High Court Hearing for Registration of SADC Tribunal Farms Judgment on 24 November 2009

 SW Radio Africa

 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 Uriri 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 Uriri 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.