SA court battle puts international spotlight on Africa’s last colony

WORKERS’ Day, May 1, 2017 and unknown to virtually any South African enjoying the public holiday, something extraordinary was unfolding in Port Elizabeth. Something with far-reaching implications for international human rights and for international trade, a novel legal situation highlighting the plight of a little-remembered, embryonic state – Africa’s last colony, the Western Sahara.
Early that morning, the ship, “N M Cherry Blossom”, arrived at Coega, the specialised port on the outskirts of Port Elizabeth, to take on fuel. Its cargo was phosphate worth about 6m USD, bound for New Zealand. That much was clear. But just who owned the cargo is a much tougher question and one that the courts in South Africa have now agreed to help resolve.
The night before the “Cherry Blossom” arrived, the Saharawi Arab Democratic Republic (SADR) and the Polisario Front had brought an application before Judge Elna Revelas. They asked for a temporary order to keep the ship’s cargo in the area of the court’s jurisdiction and for the sheriff to attach the cargo pending the outcome of their action.
She granted the temporary order, subject to a confirmatory affidavit being filed once it arrived in South African territorial waters, and set 18 May for a full hearing on the disputed order. Through the night, as the Cherry Blossom closed in on the crucial 12 nautical mile zone off the South African coast, Polisario members all round the world, along with their lawyers in South Africa, were all watching its progress on their computers.
Once the ship arrived, it was a comparatively simple matter to serve the order. But come 18 May, when the question of confirming the order was argued, a specially constituted full bench of the high court presided, given “the novelty of the matter and the complexity of the international law issues” involved.
Last Thursday those three judges delivered their decision: they approved the order that the sheriff attach and hold the cargo in Port Elizabeth and remove the ship’s registration documents and trading certificates. However, the order provides that, if appropriate security is put up, the cargo would be allowed to continue its journey.
Now the SADR and Polisario have a month to issue summons for the return of the cargo, failing which the order lapses. Once summons has been issued, the dispute is likely to feature on the court rolls in South Africa for years ahead, with possible applications and appeals even before the hearing about ownership of the cargo.
There is no dispute that the phosphate comes from the Boucraa mine in the northern part of Western Sahara. That mine is operated by Phosboucraa, a Moroccan company and a wholly owned subsidiary of OCP, another Moroccan company, the largest exporter of phosphate rock and phosphoric acid, and producer of fertiliser extracts, in the world.
But why is a Moroccan company mining phosphate in Western Sahara, its southern neighbour? Because Morocco claims the area as its own. And that is where the issue of Africa’s last colony comes in.
From 1884, during the height of African colonisation and for nearly a century, this was known as Spanish Sahara. Polisario was formed to liberate the country and represent its people. In 1976 Spain eventually pulled out, but not before offering its former colony – not to its own people, but to neighbouring Morocco and Mauritania. In the meantime, however, the Polisario had claimed the Saharawi Arab Democratic Republic as a sovereign state.
Although Mauritania has since abandoned its claim, Morocco holds much of the area in a military grip. Anticipating by decades US President Donald Trump’s idea of a security “wall”, Morocco has built a rock and sand barrier three metres high and 2 700 km long, across the desert. Some 80 percent of the country is on the western side of this berm, “occupied” by Morocco. For additional security this part is controlled by 120 000 Moroccan troops, while literally millions of landmines are embedded in the sand around the length of the berm itself.
