The long-delayed hearing of the court case against South African President Jacob Zuma and the South African Government for their role in the closure of the regional human rights court, the Southern African Development Community’s (SADC) Tribunal, in 2012 has been set down for 5 to 7 February 2018. It will be held at the North Gauteng High Court in Pretoria. AfriForum represents four Zimbabwean farmers and two Zimbabwean agricultural companies in this matter.
The Law Society of South Africa (LSSA) launched the application in April 2015 to declare the actions of President Zuma as well as Michael Masutha, Minister of Justice and Correctional Services, and Maite Nkoana-Mashabane, Minister of International Relations and Cooperation, unconstitutional in terms of the 2014 SADC Protocol.
Under the original Protocol, signed in 2000 by the SADC heads of state, both individuals and companies could bring a case against a member state. The only stipulation was that they must first exhaust all available local remedies, or they must have been unable to proceed through national courts. The Protocol, as it now stands, limits the jurisdiction of the SADC Tribunal to disputes only between member states, thus denying the 277 million people living in the SADC region access to justice when the courts in their own countries fail to dispense justice.
In 2015 four dispossessed Zimbabwean commercial farmers and two Zimbabwean agricultural companies applied to join the case. The civil rights group AfriForum represented them. These farmers were denied the right to seek justice in their own country through policies and measures that deprived them of their property rights and failed to uphold their human rights – and those of their workers – during illegal and violent farm invasions.
All four farmers successfully participated in various court cases before the SADC Tribunal and in all these cases the Tribunal ruled against the Zimbabwean Government.
Ben Freeth who, with his late father-in-law, Mike Campbell, took Mugabe to the SADC Tribunal in Windhoek, Namibia, over the illegal acquisition of Campbell’s Mount Carmel farm in 2007 and won the landmark court case the following year, is one of the four farmers. Freeth is also a spokesperson for the SADC Tribunal’s Rights Watch.
“Despite winning our court cases, the closure of the Tribunal in 2012 resulted in our being unable to take the cases further. The next step would have been to get taxable awards against the Zimbabwean Government for their flagrant contempt of those judgements,” says Freeth.
The 2014 Protocol was finally endorsed by 9 of the 15 member states during the SADC Heads of States Summit held in Victoria Falls, Zimbabwe, in 2014. However, for this Protocol to enter into force, it is required that at least 10 member states, representing two-thirds, ratify it. Since then, no single member state has ratified the Protocol.
The February hearing in Pretoria will be one of the most important cases for the rights of SADC citizens and will also provide South Africa with an opportunity to reclaim its former moral high ground. Failure to do so will reflect very negatively both on President Zuma and his government.