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Andrew Paul Rosslyn Stidolph, R.J Van Rensburg and sons (Pvt) Ltd,
Reinier Janse Van Rensburg(SENIOR), Harlen Brothers (Pvt) Ltd, Raymond
Finaughty, Bounchcap (Pvt) Ltd, Dirk Visagie, Sabaki(Pvt) Ltd, William
Bruce Rogers, J.B.W Arden & Sons (Pvt) Ltd, William Gilchrist Nicolson,
Richard Thomas Etheredge, John Norman Eastwood, Johannes Frederick Fick,
W.R Seaman (Pvt) Ltd, Wayne Redvers Seaman, Petrus Stephanus Martin,
Ismael Campher Pasques, Claremont Estates (Pvt) Ltd, Gramara (Pvt) Ltd,
Colin Baillie Cloete, Blakle Stanley Nicolle, Newmarch Farm (Pvt) Ltd,
John McCleary Beatie, Hermanus Gerhardus Grove, Frederick Willem
Biutendag, L.M.Farming (Pvt) Ltd, Bart Harvey McClelland Wilde,
P.N.Stidolph (Pvt) Ltd, Neville Stidolph, Katambora Estates (Pvt) Ltd,
Andrew Roy Ferreira, Herbst Estate (Pvt) Ltd, Andrew Marc Ferangcon
Herbst, Izak Daniel Nel, Johannes Hendrik Oosthuizen, Murray Hunter Pott
Gary Bruce, Hensman Charles Thomas, Schoultz Jack Walter Hall Busi,
Coffee Estate (Pvt) Ltd Algernan, Tracy Taffs Elsje Hester Herbst,
Cristoffel Giedeon Herbst, Jacobus Adriaan Smit Palm, River Ranch (Pvt)
Ltd John, Robert Caudrey Beverley Robert, Anthony McKersie S.C.Shaw, (Pvt)
Ltd Grant Ian Locke Peter, Foster Booth Aristides Peter, Landos Ann
Lourens N & B, Holdings (Pvt) Ltd Digby Sean, Nesbitt Kenneth Charles
Ziehl, Kenyon Garth Baines Ziehl, Mleme Estate (Pvt) Ltd and Jean Daniel
Cecil de Robbilard |
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Anglesea Farm (Pvt) Ltd, Gameston Enterprises (Pvt), Malundi Ranching Co
(Pvt) Ltd, Gwelmid Property Holdings (Pvt) Ltd, Tamba Farm (Pvt) Ltd, R.
H.Greaves (Pvt) Ltd, Heany Junction Farms (Pvt) Ltd, Rudolf Isaac Du
Preez, Walter Bryan Lawry, Derek Alfred Rochat, Christopher Mellish
Jarrett, Tengwe Estate (Pvt) Ltd and France Farm (Pvt) Ltd |
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RULING
H. E. JUSTICE DR LUIS ANTONIO MONDLANE DELIVERED THE RULING
[1] The applicants/interveners are seeking leave to intervene as
co-applicants in the matter of Mike Campbell (Pvt) Ltd and William Michael
Campbell v the Republic of Zimbabwe, SADC (T) 2/07, in terms of Rule 70 of
the Rules of Procedure of the SADC Tribunal, hereinafter referred to as the
Rules. They are also seeking, as a matter of urgency, that the Respondent be
directed to take no steps, or permit no steps to be taken, directly or
indirectly, whether by agents of the 1st Respondent, or by others, to evict
from, or interfere with, the peaceful residence on, and beneficial use of,
their properties, pursuant to Article 28 of the Protocol on Tribunal, as
read with Rule 61, sub-rules 2 to 5. Both Article 28 and Rule 61 govern the
grant of interim measures.
[2] All the applications were consolidated and heard together and we are
delivering a single ruling, a copy of which is to be filed in each record.
[3] Rule 70 in the relevant part provides:
1 A Member State, Institution, or person may apply to intervene in any
proceedings.
2 An application in terms of this Rule shall be made as soon as possible and
not later than the closure of the written proceedings or in exceptional
cases, and upon good case shown, not later than the date set for the oral
hearing.
