On 11 October 2007 the applicants filed a
case with the Tribunal challenging the acquisition of an agricultural land
known as Mount Carmell in the District of Chegutu in the Republic of
Zimbabwe by the respondent. An application was simultaneously filed pursuant
to article 28 of the Protocol on Tribunal (hereinafter referred to as the
Protocol) as read with rule 61 sub-rules (2) - (5) of the Rules of Procedure
(hereinafter referred to as the Rules) for an interim measure restraining
the respondent from removing, or allowing the removal of, the applicants
from the agricultural land mentioned above and mandating the respondent to
take all necessary and reasonable steps to protect the occupation by the
applicants of the said land until the dispute has been finally adjudicated.
In essence, the applicants are asking the Tribunal to order that the status
quo in the agricultural land be preserved until the final decision is made
in relation to the case.
 Before dealing with the application, there are preliminary issues that
should be determined. Firstly, whether the parties in the case are those
that are envisaged by article 15(1) of the Protocol. The article provides: 'The
Tribunal shall have jurisdiction over disputes between states, and between
natural or legal persons and states.'
 This is indeed a dispute between a natural and a legal person and a
state. We hold that article 15(1) of the Protocol has been met and therefore
that the matter is properly before the Tribunal.
 Secondly, there is the issue relating to jurisdiction. Article 14 of the
The Tribunal shall have jurisdiction over all disputes and all applications
referred to it in accordance with the Treaty and this Protocol which relate
to; (a) the interpretation and application of the Treaty.
 The interpretation and application of the SADC Treaty and the Protocol
is therefore one of the bases of jurisdiction. For purposes of this
application, the relevant provision of the Treaty which requires
interpretation and application is article 4, which in the relevant part
provides: 'SADC and member states are required to act in accordance with the
following principles – (c) human rights, democracy and the rule of law.'
 This means that SADC as a collectivity and as individual member states
are under a legal obligation to respect and protect human rights of SADC
citizens. They also have to ensure that there is democracy and the rule of
law within the region. The matter before the Tribunal involves an
agricultural land, which the applicants allege that it has been acquired and
that their property rights over that piece of land have thereby been
infringed. This is a matter that requires interpretation and application of
the Treaty thus conferring jurisdiction on the Tribunal.
 Thirdly, as indicated earlier, the application is brought pursuant to
article 28 of the Protocol. The article provides:
The Tribunal or the President may, on good cause, order the suspension of an
act challenged before the Tribunal and may take other interim measures as
 This clause is complemented by rule 61(2) – (5). The rule requires the
application for an interim measure to be made by a party to a case during
the course of the proceedings, stating the subject matter of the proceedings,
the reasons for the application, the possible consequences if the
application is not granted and the interim measure requested, and finally
that the application for an interim measure shall take priority over all
other cases. These provisions empower the Tribunal or the President of the
Tribunal to make an appropriate interim order upon good cause being shown.
 During the hearing the agents of the parties raised other preliminary
issues. The applicants' agent raised the issue of the respondent's failure
to file some documents within the timelines set by the Tribunal as required
by rule 36(2) of the Rules. These documents are the 'notice of opposition'
and an 'application for condonation for late filing of opposing papers',
which were filed on the morning of the date of the hearing, 11 December
2007, according to the official date stamp of the Registry. The agent argued
that there is no basis for the documents in question to be considered by the
Tribunal. He, however, submitted that in the interest of progress he could
not insist on the point except that it should be placed on record that the
respondent disregarded the Rules.
 In reply, the respondent's agent denied that the respondent has
disregarded the Rules concerning filing of papers. He said that failure to
file the opposing papers on time was caused by administrative matters and
consultations in the Republic of Zimbabwe. However, the agent argued that
the respondent has substantially complied with the Rules and implored the
Tribunal to use its inherent powers in terms of rule 2(2) to condone the
late filing of the opposing papers to ensure that the ends of justice are
met. The agent further argued that, in any case, the applicants have not
shown that they have suffered any prejudice due to the late filing of the
opposing papers. It should be noted that the agent of the applicants
indicated that he did not wish to insist on the matter and that in the
interest of progress the hearing could proceed. It was also the position of
the Tribunal that in the interest of justice the application should proceed
and therefore the Tribunal accepted the application for condonation for late
filing of opposing papers by the respondent.
 As regards the present application, the applicants' agent submitted
that the applicants wanted protection pending the final determination of the
dispute between them and the respondent. He argued that the Tribunal was set
up to protect the interests of SADC citizens, and that in terms of article
21 of the Protocol, it has the powers not only to apply the Treaty and the
protocols there under, but also to develop the Community jurisprudence
having regard to applicable treaties, general principles and rules of public
international law and any rules and principles of the law of states. He
further argued that for the Tribunal to be effective it should be seen to be
protecting the rights and interests of the SADC citizens. According to the
applicants' agent, the Tribunal should adopt the criteria that are used in
other jurisdictions when deciding whether or not to grant an interim measure.
He said the criteria are the following:
a) a prima facie right that is sought to be protected;
b) an anticipated or threatened interference with that right;
c) an absence of any alternative remedy;
d) the balance of convenience in favour of the applicant, or a discretionary
decision in favour of the applicant that an interdict is the appropriate
relief in the circumstances.
 The applicants' agent therefore argued that the application meets these
criteria and that the balance of convenience tilts in favour of the
applicants because they stand to suffer prejudice if the interim relief is
not granted. Moreover, the agent argued that the respondent would not be
prejudiced by the granting of the relief sought. This point was conceded by
the agent of the respondent during the hearing of the application. Regarding
the application, it is observed that the respondent's agent did not oppose
it. He only concentrated on the issue relating to exhaustion of local
remedies. He submitted that in terms of article 15(2) of the Protocol, the
applicants have not exhausted local remedies. The text provides:
No natural or legal person shall bring an action against a state unless he
or she has exhausted all available remedies or is unable to proceed under
the domestic jurisdiction.
 According to the respondent, it was argued, the applicants have not
complied with this provision. The agent submitted that the applicants have a
matter pending before the Supreme Court of Zimbabwe in which the relief
sought is similar to the one that they are seeking from the Tribunal. The
respondent's agent said that the matter referred to is awaiting judgment by
the Supreme Court. The applicants' agent does not disagree. The respondent's
agent therefore argued that the application cannot be brought before the
 The respondent's agent also argued that if the applicants wanted
protection pending the decision of the Supreme Court, they should have
approached the domestic courts but they have not done so. Regarding the
latter point, the applicants' agent contended that section 16B(3)(a) of the
Constitution of Zimbabwe oust the jurisdiction of the courts in matters
concerning land acquisition.
 Referring to the issue of failure to exhaust local remedies by the
applicants, we are of the view that the issue is not of relevance to the
present application but that it may only be raised in the main case. It may
not be raised in the present case in which the applicants are seeking an
interim measure of protection pending the final determination of the matter.
Thus the Tribunal need not consider the issue of whether or not the
applicants have exhausted local remedies. In the circumstances, the
contention relating to exhaustion of local remedies is unsuccessful.
 We have observed above that the respondent did not oppose the present
application. We have also alluded to the criteria advanced by the applicants'
agent which should be applied in determining applications of this nature. We
agree with the criteria. In the present application there is a prima facie
right that is sought to be protected, which involves the right to peaceful
occupation and use of the land; and there is anticipated or threatened
interference with that right; and the applicants do not appear to have any
alternative remedy thereby tilting the balance of convenience in their
 Accordingly, the 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.
 The Tribunal makes no order as to costs.