Zimbabwe to ignore SA court rulings
01/03/2013 00:00:00
by Staff Reporter I SAPA
ZIMBABWE will ignore the rulings of South African courts hearing challenges to the country’s reforms by some white former commercial farmers, President Robert Mugabe has said.
More than 4,000 white commercial farmers have lost their farms since 2000 when Zimbabwe launched a land reform programme Mugabe said was needed to address historic imbalances in land distribution as well as economically empower the country’s black majority.
But 78 of the ex-farmers are challenging the process in South Africa’s courts.
However, Mugabe told state media Friday that Zimbabwe would not be bound by the decisions of the courts.
“In South Africa they have certain elements outside the ANC and cannot be controlled by the ANC and these are elements that once upon a time where here and were unseated by us and have realised that in South Africa you can go to court and get judgements,” he said
“But let them have those judgments, we will simply ignore them, South African courts have no jurisdiction over us so we will simply ignore them.”
South Africa's constitutional court reserved judgment on Thursday on whether local courts could enforce rulings made by the Southern African Development Community (SADC) tribunal against Zimbabwe.
The case involves 78 Zimbabwean farmers who lost their farms during the land reforms and successfully petitioned the SADC Tribunal in 2007 for compensation.
Zimbabwean officials ignored two of the tribunal's orders resulting in the farmers approaching the North Gauteng High Court in Pretoria to have the orders enforced in South Africa.
The High Court ordered the seizure of several Cape Town properties which were owned by the Zimbabwean government.
Zimbabwe approached the North Gauteng High Court in Pretoria to have the ruling revoked. The application was denied. The country then asked the Supreme Court of Appeal to intervene. Their application was again dismissed.
But, in its application to the Constitutional Court, Zimbabwe argued that protocol did not allow for a judgment obtained against Zimbabwe to be enforced in South Africa.
Meanwhile, AfriForum lawyer Willie Spies expressed his satisfaction with the course of the trial.
"If the appeal by Zimbabwe is dismissed, international legal history will be made, as the planned sale will be the first sale in execution of property belonging to a state that had been found guilty of gross human rights violations," he said.
Labels: AFRIFORUM, COURTS, LAND REFORM, ROBERT MUGABE
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Farmers group stops SA chopper donation
25/01/2013 00:00:00
by SAPA
THE North Gauteng High Court in Pretoria has granted an order to freeze the delivery of South African helicopters to the Zimbabwean military, lobby group AfriForum said on Friday.
"An urgent interim court order was awarded to AfriForum late this afternoon by the North Gauteng High Court to prevent delivery of Alouette III Air Force helicopters by the SA National Defence Force to the Zimbabwean army.
"The interim order shall stand pending the finalisation of the main application by 19 February 2013," said AfriForum's legal representative Willie Spies.
AfriForum made the urgent application to the court on Friday after the news about the donation to the Zimbabwean government broke.
Last week, AfriForum's legal team presented letters on the matter to the Minister of Defence Nosiviwe Mapisa-Nqakula, as well as the Minister of Justice, Jeff Radebe, who is also chairperson of the national conventional arms control committee.
The letter were written after rumours surfaced that the SANDF had decided to donate its entire fleet of used Alouette helicopters to Zimbabwe.
"The ministers were given seven days to react to the letters, but no reaction had been received by close of business yesterday."
Spies said while the two ministers declined to react to the letters delivered to them, their spokesperson confirmed to Mail & Guardian that arrangements for the delivery of the helicopters had been finalised and that the delivery would take place shortly.
"We have also informed the acting French Ambassador to South Africa in writing of the potential risk for his country, in that France may be contravening the arms embargo against Zimbabwe, as imposed by the European Union, as the South African government will now be donating imported French helicopter parts to Zimbabwe," Spies said.
He said according to the National Conventional Arms Control Act of 2002, the National Conventional Arms Control Committee must consider certain principles before the sale or delivery of military equipment to another country can be authorised.
"These principles include, inter alia, the human rights record of the particular country."
The National Director of Public Prosecutions was recently ordered by the North Gauteng Pretoria to investigate certain offences against humanity committed by Zimbabwean military officers, he said.
Spies said indications were that the Zimbabwean army was enhancing its visibility and mobility in anticipation of the national elections scheduled to take place later this year.
Labels: AFRIFORUM, ARMED FORCES, SANCTIONS
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Zimbabwe asks ANC to block property auction
20/09/2012 00:00:00
by Staff Reporter
ZIMBABWE will ask South Africa’s ruling African National Congress to take a “political decision” to stop displaced white farmers from seizing its properties, a minister said on Thursday.
South Africa’s Supreme Court dismissed an appeal by Zimbabwe against a decision of the Johannesburg High Court to register and enforce a 2008 judgement of the SADC Tribunal which ruled that the land reform programme was “racist and illegal” – clearing the way for white farmers to press for compensation.
The 77 white farmers had gone on to attach a Cape Town property owned by Zimbabwe – which was not covered by diplomatic immunity – with the intention of selling it.
Zimbabwe has always said it did not recognise the SADC Tribunal’s rulings because it did not ratify its founding treaty. The Tribunal has since been abolished.
Presidential Affairs Minister Didymus Mutasa said: “What they (farmers) are fighting is not about land, but to trouble the government of Zimbabwe.
“After this judgment, which is legal, we should let it go and we speak to the ANC [African National Congress] and take a political decision. I hope that is possible.”
Advocate Martin Dinha, who was part of Zimbabwe’s legal team, said suggested the decision of the South African Supreme Court was racist.
“South Africa’s judiciary is not yet liberated from apartheid; it has cosmetic liberation. South Africa remains a colony of white Rhodesians and apartheid,” charged Dinha, who is also the Mashonaland Central governor.
He added: “Notwithstanding attempts by elements of the Rhodesian Front to derail the land reform programme, the programme is totally irreversible.
“No country has jurisdiction over another. Zimbabwe is a sovereign state.”
He said Zimbabwe fully expected South Africa to take political steps to stop any further seizures of Zimbabwean properties.
“South Africa must be careful. They must respect the sovereignty of Zimbabwe. They have properties here and given that there are unspeakable abuses that were committed during colonialism and property was damaged, nothing stops us from seeking compensatory damages here and attaching those properties.”
Willie Spies, a lawyer for the white farmers, called unanimous decision by the Supreme Court a “a great success ... a symbolic victory that makes it possible for the government of Zimbabwe to be effectively punished.”
Spies, attorney for South African rights group AfriForum and for many Zimbabwean farmers, said the dismissal will bring solace “to the many Zimbabweans who affected by the atrocities.”
He added: “I think it’s probably the first time in legal history internationally that a judicial failure in execution of property will go on after a country is found to be in contravention of certain human rights laws. We’re making legal history.”
Labels: AFRIFORUM, APARTHEID, DIDYMUS MUTASA, LAND REFORM, MARTIN DINHA
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DA takes on Lamola over land reform comments
22 Jun 2012 15:31 - Sapa
DA MPL Anthony Benadie says criminal charges will be laid against ANC Youth League deputy president Ronald Lamola over his comments on land reform. He said he would lay charges of incitement to violence against Lamola on Sunday at 9.30am, at the Joubert Street police station in Middelburg.
“The recklessness of this statement at a time when a high number of violent crimes are taking place on Mpumalanga farms cannot be tolerated,” Benadie said in a statement.
“Mr Lamola obviously wants to carry on where Julius Malema left off. It would do him good to learn his lesson sooner rather than later,” said Benadie.
Lamola called for the expropriation of land without compensation at the Durban University of Technology on Tuesday.
“We need an act as forceful as war to bring it [the land] back to the Africans,” he said.
The Freedom Front Plus also condemned the remarks, saying they were creating conflict and polarisation in South Africa.
“The silence of the senior ANC leadership, especially President [Jacob] Zuma, about this is very disconcerting and makes the ANC an accomplice to this incitement to violence,” spokesperson Pieter Groenewald said in a statement.
“The farmers have no reason to apologise for possessing their land and have always fed the people of this country.”
[Actually, they stole the land under apartheid and colonialism, and made 'the people of this country' work for free for well over a century. The notion that 'they fed the nation' with stolen land, and that this would by implication be 'enough compensation' of course is as arrogant as it is desperate. - MrK]
Groenewald said some communities had resorted to taking the law into their own hands by executing criminals and government should not be surprised if the same happened as a result of farm murders.
The youth league is taking its views on land appropriation to the ANC’s national policy conference in Midrand next week.
Earlier this week, civil rights lobby group AfriForum bemoaned Lamola’s remarks.
Deputy CEO Ernst Roets said Lamola had blood on his hands.
“For as long as the ANC watches on while farmers are being killed and hate speech is rampant in its ranks, the ANC, too, has blood on its hands,” said Roets.
In a statement on Friday the youth league said it was meeting with AfriForum to discuss its stance on land reform.
