| |
RULING
DELIVERED BY H. E. JUSTICE LUIS A. MONDLANE
[1] The present application (preliminary objection) is brought by the
Respondent in the main case, the United Republic of Tanzania, hereinafter
referred to as the Applicant against the Applicants, Cimexpan (Mauritius)
LTD, Cimexpan (Zanzibar) LTD and Ajaye Jogoo, from now on referred to as the
Respondents. The application is brought under Rules 33 and 67 of the Rules
of Procedure of the Southern African Development Community (SADC) Tribunal
(the Rules). According to Rule 33, an application shall state, inter alia
particulars of the Applicant, the nature of the claim, together with a
succinct statement of facts and the relief or order sought by the Applicant.
It is essential to the matter at hand to refer to Rule 67 (1) which
stipulates as follows:
“1. A party to the proceedings may apply to the Tribunal on a preliminary
objection or preliminary plea not going to the substance of the case (…)”.
[2] It is clear from the abovementioned provision that once a preliminary
objection is raised, the substance of the case may only be considered after
the Tribunal has examined the application pertaining to the preliminary
objection.
[3] We now refer to the relief sought before the Tribunal in the main action
by the Respondents. The Respondents instituted proceedings against the
Applicant in order to have the deportation order made against the third
Respondent rescinded.
[4] As a result of a memorandum of understanding which the Government of
Mauritius had entered into with the Government of Zanzibar, the third
Respondent who is the Director of Cimexpan (Mauritius) LTD (the first
Respondent), started investment operations in Zanzibar by signing a
concession contract with the Government of Zanzibar through a joint venture,
thus establishing a new company named Cimexpan (Zanzibar) LTD (the second
Respondent). In a letter dated 21 September 2003, the Government of Zanzibar
informed the first Respondent that the contract was terminated.
Subsequently, the Applicant deported the third Respondent, who left behind
his family and the assets of the second Respondent.
[5] The third Respondent who represented the Respondents before the Tribunal
alleged that when he returned to Zanzibar he was detained by immigration
authorities and put in jail for one week where he was subject to ill
treatment. He, however, conceded that he received the visit of a medical
doctor on a daily basis. He was finally deported. The third Respondent
further asserted that when the contract was cancelled, at 04:00 am, ten
people came to his house with guns, knives, pangas and his family was beaten
up.
[6] The Applicant contended that the Tribunal has no jurisdiction over the
matter since the Respondents had not exhausted local remedies and had no
standing to institute proceedings before the Tribunal. The Applicant further
argued that the application does not disclose international delinquency so
as to render the Applicant liable under international law. The third
argument was to the effect that the Tribunal could not grant the order
sought because the application in the main case does not accord with
Articles 14 and 15 of the Protocol on Tribunal (the Protocol).
[7] We note that this Tribunal, as the SADC judicial institution, has the
powers bestowed upon it by Article 16 of the Treaty of the Southern African
Development Community (the SADC Treaty) and Articles 14 and 15 of the
Protocol.
[8] Article 16 of the SADC Treaty states that:
“1. The Tribunal shall be constituted to ensure adherence to and the proper
interpretation of the provisions of this Treaty and subsidiary instruments
and to adjudicate upon such disputes as may referred to it.
2. The composition, powers, functions, procedures and other related matters
governing the Tribunal shall be prescribed in a Protocol, which shall,
notwithstanding the provisions of Article 22 of this Treaty, form an
integral part of this Treaty, adopted by the Summit (…)”.
[9] Article 14 of the Protocol stipulates that:
“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; (…)”.
[10] Article 15 of the Protocol provides as follows:
“1. The Tribunal shall have jurisdiction over disputes between Member
States, and between natural and legal persons and Member State.
2. No natural or legal person shall bring an action against a Member State
unless he or she has exhausted all available remedies or is unable to
proceed under domestic jurisdiction”.
[11] The Tribunal is satisfied that the application is between legal persons
and a natural person, on one hand, and a Member State of SADC, on the other.
The question whether the Tribunal has jurisdiction must, therefore, be
answered in the affirmative.
[12] The Tribunal must also be satisfied that the Respondents, being legal
and natural persons, had exhausted all available remedies within the
domestic jurisdiction. The principle of exhaustion of local remedies is not
unique to the Protocol. It is a common feature of regional and international
conventions. According to the principle, individuals are required to exhaust
local remedies in the municipal law of the State before they can bring a
case to a regional or international judicial body. This means that
individuals should first go through the court system (from the court of
first instance to the highest court of appeal) before they can bring the
matter to this Tribunal (See Case SADC (T) No. 2/2007, Mike Campbell (PVT)
Ltd. and others versus the Republic of Zimbabwe). Exhaustion of local
remedies is, therefore, a pre-requisite for persons to institute proceedings
before this Tribunal against a Member State.
