DELIVERED BY H. E. JUSTICE DR. LUIS ANTONIO MONDLANE
I FACTUAL BACKGROUND
 On 11 October, 2007, Mike Campbell (Pvt) Limited and William Michael
Campbell filed an application with the Southern African Development
Community Tribunal (the Tribunal) challenging the acquisition by the
Respondent of agricultural land known as Mount Carmell in the District of
Chegutu in the Republic of Zimbabwe. Simultaneously, they filed an
application in terms of Article 28 of the Protocol on Tribunal (the Protocol),
as read with Rule 61 (2) - (5) of the Rules of Procedure of the SADC
Tribunal (the Rules), for an interim measure restraining the Respondent from
removing or allowing the removal of the Applicants from their land, pending
the determination of the matter.
 On 13 December, 2007, the Tribunal granted the interim measure through
its ruling which in the relevant part stated as follows:
"[T]he Tribunal grants the application pending the determination of the main
case and orders that the Republic of Zimbabwe shall take no steps, or permit
no steps to be taken, directly or indirectly, whether by its agents or by
orders, to evict from or interfere with the peaceful residence on, and
beneficial use of, the farm known as Mount Carmell of Railway 19, measuring
1200.6484 hectares held under Deed of Transfer No. 10301/99, in the District
of Chegutu in the Republic of Zimbabwe, by Mike Campbell (Pvt) Limited and
William Michael Campbell, their employees and the families of such employees
and of William Michael Campbell ".
 Subsequently, 77 other persons applied to intervene in the proceedings,
pursuant to Article 30 of the Protocol, as read with Rule 70 of the Rules.
 Additionally, the interveners applied, as a matter of urgency, for an
interim measure restraining the Respondent from removing them from their
agricultural lands, pending the determination of the matter.
 On 28 March, 2008, the Tribunal granted the application to intervene in
the proceedings and, just like in the Mike Campbell (Pvt) Ltd. and William
Michael Campbell case, granted the interim measure sought.
 Mike Campbell (Pvt) Ltd. and William Michael Campbell case as well as
the cases of the 77 other Applicants were thus consolidated into one case,
hereinafter referred to as the Campbell case - vide Case SADC (T) No.
 On the same day another application to intervene was filed by Albert
Fungai Mutize and others (Case SADC (T) No. 08/2008). The Tribunal dismissed
this application on the basis that it had no jurisdiction to entertain the
matter since the alleged dispute in the application was between persons,
namely, the Applicants in that case and those in the Campbell case and not
between persons and a State, as required under Article 15 (1) of the
 On 17 June, 2008, yet another application to intervene in the
proceedings was filed. This was by Nixon Chirinda and others - Case SADC (T)
No. 09/2008. The application was dismissed on the same ground as in Case
SADC (T) No. 08/2008.
 On 20 June, 2008, the Applicants referred to the Tribunal the failure on
the part of the Respondent to comply with the Tribunal's decision regarding
the interim reliefs granted. The Tribunal, having established the failure,
reported its finding to the Summit, pursuant to Article 32 (5) of the
 In the present case, the Applicants are, in essence, challenging the
compulsory acquisition of their agricultural lands by the Respondent. The
acquisitions were carried out under the land reform programme undertaken by
 We note that the acquisition of land in Zimbabwe has had a long history.
However, for the purposes of the present case, we need to confine ourselves
only to acquisitions carried out under section 16B of the Constitution of
Zimbabwe (Amendment No. 17, 2005), hereinafter referred to as Amendment 17.
 Section 16B of Amendment 17 provides as follows:
"16B: Agricultural land acquired for resettlement and other purposes
(1) In this section -
"acquiring authority " means the Minister responsible for lands or any other
Minister whom the President may appoint as an acquiring authority for the
purposes of this section;
"appointed day " means the date of commencement of the Constitution of
Zimbabwe Amendment (No. 17) Act, 2004 (i.e. 16 September, 2005)
(2) Notwithstanding anything contained in this Chapter
(a) all agricultural land -
(i) that was identified on or before the 8th July, 2005, in the Gazette or
Gazette Extraordinary under section 5 (1) of the Land Acquisition Act [Chapter
20:10], and which is itemized in Schedule 7, being agricultural land
required for resettlement purposes; or
(ii) that is identified after the 8th July, 2005, but before the appointed
day (i.e. 16th September, 2005), in the Gazette or Gazette Extraordinary
under section 5 (1) of the Land Acquisition Act [Chapter 20:10], being
agricultural land required for resettlement purposes; or
(iii) that is identified in terms of this section by the acquiring authority
after the appointed day in the Gazette or Gazette Extraordinary for whatever
purposes, including, but not limited to
A. settlement for agricultural or other purposes; or
B. the purposes of land reorganization, forestry, environmental conservation
or the utilization of wild life or other natural resources; or
C. the relocation of persons dispossessed in consequence of the utilization
of land for a purpose referred to in subparagraph A or B;
is acquired by and vested in the State with full title therein with effect
from the appointed day or, in the case of land referred to in
subparagraph (iii), with effect from the date it is identified in the manner
specified in that paragraph; and
(b) no compensation shall be payable for land referred to in paragraph (a)
except for any improvements effected on such land before it was acquired.
(3) The provisions of any law referred to in section 16 (1) regulating the
compulsory acquisition of land that is in force on the appointed day, and
the provisions of section 18 (1) and (a) shall not apply in relation to land
referred to in subsection (2) (a) except for the purpose of determining any
question related to the payment of compensation referred to in subsection
(2) (b) that is to say, a person having any right or interest in the land -
(a) shall not apply to a court to challenge the acquisition of the land by
the State, and no court shall entertain any such challenge;
(b) may, in accordance with the provisions of any law referred to in section
16 (1) regulating the compulsory acquisition of land that is in force on the
appointed day, challenge the amount of compensation payable for any
improvements effected on the land before it was acquired".
 Amendment 17 effectively vests the ownership of agricultural lands
compulsorily acquired under Section 16B (2) (a) (i) and (ii) of Amendment 17
in the Respondent and ousts the jurisdiction of the courts to entertain any
challenge concerning such acquisitions. It is on the basis of these facts
that the present matter is before the Tribunal.
