Civil Procedure in Action: more drama surrounding the 2008 SADC Tribunal ruling!

A house owned by the Zimbabwe government and located in the Cape Town suburb of Kenilworth was attached in early April pursuant to a court order from the High Court of South Africa. See Muzungu on Africa, 10 Feb 2010. The court order registered the SADC tribunal ruling of 2008 as well as a late order granting damages to white farmers whose land was seized in Zimbabwe under the government’s land reform programme.

I teach Civil Litigation, and have done for many years, through the University of California, at Irvine, Paralegal Extension Program. Procedural matters are thrilling. It is in the process of satisfying judgments that you begin to emerge from the smoke (and mirrors) of the dispute and reach a state of clarity. You have a judgment and it will be satisfied. The dispute is over so there is no more emotional turmoil only satisfaction of the judgment. I like that imagined space.

The Zim government originally claimed that the property had diplomatic immunity so it could not be attached. News reports stated that this was not the case and the property was in fact attached in order to satisfy the court judgment. (see endnote citation)

However, in a fascinating twist the South African Government said it would oppose the attachment of property. I wait with interest for any news regarding the grounds of this opposition. The opposition could jeopardise the High Court ruling and undermine the SADC Tribunal ruling as well.

There is something greater than politics at play here. What is at stake in all of these proceedings is the legitimacy of the SADC Tribunal itself. That tribunal represents both SA and Zim together as members of SADC. If the SA High Court ruling is not respected it is tragic for all the parties involved because it destabilises the SADC ruling. A working and respected SADC Tribunal takes all disputes under SADC jurisdiction, out of domestic courts and sets them for resolution in an arena that is consensual and co-operative. I think this is a good thing. The facts surrounding this ruling make it more interesting to write (and read) about but for me it is about alternative dispute resolution and not racial and political friction in that desperate part of the planet.

I look forward to learning about the basis for the SA government opposition. You may recall, they did not oppose the registration of the SADC ruling way back when it made sense to do so.

Politics may win out-it seems to trump everything down there. Yet, I am hopeful. Civil procedure is a powerful thing. It’s like laser surgery-little or no blood, but it eradicates the target.



www.news24.com/.../Zim_property_seized_in_Cape_Town - South Africa
http://iluvsa.blogspot.com/2010/04/i-am-confused.html

Pretoria High Court registers SADC tribunal ruling

This past week the High Court of Couth Africa (North Gauteng High Court, Pretoria) issued an order that required the registration of the South African Development Community (SADC) Tribunal ruling against the Government of Zimbabwe on it’s land reform policy. This means that the white farmers will be able attach assets of the Government of Zimbabwe in satisfaction of the SADC Tribunal ruling.

This is issue is saturated with political issues, perhaps it not possible to discuss Southern Africa with out discussing those issues. On the most basic level, the registration of the SADC Tribunal decision opens up a channel for positive movement. Regardless of which side of the land reform debate you are on, this decision by the High Court opens a new, previously closed, avenue of action. At the very least it will be fascinating to observe what happens next.

By registering the SADC Tribunal ruling the High Court has contributed to the legitimisation of the Tribunal. This is neutral actually. Whether you like or dislike these tribunals as they resolve international disputes and the decisions they make matter. Sometimes the rulings only matter to the parties. In this case the decision might matter to more than just the parties. For a long time the SADC ruling was virtually ignored. That is a problem for every signatory to the SADC treaty. All of the organs of SADC need to be fully functioning. All the talk of how co-operation and integration are the key to development is just talk unless legitimacy is established.

Everyone can spill all the ink they want on how ‘rule of law’ is a defective idea of the Washington Consensus. Maybe, but I say, cowboy up and use that concept to your own benefit. These farmers did not like what happened to them and they have dedicated some time energy and money to seek justice.

The SA High Court simply did what all SADC members should have done and register the Tribunal ruling. Life has become complicated for everyone on the planet. Rules help us all. We know what to expect in the morning-traffic lights that work, people to be civil to one another, that our pay check will clear the bank and that our family is safe while we go about our day. This is not actually a western idea-it is universal. The SADC Tribunal gave the ruling that they gave. Good or bad it is the law now. Things may be dead in the water, so to speak, but if they are not things are about to get interesting.