There is no real dispute on the issue of compensation of Zimbabwean farmers, many white, who were negatively affected by land reform, a process now accepted as irreversible.
The ruling Zanu-PF party has signed an agreement to pay $3.5 billion to compensate them. The international community has welcomed it. The opposition did not denounce it.
Notwithstanding the agreement, many farmers have not been compensated and there is no certainty on how much each individual farmer will receive.
This because compensation is not an event, but instead a process, which can still be expedited by the establishment of a special Land Compensations Court, linked to a Land Compensation Fund.
In this article I shall advocate the establishment of these twin structures. The first a judicial platform, which employs existing legal tools and technology to decide how much each individual farmer, or their heirs, should receive as compensation, no matter where they are located in the world.
The second platform is a fund created by legislation on the basis of the agreement to pay the farmers $3.5 billion. I will not dwell on the politics, or the details, of where the money in the fund will come from, save to say that we know Zimbabwe has significant mineral resources, and that the minister of mines has secured lucrative contracts on behalf of the country.
We also know that the minister of finance has made significant progress in bringing Zimbabwe back into the global financial system. The fund could be established and budgeted for by the minister of finance.
The Land Compensation Court will take far less in resources to establish. All the essential tools are already available. The courts are standing. The lawyers are available. The difficulty is the potential claimants are all over the world.
Let’s say Mr Botha, a dispossessed Zimbabwean farmer now living in Cape Town, does not know how to make his claim. The proposed new court could make new rules using the existing rules of court in Zimbabwe to accommodate claims from all over the world. The Uniform Rules of Court in South Africa, the Lloyds of London claims process in the UK, among many others, are useful precedents that could be considered.
The Covid pandemic has forced changes on the way litigation takes place. In South Africa, where I practice, there is a secure digital platform called Caselines. Lawyers file court papers on this platform, which the judges have access to.
When the matter is ripe for hearing there is a virtual hearing on Microsoft Teams or Zoom, which is available to members of the public provided they have access to the relevant link.
The dangers of being exposed to Covid-19 are avoided, but also the expense of travelling significant distances to court. Caselines also avoids having to pay sheriff’s fees for filing documents, and time lost tracing court files is a thing of the past, as well as the risk of theft of the court file, which has always been rampant in litigation.
Once a judgement is made, it is uploaded online. The result of these changes is an efficient legal system, where the wheels of justice turn as seamlessly as modern technology allows.
These advances will not be scuttled post pandemic, and if anything, they will be improved upon, and become part of everyday practice.
The proposed Land Compensation Court is an ideal pilot for similar systems in Zimbabwe where claimants can file their respective claims, securely and efficiently, on a digital platform from anywhere in the world. When the matter is ready for hearing, they can give evidence from wherever they are, be it Cape Town, London, Sydney, New York or Lusaka.
Foreign-based lawyers will obviously be crucial for the success of the court, which is to compensate claimants, who like many Zimbabweans, are in the diaspora. It is impractical to expect these deserving claimants to travel to Zimbabwe, hire lawyers in Zimbabwe, and commute backwards and forwards in the course of litigation.
The costs alone would make the claim process unsustainable. This is especially so considering the hard reality that claimants have lost so much already. A combination of domestic and foreign-based lawyers to accommodate such scenarios is the only viable solution.
Zimbabwean President Emmerson Mnangagwa was right when he said that there is no such thing as a white farmer, or a black farmer, there are only Zimbabwean farmers.
Advocate Fadzai Mahere was also correct when she said the $3.5 billion to pay farmers, should include black Zimbabweans as well.
The Land Compensation Court, comprising impartial judicial officers, would not make a racial distinction, or class bias, when compensating “Zimbabwean farmers”. An aggrieved tobacco baron, down to a humble small-scale operation, should be adequately compensated, if there is valid claim.
An order from the Land Compensation Court might not provide immediate compensation for the successful claimant, because of the financial troubles Zimbabwe faces, and the negative effects of sanctions. It does however give the claimants a binding order against the fund for payment of a liquidated amount of money.
The uncertainty of what one is due in compensation would be resolved, and one could potentially use the order against the fund, as a financial asset (a topic on its own).
The orders from the Land Compensation Courts will go a long way in providing international investors with essential guarantees on investments into Zimbabwe’s agriculture sector, which could only be a good thing for the economy.
Apart from bringing compensation of farmers closer to reality and helping to stabilise the economy, a byproduct of the Land Compensation Court as outlined here would be the creation of a dynamic and modern legal system in Zimbabwe, in line with international best standards, aligned to President Mnangagwa’s vision 2030.
Zimbabweans will always be an internationally diverse people, exposed to the cutting edge of a fast-changing world. Zimbabwe will never be what it was, but by increments it can change for the better at the pace the world is changing.
The proposed Land Compensation Court, comprising fresh young judges, is an opportunity for Zimbabwe to create the blueprint for the most advanced, open, internationally respected, legal and judicial system in the world.
* Advocate Chitando was admitted as an Advocate of the High Court of South Africa in 2008. He writes in his personal capacity.