The question of the status of Western Sahara has proved intractable, with the United Nations so far unable to reach any finality. Key members of the Security Council have strong bonds with Morocco and appear reluctant to back self-determination for the region against the wish of their ally.
If this sounds familiar, you may be remembering pre-independence Namibia. After the Germans quit their former colony, it was “colonised” by its neighbour, South Africa, and for a long time that neighbour-coloniser tried to hold on in the face of world disapproval. Instead of a berm, however, South Africa waged a more conventional war to maintain its hold. Just as the war in Namibia was complicated by international politics and the cold war in particular, so is the situation in Western Sahara complicated by international terrorism with a number of security reports warning that disaffected refugees from Western Sahara are easy prey for extremists.
Seen against this background the phosphate cargo becomes almost a symbol. It was mined by a Moroccan company, operating in land that Polisario describes as unlawfully “occupied” by Morocco. Polisario says the area’s mineral wealth belongs to the SADR, not Morocco, and money from the sale of the phosphate belongs to the people of the land where it was mined.
That question – to whom does the phosphate belong? – is what the court has now agreed to consider. If to Western Sahara, then the mining company would have to relinquish the cargo. No one has suggested the phosphate belongs to Morocco. Perhaps the best alternative candidates might be the New Zealand company that has bought the fertiliser and that is stressing about the delay in arrival. But reports in the New Zealand media quote the buyers there, Balance Agri-Nutrients, as saying they have not yet paid for it and that the cargo still belongs to the mining company.
The fact that the full bench decided South African courts could consider the dispute, and that the vessel must stay put pending that decision has infuriated OCP. It has declared its “outrage”, and “denounces” and “contests” the decision of the court which, in the view of the company, “has no jurisdiction to rule” on the situation.
According to OCP, the court’s decision disregards established international law principles and the ongoing UN process, and “impedes international trade in South Africa”. The company also contrasts the Port Elizabeth decision to hear the case with a very similar case brought in Panama earlier this month, again by the SADR and Polisario, contesting ownership of a cargo. In that case, the judge declared the court had no jurisdiction to entertain the matter, a view that the company “commends and welcomes”.
Back in Port Elizabeth, however, the full bench quoted key findings of the International Court of Justice: Morocco has no claim to sovereignty over Western Sahara; it acquired control of the area by force, contrary to customary international law. The natural resources of a territory may only be exploited on behalf of its people “if to do so will be for (their) benefit”. Yet OCP does not claim to have mined the phosphate “with the consent of the people” of the territory, and “they do not and cannot claim to do so on behalf of its people”.
As to the criticism that the court should not agree to hear the case because it affects the legal rights of Morocco, the judges say that Morocco did not assert any right or interest in the cargo. It was not a party to the case. If a South African court found that the company’s exploitation of minerals was illegal this “can have no effect upon the legal rights of Morocco”.
It’s a fascinating judgment, important for the way it interprets the law and how it highlights a continuing international disgrace – the failure of both the UN (where Morocco is a member, but not Western Sahara) and continental bodies such as the African Union (of which both are members) to resolve the issue of the continent’s last colony. There are even suggestions that the case could play a significant role in resolving the dispute because of the pressure it might put on the parties – and other world players – to focus on ending the stalemate.

