Commercial Farmers' Union of Zimbabwe

Commercial Farmers' Union of Zimbabwe

***The views expressed in the articles published on this website DO NOT necessarily express the views of the Commercial Farmers' Union.***

Legal Report for Congree 2010



















Commercial Farmers’ Union of Zimbabwe

Congress 2010


General Overview

The 17


th century French Mathematician Blaise Pascal once wrote: “Justice without force is powerless force without justice is tyrannical.” Nothing could validate his words more than a brief examination of the most significant legal challenges faced and mounted by many commercial farmers in Zimbabwe today.

In the last year, the ongoing instability and insecurity of land tenure has continued to bedevil many of our members who labour on under the threat of the closure of their primary producing agricultural businesses. Persons purporting to be beneficiaries have arrived at farms and demanded the vacation of the farmer on the strength of offer letters in their favour, and in respect of which the Minister has no lawful authority to issue. Some of these incidents have been characterised by intimidation and violence, and have been branded as “farm invasions” by the media.

Police reaction and assistance in many cases of this nature has been found wanting. The existence of valid court orders in favour of the threatened farmer who faces such extra legal eviction is effectively meaningless; the Police attitude is to encourage the departure of the farmer, or to simply ensure that there is no major incident of assault or murder, irrespective of the terms of that court order. This has been particularly evidenced in cases where the incoming beneficiary is a well connected or a senior political figure or state official. Conversely, police action to enforce and expedite prosecutions against commercial farmers, for continuing to occupy their farms without lawful authority, has been much more vigorously pursued which tends to show a partisan application of the law. Amongst other negative impacts, this kind of scenario has the potential effect of bringing the administration of justice in Zimbabwe into disrepute.

This short report will seek to highlight CFU’s legal response to the present challenges faced by its members. It will also summarise a few aspects concerning CFU’s other affairs of a legal nature such as the ongoing COPAC (Parliamentary Select Committee on the Constitution) Constitutional Making Process.

Legal Strategy and Approach

From the outset it must be noted that the CFU considers litigation as a remedy of absolute last resort and stands ready to engage in dialogue to find a sustainable and fair solution to the present impasse in the agricultural sector. It is therefore highly regrettable that the decision has had to be taken to engage in court action to protect the rights of many of our members. It will no doubt be appreciated that our members’ livelihoods depend on their ability to continue agricultural production in a viable manner. Lengthy, costly and unsustainable criminal prosecutions and other disruptions to their agricultural activities jeopardise this. Moreover, the overwhelming majority of our members and former members, whose businesses were expropriated have not received any compensation whatsoever for their loss, and those approximately 200 that have been paid for the value of some of their improvements prior to the adoption of the Multi currency system in reality received less than 10% of the actual value of their investment. This is an issue which can no longer be left unaddressed.

Thus the approach adopted by the CFU is to challenge the basis of the laws used to prosecute farmers in order to dispose of all the prosecutions in the most cost effective manner. Concurrently, broad litigation in South Africa and in the SADC tribunal will continue in order to create sufficient leverage and pressure on the Inclusive Government to engage in apolitical participatory processes in finding a sustainable policy solution to the land question; the resolution of which must take place in a genuine manner in order for the best interest of


all Zimbabwean citizens to be served. What follows is therefore a brief synopsis of the legal cases in which the CFU is engaged or has a particular interest:




The Campbell Case (SADC Tribunal Judgement).

In November 2008, the SADC Tribunal in Windhoek handed down a landmark decision in favour of Mike Campbell and 79 other farmers. Having endeavoured for a protracted period to get a hearing of his contentions before the Supreme Court of Zimbabwe that the acquisition process was unconstitutional and racist, Campbell was forced to approach the SADC tribunal on these matters having successfully found his right to approach this forum on the basis that he had exhausted his domestic legal remedies, more particularly in that he had been denied access to the courts by the enactment of the 17 th Amendment.

Before the SADC decision in the Campbell case the Supreme Court of Zimbabwe was to issue its judgment in the same matter. In essence the Supreme Court of Zimbabwe held that what property should be acquired and in what manner is a question of a political and legislative character and is not a judicial question. The court went further and held that the 17


th  Amendment lawfully ousted the jurisdiction of the Courts of law from any of the cases in which a challenge to the acquisition of agricultural land is sought. In contrast to the Zimbabwe Supreme Court the SADC Tribunal was to hold that:

a) Campbell – and we believe effectively – all farmers in Zimbabwe have been unlawfully denied access to the courts on the issue of acquisition of farm land, and

b) By a majority of four to one – the applicants had been discriminated on the grounds of race, and

c) By unanimity, compensation is payable to the Applicants for land compulsorily acquired.