“The meeting is expected to speak to a future platform for co-existence and sharing of land, underpinned by urgent, decisive, and radical economic transformation, to benefit South Africa’s black majority,” the league said.
According to a report, Henry Geldenhuys, deputy president of the Transvaal Agricultural Union, said Lamola was inciting violence.
“There’s no option left for the farmers but to prepare for a war.”
Hanno van Rensburg, son of murdered farmer Johan van Rensburg (77) blamed the youth league for Wednesday’s crime in which his mother Gloudien (65) was also critically wounded, according to a Beeld newspaper report.
“The ANC Youth League say they want to take our land by violent means and declare war.
If they want war, they must come. I’ll fucking shoot them. My family’s blood has been spilt on this land,” van Rensburg was quoted as saying.
- Sapa
Labels: AFRIFORUM, LAND REFORM, SOUTH AFRICA
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South Africa braced for ANCYL long march
26/10/2011 00:00:00
by Sapa
SECURITY will be stepped up on Thursday ahead of what is expected to be one of the biggest anti-poverty protests since democracy came to South Africa in 1994.
The ruling party's youth wing says it has mobilised 5,000 young people to march from South Africa's economic capital, Johannesburg, to the presidential headquarters in Pretoria.
"On Thursday and Friday the ANC (African National Congress) Youth League will lead mass protests of the underemployed and unemployed youth, the landless, the homeless, informal settlement dwellers and those aspiring to quality education and decent lives," ANC Youth League president Julius Malema wrote in an open letter.
According to the government's national planning commission, South Africa has witnessed a rise in unemployment since the political transition in 1994. The national unemployment rate is 25.7% and according to a survey conducted by the South African Institute of Race Relations, youth unemployment is double that, at 51%.
The marchers will walk from Beyers Naude Square to the Chamber of Mines in Johannesburg, the Johannesburg Stock Exchange in Sandton, and then to Pretoria.
A spokesman for South African President Jacob Zuma said he had granted permission for the march, provided the ANCYL took full responsibility for the actions of participants.
"The presidency will be available to accept the memorandum from the leaders of the march on Friday," spokesperson Harold Maloka said.
The Youth League said there would be 1,000 marshals, 500 police officers as well as private security company members to ensure the march was peaceful.
The mass action could test the support base of ANCYL president Julius Malema, analysts said on Wednesday.
Malema has denied the "economic freedom youth mass action" march was meant to undermine the African National Congress, but not everyone agrees.
"What we have in this situation is someone like [Tokyo] Sexwale testing his support for next year," said political analyst Steven Friedman.
"If it [support for Malema] all goes wrong, he can very easily distance himself from it, and he won't get identified. But if it goes right, it will help him."
Sexwale has testified in Malema's defence at an ANC disciplinary hearing where Malema and other ANC Youth League leaders face charges of bringing the ruling party into disrepute.
Aubrey Matshiqi, political analyst at the Centre for Policy Studies, said he would not go as far as to say that this was a make-or-break week for Malema.
However, he said he did not doubt that the ANCYL march was motivated by a multiplicity of political motivations.
Malema had taken his battle against the ruling party's leadership outside of the ANC, which could have implications on his strategy, said Matshiqi.
Political issues were being turned into national issues.
"The fact that the SACP [SA Communist Party] have called on people to boycott the marches has also turned it into a contest between the ANCYL and the SACP, and Blade Nzimande and Julius Malema," said Matshiqi.
"The size of the march will determine who has the most support, Nzimande or Malema."
Last week, Nzimande urged members of the ANCYL not to participate saying that the protest was being used to undermine the authority of the ANC and government.
"Do not allow yourselves to be used by people with agendas that are not in your interest," he said.
Malema has insisted that the ANC did not see the march as an attack on its top brass.
"The leadership doesn't see it like that and they say that nothing is wrong with the march, as long as it is successful and peaceful," he told reporters in Johannesburg this week.
The ANC said on Wednesday it supported the rights of the ANCYL to march for economic freedom.
Secretary general Gwede Mantashe told reporters in Johannesburg the march was not against the ANC government and it was not linking it to the party's 2012 elective conference.
Ebrahim Fakir, another political analyst, said he felt that Malema's political motivations were a side issue.
"This [the marches] being a test of support is probably true but what is the substance of the issues the ANC Youth League are talking about?" he said.
“This may well be a test... in view of the succession battle but the real test is the test of the appetite of society and especially the wealthy, influential and the socially powerful sectors of society and what their appetite is for serious thinking and rethinking about an inclusive economy and a more transformed economy," said Fakir.
He said the ANCYL were standing for the right thing, but he did not think the nationalisation of mines and land expropriation without compensation would necessarily work.
Fakir said the youth league had missed the mark because there was no such thing as "economic freedom".
"You can't wake up tomorrow and decide you want a flat in Camps Bay [affluent area in Cape Town]... that is economic freedom and no one has that," said Fakir.
"We talking about economic empowerment... The issues are real and substantial and we need to look at it as that," he said.
"Yes, 2012 is the only game in town politically but if we just reduce everything to 2012 we are going to lose the real debate."
Support for the mass action has been divided.
The National Youth Development Agency, the Congress of SA Trade Unions, the SA Municipal Workers' Union, the SA Students' Congress, Congress of the People Youth Movement and National Union of Metalworkers of SA were supporting the ANCYL's march.
Not supporting the action, was lobby group AfriForum, the Young Communist League, the SA Communist Party and the Communication Workers Union.
Malema: Keep walking, comrades
NICKOLAUS BAUER AND SAPA JOHANNESBURG, SOUTH AFRICA - Oct 27 2011 17:04
The ANC Youth League march for economic freedom has made slow progress towards the Johannesburg Stock Exchange in Sandton.
After departing the Chamber of Mines at 12.30pm the approximately 3 000-strong crowd had only reached Rosebank by 4pm.
The march has been a sombre one, barring some tempers flaring as supporters fought over bottled water lined up along the road by the league.
Malema calmed the crowd on several occassions, encouraging them to remain patient.
"We will get there, comrades, we are marching to the home of white monopoly capital and we will get there," he said.
Demonstrators have remained steadfast as many declared their toil and sweat spent on the march signified their push for economic freedom.
"We know it's not going to be given to us on a silver platter -- this is what its all about. If we want change, it's going to be a long struggle," a marcher identifying himself only as Tshepang told the Mail & Guardian.
Several marchers engaged with journalists along the way, with Tshipa Sithole telling the M&G the march epitomises how he feels.
"You see we must make things equal -- this is about sharing 50/50. I don't want everything, I just want to be able to live a life like everyone else. We must work together to make South Africa a better place," he said.
Emergency services were yet to report any incidences of serious injury barring several cases of heat stroke as marchers made their way from the Johannesburg city centre to Sandton.
Malema seemed remarkably reserved in his handling of tense situations during the march. As the procession stopped to rest on Empire Road earlier in the day, he scolded a group of schoolchildren who attempted joined the march.
"Comrades and police: Tell those children to go home, they don't belong here. They must go home and study," he said.
Tired
The marchers' spirits started flagging just after 2pm as they entered Oxford Road in Killarney.
They stopped to wait for a water tanker as several people were dehydrated and at least five people had fainted.
The marchers were no longer singing and dancing, but shuffling along in the heat.
Some of the placards carried by marchers read: "The real freedom is economic not parliamentary. Free my people."
Another with slain Libyan leader Muammar Gaddafi's picture read: "We salute anti-imperialist martyr Gaddafi".
Others read: "90% of the economy is still in the hands of the minority" and "Malema we must stand by you through thick and thin".
Juice and water was handed out as marchers reached the Rosebank Zone, and supporters resumed singing and dancing.
Gauteng police spokesperson Lt-Col Lungelo Dlamini said the march had been peaceful so far.
"There have been no disruptions since the march started. Everything is peaceful."
Police and a private security company hired by the youth league were monitoring the situation.
Hundreds of spectators littered the route to catch a peek of Malema and other youth league leaders.
"This is so cool! I never saw something like this before, thse guys are marching for their freedom it's so awesome," said 17-year-old Lindsay Thorpe, as she snapped images of the procession with her cell phone.
Even comedian Joey Rasdien came out to see what all the fuss was about, but was turned away from the march when he tried to join.
"Ja man I wanted to jump in but they wouldn't let me come in with my bike. It's a laugh this thing, these guys take so many hours to walk from Johannesburg, but it's good," he told reporters, as he cradled his scooter helmet.
Prepared
Meanwhile, the Johannesburg Stock Exchange in Gwen Lane in Sandton was prepared with railing gates wrapped in black plastic sealing off its underground parking entrances.
Police in bakkies waited at the end of Gwen Lane, which was blocked at one end.
Once marchers had handed over a memorandum to the JSE, the plan was for them to be bussed to Pretoria where a night vigil was to be held prior to a march on the Union Buildings on Friday.
