| |
RULING
DELIVERED BY H. E. JUSTICE ARIRANGA G. PILLAY
[1] On 17 June, 2008 the applicants filed an application to intervene in the
case of Mike Campbell (Pvt) Limited and Others versus The Republic of
Zimbabwe (Case No SADC (T) 2/07). The application was made pursuant to
Article 30 of the Protocol on Tribunal (the Protocol) and Rule 70 of the
Rules of Procedure of the SADC Tribunal (the Rules).
[2] We shall first address the issue referred to so many times by learned
counsel for the applicants in the course of his arguments, namely that the
Tribunal was wrong to have heard the Campbell case, cited above, before
dealing with the application of his clients, and at the same time to set the
record straight. To be sure, if all other things were equal, the Rules and
even plain commonsense would have required us to give priority to any
intervener application and hear it before dealing with the main case to
which it relates-vide Rule 43 which governs priority of cases. We refused,
however, to hear the application during the July session of the Tribunal for
two basic reasons.
[3] First, the application was not even listed on the cause list of cases to
be considered by us during that session. The Campbell case, however, was
listed. The application had indeed been filed only on 17 June, 2008, as
mentioned above. If we had heard the application, we would have acted in
breach of the Rules and opened the floodgates to last-minute applications
like the present one.
[4] Second, we saw at first glance from the application that the alleged
dispute is between the present applicants and the applicants in the Campbell
case and not between persons and State, as in the case of Albert Fungai
Mutize and others versus Mike Campbell (Pvt) Limited and others (SADC (T)
Case No. 8/08. It is to be noted that, in that case, learned counsel for the
applicants also appeared and the Tribunal held that it had no jurisdiction
to hear that application. We did not consider, therefore, that it was proper
to give priority to the application and hear it.
[5] We in fact decided to call in Chambers on 16th July, 2008 the agents of
all the parties to the application. We then specifically explained to the
agents of the applicants the reasons, mentioned above, for being unable to
hear the application during the present July session. Learned counsel for
the present applicants, realizing no doubt his predicament, requested of his
own accord for an early date in September for the hearing of the
application. We acceded to his request. Surely, counsel knew or ought to
have known that in such circumstances the Campbell case which was scheduled
to be heard during the July session was bound to be heard before the
application. Surely, counsel could not reasonably have expected the Tribunal
to postpone the Campbell case to September for the application of his
clients to be heard first, especially in the light of the argument advanced
by the agents of the Campbell applicants that the application was a mere
ploy to further delay the hearing of the Campbell case.
[6] One would have expected, however, that counsel would not have pressed
ahead in September with the application of his clients in the circumstances,
given that the Campbell case had already been heard during the July session
and that the Mutize case had been dismissed by the Tribunal. Counsel chose,
however, as he was entitled, to pursue the application, but at the cost and
peril of his clients. In any event, it should also be stressed in this
regard that the Tribunal is the master of its own procedure, as is made
clear by Rule 2 (2) which is in the following terms:
“Nothing in these Rules shall limit or otherwise affect the inherent power
of the Tribunal to make such orders as may be necessary to meet the ends of
justice”.
[7] The main question to be decided is whether the Tribunal has jurisdiction
to hear the application. Article 15 (1) of the Protocol states as follows:
“The Tribunal shall have jurisdiction over disputes between States, and
between natural or legal persons and States”.
The alleged dispute in the application is between the present applicants and
the applicants in the Campbell case. Since the dispute is not between
persons and State, the Tribunal has no jurisdiction to hear the application,
as was decided in the Mutize case, cited above.
[8] In the course of his submissions learned Counsel for the applicants laid
much emphasis on Rule 70 (1) of the Rules, which is as follows:
“A Member State, Institution, or person may apply to intervene in any
proceedings” (emphasis supplied).
[9] Counsel submitted that his clients could intervene in the Campbell case
without having to comply with the requirements of Article 15 (1) of the
Protocol. He cited in aid several rules and decisions of the International
Court of Justice and some decisions of the European Court of Human Rights.
We consider that the rules and authorities quoted by learned counsel are
irrelevant, given the clear and unequivocal terms in which Article 15 (1) of
the Protocol is couched. Rule 70 (1), which has been made under the
Protocol, cannot by any means have precedence over the Protocol itself. The
Rule must be read subject to the requirements laid down by the Protocol.
Indeed, Rule 70 (3) (d) requires an intervener to state in his application
“any basis for jurisdiction”.
[10] Further, the application does not satisfy the requirements of Rule 70
(2), which in the relevant part reads as follows:
“An application in terms of this Rule shall be made as soon as possible and
not later than the closure of the written proceedings…”
[11] The written pleadings in fact had closed on 25 February, 2008. The
application was therefore made after the closure of the pleadings. The fact
that the Tribunal exercised its discretion, pursuant to Rule 2 (2), in
allowing a party to submit certain documents after the closure of pleadings,
in order to meet the interests of justice, did not amount to a re-opening of
pleadings. Any contention to the contrary would, in our opinion, be
untenable.
[12] There is an additional reason for rejecting the application. The
applicants have not shown an interest of a legal nature which may be
affected by our decision on the issues raised in the Campbell case. The main
issues in the Campbell case are the denial of access to justice, racial
discrimination and compensation. We fail to see how the interests of the
applicants would be affected by our decision on these issues since the
applicants have not adduced any evidence before us to the effect that they
have indeed been denied access to justice and have suffered racial
discrimination or loss.
[13] Learned Counsel for the applicants also raised the issue of joinder,
relying on Rule 39, which states as follows:
“The Tribunal may at anytime direct that the proceedings in two or more
cases be joined for purposes of written or oral submissions or of the final
decisions”.
[14] There is no basis for this contention since there are no cases to be
joined.
[15] For these reasons, we consider that the application for intervention
has not been made out. In fact, this application is frivolous, constitutes
an abuse of process and is consequently thrown out.
[16] In the circumstances, we make an order of costs against the applicants
under Rule 78 (2). The costs are to be determined by the Registrar if the
parties are not agreed.
Delivered in open court this 17th Day of September, 2008 at Windhoek in the
Republic of Namibia.
|
|
