The proposed Land Compensation Court is an ideal pilot plan for Zimbabwe, where claimants can file their respective claims – securely – and efficiently – on a digital platform
By Advocate Simba Chitando
There is no real dispute on the issue of compensation of Zimbabwean farmers, many white, negatively affected by land reform, now accepted as irreversible. The ruling party has signed an agreement to pay 3.5 billion United States dollars 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 in compensation.
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 the amount each individual farmer, wherever they (or their respective heirs) are located in the World, shall receive by way of compensation.
The second platform, a Fund created by legislation, on the basis of the agreement to pay the farmers 3.5 billion dollars. 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 our 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.
I will now focus on the first structure, the Land Compensation Court, which 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. Mr Botha in Cape Town would 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, Lloyds of London claim process in the United Kingdom, amongst 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, and 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, Sheriff fees for filing documents are curtailed, the time taken by lawyers 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 the Judge has arrived at a judgement, 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, and when the matter is ripe for hearing, they can give evidence from as far as Cape Town, London, Sydney, New York, and 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, from where they are, and return, intermittently during the course of litigation.
The costs alone would make the claim process prohibitively unsustainable .
Especially considering the hard reality that they have all lost so much already. A combination of domestic lawyers, and foreign-based lawyers, where Zimbabweans are right now is the only viable solution.
President 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 dollars, to pay farmers, should include black Zimbabweans as well.
The Land Compensation Court, comprised of 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 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 potentially, perhaps ambitiously, one could 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 stabiliing the economy, the byproduct of the Land Compensation Court, if established, and operational on the basis set out above, is a dynamic modern legal system, 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 it can change, for the better, at the pace the World is changing.
The proposed Land Compensation Court, comprised of 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. Passed the Bar in 2009. He writes in his personal capacity.
ADVOCATE SIMBA CHITANDO
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