II SUBMISSIONS OF THE PARTIES
 It was submitted, in substance, on behalf of the Applicants that:
(a) the Respondent acted in breach of its obligations under the Treaty by
enacting and implementing Amendment 17;
(b) all the lands belonging to the Applicants which have been compulsory
acquired by the Respondent under Amendment 17 were unlawfully acquired since
the Minister who carried out the compulsory acquisition failed to establish
that he applied reasonable and objective criteria in order to satisfy
himself that the lands to be acquired were reasonably necessary for
resettlement purposes in conformity with the land reform programme;
(c) the Applicants were denied access to the courts to challenge the
legality of the compulsory acquisition of their lands;
(d) the Applicants had suffered racial discrimination since they were the
only ones whose lands have been compulsory acquired under Amendment 17, and
(e) the Applicants were denied compensation in respect of the lands
compulsorily acquired from them.
 Learned Counsel for the Applicants submitted, in conclusion, that the
Applicants, therefore, seek a declaration that the Respondent is in breach
of its obligations under the Treaty by implementing Amendment 17 and that
the compulsory acquisition of the lands belonging to the Applicants by the
Respondent was illegal.
 The learned Agent for the Respondent, for his part, made submissions to
the following effect:
1. the Tribunal has no jurisdiction to entertain the application under the
2. the premises upon which acquisition of lands was started was on a willing
buyer willing seller basis and that the land was to be purchased from white
farmers who, by virtue of colonial history, were in possession of most of
the land suitable for agricultural purposes;
3. the Respondent continues to acquire land from mainly whites who own large
tracts of land suitable for agricultural resettlement and this policy cannot
be attributed to racism but to circumstances brought about by colonial
4. the Respondent had also acquired land from some of the few black
Zimbabweans who possessed large tracts of land;
5. the figures for land required for resettlement were revised from 6 to 11
million hectares. The Applicants' farms were considered for allocation after
they had been acquired as part of the land needed for resettlement;
6. the increase in the demand for land resulted in the portions left with
the applicants being needed for resettlement;
7. the Applicants will receive compensation under Amendment 17;
8. the compulsory acquisition of lands belonging to Applicants by the
Respondent in the context must be seen as a means of correcting colonially
inherited land ownership inequities, and
9. the Applicants have not been denied access to the courts. On the contrary,
the Applicants could, if they wish to, seek judicial review.
III ISSUES FOR DETERMINATION
 After due consideration of the facts of the case, in the light of the
submissions of the parties, the Tribunal settles the matter for
determination as follows:
whether or not the Tribunal has jurisdiction to entertain the application;
whether or not the Applicants have been denied access to the courts in
whether or not the Applicants have been discriminated against on the basis
of race, and
whether or not compensation is payable for the lands compulsorily acquired
from the Applicants by the Respondent.
 Before considering the question of jurisdiction, we note first that the
Southern African Development Community is an international organization
established under the Treaty of the Southern African Development Community,
hereinafter referred to as "the Treaty". The Tribunal is one of the
institutions of the organization which are established under Article 9 of
the Treaty. The functions of the Tribunal are stated in Article 16. They are
to ensure adherence to, and the proper interpretation of, the provisions of
the Treaty and the subsidiary instruments made thereunder, and to adjudicate
upon such disputes as may be referred to it.
 The bases of jurisdiction are, among others, all disputes and
applications referred to the Tribunal, in accordance with the Treaty and the
Protocol, which relate to the interpretation and application of the Treaty –
vide Article 14 (a) of the Protocol. The scope of the jurisdiction, as
stated in Article 15 (1) of the Protocol, is to adjudicate upon "disputes
between States, and between natural and legal persons and States". In terms
of Article 15 (2), no person may bring an action against a State before, or
without first, exhausting all available remedies or unless is unable to
proceed under the domestic jurisdiction of such State. For the present case
such are, indeed, the bases and scope of the jurisdiction of the Tribunal.
 The first and the second Applicants first commenced proceedings in the
Supreme Court of Zimbabwe, the final court in that country, challenging the
acquisition of their agricultural lands by the Respondent.
 The claim in that court, among other things, was that Amendment 17
obliterated their right to equal treatment before the law, to a fair hearing
before an independent and impartial court of law or tribunal, and their
right not to be discriminated against on the basis of race or place of
origin, regarding ownership of land.
 On October 11, 2007, before the Supreme Court of Zimbabwe had delivered
its judgment, the first and second Applicants filed an application for an
interim relief, as mentioned earlier in this judgement.
 At the hearing of the application, the Respondent raised the issue as
to whether the Tribunal has jurisdiction to hear the matter considering that
the Supreme Court of Zimbabwe had not yet delivered the judgement and,
therefore, that the Applicants had not "exhausted all available remedies or
were unable to proceed under the domestic jurisdiction", in terms of Article
15 (2) of the Protocol.
 The concept of exhaustion of local remedies is not unique to the
Protocol. It is also found in other regional international conventions. The
European Convention on Human Rights provides in Article 26 as follows:
"The Commission (of Human Rights) may only deal with a matter after all
domestic remedies have been exhausted, according to the generally recognized
rules of international law... "
 Similarly, the African Charter on Human and Peoples' Rights states in
Article 50 as follows:
"The Commission can only deal with a matter submitted to it after making
sure that all local remedies, if they exist, have been exhausted, unless it
is obvious to the Commission that the procedure of achieving the remedies
would have been unduly prolonged".
 Thus, individuals are required to exhaust local remedies in the
municipal law of the state before they can bring a case to the Commissions.
This means that individuals should go through the courts system starting
with the court of first instance to the highest court of appeal to get a
remedy. The rationale for exhaustion of local remedies is to enable local
courts to first deal with the matter because they are well placed to deal
with the legal issues involving national law before them. It also ensures
that the international tribunal does not deal with cases which could easily
have been disposed of by national courts.
