There are no simple answers to the complex political and economic questions of our time. I realise this anew every week when I hear of the passing away of yet another member of the Commercial Farmers’ Union (CFU) – yet another infirm person who had been struggling in a neglected home for the aged or hospital bed to pay for medical care and make ends meet.
Every one of them had hoped that compensation for farms, livestock, crops and implements expropriated without compensation since 2000 would become a reality within their lifetime to alleviate their distress.
Every day victims of expropriation without compensation in Zimbabwe ask: “Should we accept a less-than-ideal compensation settlement? Or should we keep fighting in Zimbabwean and South African courts, in regional tribunals and international forums until we can negotiate a fair outcome?” Questions such as these do not have simple answers.
When should Zimbabwean farmers settle?
There is no ideal settlement if one is negotiating oneself out of a deep-rooted conflict. In the hustle and bustle of give-and-take agreements all parties sacrifice more than they are comfortable with, to gain less than what they would have liked to get. The CFU has calculated that improvements on expropriated farms that the ZANU-PF government now is prepared to pay for are worth approximately US$5,2 billion. The settlement value of US$3,5 billion signed for in July this year is two-thirds of this amount.
The question is rather: Should one kick for the goal when the slightest gap presents itself, or is it worth one’s while to wait another ten or 15 years for a better opportunity while fighting for one’s rights on every possible platform? What are the accompanying financial, economic, political, social and reputational risks?
However, Zimbabwean farmers are stuck between reaching an uneasy compromise and maintaining the moral high ground by subscribing to an imperfect negotiated settlement on compensation, while challenging the unjustness in South African and international courts and tribunals, media and policy-making bodies. Where the local agricultural structure is unable to do this because of the provisions of the settlement agreement another representative vehicle may be used.
The confrontation option is exhausting, costly, time-consuming and drains one’s resources. External assistance is required, but so far it has yielded no results. In November 2008, the Southern African Development Community (SADC) tribunal handed down an epoch-making judgment against the Zimbabwean government’s land grabs.
Although it resulted in the SADC summit’s dissolution of the tribunal in 2012, the judgment was recorded in South African law. In September 2015, Zimbabwean property in Cape Town was sold to cover outstanding legal expenses.
This week, a further case was heard in the North Gauteng High Court, testing the South African government’s accountability for losses suffered because of its involvement in the dissolution of the SADC tribunal. Judgment in this case was reserved.
Problems facing the compensation settlement
The confrontation route, especially in the international and legal arenas, relies heavily on article 17 of the Universal Declaration of Human Rights, which mostly dictates the debate in Washington and Brussels about aid to Zimbabwe.
During the Green Week in Berlin in January this year I facilitated a meeting between a senior official of the World Bank and the late Minister Perrance Shiri of Zimbabwe. During this meeting, the intention to pay compensation, the buy-in of affected farmers and possible access to a loan for this purpose were discussed.
The official said he was representing a bank, not a charity. The bank was considering the ability to repay, the track record of repaying previous debt, and the ability of the current policy environment to bring on growth and prosperity. He was sceptical about Zimbabwe’s profile in terms of any of these criteria.
The largest single problem regarding the Zimbabwean compensation settlement is that the country does not have funds to honour it, and they do not yet know where to get it. Half of the US$3,5 billion is payable before July 2021.
SA farmers should watch developments
If land reform in Zimbabwe sneezes, South Africa and Namibia also catch a cold. The principles that apply in the Zimbabwean compensation settlement become a template for the rest of the region. Consequently, every South African farm owner needs to watch developments in this regard. It is important to see how, where, what and when compensation is paid and why.
Payment is made for improvements only, not for the land, except in the case of ‘indigenous Zimbabweans’ and farmers covered by Bilateral Investment Protection and Promotion Agreements (BIPPAs) (citizens of South Africa, Switzerland, the Netherlands, Germany, Denmark and seven other countries). Essentially, this gives more rights to foreign investors than to Zimbabwean citizens and implies that white Zimbabweans are ‘not from here’ – granting them second-class citizenship.
It sidesteps the Zimbabwean government’s involvement in “unacceptable distribution of land ownership” by always having registered ownership in a deeds registry and levying transfer duties. However, no injustice is ever final.
Should expropriated Zimbabwean farmers accept the settlement agreement? Their average age is more than 80 years. They should accept the compensation offered, opening the door for Zimbabwe to resume its role as a highly competitive agricultural producer. They should again become the showpiece of the world’s beef, tobacco, cotton and cut flower industries, creating the prosperity that can pull their country from its abject poverty.
However, in doing so they should not neglect the confrontation options. – Dr Theo de Jager, chairperson, Saai