6 May 2024
The Constitutional Court has ruled that a R2-billion claim against the South African government for Zimbabwean land grabs has prescribed. Archive photo: Ciaran Ryan
The South African government has succeeded with a Constitutional Court challenge that has put paid to what was a R2-billion damages claim against it by 25 Zimbabwean farmers.
The court ruled that the claims, founded on former President Jacob Zuma’s siding with former Zimbabwean president Robert Mgubabe to dissolve the Southern African Development Community (SADC) tribunal, had become prescribed, that is legally “out of time”.
The High Court previously found that Zuma had acted unlawfully and unconstitutionally when he and other heads of state scrapped the human rights tribunal that was dealing with claims relating to Zimbabwe’s controversial land redistribution programme.
The High Court ruled that it was an intentional frustration of the right of access to justice.
This was ratified by the Constitutional Court which, the farmers said, was confirmation of an “illegal scheme” by co-conspirators intent on preventing any damages claims arising from Mugabe’s land grab 21 years ago.
But the presidency, when faced with the resultant lawsuits and requests for documentation relating to Zuma’s decision, went back to court, raising pre-trial exceptions, including a claim that the matters had prescribed.
In response, the farmers (some of whom have died in the interim) said the place for these arguments to be heard was at trial.
They accused the presidency of seeking another bite at the cherry and that leave to appeal should not be granted.
They said the application was merely an attempt to abort a trial prior to its commencement. And this was inconsistent with the apex court’s case law and fundamental constitutional principles and values.
But on Monday, the court unanimously found in favour of the government, setting aside previous orders by the High Court and the Supreme Court of Appeal, which had found in favour of the farmers on the prescription issue.
In the ruling, Judge Owen Rogers, writing for the court, said the main issues before the court were whether the debts which the farmers sought to claim had prescribed; and whether the government/presidency had a legal duty to prevent the damages they suffered or that it was Zuma’s conduct that was the factual or legal cause of the damages.
Referring to the background, Judge Rogers said 79 claims had been adjudicated by the tribunal, which in November 2008 found that they had been discriminated against on the grounds of race, and they were due fair compensation.
But Zimbabwe did not comply with the decision. Confiscations and evictions continued.
After being denied access to the courts in Zimbabwe, the farmers turned to the South African courts and secured a ruling by the apex court that both Zimbabwe and South Africa had a duty to assist in the execution of the Tribunal’s decision.
In 2014, the SADC summit, with Zuma’s support, abolished the right of private parties to bring disputes before the tribunal in terms of a “2014 protocol”.
This led to further court action and an ultimate finding by the Constitutional Court in 2018, that Zuma’s signing of the protocol was unconstitutional.
On the merits in that ruling, the court said Zimbabwe had not wanted to comply with unfavourable rulings of the tribunal “and it crafted a strategy that would be fatal to the possibility of the tribunal ever embarrassing it again”.
“In its efforts to paralyse the tribunal, Zimbabwe had a willing ally in South Africa, represented by our president.”
The court directed Zuma to withdraw his signature.
The farmers then instituted damages claims against the South African government.
The government objected, saying the claims had prescribed.
The farmers argued that they had not prescribed as they could only submit their claims once the Constitutional Court had delivered its 2018 ruling.
However, the government said that that prescription began running in 2014, when Zuma signed the protocol.
The government also said the particulars of claim were “vague” and raised exceptions, including that Zuma’s conduct was not alleged to have been dishonest or fraudulent, and it had not been spelt out on what basis South Africa had a legal duty to foreigners.
On the issue of whether leave to appeal should be granted, Justice Rogers said prospects of success were an important consideration.
“Such prospects exist here. Since a trial is likely to impose significant burdens in time and costs, it is desirable to dispose of these questions upfront if this can be properly done,” he said.
On the issue of prescription, Justice Rogers said the debts, which were the subject of the action, “fell due” by not later than August 2014.
This means that by August 2017, three years later, the claims would have prescribed. The farmers would have had to have filed their claims before then to succeed.
This meant they had become prescribed and, on this basis, there was no need for the court to consider the exceptions.
Justice Rogers ordered each party to bear its own costs.
“The proceedings were not frivolous or otherwise manifestly inappropriate. One cannot but feel sympathy for the treatment to which they were allegedly subjected in Zimbabwe,” he said.
Barend Uys, Afriforum’s head of intercultural relations and cooperation, said the ruling on a legal technicality was not the end of the road for the Zimbabwean farmers.
“Afriforum and the Southern African Agri Initiative are already considering several follow-up cases to ensure just and equitable compensation for victims.
“Courts in Europe and the USA have recently awarded compensation and legal costs against the government of Zimbabwe, setting precedents in international law and leaving Zimbabwean state assets vulnerable to seizure,” he said.
He said the judgment did not alter the previous ruling of the apex court that the South African government had acted unlawfully and irrationally when it conspired with other heads of states of SADC by taking part in the suspension of the SADC Tribunal, closing the doors of justice to more than 400-million citizens of SADC countries.
Uys said President Cyril Ramaphose had complied with the order to withdraw South Africa’s signature from the 2014 protocol and pressure was mounting in the international arena and the SADC region for the restoration of the tribunal.