The JSE closes at 5pm, but a woman on the premises told reporters they would wait to receive the memorandum from the league.
The last mass action by ANCYL members happened outside Luthuli House in central Johannesburg at the start of Malema's disciplinary hearing last month.
Youth league members threw rocks, bottles and bricks at journalists and police, and burnt ANC flags and t-shirts with pictures of President Jacob Zuma printed on them.
The march was taking place a day after testimony in Malema's disciplinary hearing was concluded. He and several co-leaders face charges of bringing the ruling party into disrepute.
Earlier, the SABC reported that members of the Congress of SA Students (Cosas) had forced pupils from Alexandra and Soweto schools to join the march.
-- Additional reporting by Sapa
Labels: AFRIFORUM, ANC YOUTH LEAGUE, DEMONSTRATION, JULIUS MALEMA, LIBYA, TOKYO SEXWALE
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Refuse to vacate land, says Malema
Tuesday, 25 October 2011 00:00
Johannesburg - ANC Youth League president Julius Malema has urged hundreds of Bantu Bonke township residents in Vereeniging not to vacate the mineral-rich land they occupy, should anyone want them to move.
"We heard Anglo (mining company) wants you to move . . . they said there's alternative land because they have discovered a mineral," Malema told the community in a packed hall on Sunday.
He said they had the right to continue living on their land and be party to mining and agricultural activity.
"Even the houses they want to give you are not proper houses. The land must be given to the people . . . people have been killed for this land."
AfriForum has laid a criminal charge of incitement to sedition against Malema, after he told people in Thembelihle in Lenasia, south of Johannesburg, last week to forcefully occupy land.
On Saturday, Malema told residents in Diepsloot, north of Johannesburg, that he would not respond to AfriForum's criminal charges.
He said he was prepared to go to jail in his fight for the poor.
Malema's visits are a way of drumming up support ahead of the league's "economic freedom" mass march expected to take place on Thursday and Friday.
The league will target the Johannesburg Stock Exchange in Sandton, the Chamber of Mines in Johannesburg and the Union Buildings in Pretoria.
Malema, donning a black beret, said the government must return the land owned by white farmers to its people.
"They (whites) found us here. They did not bring any land nor did they bring any minerals."
He then broke into his alternative rendition of Dubul' iBhunu (shoot the boer) called "kiss the boer", dancing and waving his fist as people took videos and pictures of him, while others joined in chorus.
He left in convoy soon after his add- ress.
So far, Malema has visited Thembelihle, Diepsloot and Ivory Park and the Methodist Church at Ratanda in Heidelburg to mobilise support for the march.
His message constantly stressed the fight for economic emancipation, and ensuring that communities benefit from democracy.
A few community members that had waited in anticipation for Malema's arrival in Evaton ended up leaving the Sicelo Community Hall where he was scheduled to speak on Sunday afternoon.
It later emerged that Malema abandoned the rest of his Sunday programme, which also included a visit to Sebokeng's Zone 14, due to "logistical reasons".
"We were not comfortable in terms of preparations.
"People have been told that he won't be coming any more," said the league's additional member to the national executive committee Khusela Sangoni.
It was unlikely that Malema would return to these places due to his hectic programme ahead of the march, she said.
His disciplinary hearing will continue on Wednesday, at the FNB Stadium in Johannesburg.
It is speculated that ANC stalwart Winnie Madikizela-Mandela and ANC national executive committee member Tony Yengeni will be the final witnesses to testify on Malema's defence.
Malema has been charged by the ANC in connection with his call for regime change in Botswana.
In a related development, Malema says he is unfazed about scaring investors by holding a march later this week.
"These investors have never given us land," said Malema at a press conference in Johannesburg yesterday.
"Our people are living like pigs so we mustn't talk about SA's reputation."
Malema added that there had been marches for economic freedom all over the world.
"Only ignorant investors don't know this," said Malema.
- www.fin24. com
Labels: AFRIFORUM, ANC YOUTH LEAGUE, ANGLO-AMERICAN, APARTHEID, DEBEERS, JULIUS MALEMA, LAND REFORM, LAND RIGHTS, SOUTH AFRICA
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COMMENT - Lying and deceiving the SADC tribunal in Namibia was what the 'documentary'
"Mugabe And The White African" was about.
SADC tribunal judges say court's dissolution 'illegal'
28/06/2011 00:00:00
by Franny Rabkin I Business Day
FOUR judges of the Southern African Development Community (SADC) Tribunal have said a decision by the regional trade bloc to "dissolve" the court was illegal and in bad faith.
In a scathing letter to SADC’s executive secretary Tomaz Salamao, the judges said a "close reading" of the communique from the SADC summit of heads of state last month in fact showed "beyond doubt" that the tribunal had not just been suspended but "also dissolved altogether".
The decision was a "drastic action taken on political grounds" — to avoid having to take action against Zimbabwe for refusing to enforce the tribunal’s judgments, they said.
Last month, a communique from SADC’s summit announced an extension of a moratorium on the hearing of new cases at the tribunal. The moratorium had been in effect since last August.
The summit also decided not to reappoint or replace the tribunal’s 10 judges — which means it will remain inoperative until at least August next year.
One of the functions of the tribunal is to hear cases between citizens of SADC countries and their governments when the citizens have exhausted all domestic legal avenues.
But the tribunal came under intense pressure after it gave judgments against the government of Zimbabwe on its land redistribution process. Zimbabwe refused to enforce the tribunal’s orders and challenged its legality. Justice Minister Patrick Chinamasa called it a "bush court".
In their letter, the judges said the original decision to suspend the operation of the tribunal applied only to new cases.
But last month’s communique "reiterated" a moratorium on the tribunal hearing both new and pending cases.
These were "weasel words", the judges wrote. What the communique actually amounted to was a dissolution of the tribunal. This was "clearly illegal," said the letter signed by the tribunal’s president, Mauritius Chief Justice Ariranga Pillay and justices Rigoberto Kambovo, Onkemetse Tshosa and Frederick Chomba.
The justices said that, without amending the SADC treaty and protocol, the summit had no power to restrict the tribunal’s jurisdiction or overrule the protocol. The summit’s decision not reappoint or replace the tribunal’s judges made sure that the tribunal was "completely paralysed in its core function" and was also illegal.
They also questioned the point of the extensive independent review, commissioned by the summit last year, "instead of deciding about the appropriate action to take against Zimbabwe for noncompliance with the tribunal’s judgments".
This was "an important issue which has always been ducked and postponed since 2009 for reasons best known to themselves".
When the tribunal’s work was first suspended, this was done pending an independent six-month review of the tribunal’s "role, functions and terms of reference".
But after the review was completed, Sadc justice ministers and attorneys-general "questioned anew its fundamental elements" and then initiated a new, "partisan", review.
They said: "So this extraordinary deed was done at the expense of the tribunal and its judges who are both easily expendable, in breach of the principles of human rights, democracy and the rule of law, as a result of which no action needs to be taken against Zimbabwe!"
The decisions sent "the worst possible signal" to the Sadc region and to potential investors and the international community, they said.
The judges also challenged the fact that they had not been reappointed, saying they had a legitimate expectation that they would be and were not given any reasons why they were not. They had not even been officially informed of the decision, they said.
They said the SADC council and summit should "pay fair and adequate compensation for the prejudice, both material and moral".
Labels: AFRIFORUM, LAND REFORM, SADC
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Zim to contest SA court ruling
Wednesday, 08 June 2011 23:21
Herald Reporter
ZIMBABWE will appeal against a judgment by a South African High Court to dispose of a property owned by the Government to compensate white former commercial farmers whose land was redistributed to landless blacks.
In an interview yesterday, Attorney General Mr Johannes Tomana, criticised the judgment by the Pretoria High Court saying it was premised on decisions of the disbanded Sadc Tribunal.
"The judgment of the Tribunal was the basis they went to South Africa for the purposes of enforcement.
"Our position is that the judgment is not enforceable in a domestic court like the High Court of South Africa.
"We challenged the legality of the Tribunal and that challenge was sustained resulting in the Tribunal being disbanded.
"There is therefore no basis that anybody can want to seek to enforce that judgment," he said.
Mr Tomana added: "That judgment is confusing, what is it they are trying to enforce? Are they trying to bind us to a Tribunal, which was disbanded, or a Treaty, which we did not sign. We will not accept that judgment and we are going to appeal against it."
The AG said the matter could have been politicised ahead of the extraordinary Sadc summit to be held in South Africa over the weekend.
Harare lawyer Mr Farai Mutamangira said the stance taken by the South African courts was tantamount to enforcing a nullity.
"The entire process pending in South Africa had become academic anyway by reason of the fact that the Tribunal had been disbanded, as having been improperly constituted from the beginning, so the effect thereof was to render all its decisions a nullity and consequently unenforceable, more-so considering that the primary enforcement mechanism provided by the Sadc treaty is through the Summit of the Heads of States.
