Source: NEWSLETTER TO SAAI MEMBERS
22 March 2023
Dear Saai members
Thank you for joining and supporting Saai and all farmers who were dispossessed and uncertain about the processes, procedures and the role of stakeholders in the compensation offer. Your support enables us to pursue better clarity about what is on the table with compensation, how it will work and how the best interests of title deed holders will be ensured.
YOUR CONCERNS REGARDING VALCON
Many questions from members were forwarded to Saai, requesting us to explain legal consequences or to get clarity with regard to both the Global Compensation Deed and the new offer of compensation in bonds. Questions which we could not answer have been forwarded to Valcon by our legal team who also advise the Saai board on how to secure a fair and equitable outcome after the Zimbabwean government’s failure to honour its commitments in the GCD.
Our legal and strategic planning teams identified Valcon as a central stakeholder in both the negotiation and structural processes and given its position as gatekeeper to valuation data and the list of possible beneficiaries of compensation, it is also in the best position to bring clarity on most of the vital questions our dispossessed members have.
There are simply too many issues which are vague, unclear or not covered in the communication to title deed holders, which could massively influence their choices and attitude towards any amendments to the GCD. Many of these uncertainties were already present in the GCD when it was signed on 29 July 2020 and the lack of transparency in the run-up to that signing ceremony is still haunting many of us.
Unfortunately, Valcon chose to ignore all the questions as well as Saai’s invitation to sit down with our team to thrash out some of the principles which we and our members feel are vital in any deal on compensation. We have foreseen such a response in one of the scenarios we have developed, but it doesn’t spell anything good for the integrity of the negotiations, processes, legitimacy or for the eventual quantum of compensation in the pockets of those who lost their farms and livelihoods.
Valcon’s refusal to reply or to engage on basic principles in the GCD and the bonds offer has put Saai on a trajectory where we can’t deal with the interest Valcon serves as if it is in harmony or even in support of the interests of our members. It explains why so many uncertainties were not addressed in the process leading to the signing of the GCD when title deed holders were expected to vote on an agreement without having seen it. Many of our questions to Valcon were intended to clarify those interests.
Objectively it seems as if Valcon’s interests are limited to the commercial benefits they can have from compensation, based on 3.15% of the global payment to title deed holders. In the scenario where the pursuit of their profit is the only foundation for Valcon’s involvement in the compensation agreement, it would make sense to get a less-than-fair and equitable deal no matter what the consequences may be for those who were dispossessed (our members), as long as Valcon can pocket their part of the money and get off.
Valcon refused to reveal how many farmers they represent in the engagement with the government, and who they are. It was thus not possible for Saai to verify if all our members are on that list, or how many and who would be included in any kind of poll or voting on the acceptability of the offer to compensate in bonds. We can’t even confirm that they are on the list to be compensated. This raises the suspicion that some kind of referendum may be cooked up without involving all who were dispossessed, or to manipulate the result because no one has insight or oversight on the lists or the votes.
Saai’s legal team also asked Valcon whether the “Conditions of Participation” signed by some title deed holders is considered to be some kind of mandate to enter into any agreement or accept any form of compensation, or to appoint a specific account or method for receipt of payment. We need to establish if it is on the basis of this document that Valcon purported to represent a large grouping of landowners, or on what other basis. Valcon’s accountability also needs to be established. Their refusal to answer this question may be indicative of a lack of proper mandates from title deed holders to take part in negotiations or to settle for less than the market value of properties on their behalf. Saai is particularly concerned about the channelling of payments and the mechanisms by which deductions can be made without the explicit consent of the beneficiaries of compensation as many of our members took note of rumours that the negotiators have already set up such mechanisms which will put them in exclusive control of the who, how, how much and when of payments to beneficiaries. Valcon’s refusal to respond to this question has added to these concerns.
Valcon could also not answer how they obtained permission to share any of the landowners’ confidential information (valuations) with the Government of Zimbabwe while refusing access to that information to title deed holders who needed it for court cases.
