IN THE SUPREME COURT OF ZIMBABWE
Case No SC 81/2010
HELD AT HARARE
In the matter between:
COMMERCIAL FARMERS UNION First Applicant
and
BATELEURS PEAK FARM HOLDINGS (PRIVATE) LIMITED Second Applicant
and
CHIREDZI RANCHING COMPANY (PRIVATE) LIMITED Third Applicant
and
LOUIS KAREL FICK Fourth Applicant
and
ANDREW PAUL ROSSLYN STIDOLPH Fifth Applicant
and
LIPGREEN FARMING (PRIVATE) LIMITED Sixth Applicant
and
GRANDEUR RANCHING (PRIVATE) LIMITED Seventh Applicant
and
BLUE RANGES (PRIVATE) LIMITED Eighth Applicant
and
CHIRIGA ESTATES (PRIVATE) LIMITED Ninth Applicant
and
BUSI COFFEE ESTATE (PRIVATE) LIMITED Tenth Applicant
and
Page 2 of 34
THE MINISTER OF LANDS AND RURAL RESETTLEMENT First Respondent
and
THE MINISTER OF JUSTICE Second Respondent
and
THE COMMISSIONER GENERAL OF THE ZIMBABWE REPUBLIC POLICE Third Respondent
and
THE AUDITOR GENERAL Fourth Respondent
and
THE MINISTER OF FINANCE Fifth Respondent
and
THE ATTORNEY GENERAL Sixth Respondent
and
THE CHAIRMAN OF THE COMPENSATION COMMITTEE Seventh Respondent
_______________________________________________________
HEADS OF ARGUMENT FOR THE APPLICANTS
_______________________________________________________
1. This is a constitutional application brought in terms of section 24 of the Constitution.
The relief sought is analysed hereunder. It is to be noted that the relief sought has not
been opposed by six of the seven Respondents. Only the First Respondent opposes the
relief being sought. This is significant in that clearly in the new political climate in
Zimbabwe it demonstrates dissension as to the implementation and effect of the land
reform programme/…..
Page 3 of 34
reform programme adopted prior to February 2009, as well as a reluctance to dispute
undeniable facts. The fact that it is only the First Respondent who opposes shows a
Ministry wedded to a system of government which is inconsistent with the terms of the
Constitution as amended in February 2009, and which continues to act for the benefit of
a limited number of Zimbabweans based on their political affiliation, rather than acting
in the needs of the country.
2. The issues raised in this matter on which broad relief is sought in terms of the powers of
this Honourable Court under section 24(4) of the Constitution can be summarised as
follows:
2.1 the manner in which the First Respondent allocates farming land by way of offer
letters, leading to forced evictions and prosecutions of only white farmers, is not
done in terms of the law as there is no statutory authority for what the First
Respondent is doing, and therefore since February 2009 the implementation of
land resettlement has been in contravention of section 18(1a) of the Constitution;
2.3 the continued prosecution of only white persons for contravening the Gazetted
Land (Consequential Provisions) Act [
Chapter 20:28] is racially motivated and
contravenes sections 23 and 18 of the Constitution, and furthermore seeks to
achieve not the punishment for breaching the law, but the eviction order which
is a consequence of such a conviction;
2.3 the failure to afford equal treatment to existing (or previous) occupiers of
commercial farming land in the issue of offer letters and other rights of
occupation of commercial farming land contravenes sections 23 and 18(1a) of the
Constitution; 2.4/…..
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2.4 the seizure of farm equipment and materials with the support of Government
officials is not being dealt with by the Executive in terms of existing law and this
breaches the rights under section 18 of the Constitution of those from whom such
farm equipment and materials are taken;
2.5 the resettlement of persons on State land based purely on racial considerations
contravenes sections 23 and 18(1a) of the Constitution.
Each of these aspects will be examined in detail, against the background of the affidavit
of the First Respondent which in the main contains general denials of specific factual
allegations, but which it is submitted in reality amounts to no denial of the specific facts
on which this application is based.
3. A technical objection is raised by the First Respondent in paragraph 3, page 173, and
repeated in paragraph 6, page 174. This objection will be considered first.
The point taken in paragraph 3, page 173, and repeated in paragraph 6, page 174, is that
the Sixth to Tenth Applicants have not authorised the First Applicant to bring this matter
on their behalf. This point is without merit since the Sixth to Tenth Applicants act in this
matter for themselves and in their own capacities are parties to this action. Merely to
save duplication of allegations they referred to and rely on the allegations made on behalf
of the First Applicant. There is no question of a class action. Each of the Applicants acts
in his or its own interests, and has
locus standi on that basis alone. They do not need to
authorise/…..
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authorise the First Applicant since the First Applicant is acting on its own behalf
representing the interests of itself and its members.
1 The Second to Tenth Applicants act
on their own behalf even though they are members of the First Applicant.
Accordingly, it is submitted that the preliminary objection raised by the First Respondent
is without merit.
4. In February 2009, by way of the Constitution of Zimbabwe Amendment (No. 19) Act,
2009 (Act 1 of 2009), section 18 of the Constitution was amended by the insertion of the
following subsection:
(1a) Every public officer has a duty towards every person in Zimbabwe
to exercise his or her functions as a public officer in accordance with the
law and to observe and uphold the rule of law.
The concept of public officer is defined in section 113(1) of the Constitution as follows:
“
public office” means a paid office in the service of the State;
“
public officer” means a person holding or acting in any public office;
5. It is submitted that section 18(1a) was introduced into the Constitution in February 2009
to expand the rights already existing under section 18. It was not introduced simply to
amplify existing rights, but to confirm by way of constitutional protection rights which
already existed/…..