"In the circumstances, the Municipal Courts of South Africa are merely compounding a situation that was supposed to naturally unwind. It's a typical case of ‘a jurisdiction courting controversy' and seeking to write history from the right to the left," said Mr Mutamangira.
Pretoria High Court judge Roger Claasen on Monday ruled and granted an order that the former commercial farmers could attach Zimbabwe's property in Cape Town because it was not covered by diplomatic immunity as it was being used for commercial purposes.
Zimbabwe's High Court refused to register the order by the Tribunal last year and the former farmers, led by Michael Campbell (now late), Louis Fick and Richard Etheridge then approached the South African courts.
The Sadc Tribunal was dissolved at the extraordinary Sadc Summit held in Namibia last month after its operations had been suspended in August last year.
Ministers of Justice and Attorneys General from the region were then tasked of reconstituting the Tribunal and giving it a new mandate.
The rulings by the Tribunal before its dissolution were also nullified.
The dissolution of the Tribunal follows arguments by Zimbabwe that the body was improperly constituted as the requisite number of countries had not ratified the treaty establishing it.
Five countries instead of 10 ratified the treaty.
Zimbabwe argued that the Tribunal's rulings contravened the country's constitution and were meant to reverse the revolutionary land reform programme.
Labels: AFRIFORUM, JOHANNES TOMANA, LAND REFORM, SADC
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COMMENT - More crocodile tears for the 'rule of law' in protection of stolen land, and the stealing of natural resources, from the 'Inter Press Service'.
SADC tribunal on trial at summit
by Inter Press Service
17/05/2011 00:00:00
THE Southern African Development Community (SADC) faces several awkward problems at the Extraordinary Summit of Heads of State scheduled for May 20-21.
Mediating between parties in Zimbabwe over a workable plan for elections and power-sharing in Madagascar may be the headlines, but long-delayed action on the decisions of the SADC Tribunal could also have
long-lasting consequences for human rights and the rule of law in the region.
Since 2008, the SADC Tribunal has handed down a series of decisions on cases of expropriation of farms in Zimbabwe. While the rulings were all in favour of the evicted farmers, Zimbawe flatly refused to recognise the court's authority to order compensation for the land seized. The Tribunal referred the matter to the SADC heads of state for a decision.
Unable to face the political consequences of ejecting or suspending Zimbabwe from the regional bloc, SADC leaders instead suspended the Tribunal at their August 2010 summit, pending a "review" of its functions.
This review - conducted by a team of University of Cambridge consultants and completed on February 14 - not unexpectedly confirmed the Tribunal had acted properly and within its powers on the farmers’ affair. The list of 34 recommendations in the confidential report suggested a strengthening of the regional court to avoid the kind of manoeuvring that has delayed relief for the farmers.
Lawyer Norman Tjombe, who argued some of the cases in question said: "The report was rather positive on the Tribunal, supporting its rulings on Zimbabwe and recommending strengthening of its functions. It made Zimbabwe very angry."
[Did it make the MDC 'very angry' too, considernig they are now part of the government? - MrK]
The first indications that the recommendations were not exactly what SADC was hoping for came as the SADC Council of Ministers met to consider the review in Swakopmund, Namibia, from April 11-15.
The Namibian chairing the review, Minister of Justice Pendukeni Ivula-Ithana, opened the meeting saying: "[It] is us, the people of SADC who can own our instruments as they address our identified concerns and are compatible with our national legal systems."
She went on: "This Tribunal is ours and we have received the advice contained in the final report of the consultant. Ours is to take out of it what we deem appropriate and suggest to the Presidents and Heads of States for their decision."
Zimbabwe already appears firmly set on ensuring the Tribunal’s past rulings are nullified, with Justice Minister Patrick Chinamasa insisting that the forthcoming summit will “interrogate the constitutionality of the SADC Tribunal itself, its legality and validity”.
“It's not about the land or the judgments of the tribunal, it's not a summit on the decision of the tribunal,” he insisted.
Chinamasa said the ministers agreed that the protocols setting up the tribunal had not been ratified by two-thirds of the SADC countries.
As currently constituted, the tribunal – which was ratified by only five of SADC’s 15 members – was a legal nullity.
To be operational, it needs ratification by 10 member states, he insisted.
[Insisted? Why are Minister Chinamasa's characterized as 'insisted'? - MrK]
“The treaty provided for a SADC tribunal to be operational through protocols that would set up its jurisdiction and mandates. The protocols were negotiated in 2000 and all the countries signed. They, however, waited for two-thirds of the countries to ratify the protocols,” he said.
Two countries only ratified the protocols then while three more countries have appended their signatures.
The evicted Zimbabwean farmers are not the only ones waiting on SADC leaders' next move. Lesotho, South Africa and Zimbabwe face a R4 billion (US$570 million) claim from South African-based mining group Swissbourgh for expropriation of its minerals rights to pave the way for the Lesotho Water Highlands Project in 1991.
According to Josias van Zyl, Managing Director of Swissbourgh, the three countries conspired to suspend the SADC Tribunal last August, just a week before the case was supposed to be heard.
Swissbourgh filed an application with the Tribunal challenging SADC leaders' legal authority to suspend its operations. Tjombe lodged a similar application on March 28, arguing the SADC Summit’s August decision "does not in law have the effect of suspending [the tribunal’s] operations and function".
"So far we have heard nothing from the court, not a peep," said Tjombe.
The delays already mean one of the plaintiffs will never see the end of his struggle to regain his land – farmer Mike Campbell died in early April.
Van Zyl said that Swissbourgh has threatened to sue SADC in Gaborone, Botswana (where it is headquartered), as well as individual states in their own countries should "they strip SADC of its Tribunal, or continue to interfere with our right to access to justice".
"The comments of the Namibian Justice Minister seem to indicate a move in that direction," he said.
Swissbourgh asserts in a May 13 letter to the heads of state that is aware that the outcome of the Swakopmund deliberation was a proposal that the Tribunal's scope of action be amended to allow only inter-state disputes, ruling out access for individuals to the regional court.
Swissbourgh says that any weakening of the Tribunal would be "in bad faith" and a "violation of international law generally and various international human rights instruments".
But Norman Tjombe is sceptical of the pressure the litigants can exercise on the leaders.
"They will just ignore the report and likely postpone a decision," he said. "It’s a sad day for the rule of law.
"The widespread practice in member states of ignoring court rulings, or replacing critical judges with ones favourable to the regime is now repeated on a SADC level. The establishment of the SADC Tribunal as a liberal and accessible court was a leap forward. Now the court is in danger of being strangled and killed."
Labels: AFRIFORUM, LAND REFORM, NEOCOLONIALISM, SADC
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COMMENT - More crocodile tears for the 'rule of law' in protection of stolen land, from the 'Inter Press Service'.
SADC tribunal on trial at summit
by Inter Press Service
17/05/2011 00:00:00
THE Southern African Development Community (SADC) faces several awkward problems at the Extraordinary Summit of Heads of State scheduled for May 20-21.
Mediating between parties in Zimbabwe over a workable plan for elections and power-sharing in Madagascar may be the headlines, but long-delayed action on the decisions of the SADC Tribunal could also have long-lasting consequences for human rights and the rule of law in the region.
Since 2008, the SADC Tribunal has handed down a series of decisions on cases of expropriation of farms in Zimbabwe. While the rulings were all in favour of the evicted farmers, Zimbawe flatly refused to recognise the court's authority to order compensation for the land seized. The Tribunal referred the matter to the SADC heads of state for a decision.
Unable to face the political consequences of ejecting or suspending Zimbabwe from the regional bloc, SADC leaders instead suspended the Tribunal at their August 2010 summit, pending a "review" of its functions.
This review - conducted by a team of University of Cambridge consultants and completed on February 14 - not unexpectedly confirmed the Tribunal had acted properly and within its powers on the farmers’ affair. The list of 34 recommendations in the confidential report suggested a strengthening of the regional court to avoid the kind of manoeuvring that has delayed relief for the farmers.
Lawyer Norman Tjombe, who argued some of the cases in question said: "The report was rather positive on the Tribunal, supporting its rulings on Zimbabwe and recommending strengthening of its functions. It made Zimbabwe very angry."
[Did it make the MDC 'very angry' too, considernig they are now part of the government? - MrK]
The first indications that the recommendations were not exactly what SADC was hoping for came as the SADC Council of Ministers met to consider the review in Swakopmund, Namibia, from April 11-15.
The Namibian chairing the review, Minister of Justice Pendukeni Ivula-Ithana, opened the meeting saying: "[It] is us, the people of SADC who can own our instruments as they address our identified concerns and are compatible with our national legal systems."
She went on: "This Tribunal is ours and we have received the advice contained in the final report of the consultant. Ours is to take out of it what we deem appropriate and suggest to the Presidents and Heads of States for their decision."