 However, where the municipal law does not offer any remedy or the
remedy that is offered is ineffective, the individual is not required to
exhaust the local remedies. Further, where, as the African Charter on Human
and Peoples' Rights states, "... it is obvious ... that the procedure of
achieving the remedies would have been unduly prolonged", the individual is
not expected to exhaust local remedies. These are circumstances that make
the requirement of exhaustion of local remedies meaningless, in which case
the individual can lodge a case with the international tribunal.
 In deciding this issue, the Tribunal stressed the fact that Amendment
17 has ousted the jurisdiction of the courts of law in Zimbabwe from any
case related to acquisition of agricultural land and that, therefore, the
first and second Applicants were unable to institute proceedings under the
domestic jurisdiction. This position was subsequently confirmed by the
decision of the Supreme Court given on February 22, 2008 in Mike Campbell (Pty)
Ltd v Minister of National Security Responsible for Land, Land Reform and
Resettlement (SC 49/07).
 The Tribunal also referred to Article 14 (a) of the Protocol, and
observed that Amendment 17 had indeed ousted the jurisdiction of the courts
of law in that country in respect of the issues that were raised before us,
and decided that the matter was properly laid before the Tribunal and,
therefore, that the Tribunal had jurisdiction to consider the application
for the interim relief.
 It will be recalled that the Supreme Court of Zimbabwe delivered its
judgment dismissing the Applicants' claims in their entirety, saying, among
other things, that the question of what protection an individual should be
afforded in the Constitution in the use and enjoyment of private property,
is a question of a political and legislative character, and that as to what
property should be acquired and in what manner is not a judicial question.
The Court went further and said that, by the clear and unambiguous language
of the Constitution, the Legislature, in the proper exercise of its powers,
had lawfully ousted the jurisdiction of the courts of law from any of the
cases in which a challenge to the acquisition of agricultural land may be
sought. The Court further stated that the Legislature had unquestionably
enacted that such an acquisition shall not be challenged in any court of law.
The Supreme Court, therefore, concluded that there cannot be any clearer
language by which the jurisdiction of the courts has been ousted.
 Such are the circumstances in which we are to consider the question of
jurisdiction. The Respondent first submitted that the Treaty only sets out
the principles and objectives of SADC. It does not set out the standards
against which actions of Member States can be assessed. The Respondent also
contended that the Tribunal cannot borrow these standards from other
Treaties as this would amount to legislating on behalf of SADC Member States.
The Respondent went on to argue that there are numerous Protocols under the
Treaty but none of them is on human rights or agrarian reform, pointing out
that there should first be a Protocol on human rights and agrarian reform in
order to give effect to the principles set out in the Treaty. The Respondent
further submitted that the Tribunal is required to interpret what has
already been set out by the Member States and that, therefore, in the
absence of such standards, against which actions of Member States can be
measured, in the words of its learned Agent, "the Tribunal appears to have
no jurisdiction to rule on the validity or otherwise of the land reform
programme carried out in Zimbabwe ".
 In deciding this issue, the Tribunal first referred to Article 21 (b)
which, in addition to enjoining the Tribunal to develop its own
jurisprudence, also instructs the Tribunal to do so "having regard to
applicable treaties, general principles and rules of public international
law " which are sources of law for the Tribunal. That settles the question
whether the Tribunal can look elsewhere to find answers where it appears
that the Treaty is silent. In any event, we do not consider that there
should first be a Protocol on human rights in order to give effect to the
principles set out in the Treaty, in the light of the express provision of
Article 4 (c) of the Treaty which states as follows:
"SADC and Member States are required to act in accordance with the following
(c) human rights, democracy and the rule of law "
 It is clear to us that the Tribunal has jurisdiction in respect of any
dispute concerning human rights, democracy and the rule of law, which are
the very issues raised in the present application. Moreover, the Respondent
cannot rely on its national law, namely, Amendment 17 to avoid its legal
obligations under the Treaty. As Professor Shaw Malcolm in his treatise
entitled International Law at pages 104-105 aptly observed:
"It is no defence to a breach of an international obligation to argue that
the state acted in such a manner because it was following the dictates of is
own municipal laws. The reason for this inability to put forward internal
rules as an excuse to evade international obligation are obvious. Any other
situation would permit international law to be evaded by the simple method
of domestic legislation".
 This principle is also contained in the Vienna Convention on the Law of
Treaties, in which it is provided in Article 27 as follows:
"A party may not invoke provisions of its own internal law as justification
for failure to carry out an international agreement".
V ACCESS TO JUSTICE
 The next issue to be decided is whether or not the Applicants have been
denied access to the courts and whether they have been deprived of a fair
hearing by Amendment 17.
 It is settled law that the concept of the rule of law embraces at least
two fundamental rights, namely, the right of access to the courts and the
right to a fair hearing before an individual is deprived of a right,
interest or legitimate expectation. As indicated already, Article 4 (c) of
the Treaty obliges Member States of SADC to respect principles of "human
rights, democracy and the rule of law" and to undertake under Article 6 (1)
of the Treaty "to refrain from taking any measure likely to jeopardize the
sustenance of its principles, the achievement of its objectives and the
implementation of the provisions of the Treaty". Consequently, Member States
of SADC, including the Respondent, are under a legal obligation to respect,
protect and promote those twin fundamental rights.
 As stated in De Smith's Judicial Review (6th edition 2007) at paragraph
"The role of the courts is of high constitutional importance. It is a
function of the judiciary to determine the lawfulness of the acts and
decisions and orders of public authorities exercising public functions, and
to afford protection to the rights of the citizen. Legislation which
deprives them of these powers is inimical to the principle of the rule of
law, which requires citizens to have access to justice".
 Moreover, the European Court of Human Rights, in Golder v UK (1975) 1
EHRR 524, at paragraph 34 of its judgement stated as follows:
"And in civil matters one can scarcely conceive of the rule of law without
there being a possibility of having access to the courts".