1
Catholic Commission for Justice and Peace in Zimbabwe v Attorney-General & Ors 1993 (1) ZLR 242 (SC) at 250
Commercial Farmers’ Union v Minister of Lands & Ors
Minister of Lands & Ors v Commercial Farmers’ Union
Page 6 of 34
already existed under the common law. It was introduced to emphasise the need for all
public officials to obey the law and to respect the rule of law, which at that time was a
grave failing in Zimbabwe. To give effect to the constitutional rights thus provided, it
is submitted that this Honourable Court should give an interpretation to section 18(1a)
which fully fulfils the purpose of its introduction.
6. As to the approach to interpretation, reference is made to the judgment of Mohamed DP
2
where the learned Judge said:
[26] What is perfectly clear from these provisions of the Constitution and
the tenor and spirit of the Constitution viewed historically and
theologically, is that the Constitution is not simply some kind of statutory
codification of an acceptable or legitimate past. It retains from the past
only what is defensible and represents a radical and decisive break from
that part of the past which is unacceptable. It constitutes a decisive break
from a culture of apartheid and racism to a constitutionally protected
culture of openness and democracy and universal human rights for South
Africans of all ages, classes and colours. There is a stark and dramatic
contrast between the past in which South Africans were trapped and the
future on which the Constitution is premised. The past was pervaded by
inequality, authoritarianism and repression. The aspiration of the future
is based on what is ‘justifiable in an open and democratic society based on
freedom and equality’. It is premised on a legal culture of accountability
and transparency. The relevant provisions of the Constitution must
therefore be interpreted so as to give effect to the purposes sought to be
advanced by their enactment.
[27] This approach has been consistently followed in Southern Africa.
Even in jurisdictions without our peculiar history, national constitutions,
and bills of rights in particular, are interpreted purposively to avoid the
‘austerity of tabulated legalism’.
The construction adopted by the courts must not defeat the very purpose of the provision
3.
The interpretation/…..
2
Shabalala & Ors v Attorney-General, Transvaal, & Anor 1996 (1) SA 725 (CC) at 740
3
United Democratic Movement v President of the Republic of South Africa & Ors
(No 2)
2003 (1) SA 495 (CC), paragraph [113], page 529
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The interpretation of rights should be generous
4.
7. To that end, it is submitted that this Honourable Court will ensure by way of the nature
of the orders that it makes that those who are public officers not only respect the law, act
in terms of it and uphold the rule of law, but are also seen to be doing so in a manner that
can be properly judged. Where it is demonstrated, as in the present matter, that public
officers such as the Ministers in question act outside the law or with disregard for the rule
of law then an order should issue from this Honourable Court making it clear to the
individuals concerned, and to the public at large, that this Honourable Court will use the
powers given to it in terms of the Constitution to ensure compliance with the
Constitution, as well as with the law and will thus uphold the rule of law. In the present
instance, as will be argued, that can only be done by the issue of the mandatory order,
which will have the effect of stopping the present system in relation to agricultural land,
as the present system violates rights given under the Constitution.
8. Throughout his affidavit the First Respondent seeks to claim that his powers to act in the
manner that he does, and by the use of the issue of offer letters to grant rights of
occupation of agricultural land, is because he is the designated acquiring authority in
terms of section 2 of the Land Acquisition Act [
Chapter 20:10], see for example the
Opposing Affidavit, paragraphs 92 and 93, page 195, paragraph 104, page 198 and
especially the last subparagraph of paragraph 105 and paragraph 106, page 199.
It is submitted/…..
4
South African National Defence Union v Minister of Defence & Anor
1999 (4) SA 469 (CC), paragraph [28], page 484
Page 8 of 34
It is submitted that this is a manipulation of the law by the First Respondent that does not
withstand scrutiny.
The definition of acquiring authority in the Land Acquisition Act is given for the
purposes of that legislation, that is to say in respect of land where the procedures under
that Act are initiated and followed. As decided by this Honourable Court the acquisition
of the white farms was not done in terms of that legislation but was done in terms of
section 16B of the Constitution
5.
In that provision of the Constitution the concept of acquiring authority would apply to the
First Respondent, but section 16B(2)(iii) is the only provision which gives power to the
First Respondent, and that relates solely to land identified for acquisition after the
appointed date. In terms of section 16B(2)(I) and (ii) there is no acquiring authority in
respect of land identified before 8 July 2005 or before the appointed date (14 September
2005). As decided by this Honourable Court that land became owned by the State as a
consequence of the enactment of the Amendment to the Constitution and not as a result
of any other Act of Parliament or the act of any public official.
9. So bearing in mind the constitutional obligation of the First Respondent as a public
officer to act in terms of the law, the question has to once again be posed, as it is in the
Founding Affidavit, as to the source of his powers to act in a manner that he does.
Certainly, the Gazetted/…..
5
Mike Campbell (Pvt) Ltd & Anor v The Minister of National Security Responsible for Land, Land Reform and Resettlement & Anor SC 49/2007
Page 9 of 34
Certainly, the Gazetted Land (Consequential Provisions) Act gives him no such power,
and in fact the amendment to section 8 of the Land Acquisition Act by that legislation
even limits the power of the First Respondent concerning the use of land acquired in
terms that legislation (since no mention is made as to powers in terms of land acquired
in terms of the Constitution).
10. It is submitted that the only legislation that deals with the use of State land is the
Agricultural Land Settlement Act [
Chapter 20:01]. Although the effect of this legislation
was argued before this Honourable Court in the matter of Fantaisie Farms (Pvt) Ltd &
Ors v Manyeruke & Ors SC 65/07, no ruling was made on the issue in the judgment.
