularly worr isome for the business community", Busa said.

"For such a treaty to act as a catalyst for increased levels of investment, the private sector needs to be comfortable with all aspects of the text."

Busa would assess implications for South African investors once the text became publicly available.

Lobby group AfriForum brought an urgent application on Fick's behalf to interdict today's signing ceremony, arguing that the exclusion clause would in effect legalise past land grabs and supercede the Sadc Tribunal ruling.

In a unanimous decision confirmed in June, the Sadc Tribunal ruled that Zimbabwe's 2005 constitutional amendment that allowed the state to seize land from white farmers without compensation violated international law.

The government was ordered to pay fair compensation to farmers already evicted, and to protect property rights of those still on their farms.

Zimbabwe does not recognise the decision.

Yesterday's ruling means that the bilateral treaty signed today cannot prevent South African farmers in Zimbabwe from seeking relief from international courts for past illegal land acquisitions, as was initially feared.

In the ruling, SA's government gave South African citizens the assurance that the bilateral treaty "does not affect existing rights or remedies in terms of other sources of international law".

"The (South African) government respects and undertakes to honour (the tribunal's decision) in terms of its own obligations in terms of the Sadc Treaty," the ruling said.

"We are very pleased with this win-win result," said AfriForum's Willie Spies.

"We have spared the South African government the embarrassment of not being able to sign the treaty, and won a victory for the rule of law."

Fick, a South African citizen farming near Chinhoyi in eastern Zimbabwe who was a co- applicant to the Sadc Tribunal case, faces up to two years in jail for defying an order to vacate his farm. "This is a big step forward in getting our rights protected in Zimbabwe," he said outside the courtroom yesterday.

"For nine years we've been trying to get the (South African) government to step up to the plate. The land grabs never stopped in Zimbabwe, but now we will engage our embassy to step in and protect our rights."

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