[4] We observe here that at the time of filing the applications the written
proceedings in the Campbell case had been closed, so that we only need to
consider whether good cause has been shown for the applications to be
entertained.
[5] It was submitted on behalf of the applicants/interveners that the
rationale behind the right of intervention is to ensure that the Tribunal
deals with all similar matters in the same hearing rather than subject
itself to a multiplicity of actions arising out of the same set of facts and
circumstances, thus avoiding the risk of divergent decisions by the same
court relating to the same circumstances.
[6] It was further submitted that the purpose is also to ensure that scarce
resources are not needlessly engaged in serial litigation, when the central
issues of fact and law affecting a number of persons are capable of being
dealt with in a single proceeding. It was also argued that in each case the
same laws of the Republic of Zimbabwe, and the same actions of the 1st
Respondent contravene the provisions of the SADC Treaty. In conclusion, it
was asserted that in each case, the applications raise the same issues as in
the Campbell case.
[7] We note here that the 1st Respondent did not oppose the applications,
indicating that it is in the interest of everyone concerned that the matters
be dealt with together once and for all.
[8] We have carefully considered all the facts and circumstances of the
applications, and are of the considered view that good cause has been shown
and therefore that the applications may be entertained, the more so since
both the factual and legal background of these applications are similar to
the Campbell case.
[9] Referring to the interim measure, the applicants/interveners contended
that the relief granted in the Campbell Case is a matter of principle and
not peculiar to the factual situation in that case. They, therefore,
submitted that any other person granted leave to intervene in Campbell case
should be granted the same interim relief. There would be no basis for
differentiation, it was further submitted.
[10] It was submitted on behalf of the 1st Respondent, on the other hand,
that the relief is not applicable in the present circumstances and that the
1st Respondent did not oppose the granting of interim relief in the Campbell
case because at that time there was a matter (Mike Campbell (Pvt) Ltd and
other v the Minister of National Security responsible for Land, Land Reform
and Resettlement and the Attorney-General - Constitutional Application No.
124/06), pending in the Supreme Court of Zimbabwe. It was further submitted
that the Supreme Court of Zimbabwe has now delivered its decision upholding
the constitutionality of the law in question. It was further argued that the
constitutional amendment does not amount to discrimination on the ground of
race in terms of Article 4 paragraph (c) of the Treaty. Consequently, it is
not appropriate to grant interim relief to the applicants/interveners, it
was argued. It was, however, conceded that the law in question abrogates the
rights of the applicants/interveners but only to the extent necessary to
fulfill the objectives set by the 1st Respondent. Accordingly, it was
submitted that there is no prima facie right to the relief sought.
[11] We do not consider that any of the arguments advanced on behalf of the
1st Respondent apply to the facts and circumstances of the present
applications in so far as interim relief is concerned. The prevailing
criteria which govern the grant of interim relief, as stated in the Campbell
case, 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; and
(d) the balance of convenience in favour of the applicants that an interdict
is the appropriate relief in the circumstances.
[12] Just as in the Campbell case, there exists in the present applications
a prima facie right that the applicants/interveners seek to protect, namely,
the right to peaceful occupation of their properties; and there is
anticipated or threatened interference with that right; and the
applicants/interveners do not appear to have any alternative remedy, thereby
tilting the balance of convenience in their favour.
[13] In the result, we grant the applications to intervene in respect of all
applicants/interveners in terms of Rule 70 of the Rules. We direct that the
applicants/interveners shall be supplied with copies of pleadings and any
documents produced by April 25, 2008 and therefore the
applicants/interveners may submit written statements by May 6, 2008. We also
grant the application for interim relief to all applicants/interveners,
except for Christopher Mellish Jarret, Tengwe Estates (Pvt) Ltd, and France
Farm (Pvt) Ltd, that have already been evicted from their properties, as
indicated by their agent, pending the determination of the main case.
Accordingly, we order 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, their properties in respect of the
applicants/interveners referred to in the previous paragraph, their
employees and the families of such employees.
[14] We make no order as to costs.
Delivered in Open Court this 28th day of March 2008 at Windhoek in the
Republic of Namibia.
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