Zimbabwe already appears firmly set on ensuring the Tribunal’s past rulings are nullified, with Justice Minister Patrick Chinamasa insisting that the forthcoming summit will “interrogate the constitutionality of the SADC Tribunal itself, its legality and validity”.
“It's not about the land or the judgments of the tribunal, it's not a summit on the decision of the tribunal,” he insisted.
Chinamasa said the ministers agreed that the protocols setting up the tribunal had not been ratified by two-thirds of the SADC countries.
As currently constituted, the tribunal – which was ratified by only five of SADC’s 15 members – was a legal nullity.
To be operational, it needs ratification by 10 member states, he insisted.
[Insisted? Why are Minister Chinamasa's characterized as 'insisted'? - MrK]
“The treaty provided for a SADC tribunal to be operational through protocols that would set up its jurisdiction and mandates. The protocols were negotiated in 2000 and all the countries signed. They, however, waited for two-thirds of the countries to ratify the protocols,” he said.
Two countries only ratified the protocols then while three more countries have appended their signatures.
The evicted Zimbabwean farmers are not the only ones waiting on SADC leaders' next move. Lesotho, South Africa and Zimbabwe face a R4 billion (US$570 million) claim from South African-based mining group Swissbourgh for expropriation of its minerals rights to pave the way for the Lesotho Water Highlands Project in 1991.
According to Josias van Zyl, Managing Director of Swissbourgh, the three countries conspired to suspend the SADC Tribunal last August, just a week before the case was supposed to be heard.
Swissbourgh filed an application with the Tribunal challenging SADC leaders' legal authority to suspend its operations. Tjombe lodged a similar application on March 28, arguing the SADC Summit’s August decision "does not in law have the effect of suspending [the tribunal’s] operations and function".
"So far we have heard nothing from the court, not a peep," said Tjombe.
The delays already mean one of the plaintiffs will never see the end of his struggle to regain his land – farmer Mike Campbell died in early April.
Van Zyl said that Swissbourgh has threatened to sue SADC in Gaborone, Botswana (where it is headquartered), as well as individual states in their own countries should "they strip SADC of its Tribunal, or continue to interfere with our right to access to justice".
"The comments of the Namibian Justice Minister seem to indicate a move in that direction," he said.
Swissbourgh asserts in a May 13 letter to the heads of state that is aware that the outcome of the Swakopmund deliberation was a proposal that the Tribunal's scope of action be amended to allow only inter-state disputes, ruling out access for individuals to the regional court.
Swissbourgh says that any weakening of the Tribunal would be "in bad faith" and a "violation of international law generally and various international human rights instruments".
But Norman Tjombe is sceptical of the pressure the litigants can exercise on the leaders.
"They will just ignore the report and likely postpone a decision," he said. "It’s a sad day for the rule of law.
"The widespread practice in member states of ignoring court rulings, or replacing critical judges with ones favourable to the regime is now repeated on a SADC level. The establishment of the SADC Tribunal as a liberal and accessible court was a leap forward. Now the court is in danger of being strangled and killed."
Labels: AFRIFORUM, LAND REFORM, NEOCOLONIALISM, SADC
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SA High Court should respect Zimbabwe's immunity, says gvt
By: Ralph Mutema
Posted: Sunday, April 24, 2011 7:16 am
THE inclusive Government of Zimbabwe says it hopes the South African High Court will take into consideration its diplomatic immunity in a case involving the government and three commercial farmers.
The white commercial farmers, have taken on the Zimbabwe government with the help of South African lobby group Afriforum.
Zimbabwe argues that South African courts have to take into consideration that they do not have jurisdiction to register a Southern African Development Community (Sadc) ruling, on the basis of sovereignty, and in terms of the Foreign States Immunity Act (Fisa).
Fisa is a law that establishes the limitations of whether a sovereign nation can be sued in a foreign court.
It also establishes procedures for the attachment of property against a foreign state.
Zimbabwe's legal team, led by Patric Mtshaulana, said they would not take the ruling lying down if it is not in their favour.
They also argue that the land reform programme was necessary to redistribute land stolen white white colonists before independence.
Five percent of the white population owned 95 percent of the arable land prior to independence.
Former black owners of the land were driven off and kettled into what were called "keeps" and tribal trust lands where curfews and other forms of restriction of movement were imposed.
The farmers - Louis Fick, Richard Etheredge and Michael Campbell, who died recently - took their fight to the Zimbabwean government with the help of pro-white right wing group Afriforum, which in its press statement said it wanted to show that "Mugabe was not untouchable".
Afriforum has completely ignore the skewed land tenure structure in Zimbabwe and wants to restore the land ownership structure of precolonial days.
Zimbabwe's liberation wars, the two Chimurengas, were fought over the issue of land ownership.
Zimbabwean farmer Harry Hales said if the farmers received compensation it would be a landmark victory for all commercial farmers who were "displaced and persecuted".
They, however, fail to mention the displacement and persecution of the thousands of black Zimbabweans some of them, like the Tangwena people, being displaced from their ancestral lands as late as 1979.
"Justice should prevail thanks to the Sadc Tribunal. A lot of productive farmers were affected by the land invasions and they continue to suffer at the hands of Zanu-PF," he said.
The Sadc Tribunal, however, has no mandate over commercial cases in a sovereign country.
It was established to adjudicate over inter-state commercial and trade cases. The government of Zimbabwe argues that the Tribunal is going beyond its mandate, by adjudicating over internal issues of Zimbabwe.
The Tribunal cannot hear a matter brought by a natural or legal person against the Member State unless he or she has exhausted all available remedies or is unable to proceed under the domestic jurisdiction.
The highest appellate court in Zimbabwe, the Supreme Court, has said that the land reform programme was lawful as it sought to remedy age-old land ownership problems in the country.
The Sadc Tribunal is currently suspended and has no adjudication powers until it is reinstated by a Sadc Summit of Heads of State and Government.
*****************
On the Tangwena case:
The Tangwena case
Since 1964, at Gaeresi Ranch, the Rhodesian Front authorities have been trying
to remove the Tangwena people and their chief Rekayi. The Tangewena country;
in the mountains of Inyanga, is rich agricultural land, and not surprisingly
250,000 acres of it was ‘sold’ in 1905 (without the knowledge of the inhabitants)
by the BSAC to the Anglo-French Matabeleland Company. The latter ceded
part to the Gaeresi Ranch Company.
The Tangwena were not made aware of this alienation until 1965, when the manager of the ranch decided in the interests of economic farming to extend his fencing to encompass them. This coincided with the death of the Tangwena chief and the election of Rekayi as his successor.
The white farmer wished to ‘rationalize’b y reducing the African population now included, and offered labour contracts to some Tangwena, expecting the rest to move to whichever ‘reserve’ the District Commissioner prescribed. Here, however, something exceptional happened : Rekayi and his people would not move. Many Africans have protested at similar moves, none with such dignity and determination.
After legitimate but vigorous protest to the authorities-even as far as the Secretary for Internal Affairs-Rekayi was given the standard treatment afforded to African chiefs who assert their people’s rights : he was dismissed. Neither he nor his people accepted this. They physically resisted eviction. They challenged its legality successfully in the law courts on the grounds that, under the Land Apportionment Act, Africans who had lived upon Crown land before its alienation are protected ‘squatters’, and could be removed only by a governmental decision in the form of a proclamation.
The Rhodesian Appelate Division underlined that the Crown’s argument on the law ‘would lead not only to absurdity but to manifest injustice’. The case had by then (June 1968) become notorious and even the white press (the Rhodesian Herakl) pleaded that the authorities (by now the illegal Smith régime) should follow ‘the humane course . . . and accept a suggestion’ (made originally by Rekayi) that they buy the land and incorporate it into the adjacent Tribal Trust lands-giving the tribe its land and the company its money.
Following instead the tradition of white governmental dealings with African land, the authorities issued a proclamation in 1969 ordering the Tangwena to leave. Legal action was followed by bulldozers, and eventually by police and soldiers. In a quite extraordinary manner the Tangwena have, however, maintained their stand and, when moved, return. By every peaceful means, Rekayi and his people continue to confront the authorities on this absolutely basic issue. It is a historic episode in the greater process of liberation.
This may be confirmed by the unaccustomed degree of restraint exercised by the régime.
There is still no compromise on the supremacy of white economic interest, whatever the consequences may be in terms of human misery, but the régime hesitates to use the full panoply of its destructive and restrictive powers. This may be due to its awareness of world attention focused upon it, or partly perhaps to a grudging admiration of the overwhelming moral effect produced by this African leader in rags. Equally, however, it may be attributed to a more Machiavellian and merely tactical move to deal relatively mildly (if the eviction of over 250 families, the destruction of their houses and crops, and the virtual kidnapping of their children can be so described) with this symbolic yet peripheral opposition, at a time when Rhodesian leaders are seeking a settlement with Britain and international recognition by the Western world at least.
