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South Africa is ordered to undo termination of SADC Tribunal jurisdiction

07/01/19

The termination of individual access to the only international law and regional human rights adjudicator in the 15-member Southern African Development Community (SADC) has been struck down by a ruling of the Constitutional Court in South Africa.

Rejecting an appeal by the Presidency and Government of South Africa against a Full Bench judgment of the High Court in Pretoria, Chief Justice Mogoeng (writing for a unanimous court) held that the signature of South Africa’s then-President at the Victoria Falls Summit of SADC in 2014 to a Protocol to the SADC Treaty was unlawful.

The Court upheld the argument on behalf of Mr Luke Tembani and other commercial farmers in Zimbabwe, whose farms and equipment had been seized under its ‘land redistribution programme’, that the South African President, with nine other SADC heads of state, had been “a willing ally in ….crafti[ing] a strategy [and a ] scheme designed to ensure that the Tribunal would not function”.  He characterised this as a “masterplan…devised by the Summit at the instance of the Republic of Zimbabwe”. Consequently South Africa had not acted in good faith in its signing the Protocol. The Court ordered the Government of South Africa to convey to SADC its withdrawal of its signature to the Victoria Falls Protocol.

The SADC Tribunal had issued a series of awards in favour of the claimants in the period 2008-2010. The Zimbabwe Government had however defied the awards. The tribunal issued further enforcement and contempt orders. Proceedings by the claimants before the Zimbabwean High Court had resulted in a concession that the Tribunal had acted within jurisdiction, but the court refused the enforcement of the awards as “contrary to public policy”. The South African High Court, Supreme Court of Appeal and Constitutional Court however thereafter upheld the attachment of Zimbabwean Government property in South Africa in execution of costs orders. The move by SADC leaders to terminate individual access to the Tribunal then followed.

On 17 December 2018, immediately following the judgment of the Constitutional Court in Johannesburg, formal notice was served on the Presidency in Pretoria that claims for damages by the dispossessed farmers totalled US$137, 972, 392.

The judgment is here.

The  media summary is here.

Jeremy Gauntlett SC QC appeared for the claimants.