The Constitutional Court has dismissed a bid by SA and Zimbabwean farmers to sue the SA government for R2bn over the actions of former president Jacob Zuma.
The apex court dismissed the claim as being brought too late.
The farmers claimed Zuma’s decisions at a 2014 Southern African Development Community (Sadc) summit led to them being unable to claim compensation for losing farms to Zimbabwe’s expropriation programme years before.
Sadc is an intergovernmental organisation of Southern African countries, which includes SA and Zimbabwe, that furthers economic and political co-operation between the states. Its tribunal is its adjudicative body and the only such body that resolves regional disputes between Southern African states.
In 2009, the tribunal ruled in the farmers’ favour and ordered the Zimbabwean government to pay compensation. The Zimbabwean government ignored the order for years.
The tribunal’s powers were “deliberately extinguished by joint action [between Zimbabwe and other states], in which then-president Zuma was a co-perpetrator”, the farmers argued.
In 2018, the Constitutional Court declared Zuma’s part in gutting the tribunal as unconstitutional. The apex court at the time said Zimbabwe created a plan that stripped the tribunal of much of its power.
Willing ally
Its plan was adopted by Sadc in 2014, removing the right of individuals to approach the tribunal, thus limiting access to state parties. It also refused to appoint new members to the tribunal. The tribunal was effectively disabled.
“Zimbabwe had a willing ally in SA, as represented by our president,” the court ruled in its 2018 judgment. The court declared Zuma’s participation and support for gutting the tribunal as unconstitutional.
After the 2018 Constitutional Court ruling, the farmers instituted proceedings against the office of the president and the government of SA for damages amounting to about R2bn. This amount, they told the Constitutional Court, is what “they would have been awarded had they been able to pursue claims in the tribunal against the Zimbabwean government”.
Because Sadc removed that remedy, supported by Zuma, the farmers went after the Office of the President and the SA government instead, claiming the R2bn in damages. Though Zuma resigned from office in 2018, the claim was against his conduct as president. The president’s office can thus still be sued.
However, the state argued the matter should be thrown out of court, because Zuma’s conduct during the 2014 summit was too “remote” from the farmers’ losses.
The state argued the farmers also instituted their damages claim too late. Zuma’s conduct was in 2014, yet the farmers instituted their damages claims only in 2018. This is outside the three years SA law allows to sue for damages.
After numerous court battles, the state appealed to the Constitutional Court.
Court disagreed
On Monday, the apex court agreed with the state, dismissing the R2bn claim.
The farmers argued they could sue the president only after the apex court’s 2018 ruling, but the same apex court disagreed.
Writing for a unanimous court, Constitutional Court judge Owen Rogers said while the farmers were part of the 2018 victory, “there was nothing in that [earlier] application to suggest to the president that he was the subject of any delictual claim”.
The farmers argued though they were aware of Zuma’s conduct, their claim was suspended because of the court cases involving Zuma’s conduct as president. Rogers rejected the argument, as the farmers’ damages claim differed from whether Zuma had violated the constitution as president.
Rogers suspected that “the idea of instituting delictual claims only occurred to the [farmers] and their legal advisers much later” — but by then, it was too late.
Their claims have thus lapsed, regardless of the merits.
Due to the importance of the case, he ordered no costs against the farmers. “One cannot but feel sympathy for the treatment to which they were allegedly subjected in Zimbabwe,” he wrote.
The SA taxpayer will thus not be paying for the farmers’ legal costs, nor will R2bn be coming out of the budget.
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