Maravi

(HERALD) ‘Sadc Tribunal erred’

‘Sadc Tribunal erred’
Bulawayo Bureau

THE Sadc Tribunal that heard the case of white commercial farmers who lost the land they held during the land reform programme lacked jurisdiction to hear and determine the application, the Deputy Chief Justice, Justice Luke Malaba, said yesterday.

Commenting on the case while officially opening the 2009 legal year of the Bulawayo High Court, Justice Malaba noted that under Article 15 (2) of the Sadc Protocol, the tribunal had no power to entertain any action commenced by a party against a member State.

The tribunal, he added, did so before that party had exhausted all remedies under national law.

In a judgment dated November 28 2008 in Case Number 2/2007, the tribunal held that it had jurisdiction to entertain the application made to it by Mike Campbell (Pvt) Ltd and Mr William Michael Campbell on October 11 2007.

The application was challenging the validity of Section 16B of the Constitution of Zimbabwe Amendment (No. 17) Act 2005 and the compulsory acquisition of agricultural land owned by the company.

The tribunal subsequently allowed 77 other applicants to intervene in the action.

The tribunal further held that the applicants were denied access to the courts in Zimbabwe and by a majority of four to one they agreed that the applicants were discriminated against on the grounds of race.

Justice Malaba noted that the tribunal was made aware of the fact that on March 22 2007, Campbell (Pvt) Ltd and Mr William Michael Campbell made an application to the Supreme Court of Zimbabwe challenging the validity of Section 16B of the Amendment and the compulsory acquisition of the farm owned by the company.

"The applicants had not exhausted all remedies provided under Section 24 (4) of the Constitution of Zimbabwe as the Supreme Court was still to make a determination of the matters raised by the application when the tribunal took the case up.

"In justifying its decision to assume jurisdiction, the tribunal relied on Article 50 of the African Charter on Human and People’s Rights, which after stating that the Commission established under the Charter can only deal with a matter submitted to it after making sure that all local remedies have been exhausted," said Justice Malaba.

He also noted that there was a proviso to the effect that the Commission could entertain the matter if it was obvious to it that the procedure of achieving the remedies would have been unduly prolonged.

Justice Malaba said in this case there was no question of the procedure of achieving domestic remedies being unduly prolonged because the procedure had already been invoked and what was awaited was judgment on the matters in dispute.

"In any case the tribunal was bound to found jurisdiction on terms of Section 15(2) of the Protocol which was not widely worded as Article 50 of the African Charter. By relying on the

proviso to Article 50 of the African Charter to assume jurisdiction it did not have in the action, the tribunal put itself in a position in which it anticipated the outcome of the constitutional application made to the Supreme Court of Zimbabwe," he said.

It is Justice Malaba’s contention that the tribunal was also not entirely correct in holding that the applicants had been denied access to the courts in Zimbabwe.

The finding, Justice Malaba found was based on the interpretation of Section 16B (3) of the Amendment Number 17.

"The tribunal did not appreciate the limited application of Section 16B (3) in that the applicants were not denied access to the courts in Zimbabwe to challenge the validity of Section 16B of the Amendment. The applicants exercised that right of access, which was available to them under Section 24 (1) of the Constitution despite the provisions of Section 16B (3) of the Amendment," he said.

Justice Malaba also noted that the issues that the applicants raised with the tribunal in their action were the same as those they raised with the Supreme Court of Zimbabwe in terms of Section 24 (1).

"The principle of rule of law requires that the exercise of every power of the State must be legally justifiable and the question before the Supreme Court and the Tribunal was whether Parliament had lawfully enacted Section 16B as the Amendment," said the Deputy Chief Justice.

On the question of discrimination of farmers who had farms compulsorily acquired on September 14 2005 when the law came into effect, Justice Malaba noted that the tribunal agreed with findings made by the Supreme Court in its judgement S49/07.

The finding is that the law in question was not in itself discriminatory against the owners of the pieces of agricultural land compulsorily acquired on the grounds of race or colour.

He adds: "That finding was inevitable since the law referred to the acquisition of the agricultural land in respect to which notices of intention by the State to acquire them had been issued in terms of Section 5 (1) of the Land Acquisition Act and were required for resettlement purposes.

"The grounds upon which the pieces of agricultural land in question were compulsorily acquired as opposed to other pieces of agricultural land were clear from the substance of the legislation".

He adds that there was no need for the introduction of the factor of race or colour of the owners of the farms compulsorily acquired unless the intention was to protect the farms from compulsory acquisition on the ground that they were owned by persons of a particular race or colour.

He notes with regret that the Tribunal went on to say Section 16B discriminated against white farmers who owned the pieces of the agricultural land because in effect it affected them only.

Justice Malaba contends that Section 16B did not determine the factors for the selection of the pieces of the agricultural land for compulsory acquisition.

"The factors existed before the law was enacted. In other words the fact that the pieces of agricultural land compulsorily acquired belonged to a particular race was not a factor of a selection process created by the enactment of the law. It is a factor, which existed before the law was enacted by reason of the history of a racially based distribution of wealth, which was legally institutionalised, by the previous government," observed Justice Malaba.

He further observed that there were 27 company applicants before the Tribunal and that the Tribunal held in general that Section 16B discriminated against "all the applicants" because they were of a particular race.

"How could it say that legal entities that owned some of the farms were a particular race without saying that it had been established as a fact that the shareholders of all of them were of that race?" asked Justice Malaba.

It was again his observation that all the pieces of agricultural land referred to were compulsorily acquired on September 14 2005 when Section 16B came into effect.

No challenge to the acquisition was made by any of the applications until after one year six months when the application to the Supreme Court was made, said Justice Malaba.

"If the Tribunal is correct in holding that the applicants are entitled to payment of fair compensation for the land appropriated by the State, then there is no question of the acquisition which took place on 14 September 2005 being unlawful," he concluded his comments.

The opening of the High Court was attended by the Provincial Governor for Matabeleland North, Cde Sithokozile Mathuthu, Senator John Landa Nkomo, Member of Parliament for Nkayi North, Cde Sithembiso Nyoni, the Mayor of Bulawayo, Councillor Thaba Moyo and acting Town Clerk, Mr Gilbert Dube.

Also in attendance were service chiefs from Bulawayo and Matabeleland North, legal practitioners and court officials.

Labels: LAND REFORM, SADC

posted by MrK @ 10:59 AM