Government of the Republic of Zimbabwe v Fick and Others

Three South African farmers had their farms expropriated by Zimbabwe under its land reform policy without compensation and without access to domestic courts. They approached the SADC Tribunal which ruled in their favour. When Zimbabwe refused to comply with the Tribunal's decision, the farmers obtained a costs order from the Tribunal. Zimbabwe again refused to comply. The farmers then applied to the North Gauteng High Court for registration and enforcement of the costs order against Zimbabwe's property in South Africa. The High Court granted the registration order. Zimbabwe applied for rescission, which was dismissed by the High Court and the Supreme Court of Appeal. Zimbabwe then sought leave to appeal to the Constitutional Court.

• Whether the SADC Tribunal had jurisdiction to hear the farmers' complaint
• Whether South African courts have jurisdiction to register and enforce orders of the SADC Tribunal
• Whether Zimbabwe waived its sovereign immunity by submitting to the SADC Treaty and Tribunal Protocol
• Whether the common law on enforcement of foreign judgments applies to international tribunal decisions
• Whether the common law requires development to include enforcement of international tribunal orders
• Whether the requirements for rescission of the registration order were met

Leave to appeal granted. Appeal dismissed with costs, including costs of two counsel where applicable.

The binding legal principles established are: (1) International agreements approved by Parliament under section 231 of the Constitution bind South Africa on the international plane and create obligations that must be given effect domestically. (2) A foreign state waives its sovereign immunity under section 3(1) of the Foreign States Immunities Act when it expressly submits to an international agreement providing for adjudication and enforcement mechanisms. (3) South African courts have a constitutional obligation under sections 8(3) and 39(2) of the Constitution to develop the common law to give effect to Bill of Rights guarantees, including the right of access to courts (section 34), and to promote the spirit, purport and objects of the Bill of Rights. (4) The common law concept of "foreign court" for purposes of enforcement of foreign judgments must be developed to include international tribunals established under treaties that bind South Africa, where such development is necessary to fulfill South Africa's international obligations and constitutional values. (5) Article 32 of the SADC Tribunal Protocol imposes a duty on Member States to take all measures necessary to ensure execution of Tribunal decisions, which requires development of domestic law to facilitate enforcement. (6) Objections to jurisdiction raised in enforcement proceedings in domestic courts must be materially similar to those raised before the foreign or international tribunal; submission to jurisdiction on specific grounds precludes later challenges on different grounds.

The Court made several non-binding observations: (1) The majority noted that Africa has been unfairly characterized by the Western world as having little regard for human rights and the rule of law, and that SADC was established partly to address this negative image. (2) Mogoeng CJ observed (at [44]-[46]) that the basis for objecting to jurisdiction of a foreign court whose order is sought to be enforced must be materially similar to objections raised before that court, though Zondo J specifically disagreed with this proposition as too widely stated. (3) The Court noted that although ratification was not required for the Amended Treaty incorporating the Tribunal Protocol to bind Member States, this did not affect the outcome. (4) The majority observed that this development of the common law applies to this and future matters prospectively. (5) Jafta J in his dissenting judgment emphasized that the Supreme Court of Appeal and High Courts are best placed to develop the common law, and this Court should ordinarily defer to their expertise and only intervene in special circumstances. (6) The Court noted that by August 2012, the SADC Summit had resolved to negotiate a new Protocol limiting the Tribunal's mandate to inter-state disputes only, effectively removing individual access.

This is a landmark case for the development of South African common law on enforcement of international tribunal decisions. The Court extended the common law concept of "foreign court" to include international tribunals established under treaties binding on South Africa. The judgment affirms South Africa's commitment to international law obligations, the rule of law, and access to courts (section 34 of the Constitution). It demonstrates how courts must develop the common law in accordance with sections 8(3) and 39(2) of the Constitution to give effect to Bill of Rights guarantees and international obligations under section 231. The case also addresses sovereign immunity and the principle that states cannot evade international tribunal orders with impunity. It reinforces the importance of regional human rights mechanisms like the SADC Tribunal (which was subsequently controversially suspended by SADC states). The judgment is significant for its application of constitutional values and international law principles to common law development.