THE United Kingdom High Court order compelling Zimbabwe to comply with a 2015 ruling requiring the payment of US$125 million to two firms whose land was seized during the country’s contentious fast-track land reform in the early 2000s has rattled President Emmerson Mnangagwa’s government, which has since directed Attorney-General Virginia Mabhiza to appeal.
BRENNA MATENDERE
The Attorney-General is the government of Zimbabwe’s chief legal adviser and also sits in the Senate.
The High Court in London on 22 January ordered the Zimbabwean government to honour the eight-year-old ruling by the International Centre for Settlement of Investment Disputes (ICSID) to pay US$125 million to Border Timbers Ltd and Hangani Development Ltd whose land was forcibly taken away during the chaotic land reform programme.
However, in an interview with The NewsHawks, Mabhiza said the UK court misdirected itself and the government of Zimbabwe has resolved to appeal.
“The application in London was for the reversal of the registration of the ICSID award so that it is recognised as a judgment of the High Court of England. This was done without notice to Zimbabwe,” Mabhiza said.
“It was this registration that Zimbabwe sought to have reversed on the basis that in bringing the application, Border Timbers did not comply with certain provisions of the State Immunities Act of 1978.”
She added: “Although the court agreed with Zimbabwe that Border Timbers had breached the said provisions, it did not reverse the registration.”
The Mnangagwa administration’s top lawyer insisted that the government’s concern is not about the amount to be paid as compensation but the technical aspect of the issue.
“Zimbabwe never had the intention to avoid payment of the ICSID award, but simply objected to the registration in breach of the duty of full and frank disclosure on whether or not Zimbabwe enjoyed sovereign immunity in terms of the State Immunity Act,” she said.
Mabhiza revealed that the government had already been granted permission by the UK court to appeal its order and so Harare is now preparing the papers.
“Zimbabwe has been granted leave to appeal against the honourable judge’s decision. We are therefore appealing,” she said.
Justice minister Ziyambi Ziyambi said he was not prepared to speak about the issue.
“Just speak to the Attorney-General. She was the one handling the case,” Ziyambi said.
The Zimbabwean government in the past rejected the July 2015 ICSID ruling on the grounds that the World Bank’s dispute resolution body had no jurisdiction over it.
London High Court judge Julia Dias, however, dismissed as “irrelevant” the Zimbabwean government’s argument that it is immune to the jurisdiction of English courts.
In the early 2000s, against the backdrop of former president Robert Mugabe’s land reforms, farmland owned by a Swiss-German family, the von Pezolds and their company Border Timbers was invaded and in 2005 the government took ownership of a large part of the land.
The land redistribution programme that was mainly meant to keep Zanu PF in power following the formation of a popular opposition political party, MDC in 1999, displaced more than 4 000 white farmers.
However, seizure of farms and property owned by Border Timbers Ltd was in violation of the Bilateral Investment Promotion and Protection Agreement between Zimbabwe and Germany of 1995.
In terms of the agreement, farms owned by Germans were protected from seizure under Zimbabwe’s land reform programme.
Accordingly, it was this contractual breach that led to Border Timbers approaching the International Centre for Settlement of Investment Disputes (ICSID) in 2010 to seek redress.
Border Timbers initially applied to get a settlement of US$345 million but the ICSID granted US$125 million back in 2015.
Zimbabwe applied to get the arbitral award annulled by ICSID through a procedure provided for by the ICSID Convention. The application was dismissed in 2018.
Seeing that the Zanu PF successive governments of the late Mugabe and Mnangagwa failed to make any payment to the company, in 2021 Border Timbers successfully applied to the High Court in England to register the arbitration award so that it could be recognized and enforced in the same way as a High Court order in England.
The effect of the registration is that assets belonging to the government of Zimbabwe could be seized and sold in execution to pay the US$125 million owed to Border Timbers Ltd.
However, upon being served with the registration order, Zimbabwe applied to the High Court in England in July 2022 to try and set aside the registration order on the grounds that Zimbabwe was immune from the jurisdiction of UK courts by virtue of England’s State Immunity Act.
It is therefore the latest ruling that has thrown out this application by the government which it now says it will appeal.