 The same Court held, in Philis v. GREECE (1991), at paragraph 59 of its
"Article 6, paragraph 1 (art. 6-1) secured to everyone the right to have any
claim relating to his civil rights and obligations brought before a court or
tribunal; in this way the Article embodies the "right to a court", of which
the right of access, that is the right to institute proceedings before
courts in civil matters, constitutes one aspect. This right of access,
however, is not absolute but may be subject to limitations since the right
by its very nature calls for regulation by the State. Nonetheless, the
limitations applied must not restrict or reduce the access left to the
individual in such a way or to such an extent that the very essence of the
right is impaired. "
 The Inter-American Court of Human Rights, in its Advisory Opinion OC-
9/87 of 6 October, 1987, Judicial Guarantees in States of Emergency (Articles
27 (2), 25 and 8 of the American Convention on Human Rights), construed
Article 27 (2) of the Convention as requiring Member States to respect
essential judicial guarantees, such as habeas corpus or any other effective
remedy before judges or competent tribunals - vide paragraph 41. The Court
also considered that Member States were under a duty to provide effective
judicial remedies to those alleging human rights violations under Article 25
of the Convention. The Court stated at paragraph 24:
"According to this principle, the absence of an effective remedy to
violations of the rights recognized by the Convention is itself a violation
of the Convention by the State Party in which the remedy is lacking. In that
sense, it should be emphasized that, for such a remedy to exist, it is not
sufficient that it be provided for by the Constitution or by law or that it
be formally recognized, but rather it must be truly effective in
establishing whether there has been a violation of human rights and in
providing redress. A remedy which proves illusory because of the general
conditions prevailing in the country, or even in the particular
circumstances of a given case, cannot be considered effective".
 The Court also, at paragraph 35 of its judgement, pointed out that the
rule of law, representative democracy and personal liberty are essential for
the protection of human rights and that "in a democratic society, the rights
and freedoms inherent in the human person, the guarantees applicable to them
and the rule of law form a triad. Each component thereof defines itself,
complements and depends on the others for its meaning".
 The right of access to the courts is also enshrined in international
human rights treaties. For instance, the African Charter on Human and
Peoples' Rights provides in Article 7 (1) (a) as follows:
"Every individual shall have the right to have his cause heard. This
(a) The right to an appeal to competent national organs against acts
violating his fundamental rights... "
 The African Commission on Human and Peoples' Rights in its decision in
Constitutional Rights Project, Civil Liberties Organisation and Media Rights
Agenda v. Nigeria, Comm.No. 140/94, 141/94 145/95(1999), held at paragraph
29 of its judgement that the ouster clauses introduced by the Nigerian
military government which prevented Nigerian courts from hearing cases
initiated by publishers against the search of their premises and the
suppression of their newspapers "render local remedies non¬existent,
ineffective or illegal. They create a legal situation in which the judiciary
can provide no check on the executive branch of the government".
 The African Commission on Human and Peoples' Right also in its decision
in Zimbabwe Human Rights NGO Forum/Zimbabwe, Comm.No.245 (2002), found that
the complainant had been denied access to judicial remedies since the
clemency order introduced to pardon "every person liable for any politically
motivated crime" had prevented in effect the
complainant from bringing criminal action against the perpetrators of such
crimes. The Commission began by stating at paragraph 171 of its decision:
"The general obligation is on States Parties to the different human rights
treaties to ensure through relevant means that persons under their
jurisdiction are not discriminated on any of the grounds in the relevant
treaty. Obligations under international human rights law are generally
addressed in the first instance to States. Their obligations are at least
threefold: to respect, to ensure and to fulfill the rights under
international human rights treaties. A State complies with the obligation to
respect the recognized rights by not violating them. To ensure is to take
the requisite steps, in accordance with its constitutional process and the
provisions of relevant treaty (in this case the African Charter), to adopt
such legislative or other measures which are necessary to give effect to
these rights. To fulfill the rights means that any person whose rights are
violated would have an effective remedy as rights without remedies have
little value. Article 1 of the African Charter requires States to ensure
that effective and enforceable remedies are available to individuals in case
of discrimination... "
 The Commission went on to point out at paragraph 174:
"For there to be equal protection of the law, the law must not only be
fairly applied but must be seen to be fairly applied. Paragraph 9 (3) (a) of
the Declaration on the Right and Responsibility of Individuals, Groups and
Organs of Society to Promote and Protect Universally Recognized Human Rights
and Fundamental Freedoms provides that everyone must be given the right to
complain about the policies and actions of individual officials and
governmental bodies with regard to violations of human rights and
fundamental freedoms, by petition or other appropriate means, to competent
domestic judicial, administrative or legislative authorities or any other
competent authority provided for by the legal system of the State, which
should render their decision on the complaint without undue delay".
 It is useful, finally, to refer to the decision of the Constitutional
Court of South Africa in Zondi v MEC for Traditional and Local Government
Affairs and Others 2005 (3) SA 589 (CC). The Court found that certain
provisions of the Pound Ordinance of 1947 of KwaZulu-Natal which allowed
landowners to bypass the courts and recover damages against the owners of
trespassing animals were inconsistent with section 34 of the Constitution
which guarantees the right of access to courts.
 At paragraph 82 of the judgement, Ngcobo J. made the following
"The right of access to courts is an aspect of the rule of law. And the rule
of law is one of the foundational values on which our constitutional
democracy has been established. In a constitutional democracy founded on the
rule of law, disputes between the state and its subjects, and amongst its
subjects themselves, should be adjudicated upon in accordance with law. The
more potentially divisive the conflict is, the more important that it be
adjudicated upon in court. That is why a constitutional democracy assigns
the resolution of disputes to "a court or, where appropriate, another
independent and impartial tribunal or forum '. It is in this context that
the right of access to courts guaranteed by section 34 of the Constitution
must be understood".
 The right to a fair hearing before an individual is deprived of a right,
interest or legitimate expectation is another principle well recognized and
entrenched in law.
 Any existing ouster clause in terms such as "the decision of the
Minister shall not be subject to appeal or review in any court" prohibits
the court from re-examining the decision of the Minister if the decision
reached by him was one which he had jurisdiction to make. Any decision
affecting the legal rights of individuals arrived at by a procedure which
offended against natural justice was outside the jurisdiction of the
decision-making authority so that, if the Minister did not comply with the
rules of natural justice, his decision was ultra vires or without
jurisdiction and the ouster clause did not prevent the Court from enquiring
whether his decision was valid or not – vide Attorney-General of the
Commonwealth of the Bahamas v Ryan (1980) A.C. 718.
