PATEL
J: The
two applicants herein were parties together with 77 others in a
matter that was adjudicated by the Southern African Development
Community Tribunal (the Tribunal) in the case of Mike
Campbell (Pvt) Ltd & Others v The Republic of Zimbabwe Case
No. SADC(T) 2/2007.
The
Tribunal gave its judgment in favour of the applicants on the 28th
of November 2008. They now seek an order for the registration of the
decision of the Tribunal for the purposes of its enforcement in
Zimbabwe.
Before
dealing with the main issues in this matter, it is necessary to
attend to several preliminary issues that have arisen for
determination.
Applications
for Condonation
The
applicants filed and served their Heads of Argument herein on the 6th
of July 2009. Four months later, on the 5th
of November 2009, the respondents filed an application in Case No.
HC5483/09 for the condonation of the late filing of their Heads and
for the admission into evidence of a supplementary affidavit.
The
intervener was even more sluggish and only filed his Heads one day
before the hearing of this matter. His counsel then sought
condonation at the hearing itself.
In
view of the importance of this case and in order that all the
relevant issues be fully ventilated, both applications were granted
by consent. However, given the inordinate delay in filing their
application, the respondents were ordered to pay the applicants'
costs in respect of Case No. HC5483/09.
Application
for Joinder
The
intervener in this matter avers that he is the holder of an offer
letter to hold, use and occupy the property held by the applicants
and that the effect of the relief sought by the applicants would be
to nullify his offer letter. He accordingly submits that he has a
direct personal and legal interest in the outcome of this case and
should therefore be joined in opposition as the 3rd respondent.
The
applicants oppose the intervener's application for joinder on the
grounds that he does not have any direct or substantial interest in
the subject-matter of these proceedings and that, in any event, he
has not furnished any written proof of his acceptance of the State's
offer. Moreover, registration of the Tribunal's judgment per
se
will not have the effect of dispossessing him of his right to occupy
the property. That would only occur at a later stage, if and when
separate proceedings are instituted for the enforcement of the
judgment by way of eviction proceedings against him.
In
terms of section 16B(2) of the Constitution, ownership of the
property in question vests in the State. Any right of occupation
conferred by the offer letter is in the nature of a personal right,
deriving from the State's ownership of the property. Therefore,
even if the intervener were to establish his acceptance of the
State's offer, which on the papers he has failed to do, his right
to occupy the land is purely derivative.
On
the other hand, the papers indicate that there are two other matters
currently pending before this Court, in Case Nos. HC7256/07 and
HC3995/08, which involve a dispute between the applicants and the
intervener concerning their respective rights to occupy and use the
farm in question.
The
effect of granting the relief sough in
casu
would be to pre-empt and render academic the outcome of those two
cases.
More
significantly, it seems somewhat artificial and casuistic to argue
that registration of the Tribunal's judgment is entirely separate
and distinct from the consequential enforcement of that judgment.
While
proceedings for the enforcement of the judgment may entail a
different process, registration of the judgment will substantially
operate to negate the intervener's rights in terms of the offer
letter and he will be left with no defence whatsoever to any action
taken by the applicants in enforcing the judgment.
If
he is not afforded the opportunity to be heard at this stage, he
would clearly be prejudiced in the assertion and protection of the
personal contractual right of occupation that he claims to the
property in
casu.
See Rose
v Arnold & Others
1995 (2) ZLR 17 (H); Nyamweda
v Georgias
1988 (2) ZLR 422 (S).
In
the event, I am satisfied that the intervener has established a
sufficiently direct and substantial interest in the outcome of these
proceedings. His application to be joined as a party to this case is
accordingly granted, but with no order as to costs.
Enforcement
of Tribunal's Judgments
The
jurisdiction and powers of the Tribunal are spelt out in the Treaty
of the Southern African Development Community (the SADC Treaty) and
in the Protocol of the Tribunal. (The jurisdictional competence of
the Tribunal, which competence is challenged by the respondents, is a
matter that I shall revert to at a later stage).
As
regards the enforcement of the Tribunal's decisions, this is
governed by Article 32 of the Protocol as follows:
“1.
