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RULING
DELIVERED BY THE PRESIDENT OF THE TRIBUNAL H.E. JUSTICE A.G. PILLAY.
[1] This is an urgent application filed by the applicants on 7 May 2009
seeking, in substance, a declaration to the effect that the respondent is in
breach, and contempt, of the decision of the Tribunal of the 28th November
2008 in the matter of Mike Campbell (Pvt) Ltd and 78 Others v The Republic
of Zimbabwe (Case no SADC (T) 02/07).
[2] The decision of the Tribunal was to the effect, in substance, that “the
Respondent is directed to take all necessary measures, through its agents,
to protect the possession, occupation and ownership of the land of the
applicants… and to take all appropriate measures to ensure that no action is
taken… directly or indirectly whether by its agents or others, to evict
from, or interfere with, the peaceful residence on, and of these farms, by
the applicants.”
[3] We note that the respondent has not taken part in the proceedings since,
as learned Counsel for the respondent has put it, he lacks instructions from
the respondent.
[4] We hold that the applicants have adduced enough material to show that
the existence of a failure on the part of the respondent and its agents to
comply with the decision of the Tribunal has been established. In this
regard, we need only, inter alia, to refer to-
(1) the Deputy Attorney-General’s letter addressed to Messrs Gollop and
Blank, Legal Practitioners dated 18 December 2008 which says: “… that the
policy position taken by the Government to the judgment handed down by the
SADC Tribunal on the 28th November, 2008 is that all prosecutions of
defaulting farmers under the provisions of the Gazetted Lands (Consequential
Provisions) Act should now be resumed”;
(2) the speech delivered in Bulawayo, Zimbabwe by the Deputy Chief Justice
on 12 January 2009 at the opening of the 2009 legal year in the course of
which he stated, among other things, that the Tribunal lacked jurisdiction
to hear and determine the Campbell case;
(3) President Robert Mugabe in the course of his birthday celebrations
qualified the Tribunal’s decision as “nonsense” and “of no consequence.”
[5] We note further that all those statements were followed by invasion of
the lands of the applicants and their intimidation and prosecution.
[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 order costs in favour of the applicants, pursuant to Rule 78(2) of
the Rules of Procedure of the SADC Tribunal. The costs are to be agreed by
the parties. In case of disagreement, the Registrar shall determine the
costs to be awarded.
Delivered in open court this 05th day of June
2009, at Windhoek in the Republic of Namibia.
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