It is submitted that the point now raised is correct. Only the Agricultural Land
Resettlement Board has the legislative power to grant the right to enter and use State
land. In this regard see the Founding Affidavit at paragraph 70-83, pages 48-52, and the
lack of any substantive response by the First Respondent, see the Opposing Affidavit,
paragraph 104, page 198.
Clearly that Board is not performing the function it is required to do in terms of the Act
in question. In effect the Government has abrogated the law as it leaves it to the First
Respondent to make decisions which do not fall under his statutory powers. This affects
not simply the validity of the offer letters in question, but also the right of the white
farmers who have applied to remain on the land to have their applications properly
considered by the duly appointed statutory body.
11./…..
Page 10 of 34
11. Nowhere in his affidavit does the First Respondent identify the law under which he has
the sole right to issue offer letters and to make allocations of land without at least giving
those in occupation of that land an opportunity to be heard, and without considering
pending applications by them for the very rights he is issuing to others. The reason why
he does not reveal this in his affidavit is quite clear; there is no law which permits the
First Respondent to act the way he does, and in so acting he completely ignores and
negates the rule of law when it comes to white persons. That not only breaches section
18(1a) of the Constitution, but since the sole criteria for his actions is racial (as argued
hereunder), also breaches section 23 of the Constitution and the international norm under
jus cogens
Page 11 of 34
to act outside the law) and to observe the rule of law (which at least in part requires
compliance with the law).
13. A similar breach of section 18(1a) of the Constitution arises where the First Respondent
claims that certain activities are being undertaken by third parties without either his
knowledge or his approval. This would include members of the army and the police
invading farms and taking farming equipment, see particularly the affidavit on behalf of
the Second and Third Applicants, paragraphs 2 and 3, page 95 with the accompanying
photographs at page 101, the affidavit of the Fourth Applicant regarding a Deputy
Governor of the Reserve Bank, pages 104-107, the affidavit of the Fifth Applicant,
paragraph 43, page 116 with the accompanying photographs at pages 132 and 133, as
well as that of the First Applicant in paragraphs 178 to 188, pages 85-89. See too the
affidavit of Charles Lock, Volume 3, Part IX, Annexure Q, where the facts show a long
time involvement of army personel.
The First Respondent does not deny any of these allegations but merely seeks to distance
himself from them. However, as a public officer he has an obligation to ensure that
proper steps are taken not merely to protect property but to ensure the prosecution of
those who offend the law. That is an aspect of the rule of law which is binding on the
First Respondent by virtue of section 18(1a) of the Constitution. He cannot simply ‘wash
his hands’ of the matter, which he can only justify on the basis that those who are acting
illegally in fact support his political ideology. It also has an element of racism which is
dealt with below.
The reality/…..
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The reality is that because of the attitude of the First Respondent, the Third Respondent
and the Fourth Respondent’s own attitude to these types of matters is to do nothing to
prevent the crimes or to bring the perpetrators to justice. But on the slightest excuse
criminal prosecutions are laid against white farmers, see for example Fick paragraphs 17
and 18, page 105, but well documented and admitted crimes by black persons (especially
in the police and military) are ignored by those charged under law with upholding the rule
of law. In so failing to act these three Respondent’s breach their obligations under
section 18(1a) of the Constitution. Where they do act they do not do so even handedly
and are undoubtedly motivated by racial considerations, which is a further breach of
rights under the Constitution. In essence the criminal justice system is used
discriminately and for political purposes.
Furthermore, civil orders by the courts are ignored leading to further infringements of
the rule of law. Even if that is not condoned, like the failure to bring criminal
proceedings the failure to observe court orders undermines the rule of law and thus the
obligations of the Respondents under section 18(1a) of the Constitution.
Indeed, it was the very attitude of the various Respondents complained of in the
application which justifies, and perhaps necessitated, the entrenchment of the
constitutional obligation to obey the law and support the rule of law introduced by section
18(1a) of the Constitution.
14./…..
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14. As it was put by Chinhengo J
6:
At a practical level, however, where a written constitution, amenable to
amendment by the people is in existence, and statute laws, old and new
exist, and which the people’s representatives can amend or repeal, an
argument such as the one advanced by [the Commissioner of Police] …
is but spurious. There is, in my opinion, a middle view of the rule of law
between the two extremes — that the law or the rule of law is partisan on
the one hand and neutral on the other hand. That middle view is that the
rule of law represents a norm, a standard which ensures that any person
may bring up a claim and have it determined within the framework of a
body of principles which are applied to all persons equally. Viewed from
this perspective, the role of the State is to maintain law and order and to
mitigate conflict within the community and the instrumentality for the
maintenance of law and order is the police. The rule of law must, in my
opinion, be viewed as a national or societal ideal…. The rule of law to me
means that everyone must be subject to a shared set of rules that are
applied universally and which deal even handedly with people and which
treat like cases alike.
To similar effect are the observations of Chaskalson P where the learned Judge said
7:
Corruption and maladministration are inconsistent with the rule of law
and the fundamental values of our Constitution. They undermine the
constitutional commitment to human dignity, the achievement of equality
and the advancement of human rights and freedoms. They are the
antithesis of the open, accountable, democratic government required by
the Constitution. If allowed to go unchecked and unpunished they will
pose a serious threat to our democratic State.
15. Similar considerations apply to the application of the Administrative Justice Act [
Chapter
10:28
] raised by the Applicants, Founding Affidavit paragraphs 84-94, pages 53-56 and
paragraphs 144-151, pages 74-77. The First Respondent is obliged to comply with the
requirements of section 3 of that Act but clearly has determined not to do so. Decisions
are not made/…..
