Farmer rides from Zim to Namfor return of SADC Tribunal

When Ben Freeth headed west on horseback from the derelict farm Mount Carmel near Chegutu in Zimbabwe on 28 November, he had to lay low.

For about 800 kilometres, Freeth avoided roads and stuck to the bush, following game paths where he could, while scouting the drought-stricken land for water and grazing for his horse, Tsedeq.

It was only after he crossed the border into Namibia’s Zambezi region that he could relax, stop fearing attack from forces despatched by the Zimbabwean government, and publicise the reason for his slow journey to Windhoek – a bid to have the suspended Southern African Development Community (SADC) Tribunal re-established.

Freeth is familiar with Zimbabwe’s state-sponsored violence.

In 2008 he, together with his in-laws Mike and Angela Campbell, were tied up on their farm by war veterans acting on behalf of the regime of then president Robert Mugabe.

They were driven into the bush, beaten and tortured. Freeth, who had built a house on his in-laws’ land and helped run what was the most successful mango exporting farm in the country, suffered a fractured skull as a result.

The abduction and torture happened two weeks before the SADC Tribunal was due to hear a case brought by Mike Campbell, later joined by 77 other applicants, against the Republic of Zimbabwe.

The case, which Freeth attended bandaged, battered and in a wheelchair, challenged the harassment, forced eviction of farmers and seizure of farms instituted by Mugabe in 2000.

In a unanimous decision on 28 November 2008, the tribunal ordered Mugabe’s government to protect “possession, occupation and ownership” of all the applicants’ farms, except for two, who had already been forcibly evicted.

The state was ordered to pay them compensation.

Mugabe ignored the tribunal’s ruling.

Freeth and his family, including his children, and the Campbells suffered increasing harassment and threats as they continued to run their farm, until their homes, and those of the farmworkers, were burnt down by war veterans eight months later.

Freeth’s home was burnt down on 30 August 2009, with Campbell’s home suffering the same fate two days later.

TRIBUNAL DISBANDMENT

With former South African president Jacob Zuma as a willing ally, Mugabe’s subsequent successful campaign to suspend the tribunal at the SADC summit in 2011 has led Freeth to take the approximately 2 000km journey to Windhoek, where the SADC Tribunal was housed in the city’s historic Turnhalle building.

The summit had effectively disbanded the tribunal by deciding not to reappoint the judges whose term of office was ending in 2010, nor replace those whose term of office would end in 2011.

“Instead of the SADC summit acting to ensure that Zimbabwe complied with the SADC Tribunal judgements, it sided with Zimbabwe, which had begun a diplomatic attack on the tribunal employing very weak legal arguments alleging that the SADC Tribunal was not lawfully established,” wrote Moses Retselisitsoe Phooko and Mkhululi Nyathi in the De Jure Law Journal.

Then in August 2014, Mugabe, along with other heads of state including Zuma, signed a new protocol limiting the tribunal to only dealing with disputes between SADC states.

SADC citizens were then prevented from accessing it to deal with human rights violations.

Freeth says his journey is about justice.

“It’s about justice throughout SADC, protecting people and their property.”

Freeth intended to hand a letter to the SADC secretariat upon arriving in Windhoek, requesting the tribunal be reinstated.

A 13-minute telephone conversation with GroundUp, while he was walking along the road with his horse, was twice interrupted by well-wishers.

The day of his arrival is not auspicious, but the day of his departure from the now-ruined Mount Carmel in Zimbabwe was.

It was 15 years to the day since the tribunal ruled in favour of his late father-in-law and other farmers.

Freeth told GroundUp: “You can sit at home and write a letter or email, which may get a response, or you can walk 2 000km to do it, which is more likely to get a response.”

He has received overwhelming support, but also threats, he says.

SA’S COMPLICITY

In the face of the SADC summit’s suspension of the tribunal, South African courts have had to make decisions pertaining to the human rights abuses in Zimbabwe.

The records of the North Gauteng High Court, Supreme Court of Appeal (SCA) and the Constitutional Court in South Africa show a long and slow trek to justice that began, according to attorney Willie Spies, with Zimbabwean farmers vainly trying to get the Zimbabwean courts to enforce the tribunal’s rulings.

Spies, who is Afriforum’s legal representative and representing Zimbabwean farmers in cases before the South African courts, says litigation in South African began in 2010.

An order by the High Court in Pretoria gave punitive costs against Zimbabwe for failing to enforce the tribunal ruling to protect private land and pay compensation.

This was upheld by the Constitutional Court in 2013.

But with Zimbabwe refusing to acknowledge the order, the High Court, in 2015, attached a Zimbabwean asset that was sold on auction to pay the farmers who brought the litigation.

“That caused alarm bells to go off among SADC leaders,” says Spies.

Nine countries had signed the new protocol in 2014 which removed the tribunal’s mandate to hear cases filed by individuals against member states, allowing it only to hear inter-state disputes.

At this point, the Law Society of South Africa and six Zimbabwean farmers, which included Ben Freeth, approached the High Court in Pretoria to declare the tribunal’s suspension and Zuma’s signing of the 2014 summit protocol unconstitutional.

The judgement handed down on 1 March 2018 saw them succeed, with one exemption, being that no causation between Zuma signing the protocol and the losses suffered by the farmers was found. Seeking the ruling on causation, the case was taken to the SCA, which in May 2022 found causation between Zuma’s involvement in scuppering the tribunal and the farmers’ losses.

South Africa then appealed the SCA’s findings in the Constitutional Court, with the appeal having been heard on 7 November last year.

Should the Constitutional Court uphold the SCA’s decision, it would allow the farmers to sue the South African government for the damages and losses they suffered as a result of Zimbabwe not honouring the SADC Tribunal’s ruling.

This judgement is still awaited.

– Daily Maverick