The law and rules of civil procedure for the registration and
enforcement of foreign judgments in force in the territory of the
State in which the judgment is to be enforced shall govern
enforcement.
2.
States and institutions of the Community shall take forthwith all
measures necessary to ensure execution of the decisions of the
Tribunal.
3.
Decisions of the Tribunal shall be binding upon the parties to the
dispute in respect of that particular case and enforceable within the
territories of the States concerned.
4.
Any failure by a State to comply with a decision of the Tribunal may
be referred to the Tribunal by any party concerned.
5.
If the Tribunal establishes the existence of such a failure, it shall
report its finding to the Summit for the latter to take appropriate
action.”
The
overall effect of these provisions is that the decisions of the
Tribunal are binding and enforceable within the territories of Member
States which are under an obligation to take the measures necessary
for the execution of those decisions.
However,
such enforcement is governed by the rules of civil procedure for the
registration and enforcement of foreign judgments which are in force
in the territory of the State in which the particular judgment is to
be enforced. In other words, it is the domestic rules of procedure of
each Member State, as opposed to any uniform adjectival law of the
Tribunal, which must govern the enforcement of a given judgment in
the territory of that State.
Where
any Member State fails to comply with a specific decision of the
Tribunal that it is bound by, such non-compliance is referable in the
first instance to the Tribunal, which must then refer the matter to
the Summit for the latter to take appropriate action.
However,
Article 32 does not explicate what remedial action may be taken, or
by which authority or institution, in the event of a Member State's
failure to comply with its broad obligation to take the measures
necessary for the execution of the decisions of the Tribunal
generally.
It
is common cause that Zimbabwe has not taken any specific internal
measures to domesticate the SADC Treaty or the Protocol of the
Tribunal. More specifically, no legislative or administrative steps
have been taken to implement Zimbabwe's obligations under Article
32 or to transform those obligations into effectual provisions of the
municipal law.
Nevertheless,
as is correctly contended for the applicants, a State cannot invoke
its own domestic deficiencies in order to avoid or evade its
international obligations or as a defence to its failure to comply
with those obligations.
The
fundamental tenet of international law is that pacta
sunt servanda,
viz. every party to a treaty in force is required to perform its
obligations thereunder in good faith and, as a corollary to that
obligation, such party may not invoke the provisions of its internal
law, including its Constitution, as justification for its failure to
perform the treaty. See Articles 26 and 27 of the Vienna Convention
on the Law of Treaties (1969); see also Shaw: International
Law
(4th
ed. 1997) at 104.
However,
it does not follow, as is further contended on behalf of the
applicants, that the primacy of treaty obligations at international
law must necessarily and invariably be taken into account in applying
domestic law at the municipal level, even where there is a clear
conflict between the two regimes.
As
I have recently had occasion to opine in Route
Toute BV & Others v Minister of National Security Responsible for
Land, Land Reform and Resettlement & Others
HH128-2009, at pp. 17-18:
“On
the pragmatic approach that has come to be adopted in international
practice, neither legal system enjoys primacy over the other. In
principle, they both hold sway and supremacy in their respective
domains. See Brownlie: Principles
of Public International Law
(4th
ed.) at pp. 34-35. The resultant divergence between the two systems
is reconciled on the basis that the State incurs international
responsibility for having violated its international obligations and
must accordingly effect the requisite reparations in order to satisfy
its international responsibility. See Brownlie, op.
cit.,
at pp. 35-37.”
Registration
of Foreign Judgments in Zimbabwe
Insofar
as concerns the registration of foreign civil judgments, the relevant
statutory provisions presently in force in Zimbabwe are contained in
the
Civil Matters (Mutual Assistance) Act [Chapter
8:02].
Section
3 of this Act extends the application of the Act to the judgments of
any international tribunal designated for that purpose.
The
word “judgment” is defined in section 2 of the Act to mean “a
judgment or order given or made by any court or tribunal requiring
the payment of money, and includes an award of compensation or
damages to an aggrieved party in criminal proceedings”.