6
Commissioner of Police v Commercial Farmers’ Union 2000 (1) ZLR 503 (HC) at 525-526
7
South African Association of Personal Injury Lawyers v Heath and Ors 2001 (1) SA 883 (CC) at 891 in para 4
Page 14 of 34
are not made reasonably or in a fair manner, and certainly for those 300+ white farmers
who have applied to remain on the land either no decision at all was taken within a
reasonable period or where others were to be settled on the land (which is usually the
case) no reasons were supplied for the decision.
In his Opposing Affidavit the First Respondent takes the attitude that the Administrative
Justice Act does not apply to his power to issue offer letters, paragraph 105, page 199.
Again, his interpretation of the law to give him the sole power over such an important
national asset is wrong. He is obliged to comply with the law and his admitted failure to
comply with the Administrative Justice Act is demonstrable evidence of his breach of
section 18(1a) of the Constitution.
16. This point is fortified by the attitude adopted by the First Respondent in paragraph 130,
page 208 of the Opposing Affidavit. In the mind of the First Respondent he has the final
say on matters and will do things at his own pace. Hence the statement that whites that
will get offer letters shall get them, which clearly disregards all his obligations in terms
of the Administrative Justice Act to act in a reasonable period, fairly and reasonably. It
is submitted that the First Respondent holds himself out to be a law unto himself without
regard to the statute and common law obligations which he has as a public officer under
the Constitution, the statute law and under the common law of Zimbabwe.
17. The affidavit of the First Respondent provides no answer to the points made against him
that he is acting outside the law. He can only grant rights in respect of State land and
property/…..
Page 15 of 34
property if he is so authorised to do. No law gives him that authority, and it is submitted
this Honourable Court should now intervene to require compliance with the law by the
various branches of the Government.
18. Section 18(2) of the Constitution guarantees to any person charged with a criminal
offence a fair hearing within a reasonable time by an independent and impartial court.
In respect of those white farmers charged under the Gazetted Land (Consequential
Provisions) Act that right to a fair trial by an independent and impartial court has been
denied as a result of the actions of the Government, as spelt out in paragraphs 167-177,
pages 82-85 of the Founding Affidavit. In essence what has been stated there is that the
potential presiding magistrates in such trials were being told by the Attorney-General and
the Chief Magistrate (Part IX, pages P1-P4) as well as senior police officers, in the
presence of intelligence officers and possibly members of the army, how to deal with
such cases. They were being told what defences could or could not be considered, and
what action could or could not be taken, see for example the intelligence report of the
Chegutu meeting of 6 February 2009, Part IX, pages O5-O6.
19. This was not mere legal education. The nature of the persons present and the manner in
which matters were presented (for example the heading LAWYERS TACTICS, page P3,
and the allegation of tricks, page P4) leads to the inevitable conclusion that the purpose
of the meetings was to influence the outcome of the forthcoming trials, and to ensure that
convictions and eviction orders followed such trials.
20./…..
Page 16 of 34
20. It is again pointed out that one of the other persons who is alleged to have taken part in
those session, namely the Attorney-General, the Sixth Respondent, has chosen not to
deny the allegations made concerning those meetings. The First Respondent does not
deny the allegations made but seeks to rely on submissions (and not statements of fact)
made to this Honourable Court in another matter, see paragraph 136, page 210 of the
Opposing Affidavit. Of course, the facts set out in the Founding Affidavit and not
challenged in the present matter speak for themselves, and it is submitted that the only
conclusion that can be drawn from the nature of the meetings and the participants is a
deliberate intention by senior representatives of the Government to influence the outcome
of criminal trials. Nowhere is it suggested that similar meetings have taken place with
the same participants in relation to other types of criminal trials. Those meetings were
confined to instructing presiding officers (at least by necessary inference) how to deal
with trials of white farmers arising out of the land issue in Zimbabwe.
21. In these circumstances it is submitted that the right to a fair trial by an independent and
impartial court has been denied those white farmers now being charged under the Act in
question. That includes some of the individual Applicants before this Honourable Court.
What occurred at those workshops was improper and designed to breach rights given in
terms of section 18(2) of the Constitution so far as those rights apply to white farmers.
22. On the question of offer letters to white persons, the First Respondent states that some
white farmers had been recommended for 99 year leases and that in fact four farmers had
been issued/…..
Page 17 of 34
been issued with such leases and 19 with offer letters, see the Opposing Affidavit,
paragraph 29, pages 180-181. But he does not identify those persons so that his
statements can be verified.
It is common cause that, at best, these offer letters amount to a total of 35 227 ha, or
0,11% of the total agricultural land, see paragraph 31.30 of the Founding Affidavit,
particularly the table on page 32, and note that the First Respondent does not take issue
with this, Opposing Affidavit paragraph 65, page 187. But despite being challenged to
do so, the First Respondent has failed to produce any details of such offer letters,
claiming confidentiality, Opposing Affidavit paragraph 69, page 188. Furthermore he did
not respond to the letter at pages 244-246, as he should have done. The First Applicant
has a right to such information in terms of section 6 of the Access to Information and
Protection of Privacy Act [
Chapter 10:27], and the failure to respond is a further breach
of his obligations under section 18(1a) of the Constitution by the First Respondent.
23. Significantly, the Respondent who could have provided details relating not only to
prosecutions but also to applications to the Administrative Court, namely the Attorney
General, has chosen not to take part in these proceedings or to challenge the factual
allegations made by the Applicants.
24. Given the lack of transparency by the First Respondent in providing statistics and details
in this matter, and bearing in mind that those given on behalf at the First Applicant are
not challenged, there is clearly a gross imbalance in the manner in which the Government
has dealt with/…..
Page 18 of 34
has dealt with the whole issue of occupation of agricultural land since September 2005.