[13] The Applicant further argued that there are effective and efficient
remedies under section 14(6) of the Immigration Act No. 7 of 1995 (the Act)
which provides as follows:
“A deportation order shall remain in force the period specified therein,
unless sooner varied or revoked by the Minister, or, if no period is so
specified, until varied or revoked by the Minister.”
[14] Learned Counsel for the Applicant contended, in this regard, that any
deportation order made by the Minister of Immigration under section 14(6) of
the Act may be subject to a judicial review in the court system of the
Applicant.
[15] The Respondents aver that they had exhausted all available remedies but
did not adduce any evidence in support of their averments. Further, it was
stated on their behalf that since the deportation of the third Respondent,
they could not seek any remedy within the territory of the Applicant. We
consider, however, that the Respondents did not explore all legal avenues
for contesting the deportation order made by the Tanzanian Minister of
Immigration. Deportation alone, in our view, does not amount to denial of
access to the courts within the Applicant’s territory. The third Respondent
could, in our opinion, have hired the services of legal advisers in the
territory of the Applicant, without being physically present therein, in
order to challenge by judicial review the deportation order made against
him, if he had so wished. We hold, therefore, that the Respondents had not
exhausted local remedies and do not have locus standi to institute
proceedings before the Tribunal.
[16] We turn now to the second preliminary objection raised by the
Applicant, namely, that the deportation order made against the third
Respondent should be rescinded. The Applicant asserted that the thrust of
its objection is that issues pertaining to admission and expulsion of aliens
and expulsion rested, within its powers. It was further submitted on its
behalf that it is an established principle of international law that a state
has a right to admit an alien and also has the power to expel any alien from
its territory on account of a breach of applicable laws within its
territory.
[17] John Dugart SC in his book “Territory and International law: A South
African Perspective”, 3rd edition, (2005), states as follows at pages 295
and 296:
“An individual has no right of entry to a state of which (…) is not a
national. If (…) admitted, (…) may be expelled; but mistreatment is not
permitted in the process of expulsion. ... According to article 13 of the
International Covenant on Civil and Political Rights a person facing
expulsion is entitled to submit reasons against (…) expulsion and to have
(…) case reviewed by a competent authority “except where compelling reasons
of national security otherwise require.”
[18] Moreover, the United Nations General Assembly Declaration on the Human
Rights of Individuals Who Are Not Nationals of the Country in which They
Live, Resolution 40/144, (1985); read together with the Universal
Declaration of Human Rights, and other international instruments, constitute
the minimum standard for the treatment of aliens. According to John Dugard,
at page 298 -
“these principles include non-discrimination on grounds of race, the
prohibition of torture and of inhuman or degrading treatment or punishment,
and the right to a fair trial.”
[19] The Respondents also claim that during the process of the third
Respondent’s deportation he was subject to torture. Article 1 (1) of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (1984) provides a definition of torture in the following
terms:
“For the purpose of this Convention, torture means any act by which severe
pain or suffering, whether physical or mental, is intentionally inflicted on
a person for such purposes as obtaining from him or a third person
information or a confession, punishing him for an act he or a third person
has committed or is suspected of having committed, or intimidating or
coercing him or a third person, for any reason based on discrimination of
any kind, when such pain or suffering is inflicted by or at the instigation
of or with the consent or acquiescence of a public official or other person
acting in an official capacity. It does not include pain or suffering
arising only from, inherent in or incidental to lawful sanctions.”
[20] The Respondents did not adduce, however, any evidence to substantiate
the allegations of torture or ill treatment that may constitute an offence
under international law. The Tribunal is, therefore, not in a position to
determine whether the third Respondent has been subjected to torture or
other cruel, inhuman or degrading treatment.
[21] We consider that the right to admit or to expel an alien remains
squarely within the preserve of the sovereignty of the Applicant, subject to
the observance of minimum human rights standards, for the treatment of
aliens. The American Commission (vide Malcolm N. Shaw QC in International
Law, fifth edition); 2003, stated at page 734, in the Neer case (4RIAA, pp.
60, 61-2; 1926; 3AD, p. 227) that:
“the treatment of an alien, in order to constitute an international
delinquency, should amount to an outrage, to bad faith, to wilful neglect of
duty, or to an insufficiency of government action so far short of
international standards that every reasonable and impartial man recognise
its insufficiency”.
[22] Having reviewed all the circumstances of the present application, we
consider that the third Respondent did not substantiate his allegations of
torture or ill treatment and that the Applicant’s deportation of the third
Respondent in the particular circumstances of the case did not constitute an
international delinquency.
[23] We, therefore, hold as follows:
a) the Respondents have not exhausted local remedies and, the Tribunal has
consequently no jurisdiction over the matter; and
b) the Respondents have not substantiated their allegations of torture or
ill treatment so as to render the deportation order made against the third
Respondent an international delinquency.
[24] We make no order as to costs.
Delivered in open court this 11th day of June 2010, at Windhoek, in the
Republic of Namibia.
|
|