The confrontation is fully described in The Ousting of the Tangwena, published by the International Defence and Aid Fund. If the statistics of distribution are the bones of the land problem in Rhodesia, the Tangwena may be seen as illustrating its flesh-and-blood reality.
Also read this obituary on the ZANU-PF website.
Labels: AFRIFORUM, LAND REFORM, RHODESIA, SADC
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Malema surprises critics in witness stand
by Marius Bosch I Reuters
21/04/2011 00:00:00
SOUTH African youth leader Julius Malema, on trial for "hate speech", surprised critics with a polished performance in the witness box, denting perceptions that he is simply a dangerous militant.
"Be warned, this man is not insignificant," popular radio talk show host John Robbie, a long time critic of Malema, said on Thursday after his testimony on Wednesday.
Malema faces "hate speech" charges brought by the Afrikaner civil rights group Afriforum over his singing of an anti-apartheid song containing a reference to "shoot the Boer (Afrikaner)".
The trial in South Africa's Equality Court in Johannesburg began 10 days ago and saw several leaders of the ruling African National Congress defend Malema, who arrived at court flanked by several bodyguards carrying assault rifles.
The judge last week banned the bodyguards from court.
Malema's drive for nationalisation of the country's giant mines has unnerved investors in the world's No. 4 gold producer and his militant speeches nearly 17 years after the end of apartheid have scared many white South Africans.
The government has repeatedly said nationalisation is not its policy.
Malema took the stand on Wednesday, deftly answering questions from Afriforum's advocate and even relating how he was given a pistol by the ANC at age 9 to attend the funeral of venerated ANC leader Chris Hani -- gunned down by a member of the white right wing in 1993.
Whites calling into Robbie's show on Thursday said they were surprised by Malema's testimony.
"Having been a critic of him for a very long time ... he did come across to me as very, very sincere," said one caller who gave her name as Annie and said she was an Afrikaner.
On microblogging website Twitter remarks showed Malema had changed the view of many South Africans.
"I think this case has proven that Malema is a lot smarter than some in the media might have believed," said Twitter user Mxolisi Jaza.
Malema, leader of the ANC Youth League since 2008, says he is only fighting to improve the lives of the poor and jobless.
To remain relevant to the Youth League and its constituency, he had to be militant and radical, Malema told the court.
"I belong to a very radical and militant youth organisation and if you are not radical and militant, you risk being irrelevant.
Independent political analyst Nic Borain said by taking Malema to court, his Afrikaner opponents have shot themselves in the foot.
"The fact that he has landed up in court as the person accused of singing (the song) is such a coup for him," he said.
"Don't underestimate the guy ... he serves a political purpose for the ANC."
Malema’s interview with the BBC HARDtalk programme last week also surprised an international audience for whom, from the media reports, Malema was nothing other than a Robert Mugabe disciple bent on reverse racism.
“Steven Sackur thought he had come to unravel this new black buffoon on the block, but instead it was him who ended up scurrying from the weightier issues seeking refuge in personal trivia,” said the UK-based Zimbabwean blogger and researcher, Innocent Chofamba Sithole.
Labels: AFRIFORUM, ANC YOUTH LEAGUE, COURTS, JULIUS MALEMA
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US court dimisses white farmers’ claim
Saturday, 19 February 2011 23:47 Top Stories
By Tafadzwa Chiremba
A UNITED STATES court has dismissed an application by 13 former Zimbabwean white farmers who were seeking an order to seize proceeds from diamond sales and attach various assets in the country.
All the former farmers were of the Netherlands origin and wanted the diamond proceeds and the property as compensation for losing farms to the land reform programme.
But Judge Collen McMahon sitting at the US District Court in New York last week dismissed the application and ordered the clerk of court to strike it off the register.
The Dutch farmers approached the New York court with an award earlier granted by the International Centre for Settlement of Investment Dispute (ICSID) after suing Zimbabwe for alleged breach of Bilateral Investment Treaty (BIT), following the historic land reform exercise.
The farmers alleged that they were failing to collect the sum of about 54 million Euros awarded by ICSID as breach of BIT from the Government of Zimbabwe.
They wanted the court to modify the award to include the Zimbabwe Mining Development Corporation (ZMDC), Minerals Mining Corporation of Zimbabwe (MMCZ), Agribank, the Industrial Development Corporation (IDC) and the Reserve Bank of Zimbabwe (RBZ) as respondents in order to proceed with the writ of execution.
“The petitioners’ motion for modification of the judgment entered on February 1, 2010, and for a writ of execution is denied,” ruled Judge McMahon.
“The docket clerk is instructed to remove docket entry number 12 from the court’s list of pending motions.”
AFRICAN FOCUS: No going back on land
The judgment came after Zimbabwe had set up a team of lawyers to oppose the post-judgment writs of execution. The lawyers were from Sawyer and Mkushi, Takundwa and Associates and Hogwe, Dzimirai and Partners.
They were led and coordinated by Mr Farai Mutamangira of Mutamangira and Associates and Mr Richard Roberts from the US.
The team of lawyers argued that the Netherlands was part of the European Union, a regional bloc that imposed illegal sanctions on Zimbabwe to dissuade investment and trade agreement.
They said the continued renewal of sanctions by the EU, with Netherlands voting for them, constituted rejection of contractual trade agreements.
“The Netherlands is part of the EU, which collectively imposed sanctions on Zimbabwe on the basis of Article 94 of the Cotonou Agreement,” the lawyers argued.
“The Cotonou Agreement is a regional trade pact between the EU, Africa and the Pacific and Caribbean states which defines the framework for regional trade and cooperation and bilateral agreements between member States.
“Member states covered by the agreement are generally supposed to be consistent with regional trade pacts and give effect and render operative the broad terms of the regional agreement.
“The imposition of sanctions on the respondent by the EU constitutes a repudiation of all contractual and treaty rights and obligations by the EU, including the bilateral agreements. Consequently the Dutch nationals are not entitled to relief.”
The lawyers argued that there was no demonstration that the farmers failed to collect their award from the Government of Zimbabwe.
“No evidence has been tendered before the court to establish failure on the part of the petitioners to collect the award in the municipal jurisdiction of the State of Zimbabwe,” they said.
The dismissal of the case comes after some former white farmers threatened to attach properties belonging to Zimbabwe in South Africa after the contested SADC Tribunal awarded them claims to reverse the land reform exercise. The SADC Tribunal judgment ordered Zimbabwe to compensate white farmers for land acquired for resettlement. Zimbabwe’s High Court refused to register the ruling, saying it was against the national interest.
Labels: AFRIFORUM, LAND REFORM, RHODESIANS, WHITE FARMERS
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Supreme Court throws out white farmers’ application
By Daniel Nemukuyu
THE Supreme Court has dismissed an application by white former commercial farmers who were challenging the constitutionality of Government’s compulsory acquisition of land under the land reform programme.
Nine members of the Commercial Farmers’ Union filed the application in which they argued they were being discriminated against on the basis of race. They said only white farmers were being prosecuted on land issues and were not being considered in the land redistribution programme.
It was argued that only land owned by whites was compulsorily acquired and they wanted leave to stay on the farms.
Chief Justice Godfrey Chidyausiku dismissed the application with costs saying the applicants had failed to prove or cite any black farmers who were in breach of the same law.
"They cannot be heard to complain that only white commercial farmers are being prosecuted.
"What is the Attorney-General supposed to do if it is only white farmers who are breaking the law?
"It is an abuse of court process for the applicants to approach this court seeking an interdict against the AG in these circumstances," said the Chief Justice.
He said the farmers should simply obey the law by vacating acquired land.
"If they have any legal claim to the acquired land, or arising from the acquired land, they can launch proceedings after vacating the acquired land as is required by law.
"I, therefore, find that the applicants’ complaint has no substance," he said.
The court ruled that the Minister of Lands was the acquiring authority and had the legal power to issue permits and other relevant documents.
Chief Justice Chidyausiku emphasised that issuance of an offer letter, permit or lease was a clear expression by the acquiring authority of the decision as to who should possess or occupy the land.
The Chief Justice reiterated that the Supreme Court’s decision was final and was not bound or influenced by the Sadc Tribunal.
The issue of it being bound by the Sadc Tribunal or any other courts defeated the idea of it being the country’s highest court, he noted.
Although inadequate proof was proffered in court to buttress claims that the farmers’ movable equipment was acquired, the Chief Justice ruled that the seizure of such equipment — if it did occur — was unlawful and contrary to the Acquisition of Farm Equipment or Material Act.
The Minister of Lands and Rural Resettlement, the Justice Minister, the Police Commissioner-General, the Auditor-General, the Finance Minister, the AG and the chairman of the compensation committee were cited as respondents.
Labels: AFRIFORUM, LAND REFORM, SUPREME COURT
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Supreme Court dismisses white farmers' application
By: TH-TZG
Posted: Friday, November 26, 2010 11:17 pm
THE Supreme Court of Zimbabwe has dismissed an application by white former commercial farmers who were challenging the constitutionality of Government’s compulsory acquisition of land under the land reform programme.