The facts set out on behalf on the First Applicant show that the approved land reform
programme is no longer being applied and that the Government seeks to go beyond the
parameters of that programme. Since section 16A of the Constitution obliges the States
to act in terms of a land reform programme, it is submitted that what is now taking place
exceeds the constitutional rights of the State.
It is for this reason, and for the others stated below, that it is submitted on behalf of the
Applicants that it is necessary to impose a moratorium until such time as the breaches of
the Constitution are rectified, and the question of the occupation and use of agricultural
land is dealt with properly in terms of the law.
25. It is also necessary to examine the position of the Auditor General, the Fourth
Respondent, even though she has chosen not to oppose the relief sought in this matter.
It is submitted that she is a public officer and as such has an obligation to comply with
the laws of Zimbabwe. As set out in paragraphs 95 to 100, pages 57–59 she has a
statutory duty in terms of the Audit and Exchequer Act [
Chapter 22:03] to account for
all expenditure by the Government and to take care of and account for State property.
Like all public officers she must comply with the law or she breaches section 18(1a) of
the Constitution. That is precisely what is happening here with regards to not only land
(which is a government asset) but farming equipment and material.
The response/…..
Page 19 of 34
The response of the First Respondent, paragraph 108, pages 199-200, does not meet the
point. But significantly the First Respondent persists in claiming that compensation can
be paid, notwithstanding his admission that the national budget has made no provision
for compensation since 2007, see paragraph 28, page 153 as read with paragraph 148 on
page 214.
26. Thus, those white farmers who have had their land vested in the State by virtue of section
16B of the Constitution, and those white farmers whose farming equipment and material
has been taken from them by or on behalf of the State, have an interest in ensuring that
proper care is taken to maintain the property at least until compensation is paid, and that
duty falls upon the Auditor General. She has not contested the allegations against her and
in effect the First Respondent has admitted them. The rights of the Applicants to require
that public officers act in terms of the law and to the observance of the rule of law have
thus been breached.
In the circumstances a mandatory order should issue as against the Auditor General to
compel her to do her duty in terms of the law and to prepare a full inventory and account
of all assets acquired by the State, and to take all necessary steps to protect such assets.
27. With regard to the acquisition of farm equipment and materials, the complaint laid
against the First Respondent is that the provisions of the Acquisition of Farm Equipment
and Materials Act [
Chapter 18:23] are not complied with. Paragraph 102, page 59 of the
Founding Affidavit makes the points that the procedural step of giving an opportunity to
challenge the/…..
Page 20 of 34
challenge the acquisition in court is not given to the owner, nor is compensation paid.
The response of the First Respondent, paragraph 109, page 200, is not to deny the first
allegation, and to state in respect of the second allegation that anyone who wants
compensation can lodge a claim for that. He also makes the statement that compensation
is not paid where the acquisition is being contested.
28. Section 7(3) of the Act requires the First Respondent to give notice to the person from
whom the equipment or materials are being acquired of their right to contest the
acquisition. Section 9(1)(a) of the Act requires 25% of the compensation to be paid
within a reasonable time or at least within 30 days of the acquisition. The acquisition
takes place on the day the acquisition notice is served, see section 7(4). There is no
question that the owner from whom the equipment or materials is acquired having to
apply for compensation. The right to receive and the obligation to pay compensation are
matters of law, and that law must be obeyed by the acquiring authority. But paragraph
109, page 200, of the Opposing Affidavit of the First Respondent shows the mindset of
the First Respondent in this regard. There is no intention to comply with the law.
Matters are dealt with at his convenience and on his terms, and the legislation is simply
ignored.
29. This aspect again highlights the general attitude of the First Respondent in relation to all
matters concerning the white farmers in Zimbabwe. The law is not to be followed.
Matters are to be dealt with as the First Respondent sees fit, and rights given under the
Constitution/…..
Page 21 of 34
Constitution or under legislation to the white farmers are at best afforded if the white
farmer complains or makes an application, although it is clear most of those remain
unanswered.
30. But it is submitted that section 18(1a) was introduced into the Constitution to prevent the
very mindset of the First Respondent. As previously submitted, the provision was
introduced to make it an enforceable constitutional right (needed because of the
circumstances in Zimbabwe in February 2009) to have the law followed and the rule of
law observed. The very sentiments expressed in the affidavit of the First Respondent in
April 2010 shows that he does not consider that he must apply the law and shows a total
disregard of the rule of law.
31. In such circumstances, it is submitted that this Honourable Court should intervene and
issue an order that makes it abundantly clear to the First Respondent that he is bound by
the law, and obligating him to comply with the law. Although described in the Founding
Affidavit as irregularities, see for example paragraph 108, page 61, in reality the First
Respondent is not simply committing irregularities, he is disregarding the law and acting
in breach of the law. On that basis it is submitted that the Applicants are entitled to the
form of relief which they seek.
It is submitted that the general pattern of lawlessness set out in the affidavits by the
Applicants, and not denied by the First Respondent, require intervention by this
Honourable Court in terms of the Constitution.
32./…..
Page 22 of 34
32. It is submitted that the prohibition against discrimination based on race or origin in
section 23 of the Constitution merely states what is
jus cogens in terms of international
law. Racism ranks with crimes against humanity, torture
8 and the execution of minors 9,
genocide and slavery as being completely contrary to the norms upon which any
democratic nation is founded and governed and thus to be contrary to fundamental
international law.
10
33. The principle of
jus cogens is enshrined in Article 53 of the Vienna Convention on the
Law of Treaties:
For the purposes of the present Convention, a peremptory norm of general
international law is a norm accepted and recognised by the international
community of States as a whole as a norm from which no derogation is
permitted and which can be modified only by a subsequent norm of
general international law having the same character.
