Governments who abuse human rights as well as the rule of law…….beware

2013-07-03 08:04

The Constitutional Court handed down a judgment on 27th June 2013 dismissing an appeal against a decision of the Supreme Court of Appeal.. This judgment, in my opinion, has far reaching ramifications for those governments and politicians who visit our country, that as signatory to various international conventions, their assets and persons stand to be seized and punished in terms of SA’s international obligations. Study the case of

The Government of the Republic of Zimbabwe v Fick and Others [2013] ZACC 22 (27 June 2013)

Its common knowledge of how the government of Zimbabwe engages in wholesale land grabs in the guise of its constitutionally authorised land-reform policy. After its failure to comply with the Southern African Development Community Tribunal (Tribunal) decision for relief in favour of affected farmers, they approached the North Gauteng High Court in Pretoria (High Court) for the registration and enforcement of the costs order in South Africa. The High Court ordered the registration and execution of the costs order against property of Zimbabwe in South Africa. The government of Zimbabwe applied to the High Court for the rescission of the order, which application was dismissed. It appealed unsuccessfully to the Supreme Court of Appeal and aggrieved by that outcome, it sought leave to appeal to the Constitutional Court.

Chief Justice Mogoeng Mogoeng, writing for the majority in the Constitutional Court in effect developed the common law on the enforcement of foreign judgments and orders to apply to those of the Tribunal. The Court held that the High Court correctly ordered that the costs order be enforced in South Africa and that development was provided for by the SADC legal instruments on the enforcement of the decisions of the Tribunal in the region.

The majority, further held that the Constitution enjoins our courts to develop the common law in order to facilitate the enjoyment of the rights provided for in the Bill of Rights such as the right of access to courts, compensation for expropriation and the rule of law, which in terms of the amendment to the Constitution of Zimbabwe would have been denied to the farmers had the costs order of the Tribunal not been enforced. For those reasons the appeal was dismissed with costs.

I reiterate that after studying the emerging jurisprudence from that judgment, this judgment is encouraging for victims of human right abuses at the hands of foreign governments who have assets in South Africa.

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