The
judgment that the applicants seek to register herein is essentially
declaratory and injunctive in nature and is not one sounding in
money. Moreover, it is common cause that the decisions of the SADC
Tribunal are not registrable or enforceable in terms of Chapter 8:02
for the simple reason that the Tribunal has not been specifically
designated under the Act.
In
any event, the Act is clearly not exhaustive in the coverage of its
provisions.
Section
25 expressly acknowledges that the Act does not derogate from
other laws and provides that:
“This
Act shall be regarded as additional to, and not as limiting the
provisions of any other law relating to the recognition and
enforcement of foreign judgments, the service of process or the
taking of evidence, whether on commission or otherwise.”
It
follows that Chapter 8:02 does not purport to override or exclude the
operation of any other law, including the common law, pertaining to
the recognition and enforcement of foreign judgments.
In
effect, section 25 accords with the general rule of statutory
interpretation that the common law cannot be ousted except by clear
language or in express terms.
Both
in England and in South Africa, it is well established that foreign
judgments are cognisable and enforceable under the common law. See
North and Fawcett: Cheshire
and North's Private International Law
(13th
ed. 2004) at 407; Forsyth: Private
International Law
(4th
ed. 2003) at 389.
In
South Africa, the procedure for and scope of recognition proceedings
are lucidly expounded in Joubert (ed.): The
Law of South Africa
(First Reissue, 1993) Vol. 2 at para. 476, as follows:
“……..
the present position is that a foreign judgment is not directly
enforceable in South Africa; but if it is pronounced by a proper
court of law and certain requirements are met any determination
therein (for example of a party's rights or status) will be
recognised and the judgment will in fact found a defence of res
judicata
if it would have founded such a defence had it been a South African
judgment. In addition, an authenticated foreign judgment constitutes
a cause of action and as such is enforceable by ordinary action in a
South African court, including, where appropriate, an action for
provisional sentence or for a declaratory order or for default
judgment.
A
South African court will not pronounce upon the merits of any issues
of fact or of law tried by the foreign court and will not review or
set aside its findings though it will adjudicate upon a
'jurisdictional fact' establishing international competency”.
The
general requirements for recognition and enforcement of foreign
judgments are set out in Joubert (op.
cit.),
at para. 477. These requirements were adopted and applied by the
Appellate Division in Jones
v Krok
1995 (1) SA 677 (A) at 685B-E and in Purser
v Sales
2001 (3) SA 445 (SCA) at 450D-G.
In
Jones's
case, CORBETT CJ summarised these requirements as follows:
“As
is explained in Joubert…….., the present position in South Africa
is that a foreign judgment is not directly enforceable, but
constitutes a cause of action and will be enforced by our Courts
provided:
(i)
that the court which pronounced the judgment had jurisdiction to
entertain the case according to the principles recognised by our law
with reference to the jurisdiction of foreign courts (sometimes
referred to as 'international jurisdiction or competence');
(ii)
that the judgment is final and conclusive in its effect and has not
become superannuated;
(iii)
that the recognition and enforcement of the judgment by our Courts
would not be contrary to public policy;
(iv)
that the judgment was not obtained by fraudulent means;
(v)
that the judgment does not involve the enforcement of a penal or
revenue law of the foreign State; and
(vi)
that enforcement of the judgment is not precluded by the provisions
of the Protection of Businesses Act 99 of 1978, as amended.”
In
the present matter, counsel have not referred me to any Zimbabwean
case authority on the subject, either following or deviating from the
South African position, and I have been unable to readily locate any.
I
accordingly take the view, pursuant to the provisions of section 89
of the Constitution governing the law to be administered by our
courts, that our common law position is ad
idem
with the common law of South Africa as stated in the authorities
cited above and that it has not been overtaken or significantly
modified by local statute.
One
further aspect that was not raised by counsel but which I need to
canvass relates to the scope of recognition proceedings vis-a-vis the
nature of the remedies that may properly be recognised and enforced
through a foreign judgment.
The
provisions of Chapter 8:02 and the two cases cited above deal
primarily with judgments sounding in money. They do not address
judgments and rulings with broader proprietary implications and
administrative consequences as is the case with the SADC Tribunal
decision in
casu.
