Why SA’s top court has dismissed a R2bn land reform damages claim brought by former Zimbabwe farmers

No compensation for resettled land (pic: Howard Burditt)

South Africa’s Constitutional Court has dismissed a R2-billion-rand claim brought against the South African government by 25 former Zimbabwean farmers.

The farmers say they suffered damages when former President Jacob Zuma in 2014 sided with a SADC Summit decision to break up the SADC Tribunal, which had ruled that Zimbabwe’s land reform was unconstitutional. It also ruled that displaced farmers should be compensated for their land or have resettled farms returned to them. An earlier South African High Court decision found that Zuma had broken the law, but the South African government challenged the ruling, arguing the claim had “prescribed” – or expired. Government’s lawyers called the farmers’ claim “vague and embarrassing”.

In a ruling on Monday, judges of the Constitutional Court unanimously ruled in favour of the government. Judge Owen Rogers, delivering the decision, said the farmers’ claims fell due by August 2014 when Zuma signed the 2014 SADC Protocol and would have “prescribed” in 2017 under South Africa’s Prescription Act.

Responding, Afriforum, the white nationalist grouping backing the Zimbabwean farmers, said it would continue to push for compensation under separate claims.

What do Zimbabwe’s laws say?

Zimbabwe’s Constitution, under Chapter 16 (Section 295), only allows land compensation to “indigenous Zimbabweans” and those under Bilateral Investment Promotion and Protection Agreements (BIPPAs). White farmers are “entitled to compensation from the State only for improvements that were on the land when it was acquired”.

In 2020, Zimbabwe reached an agreement with some farmers to compensate them for the improvements on the farms, but not for the land. The country had already been compensating farmers for such assets, starting with payments of US$42 million in 2016 to 43 farmers.

What did the SADC Tribunal say?

In 2007, a group of white farmers represented by Mike Campbell and Ben Freeth, approached the SADC Tribunal, a regional court, to appeal against their eviction under the fast-track land reform programme. The Tribunal ruled that land reform was “arbitrary, racially discriminatory and contrary to the rule of law” and therefore unconstitutional. It ordered that all white farmers must get back the land, be compensated for the land – not just the improvements – and that they must never be interfered with. Zimbabwe campaigned to have the Tribunal dissolved in 2011, a decision ratified by SADC leaders in 2014.

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