FARMERS’ union AgriSA has welcomed a court ruling that paved the way for Friday’s signing of a bilateral investment protection treaty between SA and Zimbabwe because it commits the South African government for the first time to upholding a landmark property rights ruling handed down by the Southern African Development Community (Sadc) Tribunal.
The treaty, together with an out- of-court settlement between pressure group AfriForum and the Department of Trade and Industry, made an order by the North Gauteng High Court on Thursday, meant South African citizens who had lost farms in Zimbabwe would launch legal proceedings for compensation that could result in Zimbabwean property being attached in SA, the union said.
“It also means AgriSA can obtain a court order in SA to force our embassy in Harare to intervene in continuing land invasions on farms belonging to South African citizens in Zimbabwe,” Theo de Jager, deputy president of SA’s largest agricultural union, told Business Day yesterday.
AfriForum brought an urgent application to interdict the signing ceremony after Trade and Industry Minister confirmed a clause in the bilateral agreement excluded historical claims arising from Zimbabwe’s controversial land reforms. Only tenure rights of all existing and future investments would be secured.
AfriForum argued the exclusion clause would in effect legalise past land grabs and supersede the Sadc ruling, confirmed in June, that Zimbabwe’s 2005 constitutional amendment allowing the state to seize land from white farmers without compensation, including South African citizens, violated international law.
The tribunal ordered the Zimbabwean government to pay fair compensation to farmers already evicted, and to protect property rights of those still on their farms.
Zimbabwe does not recognise the decision.
Last week’s North Gauteng High Court ruling means the bilateral treaty signed on Friday cannot prevent South African farmers in Zimbabwe from seeking relief from international courts for past illegal land acquisitions .
Trade and Industry Minister Rob Davies said he welcomed the court ruling as it allowed a treaty to be signed that would help Zimbabwe’s recovery. “It is important for SA to aid this recovery to alleviate the burden placed on South African government resources by Zimbabwean immigrants,” he said.
The Industrial Development Corporation and the Development Bank of Southern Africa were considering several infrastructure projects in transport, energy, telecoms and agribusiness, he said.
Zimbabwe’s Economic Development and Investment Promotion Minister Elton Mangoma said that contracting parties would enjoy increased security under international law.
“The reduction of the investment risk flowing from the agreement is meant to encourage companies and individuals to invest in the country that concluded it.”
But AgriSA said given the secrecy and lack of transparency surrounding the treaty, it would adopt the same cautious stance as Business Unity SA (Busa), which declined to take part in the signing ceremony before it had clarity on the text.
Busa said a strong treaty could improve the business environment for South African investors in Zimbabwe. “The rights of those who have had land and other interests expropriated or nationalised in Zimbabwe to seek recourse cannot, however, be compromised in order to achieve the protection of future investments,” Busa said.
hofstaters@bdfm.co.za