Nevertheless, having regard to the general rules articulated in
Joubert (op.
cit.)
at para. 476, coupled with considerations of international comity in
a globalised world, and provided that the judgment in question has
been duly delivered by a court of recognised international competence
and jurisdiction, it seems to me that it would be contrary to
principle to restrict the scope of recognition proceedings by
reference to the specific remedies enjoined by a given foreign
judgment.
Issues
for Determination
Notwithstanding
the plethora of affidavit evidence and written legal argument filed
of record, counsel for all of the parties herein concur that there
are essentially two issues for determination in
casu.
(i)
The first is whether the SADC Tribunal was endowed with the requisite
jurisdictional competence in the case before it.
(ii)
The second is whether the recognition and enforcement of the
Tribunal's decision in that case would be contrary to public policy
in Zimbabwe.
Jurisdictional
Competence
It
is trite that any jurisdictional fact which negates the existence of
any obligation imposed by a foreign judgment constitutes an effective
bar to the actionability of that judgment. One such obvious
negativing fact would be that the party impeaching the judgment owes
no duty to obey the command of the court or tribunal purporting to
impose the obligation.
The
respondents' position on the status of the Tribunal is as follows.
The
Agreement amending the SADC Treaty (the Amendment Agreement), which
was signed on the 14th
of August 2001, never entered into force because it was not ratified
by Zimbabwe or by the prescribed number of SADC Member States.
Therefore, in terms of Article 22 of the Treaty as unamended, the
Protocol of the Tribunal still requires the ratification of a Member
State in order for that State to be bound by it. Since Zimbabwe has
not ratified the Protocol, it is not bound by it and is not subject
to the jurisdiction of the Tribunal. Consequently, the Tribunal
lacked the requisite competence to adjudicate the Campbell
case and, therefore, its judgment in that case cannot be registered
and enforced in Zimbabwe or anywhere else.
The
Vienna Convention on the Law of Treaties (1969) is generally
recognised as an authoritative restatement of established or emergent
rules of international customary law on the subject of treaties. See
Brownlie, op.cit.,
at 604.
Article
39 of the Convention states the general rule regarding the amendment
of treaties, as follows:
“A
treaty may be amended by agreement between the parties. The rules
laid down in Part II apply to such an agreement except in so far as
the treaty may otherwise provide.”
Part
II of the Convention regulates the conclusion and entry into force of
treaties and, by dint of Article 39, it also governs the conclusion
and entry into force of treaty amendments. Article 11 prescribes the
means of expressing consent to be bound by a treaty and provides
that:
“The
consent of a State to be bound by a treaty may be expressed by
signature, exchange of instruments constituting a treaty,
ratification, acceptance, approval or accession, or by any other
means if so agreed.”
Article
24 of the Convention governs the entry into force of treaties and, in
its relevant portions, stipulates that:
“1.
A treaty enters into force in such manner and upon such date as it
may provide or as the negotiating States may agree.
2.
Failing any such provision or agreement, a treaty enters into force
as soon as consent to be bound by the treaty has been established for
all the negotiating States.”
Taken
together, these provisions of the Convention illustrate the
flexibility inherent in the conclusion and entry into force of
treaties as well as amendments thereto.
In
particular, Article 11 makes it clear that the consent of States to
be bound by a treaty
may be expressed by signature, exchange of instruments, ratification
or accession, or
by any other means if so agreed.
Thus,
the States concerned are at liberty to agree on the conclusion of a
treaty by means other than the traditionally accepted procedure of
signature followed by ratification or accession.
It
is therefore perfectly possible for a treaty or an amendment of the
treaty to be adopted
and enter into force for all the adopting States instantly, without
further ratification or any other formality, if that is the means of
adhesion agreed to by those States. See Aust: Modern
Treaty Law and Practice
(2000) at 90.
Turning
to the SADC Treaty itself, Articles 39, 40 and 42 of the Treaty deal
respectively with signature and ratification of and accession to the
Treaty. Article 41 governs the entry into force of the Treaty as
follows:
“This
Treaty shall enter into force thirty (30) days after the deposit of
the instruments of ratification by two-thirds of the States listed in
the Preamble.”
