A Quagmire of One's Own Making? If Harare Can't Convince the South African Constitutional Court That It Was within Its Rights to Confiscate White-Owned Farms in Zimbabwe, Its Own Properties in South Africa Will Be Seized and Auctioned off. Report by Tom Nevin

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IN SEPTEMBER THIS YEAR the South African Supreme Court of Appeal confirmed an earlier ruling by the Southern African Development Community (SADC) Tribunal against Zimbabwe for violating certain SADC Treaty obligations.

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"The obligations in question concern the protection of basic human and democratic rights," says Gerhard Erasmus, an associate at the Southern African Trade Law Centre (Tralac). The issue stems from the seizure and confiscation without compensation of white-owned agricultural properties in Zimbabwe, a process that started in 2000 and has continued ever since. The case had come before the South African Supreme Court of Appeal because Zimbabwe had appealed a writ of execution, requested in the Pretoria High Court by the owners of the confiscated property in Zimbabwe. The writ authorised the sheriff for the district of Cape Town to attach immovable properties belonging to the government of Zimbabwe and to sell them in execution.

"The Zimbabwean appeal has now failed and unless it can convince the South African Constitutional Court to rule in its favour on the basis of a constitutional complaint, it will have exhausted all remedies available from the South African judiciary," says Erasmus.

"The judgment has also uncovered and explained a number of fundamental legal issues vital to the future of SADC," he adds. And now if Zimbabwe wants to retain ownership of its various, and valuable, properties in South Africa, it has final recourse to the South African Constitutional Court, the highest seat of jurisprudence in the land. Should that also fail, the properties will be seized and auctioned off by the Sheriff of the Court.

Powerful and well-funded South African NGO, AfriForum, an independent and nonprofit organisation committed to the protection and expansion of civil rights for southern Africa's minorities, says its legal team "is ready to oppose the Zimbabwean government's appeal in the South African Constitutional Court".

Zimbabwe's attorney general, Johannes Tomana, confirmed in late October that the Zimbabwe government would contest the matter in the Constitutional Court on the grounds that it believes the SADC Tribunal was irregularly registered when it cleared the way for an auction of Zimbabwe's South African property to satisfy a debt owed to former owners of farms in Zimbabwe.

A friForum's legal representative, Willie Spies, said in response that its legal team is all set to defend the case in the Constitutional Court, and will ask the Court to hear the application "on an urgent basis, to obtain legal certainty of the matter before the end of the year".

Unexpected resolution?

An end to this issue might come sooner than expected and its resolution might have nothing to do with the courts, depending on how soon the case is heard.

Zimbabwe's new constitution, a step that will determine the timing of the country's general and presidential elections, has been issued as a first draft for public scrutiny. Its priority would seem to centre on human rights, singularly absent in the country's present constitution. It also strips away much of the president's autocratic powers, leaving him with much reduced authority. A new constitution was deemed necessary by the parties to the Global Political Agreement because the present one, drawn up largely by the British government for the handover of political power in 1980, was at the heart of much of Zimbabwe's current travail.

Will the proposed document properly and finally address the major constitutional issues at the centre of the Zimbabwe governance crisis - especially the absence of a legal framework around the observance of human rights, ineffective separation of powers, excessive and unchecked presidential authority, overcentralisation of power and the absence of free and fair elections? …