When Ben Freeth talks about going back to his farm in Zimbabwe, his face lights up.
“It’s something I feel passionate about. Obviously, trying to farm now is asking for trouble, but hopefully some day there will be a time,” Freeth says, standing in the dappled light of the Constitutional Court’s foyer.
On Thursday, the court heard an appeal by the government of Zimbabwe, which is attempting to prevent properties belonging to it in Cape Town from being attached and sold off by three white farmers who were evicted from their properties.
The case started when Freeth’s father-in-law, Mike Campbell, successfully had the Southern African Develoment Community (SADC) Tribunal declare his eviction from his farm unlawful in 2008.
The tribunal ruled that Campbell had been discriminated against on the basis of race, and that Zimbabwe had contravened a provision of the SADC treaty that required member states to act in accordance with “human rights, democracy and the rule of law”.
Freeth, who also lived and farmed on his father-in-law’s land, recalls his family’s terror when their land was seized by a large group of people.
“They broke into the house a few times, big gangs of 20 people who terrorised our children... We just stayed in our house and tried to survive because the police wouldn’t do anything,” said Freeth.
The government of Zimbabwe has ignored the order of the now-defunct tribunal, but this has not stopped the farmers from attempting to recoup legal costs of more than R113 000 in South Africa’s courts.
“This is about cementing the judgment that we got in the SADC tribunal.
“We believe God created us all equal and we should be all equal before the law,” said Freeth.
In court, Advocate Patrick Mtshaulana, for the Zimbabwean government, argued that a South African court “cannot preside over a foreign treaty that is not part of the law of South Africa”.
Mtshaulana argued that the judgment of the tribunal cannot be enforced in South Africa because the protocol that established the tribunal was never ratified.
But Jeremy Gauntlett, who is representing the farmers, said this was irrelevant.
Gauntlett said the “elephant in the court” was the fact that Zimbabwe had submitted itself to the jurisdiction of the tribunal and the South African courts.
Gauntlett said Zimbabwe had filed opposing papers when the case began in the North Gauteng High Court, then failed to take further action until its properties were about to be seized.
Gauntlett said Zimbabwe could not attempt to “row back” after already submitting itself to the jurisdiction of a South African court.
For Freeth, now living in Harare, where his wife runs a hand-embroidered linen business, Zimbabwe remains the place where he wants to farm.
“We feel very attached to Zimbabwe. We’ve got a lot of friends there and we feel a loyalty to our country.”