Nine members of the Commercial Farmers’ Union filed the application in which
they argued they were being discriminated against on the basis of race. They said
only white farmers were being prosecuted on land issues and were not being considered in the land redistribution programme.
It was argued that only land owned by whites was compulsorily acquired and they wanted leave to stay on the farms.
Chief Justice Godfrey Chidyausiku dismissed the application with costs saying the applicants had failed to prove or cite any black farmers who were in breach of the same law.
"They cannot be heard to complain that only white commercial farmers are being prosecuted.
"What is the Attorney-General supposed to do if it is only white farmers who are breaking the law?
"It is an abuse of court process for the applicants to approach this court seeking an interdict against the AG in these circumstances," said the Chief Justice.
He said the farmers should simply obey the law by vacating acquired land.
"If they have any legal claim to the acquired land, or arising from the acquired land, they can launch proceedings after vacating the acquired land as is required by law.
"I, therefore, find that the applicants’ complaint has no substance," he said.
The court ruled that the Minister of Lands was the acquiring authority and had the legal power to issue permits and other relevant documents.
Chief Justice Chidyausiku emphasised that issuance of an offer letter, permit or lease was a clear expression by the acquiring authority of the decision as to who should possess or occupy the land.
The Chief Justice reiterated that the Supreme Court’s decision was final and was not bound or influenced by the Sadc Tribunal.
The issue of it being bound by the Sadc Tribunal or any other courts defeated the idea of it being the country’s highest court, he noted.
Although inadequate proof was proffered in court to buttress claims that the farmers’ movable equipment was acquired, the Chief Justice ruled that the seizure of such equipment — if it did occur — was unlawful and contrary to the Acquisition of Farm Equipment or Material Act.
The Minister of Lands and Rural Resettlement, the Justice Minister, the Police Commissioner-General, the Auditor-General, the Finance Minister, the AG and the chairman of the compensation committee were cited as respondents.
Labels: AFRIFORUM, GODFREY CHIDYAUSIKU, LAND REFORM, SUPREME COURT, WHITE FARMERS
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SADC leaders suspend Tribunal
by Staff Reporter
18/08/2010 00:00:00
SOUTHERN African leaders have suspended a regional court which ruled against Zimbabwe’s land reform programme for at least six months while a review is carried out into its “role functions and terms of reference”.
The Southern African Development Community [SADC] Tribunal ruled in 2008 that 78 white farmers could keep their land, saying their farms had been targeted for compulsory seizure to resettle landless blacks “primarily on considerations of race”.
Zimbabwe has refused to respect the ruling even though the country signed the treaty creating the court. A communiqué issued at the end of a two-day summit of SADC leaders said: “The summit decided that a review of the role functions and terms of reference of the SADC Tribunal should be undertaken and concluded within six months.”
Joao Samuel Caholo, the deputy executive secretary of the 15-member bloc said that means the Tribunal would not be able to conclude any old cases or take on new ones before the end of the review to be carried out by SADC Justice Ministers.
Zimbabwe insists that the treaty establishing the tribunal — which was ratified by only five countries — is a legal nullity, but critics contend that signing it was enough.
Zimbabwe’s Justice Minister Patrick Chinamasa has warned that if the Tribunal’s ruling in favour of white farmers is upheld, it would mean returning farms to about 4,000 white farmers who lost their land in an often violent and politically charged campaign launched by President Robert Mugabe in 2000.
Zimbabwe later passed a constitutional amendment in 2005 which stated that “all agricultural land … is acquired by and vested in the State with full title therein …; and … no compensation shall be payable for (agricultural) land … except for any improvements effected on such land before it was acquired.”
When the farmers brought a constitutional challenge to the Supreme Court, they lost their case before taking the matter to the Tribunal.
Chinamasa says Zimbabwe never intended the Tribunal to overrule its top court.
“At the moment the Tribunal is trying to reverse the decisions of our Supreme Courts, in fact it’s purporting to rewrite our constitutions,” Chinamasa said. “As you know our land reform is constitutional, and our courts have adjudicated over the matter and given the ruling that the land reform is legal, it’s constitutional.”
He said the Tribunal was hurriedly constituted, “and almost immediately there were cases against Zimbabwe … to reverse the land reform programme.”
He added: “Happily, it has not succeeded and will not succeed.”
Labels: AFRIFORUM, SADC
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SADC leaders discuss legality of Tribunal
by Staff Reporter
16/08/2010 00:00:00
ZIMBABWE will call for the nullification and voidance of rulings made by the Southern African Development Community’s Tribunal at the two-day summit of regional heads of state which opened in Namibia on Monday.
SADC leaders will discuss the legality of the Tribunal – an issue first raised at the trade bloc’s summit in the Democratic Republic of Congo last year. Justice ministers from the 15 SADC countries were tasked to look into the issue and report back to the heads of state this week.
Discussions on the Tribunal were triggered by displaced white Zimbabwean commercial farmers who won a ruling stopping the government from seizing their farms – despite the Supreme Court of Zimbabwe ruling against them.
Zimbabwe rejected the tribunal ruling, claiming it was "null and void" as two-thirds of SADC members required to ratify the protocol creating the court had not done so yet. Justice Minister Patrick Chinamasa said this week that the country, by signing up to the protocol establishing the Tribunal, had never intended it to overrule its courts.
He said: “I think there is a re-awakening to the fact that a monster was created without full appreciation of what was intended.
“'Which issues do we want the Tribunal to be seized with? Do we want it to overrule and overturn the judgements of our Supreme Courts, which basically this Tribunal is doing?
“The Tribunal cannot act like a court of appeal as this was never its intended purpose. They cannot be overruling the judgements of our Supreme Courts; we have not given them that power.”
Zimbabwe will propose a renegotiation of the court’s jurisdiction, Chinamasa said, and this could mean amending the Treaty or come up with a completely new protocol.
More importantly, Zimbabwe wants the tribunal’s decisions made thus far declared null and void.
Chinamasa revealed: “The point is basically that the protocol giving the Tribunal powers was not ratified, and up to now only five of the 15 countries have ratified it.
“We are saying now you cannot uphold a mistake at the expense of a member country. We have made it clear we are not bound, the SADC Tribunal can issue as many judgements as it wants, we will not (abide) ... we are not going to reverse our land reform, because the impact of these judgements is basically to return 11 million hectares of land to the 4,000 white farmers which we have already distributed to 350,000 people, it does not make any sense anyway in public policy.”
Writing in the state-run Herald newspaper last Saturday, President Robert Mugabe's spokesman George Charamba said the Tribunal was a "decided illegality".
He said: "Zimbabwe will be on the offensive, in respect of the so-called SADC Tribunal, itself a decided illegality which the Executive Secretary should have simply stopped a long time ago. The petitions by white-led Bar associations shall come to a humorous stop, too abrupt for any comfort."
Labels: AFRIFORUM, DRC, LAND RIGHTS, SADC
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Gvt blocks auction of assets in SA
By: Our reporter
Posted: Wednesday, July 28, 2010 7:10 am
GOVERNMENT has successfully challenged the auctioning of several of its properties in Cape Town and Johannesburg by a German bank, arguing the properties are protected by diplomatic immunity.
A legal team from Harare approached the North Gauteng High Court and managed to get an order barring KFW Bankengruppe from selling off the properties. The German bank wants to sell off Zimbabwe's assets to recoup money it said it lent to government in the late 1990’s.
But an urgent court application by Zimbabwe to prevent the sale was approved. The auctions were scheduled for July 27 and August 10 2010.
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The government, through the Zimbabwe Iron and Steel Corporation Ltd (Zisco), entered into the loan agreement with the German bank in January 1998.
Repayment of the loan was then meant to be done in 16 instalments starting from May 2000. But after only four payments, the last being in 2002, Zisco stopped paying as it was hit by western-imposed sanctions.
A Right Wing South African group called AfriForum is locked in a similar court battle with the Zimbabwean government.
The organisation is representing a group of white Zimbabwean farmers who were displaced when government acquired farms under the land reform exercise. They are demanding the sale of other South African properties owned by Zimbabwe.
Justice Minister Patrick Chinamasa has in the past dismissed AfriForum's demands saying the land reform exercise in Zimbabwe was necessary and perfectly legal.
Labels: AFRIFORUM, LAND REFORM, SANCTIONS
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Bananas in the Land of Albion!
WHO says time is linear? Who says mothers are born before their children? Or that mothers are older than their children? Look at what is happening to our "mother" Britain! They might take long to answer but, hey, the gods are just, finally. Let us replay events to March 2008.
