4 March 2009

Southern Africa: High Court Nullifies SADC Tribunal Ruling

Harare — THE High Court has nullified the Sadc Tribunal ruling which said white farmers, whose farms were acquired by Government for resettlement purposes, could remain on the farms because they had legal title to the farms.

Last year Justice Luis Mondlane, the president of the Sadc Tribunal, ruled that the white farmers had a clear legal title to their farms and should receive fair compensation from the Government for the properties lost during the land reform programme.

However, in a judgment handed down by High Court judge Justice Anne-Mary Gowora and made available yesterday, the court said the Sadc Tribunal's decisions do not apply and cannot be enforced in Zimbabwe unless Parliament ratifies the protocol that sets up the tribunal.

The ruling comes after Chegutu white farmer Richard Thomas Etheredge took President of the Senate Edna Madzongwe to court seeking to evict her from Stockdale Farm allocated to her by the Government under the land reform programme.

Justice Gowora dismissed the order sought by Etheredge with costs. Her ruling, among other issues, dealt with the applicability of the decisions of the Sadc Tribunal to Zimbabwe.

She noted in her judgment that the Sadc Treaty makes provisions for the establishment of a tribunal. The protocol, she said, is a document that sets up the tribunal and provides for the powers of the tribunal.

Justice Gowora said after examining the protocol very carefully she did not find in it any reference to the courts of any countries within Sadc.

She further noted that if indeed the intention was to create a tribunal that would be superior to the courts in the subscribing countries that intent is not manifest in the document presented to her.

"The supreme law in this jurisdiction is our Constitution and it has not made provisions for these courts to be subject to the tribunal," she said.

"This court is a court of superior jurisdiction and has an inherent jurisdiction over all people and all matters in the country, and its jurisdiction can only be ousted by a statutory provision to that effect.

"I do not have placed before me any statute to that effect and the protocol certainly does not do that."

In terms of the Sadc Tribunal's own rules as well as Zimbabwe's common law, the tribunal's decisions need to be registered in Zimbabwe, in the High Court for recognition and enforcement.

As it is, the tribunal judgment does not form part of the law of Zimbabwe until it has been registered and/or recognised in the country's High Court.

However, another Chegutu white farmer, Collin Cloete, has filed a court application citing Government and the Attorney-General's Office as respondents seeking to have the tribunal judgment registered and enforced in Zimbabwe.

But a resettled farmer who was allocated the farm that previously belonged to Cloete has also applied to the High Court to be joined in the action as an interested party.

The matter is going on with full arguments still to be heard by the High Court.

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