South African Constitutional Court ruling regarding the 2008 SADC Tribunal judgement in favor of Zimbabwe farmers.

In 2008 a group of Zimbabwe Farmers succeeded in winning a judgement for recovery of damages for the loss of their farms against the Zimbabwe Government. The judgement was rendered by the Southern African Development Community (SADC) Tribunal. That judgement had to be enforced by a court. The court that the Farmers requested to enforce the judgement was the North Gauteng High Court, Pretoria (High Court). The High Court ordered the payment of the judgement through attachment of Zimbabwe property in South Africa.

Zimbabwe appealed this decision. This month the Constitutional Court of South Africa, in a majority opinion written by Chief Justice Mogoeng, agreed with the lower court's decision to attach Zimbabwe property located in South Africa. The Court stated that it had extended the common law on enforcement of foreign judgments to include SADC Tribunal rulings. Additionally, the Chief Justice stated that the SADC Tribunal was established for this purpose, to allow citizens of SADC member states to seek redress for acts by those states.    

Further notes:
The SADC Tribunal was suspended in 2010 and reorganized in terms of purpose in 2012. Additionally, several properties owned by Zimbabwe in SA have been given diplomatic immunity and so cannot be attached in order to satisfy the judgement. One property was not able to be given such immunity and was attached in execution of the debt for the judgement.
    

SADC Tribunal Summer 2012

The SADC Tribunal is still not in session. here is an excellent recap of the history and current status of the SADC Tribunal and its nullification by SADC.

Apparently, new efforts to control land are in the new draft Zimbabwe Constitution. Ben Freeth  is pursuing an appeal to the African Commission on Human and People's Rights. It registered  an application brought by Ben Freeth and another dispossessed Zimbabwean farmer, Luke Tembani, to be heard by the African Court on Human and People's Rights. They seek an order from the Court that will require the SADC Summit to reinstate the Tribunal.   


I think in life, just as in law, time is of no consequence. You hope to outlive your claim but you may not. The important thing is to persevere, whatever that means.


I respect the Campbell and Freeth dispute because they seem willing to die for what is right. Many peole the world over do this. Let's not diminish the effort of these men and women because they are white and living in Zimbabwe. That is intellectually dishonest. 


Instead,  honor their effort to work within the system, however flawed. We women have been doing that, universally, for years.


Shame on you for letting race cloud your insight.


These men and women are civil rights activists just like those in America in the 1960's. 
Honor their sacrifice just like the sacrifice of their black brothers in Zim who threw out the British.


Yes, let that bake your noodle for a bit.


        

TED talk on the African Capital Markets

This 2011 You Tube link is a video of Yale World Fellow, Nicky Newton-King, the Deputy CEO of the  Johannesburg Stock Exchange (JSE) talking about the "Elephant in the Room", referring to strategies to move African Exchanges forward and African Exchanges refusal to adopt them. She listed three important strategies to attract more investors to African Exchanges.

1) Harmonisation of laws
2) Cross-listing of Securities
3) Creation of Regional or Pan-African Exchanges

The talk was exceedingly rudimentary-I am not sure what qualifies one as a Yale World Fellow- but interesting. I did agree with her last two points. Cross-listing of securities may be feared but will increase liquidity for the company and all boats will rise with that tide. Exchanges do serve issuers by providing the facility for raising capital. Cross-listing helps facilitate investors finding new, emerging market companies by appearing several places, ideally on a large exchange and on a smaller one.

I also agree that the development of more regional exchanges can only help. East Africa is well on its way toward a regional exchange, even though that has been true for awhile. Ms. Newton-King did not mention this but did use East Africa as an example of where a regional exchange might work.

Finally, I disagree that Harmonisation of laws in Africa, whether exchange procedure or governance, will help anyone. Once again we must remember the poor Southern African Development Community (SADC) Tribunal. 15 African states are members of SADC and yet when the Tribunal ruled against Zimbabwe in the Land Reform case of Ben Freeth and Luke Tembani in 2008, a decision upheld by the South African Supreme Court, it was ignored and then ultimately disbanded in 2011. For Harmonisation of laws to work among even a few exchanges, there needs to be a dispute resolution process in place that functions in a reliable way. Just like African Exchanges don't want to be part of an African Board in SA, they don't want to end up in court there either. So there will need to be a dispute resolution body for exchanges, investors and issuers to take their disputes to.

SADC is not the only alternative for resolution of disputes but for Southern Africa a SADC-like organisation could be developed. Harmonisation is always tricky, in my opinion, because of the potential power imbalances that cannot be rectified. It is usually the laws of the dominant party which are adopted and that is not always good for everybody involved.

More on SADC soon. Watch the video if you can. It is interesting and has some good slides!