Update on December Judgment: Zimbabwean farmers Luke Tembani and 24 others v the President of the Republic of South Africa and others.
SADC Tribunal Rights Watch: Ben Freeth, Spokesperson and Advocate Willie Spies, legal adviser
14 January 2021
Last month the Gauteng High Court in Pretoria handed down judgment in a R2-billion damages claim against South Africa by 25 dispossessed Zimbabwean farmers, some of whom were South African citizens, arising from findings by the Constitutional Court in 2018.
The Constitutional Court had found there to have been a “conspiracy” related to a “stratagem” initiated by the Government of Zimbabwe to destroy, in bad faith, individual recourse to the regional human rights court, the SADC Tribunal, arising from Zimbabwe’s land seizure programme.
In its December judgment, the High Court first upheld the plaintiffs’ application for condonation (holding that their claims had not, as the President and SA Government had contended) prescribed, i.e. become irrecoverable due to the expiry of a three-year period.
The plaintiffs, it held, were quite entitled first to have declared invalid, as it was by the Constitutional Court, President Jacob Zuma’s assent to the suspension and then abolition of all right of access by individual SADC citizens to the Tribunal set up under the SADC Treaty.
The court went on to dismiss all but one of the defendants’ exceptions (legal defences intended to avert a trial) to the plaintiffs’ claims for compensation against South Africa for its participation in the conspiracy.
In respect of the single exception allowed – which the court erroneously presented in its judgment as two exceptions – the court upheld the SA Government’s contention that the claims must fail because it was not the claimants’ pleaded case that “only” President Zuma’s assent had caused the loss.
The claimants are seeking leave to appeal from the High Court against that ruling and they filed an application for leave to appeal this week (January 12). This points out that it was indeed not the claimants’ case that only President Zuma’s complicity caused their loss. Their case was that there was a conspiracy between Zimbabwe, South Africa and other SADC states acceding to what it called Zimbabwe’s “stratagem” and “masterplan”. The Constitutional Court has already found exactly that.
Nor (the plaintiffs contend in seeking to appeal the ruling) does it matter, as the High Court thought, that the SADC Treaty permits decisions by the Summit (the heads of state) to be taken by three-quarters of the leaders. The Summit has consistently applied consensus as the requirement – and did so here. The support by President Zuma for President Mugabe’s scheme was indeed, as a fact, needed for it to succeed.
The application also seeks leave to appeal against a second order: one that treated legal causation as a further basis for exception, when it was not (erroneously numbering it as a second ‘Exception 1’ in the order it made).
The court elsewhere in its judgment dismissed the separate exception which had contended that President Zuma had owed no legal duty to SADC citizens, only to SA citizens.
Yet it proceeded, as part of the single exception it upheld, to find that essentially the same kind of losses caused by the same conduct of President Zuma were irrecoverable, as a matter of ‘legal causation’ where they were suffered by SADC citizens who happened not to hold South African citizenship.
Speaking for the plaintiffs today, their attorney, Willie Spies said:
The plaintiffs seek leave to appeal because they believe that the Constitutional Court clearly held President Zuma to have plotted with President Mugabe, and some other SADC leaders, to destroy individual access to the region’s only international law and human rights Tribunal.
We believe there are reasonable prospects that the Supreme Court of Appeal will disagree with what the High Court has held on causation: its judgment, also on causation, delivered in relation to Covid-19 insurance in the same week supports that belief. And it is of great importance to all citizens of SADC to establish whether it is correct that, while President Zuma owed them a legal duty, when he breached that duty their devastating losses are as yet not recoverable.