Article
39 makes it abundantly clear that ratification by two-thirds of the
signatory States was a pre-requisite for the entry into force of the
Treaty itself. However, amendments to the Treaty are governed by an
entirely different procedure prescribed in Article 36.1, as follows:
“An
amendment of this Treaty shall be adopted by a decision of
three-quarters of all the Members of the Summit.”
The
term “Summit” is defined in Article 1 of the Treaty as:
“……..
the Summit of the Heads of State or Government of SADC established by
Article 9 of this Treaty”.
Article
10 of the Treaty (in its unamended form) is instructive as to the
composition of the Summit and its decision-making process. It
provides as follows in its relevant portions:
“1.
The Summit shall consist of the Heads of State or Government of all
Member States, and shall be the supreme policy-making institution of
SADC.
3.
The Summit shall adopt legal instruments for the implementation of
the provisions of this Treaty ……………… .
8.
Unless otherwise provided in this Treaty, the decisions of the Summit
shall be by consensus and shall be binding.”
The
combined effect of these provisions is that an amendment to the
Treaty is not concluded by way of ratification by Member States but
is adopted by a decision of not less than three-quarters of the
Summit, comprising the Heads of State or Government of all Member
States. Furthermore, the decision of the Summit to adopt the
amendment is binding on all Member States. The amendment becomes
operative immediately thereafter and there is no need for any further
ratification by Member States in order to bring the amendment into
force and effect.
Turning
to the Amendment Agreement itself, the Preamble thereto, in its
relevant portions, declares that:
“We,
the Heads of State or Government of [all the Member States]…………
HAVE AGREED, pursuant to Article 36 of the Treaty, to amend the
Treaty as follows:………….”
Article
32 of the Agreement provides for its entry into force, in conformity
with Article 36.1 of the Treaty, as follows:
“This
Agreement shall enter into force on the date of its adoption by
three-quarters of all Members of the Summit.”
Article
22 of the SADC Treaty, both in its original and amended form,
requires the signature and ratification of any Protocol approved by
the SADC Summit.
Article
9.1(f) as read with Article 16 provides for the establishment of the
SADC Tribunal. Article 16.2 as amended provides that:
“The
composition, powers, functions, procedures and other related matters
governing the Tribunal shall be prescribed in a Protocol which
shall, notwithstanding the provisions of Article 22 of this Treaty,
form an integral part of this Treaty,
adopted by the Summit.” [amendment underlined]
The
meaning and effect of the amending words are clear, to wit, the
Protocol of the Tribunal forms an integral part of the Treaty without
the need for its ratification by the Member States.
To
clarify this position and dispel any doubt on the matter, all the
Member States, including Zimbabwe, concluded and signed the Agreement
Amending the Protocol on Tribunal on the 3rd
of October 2002.
By
virtue of Articles 16 and 19 of this Agreement, Articles 35 and 38 of
the Protocol of the Tribunal, which required ratification of the
Protocol by two-thirds of the Member States, were repealed in
toto,
thereby obviating the need to ratify the Protocol.
To
conclude this aspect of the case, my assessment of and determination
on the jurisdictional capacity of the Tribunal is as follows.
On
the 14th
of August 2001, the Amendment Agreement was signed by 13 out of the
14 Heads of State or Government of the Member States, including
Zimbabwe, thereby concluding the process of its adoption and entry
into force.
In
my view, there can be no doubt whatsoever that the Agreement was duly
adopted in terms of Article 36.1 of the Treaty and that it became
binding upon all the Member States on the date of its adoption.
It
follows that as from that date, by virtue of Article 16.2 of the
Treaty as amended, the Protocol of the Tribunal constituted an
integral part of the Treaty and became binding on all Member States
without the need for its further ratification by them. It also
follows that the Republic of Zimbabwe thereupon became subject to the
jurisdiction of the Tribunal and that the jurisdictional competence
of the Tribunal in the Campbell
case, which was heard and determined in 2008, cannot now be disputed.
