state might have to pay for farm grab 
30 July 2008

A judge has taken the government to task for not protecting the rights of a South African citizen whose farms were nationalised in Zimbabwe, in a ruling that holds the promise of extra protection for South African businessmen operating in Africa.

Free State farmer Crawford von Abo yesterday won his court battle against President Thabo Mbeki, Foreign Minister Nkosazana Dlamini-Zuma and Trade and Industry Minister Mandisi Mpahlwa to get compensation from SA’s government for 14 farms taken without compensation in Zimbabwe.

The landmark Pretoria High Court judgment was highly critical of the government, finding that it failed to offer Von Abo the diplomatic protection he was entitled to, and gave Mbeki and the ministers 60 days to remedy the “violation of (Von Abo’s) rights” either through diplomatic pressure on Zimbabwe to restore the seized land or though compensation, expected to come to more than R80m.  Judge Bill Prinsloo said he found the government’s excuses for lack of action over the past six years “feeble” as SA was a powerful country.
The judge said Germany, France and Denmark had intervened successfully on behalf of their citizens who owned farm land in Zimbabwe, many of whom operated there still.
Legal experts believe the ruling in Von Abo’s favour, if not contested by the government, has implications for other South African farmers and businessmen operating in Africa. It is the first ruling upholding diplomatic protection as a legal right.

Nicole Fritz, head of the Southern African Litigation Centre, said yesterday that the finding had “enormous implications for the protection of South African citizens” and was a “huge move forward” for SA’s legal position in this regard, bringing the country into line with international law. “President Thabo Mbeki’s quiet diplomacy is having negative consequences on all fronts,” she said. “Mbeki’s government’s reluctance to take a position of censure against Zimbabwe has directly affected not only Zimbabwean citizens but South African citizens as well.”

Zolile Nqayi, spokesman for Justice Minister Brigitte Mabandla, who was also a respondent, said yesterday that lawyers were still reviewing the judgment, and would decide in the next few days whether to appeal against the judgment. In his ruling, Prinsloo, referring to Von Abo’s six-year battle during which he was sent from “pillar to post” by various government departments and ministries, said the government did nothing to help him. “It is difficult to resist the conclusion that (the government) was stringing (Von Abo) along, and never intended to offer him any proper protection,” Prinsloo said.

“Their feeble efforts, if any, amounted to little more than quiet acquiescence in the conduct of their Zimbabwean counterparts and war veteran thugs.”  Prinsloo was critical of the government’s lack of movement on the Bilateral Investment Promotion and Protection Agreement, which has been in the pipeline since 2002, which contains a clause providing for compensation for actions by errant states against South African citizens, but has yet to be signed.

The government argued in the court that it could not intervene because the farms, registered as companies, were Zimbabwean companies and that it was “not wrong for a sovereign state to nationalise the property of its nationals”.  The high court ruling has to be confirmed by the Constitutional Court. In 2004, in a finding on 69 South Africans held in Harare in connection with an alleged plot to overthrow Equatorial Guinea, the Constitutional Court found that the government did not have an obligation to provide diplomatic protection in that case.

Chantelle Benjamin,  www.businessday.co.za