That fateful year Zimbabwe — the colonial child — held polls whose results were inconclusive and therefore disharmonious in ways that baffled and buffeted her body-politic. MDC-T dominated the Lower House; Zanu (PF) dominated the Upper House. Overall, Zanu (PF) had a commanding lead in Parliament. Morgan Tsvangirai enjoyed an early lead in March.
Robert Mugabe trailed in this early phase of a drawn out story. None won the presidential vote, setting the stage for a bruising run-off, founded on the 50 percent + 1 formulae which our legal brains had so cleverly inserted, arguably without the premonition that one day, one year soon, this numeral "1" would both settle and scuttle the presidency of this country.
Indeed, without the premonition that this one numeral would create a structure sui generis, a structure called the Inclusive Government so rich in numberless headaches. I am not interested with these headaches though. These we have suffered already, curing some of them, thinking with them.
I am interested in how this quandary was received abroad, especially by our "mother", Britain, apparently without a foreboding that one day the mother would suffer a similar fate, two short years later.
Hung referendum?
The result was decried and called names. The President was execrated for authoring a political nonesuch. The word run-off appeared to come from a Shona dictionary to describe the political shenanigans of a tin-pot dictator. But where are we today? We have the same result in the land of haughty Albion! Unbelievable!
You mean to tell me that the impeccable electoral system of smart Britain can also yield a result comparable to the electoral deformities of "autocratic" and "rigging" infantile Zimbabwe? No, no, no! The sun never sets in Britain — that precious atom that gave a lasting spark to a benighted world, as Ian Douglas Smith would care to say repeatedly, face beaming with Scottish pride!
How can Britain’s celestial standards yield so grossly imperfect an outcome comparable if not worse than that from lowly brutes we all are in the white of their eyes? Far worse because in the case of Zimbabwe, our law provided a way out of the quandary, namely through something we called a run-off.
For Albion, poor Albion, the only way out, in the absence of an inclusive Government — yes, Inclusive Government we started here well before she knew how to spell it — is to propose reforms to the electoral law which will then be put to the British people by way of a referendum. And the British being the same weird, weird British, could very well give you another hung referendum to bolster the hung parliament and the no-government situation that exists presently.
Don’t forget this oldest monarchy still hugs a draft constitution that has been hanging for centuries: across kings and queens, between and beyond wars and revolutions, between and beyond faiths.
The Pot and the kettle
Brown finds himself meriting the very harsh judgement he so easily and generously gave Robert Mugabe, his bete noire. He is still found in No.10 Downing Street, the morning and much after the vote he lost, the legitimacy he so fondly foists on other nations which he himself cannot now uphold.
He has been beaten, but without a constitutional recourse to a run-off, which is what makes his position remarkably parlous. He demands "a part" in Government, in the process making nonsense of the British Will that has wrenched him from that Government.
Britain is losing a war. Britain is losing an economy. Britain has long lost its vaunted glory abroad. Above all, it still cannot find a leader, even in peacetime. Brown cannot be that leader, this man, this poor politician who never won premiership, preferring the comfort of borrowed robes, or robbing the electorate as he now seeks to do so clumsily.
It recalls a rather naughty point made by one Richard Dowden of the Royal African Society, itself a colonial relic. Commenting on strained relations between the Labour Government and Zimbabwe, Dowden suggested the Labour Government messed up Britain’s overseas interests precisely because it is a party of workers who have never owned anything whether at home or abroad.
Democracy’s headaches
So let Britain know today that democracy can create real governance headaches. Not because it is being implemented by Robert Mugabe or some such Third World leader, but because it itself expresses human imperfections. Voters can be fickle; democracy, which simplifies political decisions to paper, boxes and numerals, can create real imbroglios for democracy-eager societies.
And when that happens, both societies and leaders have the same set of questions to answer. Today Britain has puzzled itself, vexed its own mind, with un-telegenic Blair as the trigger and pretext. Instead of that haughty, self-righteous step Britain is so wont to as it steps roughshod over we the small nations, let her move with appropriate hesitancy, crying out for assistance in breaking the present impasse.
Sadc is on stand-by, ready to deploy former President Mbeki, for an appropriate package, the same way Sadc deployed Ramaphosa in resolving the IRA issue. But we, the children of a lesser god, have heard Britain very loudly and clearly as she proclaims her credo for Government: she deserves "a strong and decisive" Government, able to get her out of her present economic mess. Do we deserve any less, we Zimbabweans? Maybe we do, we the blest children of the mother country now on slippery banana rind. Oh Albion, vast Albion!
The curse of long apartheid
As I write this piece, Julius Malema has been hauled before a disciplinary committee of the African National Congress (ANC). He has also been booked for a lynching before the Human Rights Commission of South Africa. While the first action is internal to the ANC, the second one is being pushed for by an Afrikaner Brotherhood, itself a throwback to the apartheid days. Both actions are pregnant, even though one does not see much by way of focused debate in the media.
On balance, the debate has either been irrational and hate-filled, or overflowing with maudlin sentimentality. For the former part, Malema is a buffoon; for the later part, he is a second Jesus on the crucifix. I doubt that he is either of those two things. In any case, to focus on Malema is to miss what is at stake.
Afrikaner Forum?
Little has been said about the judge who presided over the case. Little, too, has been said about AfriForum as if to suggest this organisation is a god from the machine.
Yet the complainant, the plaintiff, the judge and the judgement are all rooted in South Africa’s history and contemporary struggles.
Who is AfriForum and why have the media been most reluctant to perforate the veil that shrouds it? How is it an African Forum? Which Africans? How does Zimbabwe come into this whole equation? Or is this a matter down South, too down South, to bother those of us living up the river?
Staging a play without Hamlet
Just a little probing tells us AfriForum is an all-white rights focused group, which first shoots to prominence over the land question in Zimbabwe. This is the organisation that sought and succeeded in registering with the South Africa legal system some strange judgement passed in Namibia a year or two ago, which pretended to settle a land dispute in Zimbabwe, and claimed to do so in the name of Sadc.
A group of embittered white settlers, historically privileged by racist settler Rhodesia, launched a class action with the so-called Sadc Tribunal, which sought to have Zimbabwe’s land reform programme set aside on grounds of a racist contravention of the Sadc Treaty. This phoney tribunal, which came into being ahead of the mating and wedding season, apparently granted the relief sought by the white farmers who hoped such a judgement would open the floodgates and drown the whole land reform programme.
Expectedly the Zimbabwe Government ignored the decision, which vainly sought sanctity from juridical aura while attacking the very soul of our struggle. It dawned on both the Tribunal and the farmers that they had vainly sought to stage Hamlet without the main character. Who would bell the cat?
Who would enforce such a silly judgement whose locale is a whole sovereign state inhabited by a people who had gone to war for the recovery and delivery of that same asset which this tribunal sought to restore to an occupying race?
The long apartheid
AfriForum then arises to seek the registration of this judgement in all Sadc countries, starting with South Africa, so that Sadc governments are then forced to enforce this wrong-headed judgement, principally by seizing Zimbabwe’s assets abroad as compensation to the settlers who never bought the land from the natives at the start of it all.
The idea is to send a clear message to African governments — principally those of South Africa and Namibia — that you dare tamper with settler-derived white "rights" and privileges, you are in for a long, frenetic haul, at home and abroad. The idea is to confront the liberation ethos through a broad regional front. Indeed, the idea is to harness post-struggle African governments for the enforcement of settler rights, against impoverished African masses.
The great divide and the small song
Now the same white interests have employed exactly the same vehicle to attack a facet of the resistance culture of a liberation movement. The contestation has thus been broadened beyond the real economy, beyond the control of real assets to the cultural economy of our resistance.
We are likely to see efforts to domesticate into many other Sadc jurisdictions this apartheid judgement on a liberation song. But why would the all-powerful whites of South Africa fear a mere song? Just read their Press to find a clue. Here is the askari-driven, white-owned Sunday Times of South Africa:
‘There is evidence across our society that the spirit of reconciliation that characterised the transfer of power is wearing thin in a country still divided by one of the world’s widest wealth gaps.
" Leaders as senior as Jacob Zuma, and as junior as ANC Youth League leader, Julius Malema, need to acknowledge that the unity of this nation is critical to its democratic success and should not be negligently put at risk . . . In as much as we celebrate the centrality of freedom of expression in our constitution, we do need to exercise our freedoms with due care and responsibility. If we fail to do this, we can only undo that which we have worked so hard to build — a young nation which is committed to protecting and celebrating the diversity of its people’s cultures."
This editorial comment of April 4, 2010 brings out the real reason behind the court action. Against the ever widening gulf between races and classes, South Africa’s social balance is so tenuous that even some little song will upset it. And the solution is not to address the race and class divide; it is to ban songs, which may recall past struggles, which in reality are present struggles.
A long apartheid is matched by a long liberation struggle, yes, struggle far longer than Mandela, the rainbow or 2010. Icho!
nathaniel.manheru *** zimpapers.co.zw
Labels: AFRIFORUM, JULIUS MALEMA
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