The decisions of the SADC Tribunal are at best persuasive, but certainly not binding. The SADC Tribunal has not been domesticated by any municipal law and therefore enjoys no status in Zimbabwe, writes Dr Felix Muchemwa in his book The Struggle for Land in Zimbabwe (1890-2010) that The Patriot is serialising.
IN January 2011, a final appeal was made to the Zimbabwean Supreme Court by the Commercial Farmers Union, Bateleurs Peak Farm Holdings Pvt Ltd, the Chiredzi Ranching Company Pvt Ltd, Louis Karel Fick, Andrew Paul Rossylyn Stidolph, LipGreen Farming Pvt Ltd, Blue Ranges Pvt Ltd, Chriga Estates Pvt Ltd and Busi Coffee Estate Pvt Ltd against the Ministry of Lands, Ministry of Justice, Commisioner-General of the ZRP, the Attorney-General and the chairman of the Compensation Committee of Zimbabwe.
In his ruling, Justice Chidyausiku defined the case in hand this way:
“The applicants were former owners or occupiers of land that had been acquired by the state in terms of Section 16B of the Constitution.
Former owners or occupiers of land that has been acquired must cease occupation of the acquired land within 90 days.
The 90 days have since expired.
Despite the expiry of the 90 days, the individual applicants have remained in occupation of the acquired land.
Section 3 (2) of the Gazetted Land (Consequential Provisions Act, Chapter 20.28 herein after referred to as the ‘Act’ explicitly provides that a former owner or occupier who does not cease to occupy acquired land on the expiry of the period prescribed shall be guilty of an offence. (The Herald, January 27 2011 p.4-5)
The Applicants alleged that their constitutional rights, as guaranteed in Chapter III of the Constitution, have been violated in a number of aspects……, as detailed in paragraph 16 of their Affidavit. (The Herald, January 27 2011, p4-5).
Under Paragraph 16, they sought the … ‘Protection of the Courts’ … in terms of Section 24 of the Constitution. The individual applicants and the CFU, acting on behalf of its general membership complain that:
They are being improperly treated because of their race in contravention of Section 23 of the Constitution.
They are being denied Protection of the law and equality before the law under Section 18 of the constitution. They are being unfairly tried on charges of contravening Section 3 of the Gazetted Lands. (Consequential Provisions Act)
The racial imbalance sought to be addressed in the Land Reform Programme has been achieved, rendering any further evictions of white farmers unlawful.” (The Herald, January 27 2011, p.4-5)
Chief Justice Chidyausiku ruled that:
“In terms of Section 16B of the Constitution, the individual applicants have been stripped of all the rights to the land they previously owned or occupied.
Section 16B of the Constitution vests all rights of previous owners and occupiers in the state.
Section 16B of the Constitution contains non abstante clause.
Consequently Section 16B prevails over all other sections of the Declaration of Rights provisions of the Constitution. (The Herald, January 27 2011 p.4-5)
Apart from the non abstante clause, Section 16B (3) of the Constitution vests the jurisdiction of the courts to enquire into the legality or otherwise of the acquisition of land in terms of Section B (2). (a). of the Constitution.” (The Herald, January 27 2011, p4-5)
The Chief Justice continued:
“Mr de Bourbon (Advocate for the Applicants) cited the decision of the SADC Tribunal in Mike Campbell Pvt Ltd and ORS vs the Republic of Zimbabwe, SADC (T). Cse 2/2007.
For the avoidance of doubt, I wish to make the following observation regarding the status and the relationship between this court and the SADC Tribunal.
The legal system of Zimbabwe consists of the following courts in their order of ranking.
At the base, the small claims courts … At the apex of the Legal System of Zimbabwean Courts is the Supreme Court of Zimbabwe.
Section 26 of the Supreme Court Act provides the following:
There shall be no appeal from any judgement or order of the Supreme Court…
The decisions of the Supreme Court are final.
No appeal lies from the Supreme Court to any other Court.
The decisions of the SADC Tribunal are at best persuasive, but certainly not binding.
The SADC Tribunal has not been domesticated by any municipal law and therefore enjoys no status in Zimbabwe.” (Th eHerald, 27 January 27 2011 p.4-5)
Then the Chief Justice returned to the real case in hand and said:
“The race of the accused is not an essential element of the offence.
The essential elements of contravening Section 3 of the Act are:
Proof that the land has been acquired in terms of Section 16B of Constitution.
The former owner or occupier has not ceased to use or occupy the acquired land.
The former owner or occupier has no lawful authority to continue to occupy the land.
Once these elements have been established, prosecution is inevitable.
I therefore find that the applicants’ complaint as set out in paragraph 16 (a) of the founding affidavit has no substance.” (The Herald January 27 2011, p.4-5)
The Chief Justice continued:
“It is therefore not open to the applicant to argue that such an acquisition of land in terms of Section 16B is invalid by reason of a violation of a right guaranteed in the Declaration of Rights in the Constitution…
The issue of whether land should be acquired … and … should be allocated are matters for the executive.
They are policy issues that are not justiceable.
What is justiceable is whether the acquisition itself and the allocation of the land have been done in accordance with the law.” (Th e Herald, 27 January 2011 p.4-5)