The International Court of Justice has recognized that this provision merely restates
existing international law
11. International law in that context, normally called public
international law, is part of the common law of Zimbabwe and thus falls within the
definition of ‘law’ contained in section 113 of the Constitution, and must be applied by
all courts in Zimbabwe. Accordingly/…..
8
Prosecutor v Furundžija, International Criminal Tribunal for the Former Yugoslavia, 2002, 121 International Law Reports 213
9
The Michael Domingues Case: Report on the Inter-American Commission on Human Rights, Report No. 62/02, Merits, Case 12.285 (2002)
10
Jones v Ministry of the Interior Al-Mamlaka Al-Arabiya AS Saudiya (The Kingdom of Saudi Arabia) and Others [2006] UKHL 26; [2006] 2 WLR 1424
11
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) notwithstanding Security Council Resolution 276
(1970) (Advisory Opinion) [1971] ICJ Reports 16 at 47
Page 23 of 34
Accordingly, it is a norm which cannot be derogated from no matter the excuse or
reason . Article
12 53 of the Vienna Treaty makes this clear beyond doubt. No other norm
of international law allows derogation against the prohibition from racism.
34. It is not put in issue in this matter that:
the whole purpose of the land reform programme was to remove white farmers
from the land and replace them with black persons (whether or not they were
farmers);
the enactment of section 16B of the Constitution was to expedite that process;
the issue of offer letters by the First Respondent is solely (or at the very least
primarily) to blacks and not to whites;
the prosecutions that are presently taking place are directed solely against white
farmers.
As the First Respondent graphically puts it ‘The Applicants (white farmers or their
organisation) should simply make way for new settlers’, by which he means black
Zimbabweans/…..
12
Sampson v Federal Republic of Germany 250 F.3d 1145 (7th Cir. 2001) following Siderman de Blake v Republic of Argentina, 965 F.2d 699, 714 (9th Cir. 1992) and
Princz v Federal Republic of Germany, 26 F.3d 1166 (D.C. Cir. 1994)
Page 24 of 34
Zimbabweans, see paragraph 129, page 208. In determining the policy that land
belonging to whites (and not blacks) should be taken for resettlement it is again common
cause that no regard was had to the citizenship of the existing farmer, the length of time
he has been in the country, whether the farm was purchased before or after Independence,
or any other factor other than pure race.
It is submitted that this policy, and the application of the policy, constitutes racism.
35. Attention is drawn to paragraph 31.31, page 33, of the Founding Affidavit where Hendrik
Olivier says:
They (the Respondents) cannot be permitted to proceed after 10 years in
definitely to remove all white farmers from occupation and at the same
time justify this on the basis of fulfilling a ‘purpose’ of addressing an
‘imbalance’…. It can only be grossly unreasonable and fallacious to
contend … that it is necessary to remove all white farmers from
occupation before considering them for resettlement.
The First Respondent, in paragraph 66, page 187, simply says that this is not true and that
not all white farmers have been removed from their farms. But what is of significance
is that the First Respondent does not dispute that it would in fact be grossly unreasonable
to remove all white farmers. Until such time as a policy on occupation and settlement
is adopted by the Government which is not based on colour but on proper and acceptable
criteria, it is submitted that the process being undertaken by the Government is predicated
on racism, and requires the imposition of a moratorium until then, see the Answering
Affidavit, paragraph 35, page 230.
36./…..
Page 25 of 34
36. The justification for these actions is that the Government is undoing the wrongs of
colonialism is not a valid basis in law to commit the international crime of racism. That
is not a derogation recognised by international law, and therefore falls foul of Article 53
of the Vienna Convention.
The fact that the Amendment to the Constitution which introduced section 16B does not
deal with matters in racial terms is, with respect, not the issue
13. The issue is how the
programme or policy of cancelling all rights of only white farmers to agricultural land in
Zimbabwe and thereafter removing existing white farmers from agricultural land is being
implemented. It is submitted that it is being implemented solely (and not simply
primarily, although that alone would suffice) against whites based entirely on their race,
colour and perceived place of origin.
14 In the words of section 23(2) of the Constitution,
the white farmers are being subjected to a condition, restriction or disability to which
persons of another such description (agricultural land owners or occupiers) are not made
subject and the imposition of that condition, restriction or disability or the according of
that privilege or advantage is wholly or mainly attributable to the description by race,
place of origin or colour.
37. It is accepted that the acquisition of land prior to 1980 was undoubtedly predicated on the
concept of racism. But that wrong cannot justify racism after 1980, particularly 20 years
later./…..
13
Mike Campbell (Pvt) Ltd & Anor v The Minister of National Security
Responsible for Land, Land Reform and Resettlement & Anor
SC 49/2007 at 17-18
14
Mike Campbell (Pvt) Ltd & Others v The Republic of Zimbabwe
SADC (T) Case No 2/2007
Page 26 of 34
later. In that 20 year period after Independence many of the persons who were farming
in 2000 had acquired the agricultural land in question. As such they were not the
beneficiaries of any racial policy, nor were other Zimbabweans the victims of any racism.
But it is submitted that does not matter. The wrongs and crimes of the past cannot justify
racism in the 21st century.
38. In concluding a recent judgment, Chief Justice Roberts of the United States Supreme
Court said “(t)he way to stop discrimination on the basis of race is to stop discriminating
on the basis of race” . In
15 the course of his judgment, the Chief Justice referred to the
observations of Justice O’Connor in an earlier dissenting judgment where she said:
At the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens “as individuals,
not `as simply components of a racial, religious, sexual or national class.'”