 Lord Diplock for the Board of the Judicial Committee of the Privy
Council stated in that case as follows:
"It has long been settled law that a decision affecting the legal rights of
an individual which is arrived at by a procedure which offends against the
principles of natural justice is outside the jurisdiction of the
decision-making authority. As Lord Selborne said as long ago as 1885 in
Spackman v Plumstead District Board of Works (1885) 10 App.Cas.229,240: "There
would be no decision within the meaning of the statute if there were
anything... done contrary to the essence of justice ". See also Ridge v.
Baldwin  A. C.40".
 Moreover, in Jackson v Attorney-General UKHL 56 (2006) 1 A.C. 262,
Baroness Hale made the following observations at paragraph 159:
"The courts, will, of course, decline to hold that Parliament has interfered
with fundamental rights unless it has made its intentions crystal clear. The
courts will treat with particular suspicion (and might even reject) any
attempt to subvert the rule of law by removing governmental action affecting
the rights of the individual from all judicial scrutiny".
 We turn now to consider the relevant provisions of Amendment 17. It is
quite clear that the provisions of section 18 (1) and (9) dealing with the
constitutional right to the protection of law and to a fair hearing have
been taken away in relation to land acquired under section 16B (2) (a).
Indeed, the Supreme Court of Zimbabwe explicitly acknowledges this in its
judgement, cited above, when it stated:
"By the clear and unambiguous language of s 16B (3) of the Constitution, the
Legislature, in the proper exercise of its powers, has ousted the
jurisdiction of courts of law from any of the cases in which a challenge to
the acquisition of agricultural land secured in terms of s 16B (2) (a) of
the Constitution could have been sought. The right to protection of law for
the enforcement of the right to fair compensation in case of breach by the
acquiring authority of the obligation to pay compensation has not been taken
away. The ouster provision is limited in effect to providing protection from
judicial process to the acquisition of agricultural land identified in a
notice published in the Gazette in terms of s 16B (2) (a). An acquisition of
the land referred to in s 16B (2) (a) would be a lawful acquisition. By a
fundamental law the Legislature has unquestionably said that such an
acquisition shall not be challenged in any court of law. There cannot be any
clearer language by which the jurisdiction of the courts is excluded".
 Learned Agent for the Respondent seized upon the following statement of
the Supreme Court at page 38 of its judgement to argue that an individual
whose property has been acquired can proceed by judicial review:
"Section 16B (3) of the Constitution has not however taken away for the
future the right of access to the remedy of judicial review in a case where
the expropriation is, on the face of the record, not in terms of s 16B (2)
(a). This is because the principle behind s 16B (3) and s 16B (2) (a) is
that the acquisition must be on the authority of law. The question whether
an expropriation is in terms of s 16B (2) (a) of the Constitution and
therefore an acquisition within the meaning of that law is a jurisdictional
question to be determined by the exercise of judicial power. The duty of a
court of law is to uphold the Constitution and the law of the land. If the
purported acquisition is, on the face of the record, not in accordance with
the terms of s 16B (2) (a) of the Constitution a court is under a duty to
uphold the Constitution and declare it null and void. By no device can the
Legislature withdraw from the determination by a court of justice the
question whether the state of facts on the existence of which it provided
that the acquisition of agricultural land must depend existed in a
particular case as required by the provisions of s 16B (2) (a) of the
 No doubt there is a remedy but only in respect of the payment of
compensation under section 16B (2) (b) but judicial review does not lie at
all in respect of land acquired under section 16B (2) (a) (i) and (ii), as
correctly submitted by learned counsel for the Applicants. Indeed, the
Applicants' land had been acquired under section 16B (2) (a) (i) and (ii).
It is significant that, whereas under section 16B (2) (a) (iii), mention is
made of the acquiring authority i.e. a Minister whose decision can
admittedly be subject to judicial review, no such mention is made in respect
of section 16B (2) (a) (i) and (ii) so that in effect the Applicants cannot
proceed by judicial review or otherwise. This is why specific reference is
made to the fact that the provisions of section 18 (1) and (9) do not apply
in relation to land acquired under section 16B (2) (a). The Applicants have
been expressly denied the opportunity of going to court and seeking redress
for the deprivation of their property, giving their version of events and
 We are, therefore, satisfied that the Applicants have established that
they have been deprived of their agricultural lands without having had the
right of access to the courts and the right to a fair hearing, which are
essential elements of the rule of law, and we consequently hold that the
Respondent has acted in breach of Article 4 (c) of the Treaty.
VI RACIAL DISCRIMINATION
 The other issue raised by the Applicants is that of racial
discrimination. They contended that the land reform programme is based on
racial discrimination in that it targets white Zimbabwean farmers only. The
Applicants further argue that Amendment 17 was intended to facilitate or
implement the land reform policy of the Government of Zimbabwe based on
racial discrimination. This issue is captured in the Applicants' Heads of
Arguments, paragraph 175, in the following terms:
"That the actions of the Government of Zimbabwe in expropriating land for
resettlement purposes has been based solely or primarily on consideration of
race and ethnic origin... It is being directed at white farmers... In
reality it was aimed at persons who owned land
because they were white. It mattered not whether they acquired the land
during the colonial period or after independence ".
 The Applicants further argued at paragraph 128 of the Heads of Argument
"The evidence presented to this Tribunal shows as a fact that the decision
as to whether or not agricultural raw land in Zimbabwe is to be expropriated
is determined by the race or country of origin of the registered owner. In
terms of a policy designed to redress the ownership of land created during
the colonial period, the GoZ has determined that no person of white colour
or European origin was to retain ownership of a farm, and all such farms
were to be expropriated. The fact that this could not be done through the
normal procedures between 2000 and 2005 led to the enactment of Amendment
17, which was the ultimate legislative tool used by the GoZ to seize all the
white owned farms ".
 The Applicants went on to argue that, even if Amendment 17 made no
reference to the race and colour of the owners of the land acquired, that
does not mean that the legislative aim is not based on considerations of
race or colour since only white owned farms were targeted by the Amendment.
