Catherine Sasman
21 April 2011
The South African-based Swissbourgh Group claims that the governments of Lesotho, South Africa and Zimbabwe were key movers behind the Southern African Development Community (SADC) decision to, for all intents and purposes, suspend the SADC Tribunal.
Josias van Zyl and the Swissbourgh Group filed an application on January 25 2011 with the Tribunal to set aside the SADC Summit decision to suspend the Tribunal.
The Swissbourgh Group claimed that all three countries – Lesotho, South Africa and Zimbabwe – are facing massive financial claims resulting from their respective international law violations.
This stems from a case in which the Swissbourgh Group launched against the Kingdom of Lesotho for compensation and damages suffered following the expropriation of its mineral rights in the execution of the Lesotho Highlands Water Project (LHWP). Van Zyl said the financial claims against Lesotho alone exceed N$8 billion, an amount liable for in terms of the LHWP Treaty.
The suspension of the SADC Tribunal brought to a halt the case of the Swissbourgh Group and the appeal of the late Zimbabwean commercial farmer, Mike Campbell, and 77 others after the Zimbabwean government was found in breach of SADC Tribunal orders to stop the eviction and harassment of the farmers.
A SADC Summit of August 2010 in Windhoek gave a six-month period to review the legal stand-off in the Zimbabwe case, after which Campbell launched an urgent application with the Tribunal to set aside the Summit’s decision on the case.
In the Swissbourgh Group case, SADC, which is the respondent in the matter, did not file any answering affidavits as provided for in the Tribunal’s Rules of Procedures, said Van Zyl.
The applicants – Van Zyl and Swissbourgh Group – filed an application for a default decision with the Tribunal on March 23 2011, but Van Zyl said SADC has again failed to oppose or file any answering affidavits in the matter.
The SADC Council of Ministers met in Swakopmund last week to review the role, responsibilities and terms of reference of the Tribunal, a process that started in August last year after a mandate from presidents and heads of state in Kinshasa in 2009.
According to this mandate, the review was to be done to strengthen and improve the terms of reference of the Tribunal.
It followed the commissioning of a study by an affiliate of the World Trade Initiative in Geneva that submitted its draft report in February.
This report concluded, among other things, that SADC is an international organisation governed by international law, setting SADC norms for national laws.
One of the recommendations made in the report is that the Tribunal has the legal authority to deal with individual human rights petitions, and that the SADC community law should be supreme to domestic laws and constitutions.
The SADC head of public relations in Gaborone, Leefa Martin, could not yet say what decisions last week’s SADC Council of Ministers arrived at, except to say that the review was an instruction of the Council and SADC Summit.
Martin said the decisions would only be released upon the instructing institutions’ directive.
It will in all likelihood be one of the talking points at the extraordinary SADC Summit in Windhoek next month.
At the opening of the review last week, Minister of Justice Pendukeni Iivula-Ithana emphasised that the decision on the future of the Tribunal remains the decision of the SADC community.
“[It] is us, the people of SADC who can own our own instruments as they address our identified concerns and are compatible with our national legal systems,” Iivula-Ithana said.
She went on to say: “This Tribunal is ours and we have received the advice contained in the final report of the consultant, ours is to take out of it what we deem appropriate and suggest to the Presidents and Heads of States for their decision.”
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