The SADC Tribunal further declared that:

a) Zimbabwe is in breach of its obligations set out in the Protocol of the Tribunal and certain of the articles of the Treaty, and

b) The Government of Zimbabwe is to protect the farmers insofar as their right to possession of their property and operation of their farms is concerned, and

c) The Government of Zimbabwe is to pay for compensation to certain farmers who had conceded acquisition of their farms.

As a consequence of the SADC Tribunal ruling it became necessary to register this foreign award as an order of court in Zimbabwe so as to give practical effect and implementation to the rights upheld by the Tribunal. To this end the case of Gramara was heard in the Zimbabwe High Court in November 2009.

The High Court ruled that the SADC Tribunal is a duly constituted forum in the SADC region for the resolution of disputes. However, the court went on to hold that despite the fact that all Zimbabweans have a legitimate expectation that the courts in Zimbabwe will honour the decisions of the SADC Tribunal, public policy dictates that in this case the SADC Tribunals judgment is not binding.

Following the ruling the CFU and Others filed an Urgent Application in the SADC Tribunal which is pending. In this application the following relief is sought:

a) A Declaration that the Government of Zimbabwe’s continued failure to comply with the rulings in the Campbell matter is in violation of the Treaty and the orders of the Tribunal; and

b) A Declaration that the refusal of the High Court in Zimbabwe to register the SADC ruling is in violation of the Government of Zimbabwe’s obligations under the treaty and Article 32 of the Protocol; and

c) Calling upon the SADC Summit to consider without further delay measures under the Treaty to terminate or suspend Zimbabwe’s membership from SADC or impose such other measures to ensure its adherence forthwith to the Treaty; and

d) Ordering the Government, pending the determination by the Summit of the above, to comply with the Tribunal’s previous rulings.

The Thrust of the application is that Zimbabwe cannot use a domestic law to override its International human rights obligations.




Bernardus Funnekotter & Others v Republic of Zimbabwe or the so called “Dutch Case”

. This case was an international arbitration presided over by the International Centre for the Settlement of Investment Disputes (ICSID) in terms of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) to which The Republic of Zimbabwe is a signatory. The Claimants were Dutch nationals who had invested in Agricultural Properties which were expropriated by the state without any compensation being paid in violation of the Bilateral Investment Promotion and Protection Agreement (BIPPA) between The Netherlands and Zimbabwe. At the close of proceedings the Tribunal awarded compensation to the claimants. The Government of Zimbabwe has reportedly acknowledged its liability in terms of the award, but to date no payments have been made to the claimants. The case provides clear guidelines and benchmarks for the determination of the quantum of compensation and damages which could potentially have broader application.





The CFU and Others v The Minister of Lands and Rural Resettlement and Others (SC 81/2010)

. In March 2010, the CFU and 9 others made a Constitutional Application to the Supreme Court seeking a Moratorium on the continuation of:

a) The prosecution of white farmers

b) The unlawful eviction of white farmers

c) The seizure and acquisition of equipment and materials belonging to white farmers

Until such time as the Government of Zimbabwe can show that the racial imbalance in the allocation of farm land has not been addressed.

The application consists of some 525 pages and highlights:

a) The general lawlessness that prevails countrywide,

b) The failure by Government to comply with the Acquisition of the Farm Equipment and Materials Act, the Agricultural Land Settlement Act and the Audit and Exchequer Act,

c) The failure to accord white farmers the protection of the law and the violation of other Constitutional rights of white farmers.

Section 18(1a) of the Constitution which had the force of law in February last year (after the enactment of amendment number 19 of the Constitution) re affirms the duty of every public officer, which includes all Ministers and officials to uphold the rule of law. This section has never been considered by the court in Zimbabwe.

Despite citing 7 Respondents, namely, the Minister of Lands and Rural Resettlement, The Commissioner General of the Zimbabwe Republic Police, the Minister of Justice, The Auditor General, The Minister of Finance, The Attorney General and the Chairman of the Compensation Committee, only the Minster of Lands and Rural Resettlement has opposed the application. He states that he knows that there is general lawlessness but distances himself from it. The other respondents by not opposing agree with the allegations made in the application. In essence the Court is being asked to consider whether the Minister of Lands and the Others can distance themselves from the widespread lawlessness, which conduct is we allege violates section 18 (1a) of the Constitution.