The
respondents' position in this regard, premised on the ex
post facto
official pronouncements repudiating the Tribunal's jurisdiction, is
essentially erroneous and misconceived.
Their
position is rendered even more untenable by the conduct of SADC
governments, including the Government of Zimbabwe, subsequent to the
adoption of the Amendment Agreement, which conduct has been entirely
consistent with the provisions of the Treaty as amended by the
Agreement. I refer, in particular, to the establishment of the Troika
system and the Organ on Politics, Defence and Security Cooperation,
in terms of Articles 9 and 9A of the Treaty (as amended by Articles 9
and 10 of the Agreement), and note that Zimbabwe has fully
participated, together with all the other Member States, in the
Troika system and the business of the newly constituted Organ.
It
seems to me legally unsustainable to espouse a major facet of the
amended SADC regime and to simultaneously eschew those features of
the same regime that are deemed to be politically inexpedient and
unpalatable.
Before
concluding, I think it necessary to mention one jurisdictional issue
that was not canvassed by the parties, either in their affidavits or
in argument, relative to the scope of the Tribunal's jurisdiction
in terms of the SADC Treaty and its governing Protocol.
In
the case before it, the Tribunal relied upon the provisions contained
in Articles 4(c) and 16 of the Treaty as read with Articles 14 and 15
of the Protocol to conclude that it was duly empowered to adjudicate
any dispute concerning human rights, democracy and the rule of law.
The
jurisdiction of the Tribunal encompasses all disputes between States
and between natural and legal persons and States relating to the
interpretation and application of the Treaty.
Despite
this broad formulation, I am not entirely persuaded that the general
stricture enunciated in Article 4(c) of the Treaty, which requires
SADC and the Member States to act in accordance with the principles,
inter
alia,
of “human rights, democracy and the rule of law”, suffices to
invest the Tribunal with the requisite capacity to entertain and
adjudicate alleged violations of human rights which might be
committed by Member States against their own nationals.
Be
that as it may, this is not an issue that was specifically raised in
these proceedings and it would therefore be inappropriate for me to
deal with this jurisdictional point mero
motu
at this juncture.
Public
Policy
As
already stated above, a foreign judgment cannot be recognised and
enforced if it is contrary to public policy.
As
is succinctly put in Joubert (op.
cit.)
at para. 425:
“……..
a foreign judgment will not be recognised or enforced if it is in
conflict with an overriding statute, if its terms conflict with
public policy or if it was obtained without observance of the
principles of natural justice.”
What
constitutes public policy in any given country is a matter that
eludes precise definition.
The
notion is clearly not immutable and must perforce vary with time,
place and circumstance, in tandem with changing social mores.
Antecedent case authorities are obviously highly persuasive but may
not always be germane or decisive.
In
the instant case, public policy must be considered not only in the
closed confines of the domestic sphere but also in the larger
regional and international context.
In
principle, it would generally be contrary to public policy for any
State to violate its international obligations within the domestic
realm.
As
already stated above,
every State party to a treaty in force is required to perform its
obligations in good faith and, concomitantly; it
cannot invoke its municipal law so as to absolve itself from its
obligations at international law. Apart from being embodied and
codified in Articles
26 and 27 of the Vienna Convention on the Law of Treaties (1969),
these rules also form part of international customary law. See Shaw
(op.
cit.)
at 104.
As
was stated in the Route
Toute BV
case (supra)
at pp. 10-11, the
position in most Commonwealth jurisdictions is that customary
international law is generally regarded as having been internally
incorporated insofar as it is not inconsistent with statute law and
judicial precedent.
This
position was affirmed by the Supreme Court, albeit obiter,
in Barker
McCormac (Pvt) Ltd v Government of Kenya 1983
(2) ZLR 72 (SC) at 77, where it was observed that customary
international law forms part of the law of Zimbabwe except to the
extent that it is in conflict with statute or prior judicial
precedent.
Inasmuch
as Zimbabwe is bound by the decisions of the SADC Tribunal at
international law, by dint of its treaty obligations as well as
international custom, it would be inconsistent with the public policy
of Zimbabwe not to recognise and enforce any decision of the Tribunal
at the municipal level, except insofar as that decision conflicts
with statute or prior judicial precedent.
