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RULING
DELIVERED BY H. E. JUSTICE ISAAC J. MTAMBO, SC
[1] This application is brought under Article 32 (4) of the Protocol on
Tribunal (the Protocol) in order that the Tribunal may report the failure by
the Republic of Zimbabwe (the Respondent) to the Summit for its appropriate
action, pursuant to paragraph 5 of that Article. It is made on the basis of
two earlier decisions of the Tribunal in respect of the case of Mike
Campbell (Pvt) Limited and others v The Republic of Zimbabwe (Case No 02 of
2007 decided on November 28, 2008, hereinafter referred to as the Campbell
case), and the case of William Campbell and Another v The Republic of
Zimbabwe (Case No 03 of 2009 decided on June 5, 2009,). In the former case,
the Tribunal held that the Respondent was in breach of Articles 4 (c) and 6
(2) of the Southern African Development Community Treaty and made the
necessary order which we will refer to later in this ruling. In the latter
case, the Tribunal found that the Respondent had failed to comply with the
decision in the former case and reported such failure to the Summit to take
appropriate action in terms of Article 32 (5) of the Protocol which provides:
�If the Tribunal establishes the existence of such failure, it shall report
its finding to the Summit for the latter to take appropriate action.�
[2] Despite this, the Respondent has continued to violate the decision of
the Tribunal. Three instances of the violation may be highlighted, amongst
others. Firstly, there is abundant evidence before us to the effect that the
lives, liberty and property of all those whom the decision meant to protect
have been endangered.
[3] Secondly, in a letter dated 12 August, 2009 the Minister of Justice and
Legal Affairs of the Respondent informed the Tribunal as follows:-
�We hereby advise that, henceforth, we will not appear before the Tribunal
and neither will we respond to any action or suit that may be instituted or
be pending against the Republic of Zimbabwe before the Tribunal. For the
same reasons, any decisions that the Tribunal may have made or may make in
the future against the Republic of Zimbabwe, are null and void.�
[4] Indeed, it is no surprise that the Respondent was not represented during
the hearing of this application. Thirdly, an attempt to register and enforce
the decision of the Tribunal, pursuant to Article 32 (1) of the Protocol,
has been refused by the High Court of Zimbabwe �vide the case of Gramara (Private)
Limited and Another v The Government of the Republic of Zimbabwe. (HC33/09)
in which the Court stated as follows:
�In the result, having regard to ... overwhelmingly negative impact of the
Tribunal�s decision on domestic law and agrarian reform in Zimbabwe, and
notwithstanding the international obligations of the Government, I am amply
satisfied that the registration and consequent enforcement of the judgment
would be fundamentally contrary to the public policy of this country.�
[5] Article 32 (1) provides as follows:
�The law and rules of civil procedure for the registration and enforcement
of foreign judgements in force in the territory of the Member State in which
the judgement is to be enforced shall govern enforcement.�
[6] And under paragraph 3 of that Article, the decision of the Tribunal is
binding upon the parties to the dispute in respect of a given case and is
enforceable within the territory of the Member State concerned.
[7] It will be recalled that in the Campbell case, the Tribunal directed the
Respondent 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 the applicants from,
or interfere with their peaceful residence on, the land.
[8] In light of the foregoing, it is evident that the Respondent has not
complied with the decision of the Tribunal. We, therefore, hold that the
existence of further acts of non-compliance with the decision of the
Tribunal has been established, after the Tribunal�s decision of June 5, 2009
under which the earlier acts of non-compliance have already been reported to
the Summit. Accordingly, the Tribunal will again report this finding to the
Summit for its appropriate action.
[9] We note also that the fourth and fifth Applicants were not parties to
either of the two earlier applications. Their application is, therefore,
dismissed.
[10] Finally, we consider that there is ample justification for a costs
order to be made against the Respondent, pursuant to Rule 78(2) of the Rules
of Procedure of the SADC Tribunal, since the Respondent has continued to
violate the decision of the Tribunal. The costs are to be agreed by the
parties. In case of disagreement, the Registrar should determine the costs
to be awarded.
Delivered in open court this 16th day of July 2010, at Windhoek in the
Republic of Namibia.
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