There is a clear legislative intent directed only at white farmers.
According to the Applicants, the Amendment strikes at white farmers only and
no other rational categorization is apparent therein. The Applicants further
contended that the targeted farms were expropriated and given to certain
beneficiaries whom they referred to as "chefs" or a class of politically
connected beneficiaries. These were, in the words of the Applicants, "senior
political or judicial, or senior members of the armed services".
 It is on the basis of those arguments that the Applicants, therefore,
submitted in conclusion that the Respondent is in breach of Article 6 (2) of
the Treaty, prohibiting discrimination, by enacting and implementing
 The Respondent, for its part, refuted the allegations by the Applicants
that the land reform programme is targeted at white farmers only. It argued
instead that the programme is for the benefit of people who were
disadvantaged under colonialism and it is within this context that the
Applicants' farms were identified for acquisition by the Respondent. The
farms acquired are suitable for agricultural purposes and happen to be
largely owned by the white Zimbabweans. In implementing the land reform
programme, therefore, it was inevitable that the people who were likely to
be affected would be white farmers. Such expropriation of land under the
Programme cannot be attributed to racism but circumstances brought about by
colonial history. In any case, according to the Respondent, not only lands
belonging to white Zimbabweans have been targeted for expropriation but also
those of the few black Zimbabweans who possessed large tracts of land.
Moreover, some white farmers have been issued with offer letters and 99-year
leases in respect of agricultural lands. The Respondent has, therefore, not
discriminated against white Zimbabwean farmers and has not acted in breach
of Article 6 (2) of the Treaty.
 The Tribunal has to determine whether or not Amendment 17 discriminates
against the Applicants and as such violates the obligation that the
Respondent has undertaken under the Treaty to prohibit discrimination.
 It should first be noted that discrimination of whatever nature is
outlawed or prohibited in international law. There are several international
instruments and treaties which prohibit discrimination based on race, the
most important one being the United Nations Charter, which provides in
Article 1 (3) that one of its purposes is:
"To achieve international corporation in solving international problems of
an economic, social, cultural or humanitarian character, and in promoting
and encouraging respect for human rights and fundamental freedoms for all
without distinction as to race, sex, language or religion". (emphasis
 There is also the Universal Declaration of Human Rights which provides
in Article 2 as follows:
"Everyone is entitled to all the rights and freedoms set forth in this
Declaration without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status". (emphasis supplied).
 Moreover, Article 2 (1) of the International Covenant on Civil and
Political Rights and Article 2 (2) of the International Covenant on Economic,
Social and Cultural Rights prohibit racial discrimination, respectively, as
"Each State party to the present Covenant undertakes to respect and ensure
to all individuals within its territory without distinction of any kind such
as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status".
"The States parties to the present Covenant undertake to guarantee that the
rights enunciated in the present Covenant will be exercised without
discrimination of any kind as to race, colour, sex, language, religious,
political or other opinion, national or social origin, property, birth or
other status". (emphasis supplied).
 The above provisions are similar to Article 2 of the African Charter on
Human and Peoples' Rights (African Charter) and Article 14 of the European
Convention on Human Rights.
 Discrimination on the basis of race is also outlawed by the Convention
On the Elimination of All Forms of Racial Discrimination (the Convention).
It is worth noting that the Respondent has acceded to both Covenants, the
African Charter and the Convention and, by doing so, is under an obligation
to respect, protect and promote the principle of non- discrimination and
must, therefore, prohibit and outlaw any discrimination based on the ground
of race in its laws, policies and practices.
 Apart from all the international human rights instruments and treaties,
the Treaty also prohibits discrimination. Article 6 (2) states as follows:
"SADC and Member States shall not discriminate against any person on grounds
of gender, religion, political views, race, ethnic origin, culture, ill
health, disability or such other ground as may be determined by the Summit"
 This Article, therefore, enjoins SADC and Member States, including the
Respondent, not to discriminate against any person on the stated grounds,
one of which is race.
 The question then is, what is racial discrimination? It is to be noted
that the Treaty does not define racial discrimination or offer any
guidelines to that effect. Article 1 of the Convention is as follows:
"Any distinction, exclusion, restriction or preference based on race, colour,
descent, or natural or ethnic origin which has the purpose or effect of
nullifying or impairing the recognition, enjoyment or exercise on an equal
footing, of human rights and fundamental freedoms in the political, economic,
social, cultural or any other field ofpublic life". (the emphasis is
 Moreover, the Human Rights Committee in its General Comment No. 18 on
non-discrimination has, in paragraph 7, defined discrimination as used in
the Covenant on Civil and Political Rights as implying "any distinction,
exclusion, restriction or preference which is based on any ground such as
race, colour, sex, language, religion, political or other opinion, national
or social origin, property, birth or other status, and which has the purpose
or effect of nullifying or impairing the recognition, enjoyment or exercise
by all persons, on an equal footing, of all rights and freedoms". (the
underlining is supplied).
 The Committee on Economic, Social and Cultural Rights, for its part, in
its General Comment No. 16 on the equal right of men and women to the
equality of all economic, social and cultural rights underlined at paragraph
13 that "guarantees of non-discrimination and equality in international
human rights treaties mandate both de facto and de jure equality. De jure (or
formal) equality and de facto (or substantive) equality are different but
 The Committee further pointed out that formal equality assumes that
equality is achieved if a law or policy treats everyone equal in a neutral
manner. Substantive equality is concerned, in addition, with the effects of
laws, policies and practices in order to ensure that they do not
discriminate against any individual or group of individuals.
 The Committee went on to state at paragraphs 12 and 13 respectively
"Direct discrimination occurs when a difference in treatment relies directly
and explicitly on distinctions based exclusively on sex and characteristics
of men or women, which cannot be justified objectively".
"Indirect discrimination occurs when a law, policy or programme does not
appear to be discriminatory but has a discriminatory effect when implemented".
 It is to be noted that what the Committee is stating about direct and
indirect discrimination in the context of sex applies equally in the case of
any other prohibited ground under the Covenant such as race.
