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DA writes to Minister Radebe over legal opinion on enforceability of SADC Tribunal
Radebe's actions could have major implications for our international treaty obligations
Government of Zimbabwe has repeatedly flouted Tribunal's rulings without consequence





The Democratic Alliance (DA) is concerned by the fact that the Minister of Justice and Constitutional Development, Jeff Radebe, MP has requested a legal opinion on the reach of the SADC Treaty and its related institutions in light of the Government of Zimbabwe, choosing to ignore the Tribunal's rulings on two separate occasions and the enforceability of those rulings in both Zimbabwe and South Africa as mandated under international law. We must ask what his underlying motives are. Is he trying to trump the SADC Tribunal and both domestic courts? Why does he wish to reassess the Tribunal's powers? Is he aware of the fact that if South Africa is party to such a move, there will be an international legal uproar? I have written to the Minister outlining my concerns and requesting an explanation of how he intends to deal with the possible implications of his actions.

The Government of Zimbabwe has repeatedly failed to comply with the rulings of the Southern African Development Community's (SADC) Judicial Tribunal to take all measures to return land seized from South African farmers (Mike Campbell (Pty) Ltd and Others vs. Republic of Zimbabwe) under the guise of land reform. The Judicial Tribunal has found the Government of Zimbabwe to be in contempt of its ruling, not once, but twice. Effectively President Robert Mugabe has given the SADC Judicial Tribunal, likely the most credible arm of SADC, of which Zimbabwe is a member, the proverbial finger.

In a parliamentary question to Minister Radebe, I asked whether the SADC Justice Ministers considered the ongoing failure of the Government of Zimbabwe to comply with the judgment and orders of the Tribunal; the refusal of Zimbabwe's High Court to register the Tribunal's rulings and, finally, whether SADC Justice Ministers would resolve to bring a resolution of the issue to the SADC Heads of State.

It turns out that the SADC Justice Ministers met on the 27-31 August 2009 but could not arrive at a decision as there were divergent views on the legitimacy and enforceability of the Tribunal's rulings. Radebe's department prepared an opinion on whether the SADC Protocol on the Tribunal has come into force and, whether or not it has come into force in the Republic of Zimbabwe. I had not had sight of the opinion.

Yesterday, I wrote to Minister Radebe to ask (1) whether the SADC Ministers of Justice/Attorneys-General met as planned in Kinshasa 26-30 April 2010; (2) whether the legal opinion prepared by his Department on the failure of Zimbabwe to comply with the SADC Tribunal's rulings was presented at the meeting; and (3) whether there are recommendations emanating from the meeting that will be presented to the forthcoming SADC Heads of State meeting.

The fact is that the Tribunal has held in a final ruling (there is no appeal under the SADC Treaty and Protocol) that it has jurisdiction over Zimbabwe and that the Protocol is binding on it; that J Patel in the Gremara High Court ruling on 25 January 2010 upheld the Protocol as a matter of Zimbabwe domestic law and that J Rabie did the same as a matter of South African law, both of which have not been subject to appeal.

As such, there should be little need for an opinion on the legal status of the Tribunal and the enforceability of its rulings. Minister Radebe should explain precisely how he will reconcile this fact with his actions.