Arizona Governing Comm. for Tax Deferred Annuity and Deferred Compensation Plans v. Norris
These observations/…..
15
Parents Involved in Community Schools v Seattle School District No 1 et al 551 US 701 (2007)
16 Metro Broadcasting Inc v Federal Communications Commission
497 US 547 (1990) at 602
Page 27 of 34
These observations are made in the context of the equal protection clause of the United
States Constitution, but have equal relevance not only to section 23 of the Constitution
of Zimbabwe but also in respect of the approach of public international law to the issue
of racism and racial discrimination.
39. Accordingly, on the basis of the breach of section 23 of the Constitution which the
present implementation of the land reform programme creates, the Applicants are entitled
to an order stopping that implementation until the element of racism has been removed.
40. The case of the Ninth Applicant illustrates how the present First Respondent has
personally been involved in breaches of the law and in breaches of the Constitution.
In his affidavit at pages 151-152, paragraphs 12-16, Mr West sets out how he sought on
behalf of the Ninth Applicant to obtain the right to remain on the property in question.
The necessary forms were completed, but no correspondence was forthcoming from the
First Respondent in response.
In March 2009, despite such application, prosecution was instituted against the Ninth
Applicant, and other companies, for failing to vacate the property and remaining thereon
without lawful authority, see paragraphs 22-25, pages 152-153. The companies were
duly convicted and sentenced on 26 January 2010. But during the course of the
prosecution the First Respondent rewarded the presiding magistrate on 13 November
2009 with an offer letter for one of the properties which was the subject of the
prosecutions/…..
Page 28 of 34
prosecutions, page 155. The First Respondent does not deny this, see the Opposing
Affidavit paragraph 148, pages 214-215. It is submitted that this is such a flagrant breach
of the right to a fair trial that it is hardly surprising the Respondents have not sought to
defend their position in this regard. It is submitted that the unfairness permeates all trials
of white farmers being prosecuted for failing to vacate agricultural land in alleged breach
of the Gazetted Land (Consequential Provisions) Act. Clearly the reward system or the
carrot and stick concept (taken together with the instruction given at inappropriate
meetings) is considered by the First Respondent an acceptable part of the criminal
process in Zimbabwe. In fact, it is a clear breach of section 18(2) of the Constitution and
offends every concept of a fair trial.
41. So despite the enactment in February 2009 of section 18(1a) of the Constitution which
guarantees to every person in Zimbabwe that every public officer has a duty towards him
or her to exercise his or her functions as a public officer in accordance with the law and
to observe and uphold the rule of law, the First Respondent and some of the other
Respondents have in relation to the Ninth Respondent:
failed to respond to an application to remain on the farm;
instituted criminal proceedings while such an application was pending;
sought to influence the outcome of this criminal proceedings by granting the
presiding magistrate a favour by way of an offer letter;
made no attempt/…..
Page 29 of 34
made no attempt to comply with the requirements of legislation concerning the
acquisition of farming equipment and materials;
failed to comply with legislation regarding the payment of compensation either
for improvements on the land or for farming equipment and materials.
Indeed, it is submitted that the failure to have in place a compensation
committee at the time of the acquisition of land itself breaches the law
and probably breaches the Constitution (a matter to be considered on a
separate occasion to the present);
implemented a policy and programme of the Government on the resettlement of
farms based on racial considerations.
It is submitted that each and every one of these considerations validates the Draft Order
sought in the present matter.
42. Again it is respectfully pointed out that the broad facts outlined on behalf of the Ninth
Applicant are not put in issue by the other Respondents – through their non-defence of
this matter – or in fact by the First Respondent in his affidavit. It is submitted there can
be little doubt that many of these considerations applied to other white farmers.
43. It will also be borne in mind again that it is common cause in this matter (in the sense that
the allegations are not challenged) that the national budget has contained no provision for
the payment of/…..
Page 30 of 34
the payment of compensation since 2007, see paragraph 28, page 153, and the lack of
challenge to that allegation by any other Respondents. If there is no national budget for
the payment of compensation, the Government as a whole cannot comply with its legal
obligations in that regard. This is fortified by the absence of a compensation committee.
44. Likewise, the statement by the Fifth Respondent in paragraph 46, page 116, that in all
probability there is no Compensation Committee in existence has not been put in issue,
see the Opposing Affidavit paragraph 145, page 212. The very fact that the Seventh
Respondent has not purported to identify himself, and nowhere does the First Respondent
purport to do so, confirms the probability that the Government has breached the
requirements of both the Land Acquisition Act and the Acquisition of Farm Equipment
or Material Act.
17
Indeed, as already submitted, the attitude of the First Respondent is
that nothing need be done about compensation until an application for compensation is
made.
45. This point is further emphasised when regard is had to the factual situation concerning
the acquisition of farming equipment and materials belonging to the Sixth Applicant, see
paragraphs 38-44, pages 114 to 116, as read with the affidavit at paragraphs 4 -6, page
136. In the Opposing Affidavit of the First Respondent in paragraph 145, page 212 and
paragraph 146, page 213, these allegations are not put in issue. Again these undisputed
facts show clearly/…..
17
Since the papers in this matter were filed, the First Respondent has appointed the members of the Compensation Committee for the purposes of the Land Acquisition Act, see GN
181 of 2010 of 11 June 2010.
Page 31 of 34
facts show clearly a deliberate and sustained policy not to comply with the laws of
Zimbabwe, even after the promulgation of section 18(1a) in February 2009. The rule of
law in these instances is being completely flouted by the First Respondent, and the First
Respondent is not acting in accordance with the law.