Valcon also avoided answering if they intend to follow a procedure where a majority vote would be binding on all in relation to proposed amendments or addendums, or on what basis a possible vote by a majority can bind others. They would not indicate whether there is any agreement in place that subjects the landowners to a majority vote, who will be eligible to vote and how it would be verified that only the correct individuals possibly cast a vote. This raises further suspicion that a vote may be rigged to favour the commercial interests of Valcon rather than fair and equitable compensation to those who were dispossessed.
Valcon avoided indicating if they are prepared to accept payment of any possible amounts due to them in the form of government bonds. Saai can thus not address the suspicion that Valcon might skim off the 3,15% fees from the first four “interest” cash payments before the bonds will be released, which makes the issue of the payment mechanism even more urgent.
Our lawyers want to know how Valcon is preparing to interrupt/stay the prescription in respect of contractual dues owing to those on behalf of whom they have settled/purported to settle (if the settlement is valid) but received no answer.
We could not establish if Valcon has liability insurance if landowners wish to pursue damages claims against it for settling their claims without a proper mandate and/or for deliberate or negligent under-settlement and/or possible prescription of claims. Full details pertaining to any insurance policy in this regard and the amount covered were also requested but to no avail.
There is no clarity on how Zimbabwean title deed holders can formally withdraw from the Global Compensation Deed (or possible amendments thereto) if they are not satisfied with it and if it were the position that they are bound by the agreement (which appears doubtful).
Valcon would not answer to our question if they are currently taking any percentage from the Interim Relief Payments meant to cover the needs of the destitute farmers. This will no longer be possible when those payments are replaced by the Saai fund which we are setting up to replace the “gun to the heads of other farmers” who fear that rejecting the bond offer might put the most vulnerable and needy in a crisis if the government would stop those payments.
Valcon is also numb on what the effect on the compensation amount would be if any number of farmers withdraw from the agreement (if it exists and is binding), and whether the global amount would be reduced.
Valcon would not indicate that it has appropriately considered the impact of any possible binding agreement on the claims instituted by some farmers in tribunals and courts across the globe either. In some instances like the current case against the South African government, damages are claimed, which amounts to more than just compensation. Saai made it clear that if any settlement compromises the position of any litigant/s further damages claims against Valcon might ensue.
Valcon could not even confirm that they are in a position to tell any landowner how much compensation he/she/it stands to receive.
Valcon’s failure to respond to any of these concerns enhances the suspicion that, as a commercial business entity, it might grab any amount it can from the poorly communicated process and the vagueness of the structures and methods of compensation, and then self-destruct or disappear, leaving the deserving beneficiaries out of pocket, out of options and out of hope. There is no alternative for transparency in this process.
Many title deed holders believe that Valcon is indispensable in the pursuit of compensation as they have the list of dispossessed farmers and their valuations. That is not true.
The Valcon list is far from complete, and to work only from that list would constitute an injustice. We need a more complete list of dispossessed title deed holders, and Saai is prepared to create the capacity and resources to work on it. A more complete list would also create a more legitimate basis for opinion polls, voting and mandating. It would avoid the situation in which hopeful beneficiaries feel they are held hostage by Valcon, and possible clashes of interest.
As for the valuations, Saai and a number of our members had presentations by valuation professionals, some of which successfully acted on behalf of dispossessed Zimbabwean farmers in international courts, who belief that they can also compile valuations of our farms in a format which complies to international standards and which was tested and endorsed in courts across the world.
It might even be cheaper than the Valcon option, it will be much more transparent and will bring more certainty to individual title deed holders.
So no one is indispensable. Valcon knows that because it was communicated to them at the meeting in Harare on 7 March 2023 in the presence of CFU and SACFA.
Saai will share our concerns with embassies, media and NGOs.
Some of our members have withdrawn their mandates from Valcon. It is important to copy Saai in any such correspondence to ensure that their will is honored. Title deed holders (even if you are not a member of Saai) can also address it to Valcon but send such withdrawals to Saai and we can table it at an appropriate time.
Valcon’s failure to answer these questions by such a significant part of the effected constituency has sparked many more questions. Please forward any relevant questions to firstname.lastname@example.org
If a government can abuse its powers to cancel title deeds and retrospectively change the constitution to allow for that, imagine what it can do to bonds!
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