SA farmers threaten legal action over new investment pact with Zim
SW Radio Africa| 25 November 2009
SA farmers threaten legal action over new investment pact with Zim
By Alex Bell
The imminent signing of a new bilateral investment protection treaty (BIPPA) between Zimbabwe and South Africa could be halted, if an application in the Pretoria High Court on behalf of more than 200 farmers proves successful on Thursday.
The BIPPA, which is set to be signed this weekend at an investment conference in Harare, controversially excludes protection on all South African owned land expropriated by the government during the so-called land ‘reform’ programme. The agreement itself has not yet been made public, but South African Trade and Industry Minister Rob Davies recently revealed that the agreement will only provide security for South African investors in any sector, including agriculture, ‘from now on’. He added, in an interview with South African newspaper Business Day, that it would have been impossible to negotiate this agreement with a ‘retrospective clause’, with regards to expropriated land.
244 South African farmers, whose land was seized during Robert Mugabe’s chaotic land grab campaign, are now threatening legal action for being excluded from the investment pact. Lawyers representing the farmers, as well as South Africa pressure group AfriForum, are now set to file an application in the Pretoria High Court on Thursday, to have the signing of the agreement halted.
The farmers are being led by Louis Fick, who is still in the middle of a land wrangle with Zimbabwe’s deputy Reserve Bank governor Edward Mashiringwani. Fick, a South African citizen, has received absolutely no assistance from his own government, despite being forced off his land, threatened, intimidated and harassed. Mashiringwani and his hired thugs meanwhile have completely taken over the farm, by force, operating with total impunity.
Fick is one of more than 70 farmers who were awarded legal protection of their land through the human rights court of the Southern African Development Community (SADC) last year. The SADC Tribunal ruled that the farmers had been unlawfully deprived of their property and that the Zimbabwean government should restore their rights or compensate them. But the ruling has been completely ignored, and the Tribunal itself snubbed by the government, which has been charged with contempt. SADC meanwhile, including former chair South Africa, has made no comment about the snub, which included Justice Minister Patrick Chinamasa announcing Zimbabwe was pulling out of the Tribunal.
South African farming union Agri-SA said such silence, particularly from the South African government, would amount to ‘retrospective approval’ of the Mugabe regime’s unlawful actions. The group has expressed its concern about the investment pact, insisting that victims of the land grab campaign be included. The group last week urged the South African government “not to buckle under pressure” from Zimbabwe to exclude the land ‘reform’ programme from the agreement.
The BIPPA, if signed, effectively immunises the government from facing any legal prosecution for sanctioning the illegal takeover of land. The agreement too is set to badly damage South Africa’s reputation, as the South African government will be allowing Zimbabwe to flout the SADC treaty that both countries are party to. Most concerning is that South Africa will be contravening its own Constitution, by not protecting the rights of its citizens whose land was seized in Zimbabwe.
A legal opinion on the proposed BIPPA, produced by Advocate Jeremy Gauntlett for Zimbabwe’s Commercial Farmers Union, highlights these concerns. Gauntlett writes that the investment pact “constitutes a breach of South Africa’s legal obligations,” adding that the agreement “purports to immunise Zimbabwe from its international law liabilities.” Gauntlett concludes that by entering into the agreement, South Africa “would act contrary to the principles of the SADC Treaty and other international instruments, and in violation of the South African Constitution, and may in law be interdicted against doing so.”
