High Court Hearing for Registration of SADC Tribunal Farms Judgment on 24 November 2009
Almost exactly a year after the SADC Tribunal made its landmark judgment in
the Campbell case on 28 November 2008, the High Court of Zimbabwe finally
set down a date for registering the Judgment in Zimbabwe. Mike Campbell*
had initially made an urgent application in December 2008 to have the
judgment registered but it was not deemed by the High Court of Zimbabwe to
be urgent.
After that his farm was invaded and he had all his crops stolen,
almost all his equipment stolen, and has had his house burnt down with
almost all his personal belongings. His son and daughter- in-law’s house
was also burnt down on the farm and some of his workers lost their homes and
were severely brutalised. ZANU PF political heavy weight, Nathan
Shamuyarira, has taken over. A visit to the farm today will show it in a
state of virtual dereliction.
Richard Etheredge** then tried to get the judgment registered in an urgent
application when Senator Edna Madzongwe, the Speaker of the House, invaded
his property. The High Court of Zimbabwe again did not deem the application
to be urgent. Mr. Etheredge has since had his entire orange crop of 6000
tons stolen as well as his houses broken into. His tractors and farm
equipment was also stolen and his houses broken into. Various people have
met violent deaths on the farm since Senator Madzongwe took over and the
Etheredges were forced to flee.
After that Gramara Pvt. Ltd.*** put in an application to have the SADC
Tribunal Judgment registered on the normal court roll. It was finally set
down for the 24 November 2008 and Advocates Jeremy Gauntlett and Frank
Pelser came up from South Africa to argue the case. Inexplicably, Zimbabwe
Justice Minister Patrick Chinamasa refused to issue a certificate to allow
them to argue it. A similar application had been approved for Advocate
Pretorius in a different matter, and this had been put in the same day.
Advocate Gauntlett, a former chair of the Bar Association in South Africa
and one of Africa’s leading advocates, has fought many cases in Zimbabwe.
The last certificate he was granted for Zimbabwe was on the 25 June 2009.
He represented Campbell in the case from its outset in the Supreme Court of
Zimbabwe, so to not be admitted was unprecedented.
In the Chamber application asking the Judge to exercise his inherent
jurisdiction to allow Advocates Gauntlett and Pelser to appear, it was
argued that Gramara Pvt. Ltd. had a right to choose its own council and that
there was a legitimate expectation that Advocate Gauntlett should be allowed
to represent his client. This application was turned down and Advocate
Lewis Urere had to step into the breach with very little preparation.
Representing the Government of Zimbabwe, Gerald Mlotshwa tried to then put
an intervener application in for an offer letter holder. He argued that the
offer letter holder would be adversely affected if the Judgment was
registered. It was argued by Advocate Urere that the offer letter holder in
question did not have a direct interest in the registration as the
registration would not nullify the offer letter directly; and that the offer
letter in question had never been formally accepted by the offer letter
holder anyway.
Advocate Urere went on in the main case to state that the Minister accepts
that Zimbabwe is bound by the SADC Treaty and that the only substantial
argument that the Zimbabwe Government came up with for not registering the
Judgment would be if the 2001 amendment to the SADC Treaty [which finally
established the Tribunal as the Supreme Court of Appeal in SADC] was deemed
to have not been done procedurally.
The Zimbabwe Government through State Prosecutor Fatima Maxwell argued that
the SADC Tribunal had no jurisdiction because it needed each individual
state to ratify the amendment to the Treaty. She also stated that the
registration of the SADC Tribunal Judgment would lead to a public outcry and
that it would undermine the Supreme Court of Zimbabwe. .
Advocate Lewis Urere argued that all the Heads of State in the SADC
community had signed the amendment to the Treaty that established the
Tribunal except for the Angolan head of state. As it only needed three
quarters of the SADC Summit to sign, the SADC Tribunal had been properly
established according to what was laid down in the SADC Treaty agreement for
amendments. He said that the definition of the Summit was clearly laid out
as the heads of state, and it did not need individual states to then ratify
the treaty amendment subsequently. As a result the SADC Tribunal clearly
had jurisdiction in the case and that the Judgment should be registered
under procedural and common law. He said that the Government could not
avoid International law which was there to uphold rights and ensure that
where municipal laws infringed on rights, they could be struck down. He
gave the example of the genocide in Rwanda, which could have been allowed by
municipal law, but which international law could not clearly condone.
Justice Patel reserved judgement on the case.
SW Radio Africa
Posted by Dave Fish Eagle
on November 28, 2009. Filed under Politics.
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