A SADC tribunal judgment on human rights and land issues in Zimbabwe should be treated with caution, the Supreme Court of Appeal heard on Monday.
“The SADC tribunal’s powers have not been domesticated into South African law,” Zimbabwe’s lawyer Patric Mtshaulana told the court.
The SCA was hearing an appeal by the Zimbabwe government against a high court ruling, which registered and enforced a SADC tribunal ruling locally and resulted in the attachment of Zimbabwean property in Cape Town.
The litigation began when Zimbabwean farmer, Mike Campbell, approached the Southern African Development Community tribunal in Windhoek in 2008 for relief after he and his family were targeted by the land grabs of Zimbabwe's president Robert Mugabe.
The tribunal, which consisted of five judges from various Southern African states, ruled in November 2008 that the Zimbabwean land reform process was illegal and racist.
It held that Campbell and 77 other farmers, who intervened in his application, should be left in peace and their property rights restored.
Continued legislation led to the registration of the tribunal's finding in the High Court in Pretoria in February 2010, and the attachment of a Zimbabwean government-owned property in Kenilworth, Cape Town.
The attachment was to satisfy a punitive cost order granted by the SADC tribunal.
Mtshaulana submitted that Zimbabwe enjoyed immunity from the jurisdiction of South African courts. As such, the local courts could not have granted the order on the property.
The local high court also did not have the power to register the ruling of the tribunal in the absence of local laws and rules of civil procedures for the registration and enforcement of foreign judgments.
Mtshaulana submitted there were not sufficient facts before the high court to show whether Zimbabwe had signed the SADC Protocol, which established the tribunal.
In papers, Zimbabwe contended that SADC member states were still required to ratify an agreement amending the original treaty and the tribunal protocol, which it had not.
Therefore, it was not for the SCA, but SADC to decide whether Zimbabwe was bound by the SADC treaty.
Legal counsel for the farmers, Jeremy Gauntlett, argued that Zimbabwe, as a founding member of SADC, was bound by the regional treaties it signed. Being a member state of SADC gave the tribunal jurisdiction over it.
Gauntlett argued that the price Zimbabwe was paying, being part of a SADC treaty, was that it had accepted it could lose before a SADC tribunal and then had to implement the decision.
“The penny had dropped too late for Zimbabwe, before it realised what the implications of the tribunal could be.”
Gauntlett said the tribunal’s jurisdiction was clearly established as Zimbabwe had more than once agreed to it in the process before the tribunal.
“It accepted and when it lost they performed a U-turn we see now.”
Mtshaulana, in reply, said being part of a SADC treaty did not mean a country waived its immunity in another country. He said Zimbabwe could not accept judgments as binding if it was against the country's laws and public opinion.
Judgment in the hearing, before a panel of five judges, was reserved.
Campbell’s son-in-law Ben Freeth said they were happy with the appeal hearing. He said it was exciting to see judges had delved into the case in preparation.
“We are positive that we are on the right side of the law and that what happened to us was wrong.” - Sapa