Farmers’ claim against SA government in Zim land expropriation case denied by ConCourt

South African and Zimbabwean farmers' case in their years-long attempt to sue the South African government for R2bn has been dismissed by the Constitutional Court.

The farmers claim former president Jacob Zuma’s decisions at a 2014 Southern African Development Community (Sadc) summit led to them being unable to claim compensation for losing farms to Zimbabwe’s expropriation programme.

In 2009, the Sadc tribunal ruled in the farmers’ favour and ordered the Zimbabwean government to pay compensation. However, years later, the tribunal’s powers were, according to the farmers, “deliberately extinguished by joint action in which then-president Zuma was a co-perpetrator”.

In 2018, the ConCourt declared Zuma’s part in gutting the tribunal as unconstitutional. The court at the time said Zimbabwe created a plan that stripped the tribunal of much of its power.

“Zimbabwe had a willing ally in South Africa as represented by our president,” the court ruled in its 2018 judgment.

After the 2018 ConCourt ruling, the farmers instituted proceedings against the office of president and the government for damages amounting to about R2bn.

However, the government argued the matter should be thrown out of court because Zuma’s conduct was too “remote” from the farmers’ losses and started too late. Zuma’s conduct was in 2014, yet the farmers only instituted their damages claims in 2018. This is outside the three years South African law allows to sue for damages.

After numerous court battles, the state appealed to the Constitutional Court.

On Monday, the apex court agreed with the state because the farmers should have started their proceedings when they first knew of Zuma’s conduct in 2014. The farmers argued they could start proceedings only after the apex court’s 2018 ruling, but the apex court disagreed.

Writing for a unanimous court, judge Owen Rogers said while the farmers were part of the 2018 victory, “there was nothing in that [earlier] application to suggest to the president he was the subject of any delictual claim”.

Rogers also noted there was nothing indicating the farmers “were intervening to obtain relief that would serve as a first step in pursuing [damages] claims” against the president. As a result, their claims have “prescribed”, regardless of the merits.

However, due to the importance of the case, he ordered no costs against the farmers. “One cannot but feel sympathy for the treatment to which they were allegedly subjected in Zimbabwe,” he wrote.

As a result, the South African taxpayer will not pay for the farmers’ legal costs, nor will there be R2bn coming out of the budget.