LEGAL challenges in both the Pretoria and Harare high courts this week to a clause in the bilateral investment agreement between SA and Zimbabwe, which excludes historical claims arising from Zimbabwe’s land reform process, may scupper plans to sign the agreement on Friday.

Top lawyer and constitutional court expert Jeremy Gauntlett, who is leading both cases, told Business Day yesterday that “if adopted it (the agreement) would act contrary to the principles of the Southern African Development Community (Sadc) Treaty and other international instruments”. It was also in violation of the South African constitution, Gauntlett said.

SA’s Trade and Industry Minister Rob Davies said last week that the exclusion of claims prior to the proposed agreement was a “necessary compromise” to ensure the deal was concluded. The agreement would provide security to South African investors, including agriculture, from now on.

But farmers who lost their land disagree. Gauntlett is to apply today in Harare on behalf of Gramara (Private) Limited and Colin Bailie Cloete is to apply for the recognition of the November 2008 Sadc Tribunal ruling which gave 78 farmers protection from interference in their farming operations.

Willie Spies, legal representative for AfriForum, said 13 were South African farmers, although it is estimated that 200 farmers from SA lost their land in Zimbabwe and will be affected by the proposed Bilateral Investment Promotion and Protection Agreement .

On Friday, AfriForum will apply in Pretoria for an interdict to prevent the agreement from being implemented. Gauntlett, who will also be representing AfriForum, said that “the exclusionary clause subverts the Sadc Tribunal’s order and detracts from the Tribunal’s status. It also jeopardises the human rights culture prevailing in Sadc and dilutes the rule of law and remedies for breaches of human rights”.

Spearheading the Sadc Tribunal case is Chegutu farmer Mike Campbell and his son-in-law Ben Freeth. They lost their farm in April.

After Campbell and Freeth successfully initiated the case in Windhoek in 2007, they were joined by at least 70 other farmers, including South African farmer Louis Fick. Fick said he is pinning his hopes on the court finding for the farmers. “This is all about sticking up for our rights. For nine years we tried to work with the South African High Commission in Harare. We were promised SA had our interests at heart. But last Monday, this changed. They are very professional, but … they are not able to help us. ”

The Sadc ruling found that President Mugabe’s land-grab programme was racist and illegal, and therefore had to be terminated.

Business day