Landmark victory for displaced farmers

It notes their attorney can now arrange for the sale in execution of a Zimbabwe Government property in Kenilworth, Cape Town, which was attached in 2011. The property had been attached to satisfy a cost order the Southern African Development Community (SADC) tribunal granted against Zimbabwe for being in contempt of an earlier order it had made against the country. The Constitutional Court dismissed Zimbabwe's appeal to rescind the costs order the tribunal had made and a South African court had enforced. The court expanded common law precedents on the enforcement of foreign judgments and orders to apply to those of the tribunal, notes the report, adding the judgment means all tribunal decisions against Zimbabwe will be enforceable in South Africa. Willie Spies, of law firm Hurter Spies Inc, said the firm would now be able to sell the Kenilworth house worth about R3.5m to satisfy the costs order. However, notes the report, it would be difficult to execute other orders because they needed to be quantified by the tribunal. This would be impossible because the tribunal, which was formed in 2005, was suspended in 2010 after several judgments went against the Zimbabwe Government, Spies reportedly told the paper. Full Business Day report (subscription needed)

In a majority judgment, Chief Justice Mogoeng Mogoeng said article 32 of the SADC Tribunal protocol obliged member states to facilitate the enforcement of judgments and orders of the tribunal. 'It also makes these decisions binding and enforceable within the territories of the states concerned,' he said, according to a report on the BDlive site. Mogoeng said subject to compliance with the law on the enforcement of foreign judgments in force in South Africa, Zimbabwe was duty-bound to act in accordance with the provisions of article 32. Mogoeng said the common law did not apply to the enforcement of judgments of the tribunal and there was no other legal provision for the enforcement of such decisions in South Africa. 'This then gives rise to the need to develop the common law of SA to pave the way for the enforcement of judgments or orders made by the tribunal. This development of the common law extends to the enforcement of judgments and orders of international courts or tribunals, based on international agreements that are binding on SA,' he is quoted in the report as saying. In a separate judgment, Justice Chris Jafta said he would have dismissed the application for leave to appeal on the basis that it was not in the interest of justice to grant leave. 'In essence, therefore, this matter is about rescission of the orders granted by the High Court with Zimbabwe's deliberate indifference,' he said, according to the report. Jafta said that in its oral and written argument before the Constitutional Court, the Zimbabwe Government had failed to address the question of whether the requirements for rescission of a writ had been met. Full BDlive report The Government of the Republic of Zimbabwe v Fick and Others (CTT 101/12)