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SA firm sues Sadc over cancelled mining leases

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Swissbourgh Group claims it was denied justice when the Sadc member states suspended the Sadc Tribunal, a regional human rights court, last May.

The company is now demanding millions of maloti as compensation from the 15-member Sadc states.

It claims that Sadc failed in its duty to deal with the case in which the company was claiming more than
M3 billion from the Lesotho government as compensation for its five diamond mining leases cancelled to make way for the Lesotho Highlands Water Project (LWHP).

The LHWP is a joint project between the Lesotho and South African governments.

It includes Katse Dam in Thaba-Tseka and Mohale Dam in Maseru district.

The dams provide water to South Africa’s Gauteng province and other areas.

Swissbourgh Group has been fighting the Lesotho government for two decades.

It argues that the Lesotho government had illegally revoked the leases for its five mines — Matsoku, Motete, Orange, Patiseng and Rampai.

The leases were under Swissbourgh Diamond Mines, a subsidiary of Swissbourgh Group.

After it lost the battle in Lesotho and South Africa’s courts the company took the case to the Sadc Tribunal, a regional court that deals with disputes between the 15-member states and their citizens.

Swissbourgh Group, owned by Josua van Zyl, wanted the Tribunal to compel the Lesotho government to pay compensation for the cancelled leases.

The company’s quest for justice however suffered a major setback when Sadc countries suspended the Tribunal in May last year.

The company has now turned its guns on the regional bloc and its member states, arguing that it was denied justice when the Tribunal was suspended.

It is claiming M565 million plus an interest of two percent annually until payment has been made in full.

The company says the regional bloc should pay a further M17.7 million for “costs associated with efforts to invoke Sadc’s international responsibility and prevent the breach by Lesotho of its obligations under the Sadc Treaty and Protocol”.

The claim also includes M160 000 plus interest for what the company calls “moral damages”.

Any costs incurred during the process of lodging the claim should be paid by the regional bloc, the company says.

Van Zyl informed the Sadc Executive Secretary Tomaz Salomão and Sadc heads of government of the claim in a letter on January 9.

The letter, also copied to the head of legal affairs at the regional body, has not yet been replied to.

Van Zyl said Sadc’s failure to respond to the letter “confirms the unlawful conduct of its members to suspend and dismantle” the Sadc Tribunal.

“Sadc as an international organisation has certain responsibilities in terms of international law and has failed to uphold such responsibilities as inter alia dealt with in our attorneys’ letter,” said Van Zyl.

He said Sadc has further abused its position by not protecting the rights and interests of private parties adversely affected and violated by its member states.

He is of the opinion that the Lesotho government’s refusal to submit to the arbitration process is immaterial since it has signed and ratified the Sadc Protocol on Finance and Investment.

He said by ratifying that protocol the Lesotho government had agreed that all disputes can be submitted to international arbitration.

When Van Zyl submitted his case to the Sadc Tribunal he said his two family trustees— Josias Van Zyl Family Trust and Burmilla Trust — had also suffered losses because of the Lesotho government’s actions.

“In the 18 years since 1991 I have been denied my fundamental rights and in the process suffered the indignity of losing everything I had,” Van Zyl said in his affidavit to the Tribunal.

“I was treated in the most iniquitous manner by officials of the governments of the Kingdom of Lesotho and the Republic of South Africa and in the municipal courts of both countries.

“During 1995 I was evicted from my home with my wife and children and my livelihood was destroyed following the cancellation and revocation of (Swissbourgh Diamond Mines) mining lease contracts,” he said.

Van Zyl told the Tribunal that his life was threatened by the armed forces of the government of Lesotho who also wanted to kill his employees and contractors.

“I had no doubt that the direct threats that I would be killed together with the employees were seriously intended and would have been carried out unless I ensured that (we) complied with their unlawful demands.” — Additional reporting from The Namibian

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