Wednesday, January 27, 2010

Law in Southern Africa

“They told me you had been to her,
And mentioned me to him:
She gave me a good character,
But said I could not swim.

He sent them word I had not gone
(We know it to be true):
If she should push the matter on,
What would become of you?

I gave her one, they gave him two,
You gave us three or more;
They all returned from him to you,
Though they were mine before.”

The Supreme Court of Zimbabwe has ruled against registering the 2008 SADC Tribunal decision declaring illegal the Governments forced acquisition of land from white farmers. This, of course, means that those farmers will not be able to recover (land, compensation, etc) against the tribunal judgment in Zimbabwe.

I have not been able to get a copy of the decision so I rely on newspaper reports when discussing the rationale of the Court. The Supreme Court of Zimbabwe said that as a general rule, courts were obliged to enforce SADC tribunal rulings as a matter of public policy. However, application of that general rule, according to the Court, is subject to facts and circumstances of the matter and the practicality of recognizing and enforcing SADC tribunal decisions. The Court pointed out that if enforcement were permitted, this would contravene Section 16B of the Zimbabwe Constitution which is the heart of the land reform (acquisition) programme.

Additionally, the Court stated that on utilitarian concepts alone the greater good would be served by NOT enforcing the ruling. Essentially, it would simply be too impractical to declare land reform illegal and return the land to the 79 illegally evicted farmers. The people who now occupy that land would need to be relocated after all. Also, citizens of Zimbabwe have come to expect the Government to acquire land. Hence, the policy of land reform (acquisition) must be upheld…..and for legal reasons too.

“…If I or she should chance to be
Involved in this affair,
He trusts to you to set them free,
Exactly as we were.

My notion was that you had been
(Before she had this fit)
An obstacle that came between
Him, and ourselves, and it.

Don't let him know she liked them best,
For this must ever be
A secret, kept from all the rest,
Between yourself and me.”

(A poem submitted as evidence at Alice’s trial)

Lewis Carroll, Alice in Wonderland & Through the Looking Glass.

Meanwhile, Afriforum, a South African Civil Rights organization, has won the right to add the Zimbabwe Government to an application before the High Court of South Africa to register the 2008 SADC tribunal ruling declaring land acquisition illegal.

The farmers involved in the application are seeking recovery from the Zimbabwe Government for the seizure of their lands. That application will be heard by the High Court in Pretoria in late February 2010. If successful, the farmers may seek to be compensated by attaching assets of the Zim Government in South Africa.

I will repeat what I have said before which is that the International Arbitration Community should be all over this. Not one of the academic, professional, lawyer/arbitrators is paying any attention or dedicating any resources to supporting the concept of the SADC tribunal as a legitimate arbitral body whose decisions MUST be enforced in order to uphold the concept of arbitration. This IDEAL of arbitration espoused at expensive drinks parties held at posh law chambers in London, New York, Paris and for awhile Dubai, mocks the truth of arbitral processes that resolve disputes at the local level DAILY without the extortionist fees of overpaid, lazy thinkers, who inhabit the International Arbitral community. But they are not interested-at all.

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