Commercial Farmers' Union of Zimbabwe

Commercial Farmers' Union of Zimbabwe

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Treat SADC judgement with care, court told

Treat SADC judgement with care, court told

August 27 2012 at 07:43pm
By Andre Grobler

A SADC tribunal judgment on human rights and land issues in Zimbabwe should 
be treated with caution, the Supreme Court of Appeal heard.
Bloemfontein –

A SADC tribunal judgment on human rights and land issues in Zimbabwe should 
be treated with caution, the Supreme Court of Appeal heard on Monday.

“The SADC tribunal’s powers have not been domesticated into South African 
law,” Zimbabwe’s lawyer Patric Mtshaulana told the court.

The SCA was hearing an appeal by the Zimbabwe government against a high 
court ruling, which registered and enforced a SADC tribunal ruling locally 
and resulted in the attachment of Zimbabwean property in Cape Town.

The litigation began when Zimbabwean farmer, Mike Campbell, approached the 
Southern African Development Community tribunal in Windhoek in 2008 for 
relief after he and his family were targeted by the land grabs of Zimbabwe’s 
president Robert Mugabe.

The tribunal, which consisted of five judges from various Southern African 
states, ruled in November 2008 that the Zimbabwean land reform process was 
illegal and racist.

It held that Campbell and 77 other farmers, who intervened in his 
application, should be left in peace and their property rights restored.

Continued legislation led to the registration of the tribunal’s finding in 
the High Court in Pretoria in February 2010, and the attachment of a 
Zimbabwean government-owned property in Kenilworth, Cape Town.

The attachment was to satisfy a punitive cost order granted by the SADC 

Mtshaulana submitted that Zimbabwe enjoyed immunity from the jurisdiction of 
South African courts. As such, the local courts could not have granted the 
order on the property.

The local high court also did not have the power to register the ruling of 
the tribunal in the absence of local laws and rules of civil procedures for 
the registration and enforcement of foreign judgments.

Mtshaulana submitted there were not sufficient facts before the high court 
to show whether Zimbabwe had signed the SADC Protocol, which established the 

In papers, Zimbabwe contended that SADC member states were still required to 
ratify an agreement amending the original treaty and the tribunal protocol, 
which it had not.

Therefore, it was not for the SCA, but SADC to decide whether Zimbabwe was 
bound by the SADC treaty.

Legal counsel for the farmers, Jeremy Gauntlett, argued that Zimbabwe, as a 
founding member of SADC, was bound by the regional treaties it signed. Being 
a member state of SADC gave the tribunal jurisdiction over it.

Gauntlett argued that the price Zimbabwe was paying, being part of a SADC 
treaty, was that it had accepted it could lose before a SADC tribunal and 
then had to implement the decision.

“The penny had dropped too late for Zimbabwe, before it realised what the 
implications of the tribunal could be.”

Gauntlett said the tribunal’s jurisdiction was clearly established as 
Zimbabwe had more than once agreed to it in the process before the tribunal.

“It accepted and when it lost they performed a U-turn we see now.”

Mtshaulana, in reply, said being part of a SADC treaty did not mean a 
country waived its immunity in another country. He said Zimbabwe could not 
accept judgments as binding if it was against the country’s laws and public 

Judgment in the hearing, before a panel of five judges, was reserved.

Campbell’s son-in-law Ben Freeth said they were happy with the appeal 
hearing. He said it was exciting to see judges had delved into the case in 

“We are positive that we are on the right side of the law and that what 
happened to us was wrong.” – Sapa 


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