 The question that arises is whether Amendment 17 subjects the
Applicants to any racial discrimination, as defined above. It is clear that
the Amendment affected all agricultural lands or farms occupied and owned by
the Applicants and all the Applicants are white farmers. Can it then be said
that, because all the farms affected by the Amendment belong to white
farmers, the Amendment and the land reform programme are racially
 We note here that there is no explicit mention of race, ethnicity or
people of a particular origin in Amendment 17 as to make it racially
discriminatory. If any such reference were made, that would make the
provision expressly discriminatory against a particular race or ethnic group.
The effect of such reference would be that the Respondent would be in breach
of its obligations under the Article 6 (2) of the Treaty.
 The question is whether, in the absence of the explicit mention of the
word "race" in Amendment 17, that would be the end of the matter. It should
be recalled that the Applicants argued that, even if Amendment could be held
not to be racially discriminatory in itself, its effects make it
discriminatory because the targeted agricultural lands are all owned by
white farmers and that the purpose of Amendment 17 was to make it apply to
white farmers only, regardless of any other factors such as the proper use
of their lands, their citizenship, their length of residence in Zimbabwe or
any other factor other than the colour of their skin.
 Since the effects of the implementation of Amendment 17 will be felt by
the Zimbabwean white farmers only, we consider it, although Amendment 17
does not explicitly refer to white farmers, as we have indicated above, its
implementation affects white farmers only and consequently constitutes
indirect discrimination or de facto or substantive inequality.
In examining the effects of Amendment 17 on the applicants, it is clear to
us that those effects have had an unjustifiable and disproportionate impact
upon a group of individuals distinguished by race such as the Applicants. We
consider that the differentiation of treatment meted out to the Applicants
also constitutes discrimination as the criteria for such differentiation are
not reasonable and objective but arbitrary and are based primarily on
considerations of race. The aim of the Respondent in adopting and
implementing a land reform programme might be legitimate if and when all
lands under the programme were indeed distributed to poor, landless and
other disadvantaged and marginalized individuals or groups.
 We, therefore, hold that, implementing Amendment 17, the Respondent has
discriminated against the Applicants on the basis of race and thereby
violated its obligation under Article 6 (2) of the Treaty.
 We wish to observe here that if: (a) the criteria adopted by the
Respondent in relation to the land reform programme had not been arbitrary
but reasonable and objective; (b) fair compensation was paid in respect of
the expropriated lands, and (c) the lands expropriated were indeed
distributed to poor, landless and other disadvantaged and marginalized
individuals or groups, rendering the purpose of the programme legitimate,
the differential treatment afforded to the Applicants would not constitute
 We can do no better than quote in this regard what the Supreme Court of
Zimbabwe stated in Commercial Farmers Union v Minister of Lands 2001 (2) SA
925 (ZSC) at paragraph 9 where it dealt with the history of land injustice
in Zimbabwe and the need for a land reform programme under the rule of law:
"We are not entirely convinced that the expropriation of white farmers, if
it is done lawfully and fair compensation is paid, can be said to be
discriminatory. But there can be no doubt that it is unfair
discrimination...to award the spoils of expropriation primarily to ruling
 The Applicants have also raised the issue of compensation. Learned
Counsel for the Applicants contended that expropriation of their lands by
the Respondent was not accompanied by compensation and that failure to do so
is a breach of the Respondent's obligations under international law and the
Treaty. We note that the Respondent does not dispute the fact that the
Applicants are entitled to compensation. It, however, argued that the
independence agreement reached in 1978 in London provided that payment of
compensation for expropriated land for resettlement purposes would be paid
by the former colonial power, Britain.
 As regards the question of who should pay compensation, ordinarily in
international law it is the expropriating state that should pay compensation.
This would mean that, respecting the matter at hand, the Respondent should
shoulder the responsibility of paying compensation to the Applicants for
their expropriated lands. We note, however, that section 16B (2) (b) of the
Amendment provides as follows:
"No compensation shall be payable for land referred to in paragraph (a)
except for any improvements effected on such land before it is acquired".
 This provision excludes payment of compensation for land referred to in
paragraph (a), (i) and (ii) which is agricultural land that has been
acquired for resettlement purposes. It is difficult for us to understand the
rationale behind excluding compensation for such land, given the clear legal
position in international law. It is the right of the Applicants under
international law to be paid, and the correlative duty of the Respondent to
pay, fair compensation.
 Moreover, the Respondent cannot rely on its national law, its
Constitution, to avoid an international law obligation to pay compensation
as we have already indicated above.
 Similarly, in the present case, the Respondent cannot rely on Amendment
17 to avoid payment of compensation to the Applicants for their expropriated
farms. This is regardless of how the farms were acquired in the first place,
provided that the Applicants have a clear legal title to them.
 We hold, therefore, that fair compensation is due and payable to the
Applicants by the Respondent in respect of their expropriated lands.
 For the reasons given, the Tribunal holds and declares that:
(a) by unanimity, the Tribunal has jurisdiction to entertain the application;
(b) by unanimity, the Applicants have been denied access to the courts in
(c) by a majority of four to one, the Applicants have been discriminated
against on the ground of race, and
(d) by unanimity, fair compensation is payable to the Applicants for their
lands compulsorily acquired by the Respondent.
 The Tribunal further holds and declares that:
(1) by unanimity, the Respondent is in breach of its obligations under
Article 4 (c) and, by a majority of four to one, the Respondent is in breach
of its obligations under Article 6 (2) of the Treaty;
(2) by unanimity, Amendment 17 is in breach of Article 4 (c) and, by a
majority of four to one, Amendment 17 is in breach of Article 6 (2) of the
(3) by unanimity, the Respondent is directed to take all necessary measures,
through its agents, to protect the possession, occupation and ownership of
the lands of the Applicants, except for Christopher Mellish Jarret, Tengwe
Estates (Pvt) Ltd. and France Farm (Pvt) Ltd. that have already been evicted
from their lands, and to take all appropriate measures to ensure that no
action is taken, pursuant to Amendment 17, directly or indirectly, whether
by its agents or by others, to evict from, or interfere with, the peaceful
residence on, and of those farms by, the Applicants, and
(4) by unanimity, the Respondent is directed to pay fair compensation, on or
before 30 June 2009, to the three Applicants, namely, Christopher Mellish
Jarret, Tengwe Estates (Pvt) Ltd. and France Farm (Pvt) Ltd.
