DOZENS of former Zimbabwean commercial farmers are demanding R7 billion from the South African government for its role in the suspension go the Southern African Development Community (SADC) Tribunal.
The farmers had intended to sue the Zimbabwean government at the SADC Tribunal, whose operations stopped in 2014 with the backing of the then South African president Jacob Zuma.
Most of the Zimbabwean commercial farmers lost their businesses during the country’s land grabs in the early 2000s.
They have launched two lawsuits at the North Gauteng High Court, Pretoria, demanding R5bn and R2bn in damages for losses they suffered after the South African government supported the 2014 suspension of the SADC Tribunal.
In December 2018, the Constitutional Court declared Zuma’s participation in the decision-making process and his own decision to suspend the operations of the SADC Tribunal unconstitutional, unlawful and irrational and directed his successor, President Cyril Ramaphosa, to withdraw his signature from the 2014 protocol suspending the tribunal’s operations.
The tribunal had jurisdiction over disputes between states and between natural or legal persons and states.
No natural or legal person may bring an action against a state unless he or she has exhausted all available remedies or is unable to proceed under the domestic jurisdiction and where a dispute is referred to the tribunal by any party the consent of other parties to the dispute was not be required.
The tribunal operated as a court of appeal over the highest domestic courts of SADC members.
Ramaphosa is now challenging the former commercial farmers’ lawsuit at the Constitutional Court, which will hear the matter next month.
In the matter before the apex court, 25 Zimbabwean farming companies and former commercial farmers, six of whom are South African citizens, are claiming R2bn for the losses they allege they suffered due to their inability to sue the Zimbabwean government through the SADC Tribunal.
In court papers, they state that the damages they claim represent what they alleged they would have been awarded had they been able to pursue claims through the tribunal against the Zimbabwean government.
Ramaphosa told the court that if the former commercial farmers’ claims were held to be good, it would open the floodgates of similar litigation by foreign nationals who allegedly suffered losses abroad as a consequence of the executive’s conduct of South Africa’s international relations.
Ramaphosa said: ”The (South African) state is already faced with a further 52 summonses by similarly situated former Zimbabwean farmers, who recently instituted almost identical claims to the current respondents (the 25 Zimbabwean farming companies and former commercial farmers), claiming an additional R5bn in damages allegedly arising from the president’s (Zuma’s) unconstitutional participation in the suspension of the SADC Tribunal and signature of the 2014 protocol.“
All the claims have, by agreement, been held in abeyance pending the determination of Ramaphosa’s legal challenge.
In December 2020, the North Gauteng High Court upheld Ramaphosa’s factual and legal causation exceptions but the Supreme Court of Appeal (SCA) overturned the judgment in favour of the Zimbabwean farming companies and former commercial farmers.
Ramaphosa said the SCA’s approach was impermissible by allowing a multi-billion rand damages action to proceed even though it ought to be statutorily barred.
”The central constitutional issues in dispute relate to whether multi-billion rand damages claims against the state, in respect of the president’s actions as head of state in conducting international relations abroad, are barred by the Legal Proceedings Act or are bad in law.
“It is of significant importance that this court determines these constitutional issues which are crisply raised,” he added.