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RULING
[1] This is an urgent application filed by the applicants on 30th June 2008,
seeking in substance, a declaration to the effect that the respondent is in
breach and contempt of the orders of the Tribunal of the 13 th December,
2007 and 28th March, 2008 (CASE NO SADC (T) 2/07 In the Matter between Mike
Campbell (Pvt) Ltd and The Republic of Zimbabwe, CASE NO SADC (T) 02/08, In
the Matters between Gideon Stephanus Theron versus The Republic of Zimbabwe
and two others, CASE NO SADC (T) 03/08, Douglas Stuart Taylor-Freeme and
three Others versus The Republic of Zimbabwe and two Others, CASE NO SADC
(T) 04/08, Andrew Paul Rosslyn Stidolph and fifty eight Others versus The
Republic of Zimbabwe and two Others, CASE NO SADC (T) 06/08, Anglesea Farm (Pvt)
Ltd and twelve Others versus The Republic of Zimbabwe and Another
respectively) and of the respondent's representative's formal undertaking to
the Tribunal, on 28th May, 2008, of compliance with the orders.
[2] The two orders specified that the respondent should 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, their
employees and the families of such employees.
[3] At the outset of the hearing of the application, learned Counsel for the
respondent made a request for a postponement of the hearing for one hour in
order to consult with his principals. The Tribunal granted him an
adjournment of thirty minutes. When the hearing resumed, learned Counsel for
the respondent made a formal motion for a postponement in order to adduce
evidence in rebuttal. The Tribunal did not accede to the motion, since on
14th July 2008 a counter-affidavit had already been filed on behalf of the
respondent and that Counsel had sufficient notice of the hearing to adduce
counter evidence.
[4] We have considered the counter-affidavit of the respondent, which is
substantially to the effect that there is a state of lawlessness prevailing
in the country and that the authorities have difficulty in addressing the
problems of intimidation and violence committed by certain people.
[5] We hold, however, that the applicants have adduced abundant material to
show that the existence of the failure on the part of the respondent and its
agents to comply with the decisions of the Tribunal has been established. In
this connection, we need only to reproduce the letter of 11th June, 2008
sent to the legal firm Coghlan, Welsh and Guest, the advisers of the
applicants, where it is amply demonstrated that the respondent's aim is to
prosecute the applicants for remaining on their lands, and subsequently
evicting them therefrom upon conviction, and which reads as follows:
“…
Attention: Mr A.N.B. Masterson
Re: SADC TRIBUNAL INTERIM ORDER: RELIEF FOR INTERVENERS
Previous correspondence refers.
The provisional order of the SADC Tribunal cannot and has not suspended the
Attorney General's Constitutional responsibility to prosecute violators of
any of Zimbabwe's existing criminal laws such as section 3 of the Gazetted
Lands (Consequential Provisions) Act.
As I stated in my previous minute to yourselves the Attorney-General's
Office is proceeding with the prosecutions.
Yours sincerely,
J Tomana
DEPUTY A TTORNEY-GENERAL-CRIME
CC: Acting Attorney-General - Justice Patel
…”
[6] Consequently, pursuant to Article 32 (5) of the Protocol on Tribunal,
the Tribunal will report its finding to the Summit for the latter to take
appropriate action.
[7] We make no order as to costs.
Made this 18th Day of July, 2008 at Windhoek in the Republic of Namibia.
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