 By a majority of four to one, the Tribunal makes no order as to costs
in the circumstances.
Delivered in open court this … Day of … at Windhoek in the Republic of
H.E Justice Ariranga Govindasamy Pillay PRESIDENT
H.E Justice Isaac Jamu Mtambo, SC MEMBER
H.E Justice Dr Luis Antonio Mondlane MEMBER
H.E Justice Dr Rigoberto Kambovo MEMBER
H.E Dr Onkemetse B. Tshosa MEMBER
DISSENTING OPINION ON COSTS OF H.E. JUSTICE ARIRANGA GOVINDASAMY PILLAY (PRESIDENT)
 With regard to the issue of costs, I shall first refer to Rule 78 of
 Rule 78 provides as follows:
"1. Each party to the proceedings shall pay its own legal costs.
2. The Tribunal may, in exceptional circumstances, order a party to the
proceedings to pay costs incurred by the other party. "
 The general rule is that each party bears its own costs except where
there are exceptional circumstances warranting the grant of costs in the
interests of justice against a party.
 The Tribunal has already construed Rule 78 in a broad and purposive
manner in the case of Nixon Chirinda and others (Case SADC (T) No. 09/2008)
and held that there were exceptional circumstances justifying the grant of
costs in the interests of justice against a party that brought before the
Tribunal a patently frivolous and vexatious application.
 I cannot do otherwise but consider that there are indeed also
exceptional circumstances, on the particular facts of the present case,
justifying the award of costs to the Applicants in the interests of justice,
especially given that the Applicants have suffered for a long time human
rights abuses for remaining on their lands, three of them having been
forcibly evicted from their lands without any compensation, and that the
Respondent has up to now failed to comply with the interim orders of the
Tribunal directing the Respondent to prevent its agents and others from
interfering with the enjoyment of the lands occupied by those Applicants who
are still in occupation thereof.
 Consequently, I made an order as to costs against the Respondent under
Rule 78 (2). The costs are to be determined by the Registrar if the parties
are not agreed.
H.E. JUSTICE ARIRANGA GOVINDASAMY PILLAY (PRESIDENT)
DISSENTING OPINION DR ONKEMETSE B. TSHOSA
 During the deliberations I agreed with my colleagues on the main
conclusions reached on this case. I agreed because it was very clear to me
that Amendment 17 denied the applicants a remedy under the national law of
Zimbabwe, that they have been denied access to the courts by the ouster
clause in the Amendment concerning compulsory acquisition of the
agricultural lands and that the said Amendment excludes compensation for the
compulsory acquisition of agricultural land. However, I did not agree with
the conclusion reached on the issue of racial discrimination, which is to
the effect that although Amendment 17 was not explicitly discriminatory, it
is indirectly discriminatory against the applicants on the basis of race.
The main basis of the majority view on this issue is that because the
implementation of Amendment 17 affects the applicants and who own
agricultural lands that are being acquired by the respondent for
resettlement purposes that makes the Amendment racially discriminatory. This
is the conclusion that makes me break ranks with my brethren.
 I should observe that during the deliberations on the case, it was not
entirely clear to us how the issue of racial discrimination would be
resolved. It was only towards the end of the deliberations, that is, a day
judgment was to be delivered, that the majority were inclined to hold that
Amendment 17 indirectly discriminated against the applicants. This should
also explain why my view is so brief.
 It is not in dispute that the agricultural lands that were
compulsorily acquired by the respondent, and are the subject of these
proceedings belong to, or are owned by, the applicants. This means that the
implementation of 17 Amendment applies mainly to agricultural lands owned by
the applicants or rather the effects of the implementation of the Amendment
will be felt mainly by the applicants. Thus on the face of it, one is
inclined to conclude that although Amendment 17 does not explicitly relate
to white farmers, its implementation only affects the applicants and is
therefore indirectly discriminatory on the basis of race, and thereby in
violation of the respondent's legal obligation under section 6(2).of the
SADC Treaty outlawing discrimination, inter alia, on the basis of race.
 In my view, there is no basis for this conclusion and these are my
reasons. Firstly, the fact that the agricultural lands of the applicants
have been, and being affected, by the implementation by Amendment 17 is not
because they are of white origin. The Amendment 17 affects their land
because the agricultural land that is required for resettlement purposes,
and which is the subject of the Amendment is in their hands. In other words,
Amendment 17 targets agricultural land and they are affected not because
they are of white origin but because they are the ones who own the land in
question. Thus, the target of Amendment 17 is agricultural land and not
people of a particular racial group. This means that in implementing the
Amendment it was always going to affect those in possession of the land be
they of white, black or other racial background. In my view, this does not
amount to racial discrimination whether directly or indirectly.
 There is also the second reason for holding the view that the
implementation of Amendment 17 is not indirectly discriminatory against the
applicants. In oral arguments, and this is on record, the respondents were
specifically asked by the Tribunal whether there were other people apart
from the applicants whose agricultural land was compulsorily acquired on the
basis of Amendment 17. The answer was in the affirmative and this was not
challenged by the applicants. In my view, this means that the applicants or
rather white Zimbabwean farmers were not the only ones who were
affected by the Amendment as to make it racially discriminated even
indirectly. The Amendment is of a general application. It applies to all
Zimbabweans who are in occupation of the land that is required for
resettlement purposes irrespective of their racial origins.
 Admittedly, non-white Zimbabweans in possession of agricultural land
in question and who are affected by the Amendment are few in number as
compared to white Zimbabwean farmers. But even if numerically these other
group of Zimbabweans is less compared to the white Zimbabwean farmers, the
fact of the matter is that there are other Zimbabweans who are not white
whose lands are affected by the Amendment. The land of these farmers may not
have been expropriated yet but is not immune from expropriation, at least,
on the basis of the Amendment. It is on these grounds that I am of the view
that Amendment 17 does not discriminate against the applicants on the basis
of race and therefore does not violate the respondent obligation under
Article 6(2) of the Treaty.