46. Likewise in the case of the Eighth Applicant, which is a farm protected under a bilateral
investment protection agreement between Zimbabwe and France, in February 2009 the
property were summarily invaded and equipment and materials taken by an alleged new
beneficiary, see paragraph 20, page 142. The attitude of the First Respondent, paragraph
147, page 213-214, is that there is no dispute that the land was acquired in terms of the
law and that allocation was done in terms of the law. The First Respondent however
disavows actions by third parties. But that third party was granted authority after the
amendment to the Constitution to enter the farm and be a beneficiary of the land by the
First Respondent (as he himself claims the allocation was done in compliance with the
law). But there has been no attempt to comply with the law so far as the protection of
investment is concerned, nor with regards to the need to issue orders and pay
compensation for farming equipment and materials. Furthermore, the actions of the
present First Respondent contradict the stance taken by his predecessor, Minister Mutasa,
in his sworn evidence before the International Arbitration in Paris, see page 148. Put
briefly, the First Respondent had no right or power in law to grant to a new beneficiary
in February 2009 the allocation of that farm, and in so doing he totally ignored and failed
to comply with the rule of law, which included orders by the High Court given by
consent, pages 144-147.
47./…..
Page 32 of 34
47. In these circumstances, it is submitted that the First Respondent cannot possibly begin
to claim that rights under section 18(1a) of the Constitution had been met. The very
opposite is true. Those rights have been fragrantly and repeatedly ignored by the First
Respondent himself. For that alone all the Applicants are entitled to relief to redress the
failure by the First Respondent to meet his obligations under law and to observe the rule
of law.
48. In addition, the evidence clearly supports a finding that rights under section 18(2) have
been breached both in respect of the inappropriate meetings held with potential presiding
magistrates, and in respect of the actions of the First Respondent in granting an offer
letter to a magistrate in the middle of a trial dealing with a very issue related to that offer
letter. Indeed, these actions by the First Respondent could lead other judicial officers to
believe that they could be granted a farm if they ensure the ‘proper’ outcome of matters
before them in favour of the State. This is the real risk of awarding judicial officers with
farms in the manner testified in this matter.
49. The evidence as a whole shows that the lawlessness taking place within the farming areas
of Zimbabwe is not being attended to by the State as required under law, and intervention
by this Honourable Court to protect the rights of persons under sections 18(1a) and 23
of the Constitution is not only required, but is necessary to ensure that there are no
continuing breaches of the law or the Constitution in those areas.
50./…..
Page 33 of 34
50. Finally, the evidence clearly supports a finding that the white farming community has
been and continues to be the subject of racial discrimination based on race, colour and
place of origin in breach of international norms and in breach of section 23 of the
Constitution.
51. In relation to the nature of the relief to be granted, the Applicants move for an order in
terms of the Draft Order at pages 92-93, modified as considered appropriate by this
Honourable Court. The power of this Honourable Court in terms of section 24(4) of the
Constitution has been described in these terms:
It is difficult to imagine language which would give this court a wider and
less fettered discretion. But relative to s 18(2) where, upon balancing the
various factors, it is decided that an accused’s right to a fair hearing within
a reasonable time has been contravened, a stay of proceedings must be the
minimum remedy.
18
And this Honourable Court has said;
This imparts a wide and unfettered discretion as to the form the relief should take.
19
It is submitted that at the very least the First Respondent should be ordered to pay the
costs of this application.
52./…..
18
In re Mlambo 1991 (2) ZLR 339 (SC) at 355
19
Chavunduka & Anor v Commissioner of Police & Anor 2000 (1) ZLR 418 (SC)
at 422
Page 34 of 34
52. In the alternative, it is submitted that this Honourable Court should issue an appropriate
order in terms such that the Government is directed to comply with the law in the manner
set out by the judgment of this Honourable Court, highlighting the manner in which the
Constitution of Zimbabwe has been breached.
…………………………………………………………….
Adrian de Bourbon SC
APPLICANTS’ COUNSEL
Cape Town
20 June 2010
………………………………………………
K J ARNOTT
Applicants’ Legal Practitioner
c/o Gollop & Blank
3rd Floor, G&B House
83 Sam Nujoma Street
HARARE (DD)
To: 1. The Registrar
Supreme Court of Zimbabwe
HARARE
2. The Director
Civil Division of the Attorney-General’s Office
HARARE (4/LA/1812 – NM/cc)
, 463 U.S. 1073, 1083 (1983). Social scientists may debate how peoples’ thoughts and behaviour reflect their background, but the Constitution provides that the Government may not allocate benefits and burdens among individuals based on the assumption that race or ethnicity determines how they act or think. To uphold the challenged programs, the Court departs from these fundamental principles and from our traditional requirement that racial classifications are permissible only if necessary and narrowly tailored to achieve a compelling interest. This departure marks a renewed toleration of racialclassifications and a repudiation of our recent affirmation that the Constitution’s equal protection guarantees extend equally to all citizens. 16prohibiting racial discrimination.
The fact, if it be a fact, that the First Respondent received recommendations from various
committees takes the matter nowhere, see paragraph 70, page 188, since the First
Respondent states that he can reject or accept the proposals by those committees. His
conclusion that he therefore does not have an unfettered discretion is wrong in law. He
claims the sole right to issue such offer letters, but totally in the absence of any legal
authority to do so.
12. Therefore, in the absence of statutory power given to the First Respondent to grant offer
letters, which in turn lead to the eviction or threatened eviction of white farmers and their
prosecution for remaining on State land, the First Respondent as a public officer is
breaching the rights of those white farmers given by section 18(1a) of the Constitution
as that subsection compels the First Respondent to act in terms of law (and therefore not
to act outside/…..
2001 (2) ZLR 457 (SC)2000 (2) ZLR 469 (SC)