Zimbabwe government loses property immunity in South Africa – Court ruling


    In the court ruling handed down on Monday, the Zimbabwean government could see the tables turned on it by early next year, and one of its properties in South Africa seized in what is essentially retaliation for its ousting of white farmers. That is a long way off from securing compensation for those farmers, but that door is starting to creak open. 

    The mistake the Zimbabwean government made was renting out number 46A Tenant Road, a nondescript upper-middle-class home in Kenilworth, Cape Town. If it had let the property stand empty to be vandalised and claimed by vagrants, as it did with at least two others in the city, it would have had no problems (other than vandalism and vagrants). But in leasing 46A out, it entered into a commercial agreement – and that puts the house up for grabs.

    On Monday the South Gauteng High Court ruled that 46A can be attached by those to whom the Zimbabwean government owes money, just as would be the case with any homeowner who refuses to pay up on a debt. In this case, that means a group of three former farm owners from Zimbabwe, and German bank KFW Bank Gruppe. Other properties they had been going after, most of them also in Cape Town, may not be seized, though.

    The court found that the Foreign States Immunity Act, put in place to prevent exactly this kind of situation, applies to those properties, even if they are vacant right now. In essence the ruling is saying that an abandoned consulate building is still sovereign territory, but an exemption in that Act for commercial assets applies the moment a rental agreement exists.

    In pure financial terms, that means nothing to the farmers behind the original case. They are claiming compensation for their land before the North Gauteng High Court, in a case that now looks like it may start early next year, but have yet to be granted damages. Instead they are, at the moment, seeking some R200,000 in legal costs awarded to them in the preliminary stages of that case.

    The KFW bank, on the other hand, is looking for tens of millions of euros it says Zimbabwe owes it, and has also laid claim to 46A Tenant Road. If the sale of that property now goes ahead, as it will in the absence of another court order to the contrary, KFW’s portion of the proceeds will dwarf those of the farmers.

    But that isn’t the point, says Willie Spies, the legal representative of lobby group AfriForum, which is acting on behalf of the three farmers and picking up the legal tab. “This has a great deal of symbolic meaning. The legal principle is important to us, but this kind of case provides hope to these farmers, and hope is very important to them.”

    AfriForum’s legal team is arguing that the land seizures in Zimbabwe were illegal and racially motivated, mostly relying on a Southern African Development Community tribunal ruling to that effect. That puts the country in clear violation of SADC treaties, with the added benefit of the seizures being an abuse of human rights, an infraction that is harshly dealt with in many laws and agreements. Zimbabwe, however, has variously ignored, dismissed and withdrawn from that tribunal, and isn’t expected to comply with a damage order from a South African court before hell freezes over. Even if the farmers win, they’ll need to look elsewhere to find assets to seize. Monday’s ruling hints that may be possible.

    Is there sufficient immovable property in South Africa owned by the government of Zimbabwe, and outside of sovereign protections, to compensate every disposed white farmer? That is highly unlikely, though AfriForum says it is actively looking. But should the farmers start looking at moveable assets, however – planes, cars, goods, shipping containers, not to mention any of the diamonds that have suddenly made that trade lucrative, passing through South Africa – things could get interesting. If their motive is at least part revenge, the opportunity for disruption is certainly there.

    The Zimbabwean government, representatives of which were resolutely unavailable for comment on Monday, has previously argued that matters relating to its land-reform project should be heard in Zimbabwean courts. We reckon it would take more than a cold spell in hell to convince the dispossessed farmers to accept that recommendation. DM