The CFU and Others v The Minister of Lands and Rural Resettlement and Another (HC 1961/2010)

. This case has been instituted in the High Court. This is an application for an order compelling the Compensation Committee to assess and value farm improvements belonging to the relevant applicants which has not been done for more than 3 years anywhere in Zimbabwe. Government has consented to judgment in this case. It remains to be seen whether the order will be complied with.



Continued Prosecutions of Commercial Farmers in terms of Section 3(3) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28].

To date 24 Convictions of commercial farmers together with the resultant Eviction Orders have been secured by the state through the Magistrates’ Courts. A further 29 Farm Workers have been convicted and evicted in the same manner. Among the most recent convictions include a French National, (Zimbabwe has openly violated the BIPPA between France and Zimbabwe in this case) and an intervener in the Campbell case who was granted relief in his favour. From received reports there are approximately 164 pending prosecutions at various stages. All those convicted appear to have appealed to the High Court against the Conviction. An appeal stays the order of eviction. However, recently an application by Attorney General (AG) to overturn this law has been made to the High Court and the Supreme Court. SO far this application has been successfully resisted.




Fick v Minister of Trade and Industry (Application to interdict the signing of the Bilateral Trade Agreement between South Africa and Zimbabwe).

This case was settled by mutual agreement between the parties after an application to prevent the Governments of Zimbabwe and South Africa from entering into a Bilateral Investment Protection Agreement which would not honour past compensation claims or recognise the status of the SADC Tribunal. The final agreement which was made an order of court bound the Government of South Africa to recognize the SADC Tribunal and undertake to observe and respect the decision in the Campbell case and honour past compensation claims.



Registration of the SADC Tribunal Decision in South Africa

This case registered the SADC judgment in the Campbell case in South Africa and made it an enforceable judgment in South Africa. This laid the way for applications to attach property of the Zimbabwean Government in South Africa for recovery of the costs awarded in the Campbell case. Further application has been made to approach the court for an order to preserve property the disposal of which will be in order to contribute to the compensation of the farmers in question.



Von Abo case.

Although this case has not been directly supported by the CFU it is worthy of mention because it may have a bearing on the other litigation. This case was a claim for damages against the South African Government for failure to attempt to intervene to mitigate the losses suffered by the applicant, a South African Investor in Agriculture, caused by the Land Reform Programme in Zimbabwe. The court has held that the South African Government did have a duty to protect the interests of its citizens and is therefore responsible for the damages to the extent that it made no effort to assist the applicant. Finalisation of the quantum of damages is taking place in the courts.

COPAC Constitutional Making Process

The process of Constitutional reform envisaged in Article 6 of the Global political Agreement began in a highly politically polarised environment. In addition to this political polarisation, the rights to freedom of expression, freedom of assembly and to an open and free media were, and still are, inadequate. Particularly for the purposes of making a new “people driven Constitution”. It is therefore not surprising that some civil society organisations have justifiably criticised the process, most notably the National Constitutional Assembly (NCA) and the Zimbabwe Confederation of Trade Unions (ZCTU) who have expressed their dissatisfaction by refusing to participate. The CFU has recognised the peoples and our member’s desires to adopt a new home-grown constitution which benefits all of Zimbabwe’s people and fosters a culture of mutual respect, respect for fundamental rights and peace.

We have therefore chosen to participate in the process.

We are aware that the birth of a new Constitutional dispensation in the present context will not be an easy process. To this end, the CFU received reports of political posturing on both sides and intimidation surrounding the COPAC Consultative Outreach Programmes. Our governing principle as regards the COPAC process is that all Zimbabweans must put aside partisan self interest. The Constitution of Zimbabwe must be made for the benefit of all Zimbabwe’s people regardless of their gender, race, tribe, creed or political opinion, and must consider the best interests of our future generations. Indeed, Governments of the Day and Political Parties come and go with the passing of time, but the Constitution must remain the bedrock of our country providing the framework for fair and


just Government which respects and is accountable to its people. The Constitution must give all Zimbabweans political and economic stability. At the time of writing we are preparing written submissions for the Constitutional outreach programme.


The CFU has sought legal opinion on the effect of The Indigenisation Regulations (Statutory Instrument 21 of 2010) published in January this year and advised its members accordingly.

Thank you

M Carrie-Wilson

(Legal Advisor)

09 July 2010


President’s Council 2010

Please click here to view the report. Please note that you will need Adobe Acrobat Reader in order to view this report. Visit for more

Read More »

New Posts:

From the archives

Posts from our archive you may find interesting