How a President ‘captured’ the judiciary

WHAT might a “captured” South African judiciary and judicial appointment system look like?
While chilling stories from leaked emails suggest South Africa is no longer being run by its own president, that right having been bought by the wealthy Gupta family, many people find comfort believing that SA’s judges continue fearless and independent. But what if President Jacob Zuma ignored the Judicial Service Commission? What if he appointed whomever he liked as a judge or acting judge, despite what the constitution said?
What, in short, if he “captured” the judiciary and the JSC?
It would probably look rather like Botswana, at least according to that country’s critics.
Botswana’s president, Ian Khama, seems a strange mix of political and personal instincts. On the one hand he ordered visiting homophobic US “pastor” Steven Anderson arrested and thrown out, saying Botswana didn’t want his “hate speech”. Then there’s Khama’s outspoken criticism of Zimbabwe’s Robert Mugabe along with other public positions that might indicate support for human rights.
But strong and growing voices from inside the country claim the opposite, saying that human rights, free speech and the rule of law are not respected by Khama and his government despite a façade that often fools outsiders.
Khama has already announced he will step down next year. Whatever analysts ultimately conclude about his term of office, however, no-one would dispute that he has had a significant impact on the bench. He has been at the centre of several serious disputes on judicial issues and the courts have found him on the wrong side of the constitution over the judiciary.
One such case was brought by the country’s law society. The lawyers were fed up with how Khama had forced a change to the way judges were chosen. They said he acted as though he were free to appoint anyone he wished to the bench, and they challenged Khama’s right to refuse to appoint a candidate put forward by the JSC. Their case focused on a key provision of the constitution. It says the president must appoint judges “in accordance with” the JSC: did that phrase mean he was obliged to appoint someone whose name was sent him by the commission, or did it mean he could reject nominees, without explanation, and appoint someone else?
In the years before this, after the president previously rejected names from the JSC and made his own appointment, the commission adopted a new system – they sent him a list of several names from which to choose. The law society believed this was not constitutional and prepared to litigate when the opportunity arose.
In 2015 the JSC interviewed four candidates for a vacancy and decided to recommend attorney Omphemetse Motumise. Khama refused to appoint him. This time the law society was ready to act. The high court found against the law society, but in the appeal court, four of the five judges said Khama was wrong and that the disputed constitutional phrase required him to appoint someone whose name was put forward by the commission.
What has happened since then is almost as significant as the judgment itself. First, the president has simply ignored the court – Motumise has still not been appointed, even though the appeal court gave its decision in May. Now the question is whether the law society will have to go back to court for an order that Motumise be appointed. It also raises the question whether the commission’s task is complete once it has sent the president the name of a candidate recommended for appointment: does the commission have a further duty to ensure those it chooses are actually appointed?
The second development is that Khama has gone on the offensive. Apparently hoping to ensure that in future the JSC would choose people of whom he approves, he appointed his permanent secretary as a member of the commission.
A shocked article in the Botswana Gazette described this as compromising the independence of the judiciary, and noted that the permanent secretary was obliged to perform “any function the president might assign”. The permanent secretary was the administrative head of the office of the president, a top advisor to the president and the head of the civil service with an executive position as a secretary of cabinet. It was, in the view of legal experts, little different from Khama being a member of the JSC “and then making recommendations to himself as president”.
The JSC in Botswana has six members. Five are direct appointees of the president: the chief justice and the head of the appeal court, both of whom he is mandated to appoint without reference to the commission. Then there is the chair of the public service commission, another presidential appointment, with a fifth position – a non-lawyer – also directly appointed by the president. That post has now filled by the president’s permanent secretary. The only member not appointed by the president is the sixth commissioner, someone chosen by the local law society.
Two years ago, the Sunday Standard wrote that a growing number of people in Botswana had the same bad dream in which Khama was “turning the judiciary into his lap-dog”. Whether or not that is his intention, however, fate has been generous to him: his time in office has coincided with a number of judicial vacancies. The Standard noted that during his presidency he has appointed all the permanent members of the appeal court, and as at 2015, he had appointed 11 of the 22 high court judges. Since that report he has appointed even more judges.
But the biggest challenge yet might lie ahead: who will he leave in office as chief justice? Under Botswana’s hierarchical judicial system this post should be settled in terms of seniority. With the chief justice due to retire even before Khama stands down, the question of a replacement must be resolved before the president goes. It won’t be easy. The next most senior judges are either due to retire before Khama steps down, or else have indicated unwillingness to stand. And after that cohort comes a judge who has already had a run-in with Khama, Judge Key Dingake, someone with a strong human rights record. The question now being asked is whether Khama will give him the nod, or if the final period before the president quits office will be marked by yet another major tussle over judicial appointments.

Hlophe in judicial hot water: “apprehension of bias”

Controversial Western Cape Judge President John Hlophe is back in the spotlight following his contested handling of a High Court matter involving allegations of a multi-million rand fraud. One side in the dispute claimed they had a ‘reasonable apprehension’ that the judge was biased against them. And the Supreme Court of Appeal has now set aside Hlophe’s disputed orders and findings, agreeing that, given his behaviour, this ‘apprehension’ was justified.