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.

Goldman still Sucks

I like the comic but the White House is completely complicit.

South African High Court and Zim Land Acquisition-Case Note

The North Gauteng High Court, Pretoria held in the matter of Von Abo v. Govt of the Republic of South Africa, et al 3106/07 decided 5/2/2010, that the Government and President of South Africa and the Ministers of Foreign Affairs, Trade and Industry and Justice and Constitutional Development are jointly and severally liable to pay the applicant Von Abo damages. These damages were for losses suffered as a result of the violation of his rights by the Government of Zimbabwe when they acquired his land.

This decision is a sequel to the main judgment decided in 2009. The main judgment provided that the Respondents, Government of SA and others, failed to protect the rights of a SA citizen in violation of the Constitution. Diplomatic protection for Von Abo was expected- was a constitutional right. In the main judgment the court ordered Respondents to remedy the Von Abo rights violation and report back to the court within 60 days of the main judgment what steps were taken to remedy the Von Abo situtation . Paragraph 4 and 5 of the main judgment are as follows:

4. The respondents are ordered to forthwith, an din any event within sixty days of the date of this order, take all necessary steps to have the applicant’s violation of his rights by the Government of Zimbabwe remedied.

5. The respondents are directed to report by way of affidavit to this court within 60 days of this order, what steps they have taken in respect of paragraph 4 above, and to provide a copy of such report to the applicant.

This case concerns only the court ordered report and nothing else. There was the matter of suing the President and the Government that had to be cleared up by the Constitutional Court. It was finally decided that the Government of South Africa and the Minister of Foreign Affairs were only obligated to comply with paragraph 5. No report was ever made by affidavit, as ordered by paragraph 5. Instead, one report was provided but found lacking by the court because it was signed not by the Respondent, but by someone on Respondents behalf. Clearly unacceptable to the court.

A report was not provided by the Minister of Foreign Affairs, as ordered, but by the Deputy Director-General in the Dept of Foreign Affairs. The court calls the failure of Respondents to comply with a court order contempt of court and in violation of the Constitution. Specifically, section 165(4) which provides that the organs of State must assist and protect the courts to ensure their effectiveness.

The court points out that respondents failed to file affidavits or explain their failure to file. The court also took issue with the fact that the one report that was provided was not by a Respondent but someone designated by the Minister of Foreign Affairs.

The court next turns to analysis of the report itself which is meant to explain what actions were taken by Respondents to remedy the situation of Von Abo. The report states that requests were made to the Zim Government to assist when the SA Embassy asks regarding SA farmers who are victims of illegal land occupation. The court concludes that this is not dealing with the matter properly. Furthermore, the court states that the Government of SA could have used the South African Development Community (SADC) Tribunal judgment to fortify their efforts in Zimbabwe. This did not happen.

The report provided by the Deputy Director-General states that they could not do more since Zimbabwe could not be stopped from its policy of land acquisition. The Von Abo court did not find this persuasive. The court explained that Respondents could apply diplomatic pressure and did not. In fact, Respondents were in the unique position of funding the Government of Zimbabwe so were perfectly situated to make efforts to change the situation at least for South African farmers. No help was provided.

This is just a case note and I am no expert on SA law...AT ALL. But I will try to follow all of these cases as they make their wasy through the SA court system. I have no real comment to make other than I enjoy the law when it is applied by the judiciary. It can be so beautiful. This case is political but the legal aspects appear narrow enough so that the court can hammer its point repeatedly and it is so beautiful to watch. It may be meaningless, I cannot say. But this court opinion is out there and that is all that can be done for now.

Tejas

The San Antonio River

The shrine at the Alamo





The Alamo

San Antonio, Texas is adorable. Everything is walkable. It has great food and drink
and it is very friendly.


Why Europeans (and others) avoid Texas is beyond me.
I mean Americans do manage to get to Paris and THAT can be a disagreeable city.


Prickly Pear Cactus Margarita!!

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.

http://allafrica.com/stories/200912290046.html

http://www.afriforum.co.za/

Personal Muzungu

This is more of a personal post about my doctoral journey. I have some new supervisors which is very good. There are some changes to my status which require administrative attention. It is always a problem that I am so far from London now. California is really on the edge of the universe even as a state in the US. I am completely isolated from other PhD students.

I tried to get involved in a local university graduate seminar but they were all sociologists and anthropologists and the topics of discussion were so far a field from what I wanted to think about, it seemed inefficient to continue attending. So, I phone my mates in London when I can and whinge and as funds are running low I go to London less frequently than I should. I will finish but it won’t be the prettiest thesis Queen Mary has ever seen.

Right now, I am working part-time on some book chapters for a book I am co-authoring. It is on US Business Law. It really is quite interesting even if it is domestic.

The thing I am thinking about most now is how isolating the PhD process is. Being a housewife can be isolating too. I am not astounded by the isolation. Rather, I wonder how the English style of sink or swim really compares to the US. In the US you have course work and so many activities that involve the student in the Department. Queen Mary has some activities but not for all students.

I am in the Centre for Commercial and Legal studies. There have always been fewer opportunities to meet other students even when I lived in London. Granted, I have always been a mature student which really sets you apart. I went to University when I was supposed to…but that was about it. The rest of my degrees I have always been on the fringe. The fringe is where I have spent a great deal of time.

Regardless, I think about how isolation defines the PhD experience. Sort of like sleep deprivation defines Medical students in the US and junior associates at law firms. I think all of these are extremes. They may serve to separate the wheat from the chaff very effectively but otherwise are meaningless. I believe each program picks an adversity they want you to suffer and voilà that is it. You are tested and tried and either you survive or you don’t.

I am confident I will survive. I am not as dreamy about the whole doctoral thing as I was when I started. Instead, I believe I have some important research and I want to get it out there. Not because someone will get it out there first. I am quite sure I have little competition for writing about stock exchanges in East Africa. And if there were competition, that would be a good thing.

A friend of mine who lives in London told me I needed to explain my African experiences to ‘my people’ so they learn. I liked that because I believe that. I don’t want to save Africa as most people think when I tell them about my research. I want to translate just the little part that I know for ‘my people’ who are limited in their thinking but have very big hearts. I hope to know more so that I can translate more.

Nuns, who are in training, water sticks daily to try and make them grow-it is intended to build faith.

I see my isolated research like that.

Transportation Safety for Nigerians

http://www.youtube.com/watch?v=A4Ou87VtFvM&feature=player_embedded