(TALKZIMBABWE) High Court dismisses Sadc Tribunal ruling
High Court dismisses Sadc Tribunal rulingTH/TZG
Wed, 27 Jan 2010 17:25:00 +0000
THE High Court of Zimbabwe has defied a Sadc Tribunal ruling seeking to bar the State from acquiring land for resettlement purposes, saying the judgment contravenes Zimbabwe’s Constitution and public policy.
Justice Bharat Patel yesterday said enforcing the tribunal’s ruling would be against Zimbabwe’s domestic laws and agrarian policies, noting that "the greater public good must prevail".
Gramara (Private) Limited — an agricultural company owned by white farmers — and the former president of the Commercial Farmers’ Union, Mr Colin Bailie Cloete, had sought an order for the registration of the tribunal’s decision for enforcement in Zimbabwe.
This followed the appeal made by 79 white commercial farmers to the regional court seeking to block the State’s compulsory acquisition of the farms they held.
In 2008 the tribunal, which is based in Windhoek, Namibia, passed interim and final orders barring acquisitions. They then approached the High Court to enforce these orders.
Justice Patel acknowledged that as a rule, public policy dictated that the tribunal’s decisions, made within the confines of its international jurisdictional competence, be recognised and enforced in Zimbabwe.
However, the judge pointed out that application of this general rule depended on the facts of individual cases and the legal and practical consequences of recognising and enforcing such a decision.
"In the result, having regard to the foregoing considerations and the overwhelming 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 that judgment would be fundamentally contrary to the public policy of this country.
"If the tribunal’s judgment were to be registered by this court and subsequently voluntarily complied with or enfor-ced by court orders, the Government would be required to contravene and disregard what Parliament has specifically enacted in Section 16B of the Constitution.
"This, in my view, simply cannot be countenanced as a matter of law, let alone as an incident of public policy," Justice Patel said.
Justice Patel said although the tribunal’s ruling was confined to the 79 white commercial farmers, its ramifications had a bearing on all land acquired by the Government since 2000 in terms of Section 16B of the Constitution.
"In effect, enforcement of the decision vis-à-vis the 79 applicants in particular and compliance with it generally would ultimately necessitate the Government having to reverse all the land acquisitions that have taken place since 2000.
"Apart from the political enormity of any such exercises, it would entail the eviction, upheaval and eventual relocation of many, if not most, of the beneficiaries of the land reform programme.
"This programme, despite its administrative and practical shortcomings, is quintessentially a matter of public policy in Zimbabwe, conceived well before the country attained its sovereign independence," he declared.
Justice Patel said the former farmers were absolutely correct in expecting Government to implement the regional court’s decisions.
However, he noted, there were an incomparably greater number of Zimbabweans who shared the legitimate expectations that Government would effectively implement the land reform programme and fulfil their aspirations as citizens.
"Given these countervailing expectations, public policy as informed by basic utilitarian precept would dictate that the greater public good must prevail," he said.
Director of the Civil Division in the Attorney-General’s Office, Fatima Maxwell, had opposed registration of the tribunal’s judgment in Zimbabwe.
She contended that Government’s position was that Zimbabwe and a number of other countries had not ratified the protocol creating the Sadc Tribunal.
Maxwell argued that two-thirds of the regional bloc’s membership should ratify the protocol as required by the Sadc Treaty for the tribunal to have effect.
Since Zimbabwe had not ratified the protocol, Maxwell further argued, it did not fall within the tribunal’s jurisdiction.
She said the tribunal lacked the requisite competence to adjudicate the case.
Advocate Lewis Uriri, who appeared for the former farmers, countered that the State could not invoke its own "domestic deficiencies" to evade international obligations.
He said the fundamental tenet of international law was that every party to the treaty in force was required to perform its obligations in good faith.
However, Justice Patel did not agree with Adv Uriri’s argument that the primacy of treaty obligations at international law should be considered in applying domestic law at domestic level, even where there was clear conflict between the two regimes.
The ruling will be seen as a major victory for the land reform programme. -- TH/TZG
Labels: HIGH COURT (ZIMBABWE), LAND REFORM, SADC
posted by MrK @ 4:29 AM
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