There
is a further international dimension to the public policy of
Zimbabwe. By adhering to the SADC Treaty as well as the Amendment
Agreement and, therefore, by submitting to the jurisdiction of the
Tribunal, the Government of Zimbabwe has created an enforceable
legitimate expectation, both within and beyond the borders of
Zimbabwe, that it would comply with the requirements of the Treaty
and abide by the decisions of the Tribunal. Moreover, in terms of
Article 32 of the Protocol of the Tribunal, the Government has bound
itself to enforce the decisions of the Tribunal in accordance with
domestic procedural law, and has thereby created a further legitimate
expectation that it would act accordingly.
These
points are illustrated by the decision in Minister
for Immigration and Ethnic Affairs v Teoh
(1995) 183 CLR 273 [(1995) 128 ALR 353] where Australia had ratified
the United Nations Convention on the Rights of the Child but had not
taken any steps to implement the Convention by statute. It was held
by the High Court of Australia that despite the failure to
incorporate the Convention in the domestic law of Australia,
individuals had a legitimate expectation that the government would
act in accordance with the Convention.
In
the instant case, the legitimate expectation that the Government
would adhere to the decisions of the Tribunal and take steps to
enforce those decisions in the domestic sphere must be regarded as an
intrinsic aspect of public policy in Zimbabwe.
On
that basis, the recognition and enforcement of the Tribunal's
decisions would not be contrary to the public policy of Zimbabwe.
The
above propositions must be taken to apply in principle to the
decisions of the Tribunal generally. In other words, as a rule,
public policy dictates that the Tribunal's decisions, made within
the bounds of its international jurisdictional competence, be
recognised and enforced in Zimbabwe. However, in my view, the
application of this general rule is subject to a consideration of the
facts of each individual case and the legal and practical
consequences of recognising and enforcing the Tribunal's decision
in that particular case in Zimbabwe.
Turning
specifically to the decision in the Campbell
case, the findings and ruling of the Tribunal, insofar as they are
relevant in
casu,
may be summarised as follows:
(i)
fair compensation is payable to the applicants, and must be paid by a
fixed date to 3 of the applicants who have already been evicted, for
their lands compulsorily acquired by the Government of Zimbabwe;
(ii)
the Government is in breach of its obligations under Articles 4(c)
and 6(2) of the SADC Treaty (pertaining to human rights, democracy
and the rule of law and the principle of non-discrimination);
(iii)
Amendment 17 (see below) is
in breach of Articles 4(c) and 6(2) of the Treaty;
(iv)
the Government is directed to take all necessary measures to protect
the possession, occupation and ownership of the lands of the
applicants and to ensure that no action is taken, pursuant to
Amendment 17, to evict the applicants from their lands or to
interfere with their peaceful residence thereon.
It
is common cause that the Government of Zimbabwe embarked on a
programme of land reform in the year 2000. The programme was
constitutionally recognised in section 16A of the Constitution, which
section was introduced by the
Constitution of Zimbabwe Amendment (No.16) Act 2000.
Subsequently,
the
programme was further entrenched when the Legislature enacted section
16B through the
Constitution of Zimbabwe Amendment (No. 17) Act 2005. The
legal effect of section 16B(2)(a) was to compulsorily acquire all
agricultural land that was identified in the notices of acquisition
itemised in the newly inserted Schedule 7. Consequently, full title
in such land vested in the State with effect from the 14th
of September 2005. Moreover, by virtue of section 16B(2)(b), no
compensation is payable for this land except for any improvements
effected thereon before it was acquired.
In
terms of section 16B(6), it was envisaged that an Act of Parliament
would be framed to make it a criminal offence for any person, without
lawful authority, to possess or occupy any land referred to in
section 16B. Subsequently, such legislation was duly enacted in the
Gazetted Land (Consequential Provisions) Act [Chapter
20:28]
which came into operation on the 20th
of December 2006.
The
legality of the land reform programme was considered in Mike
Campbell (Pvt) Ltd & Another v Minister of National Security
Responsible for Land, Land Reform and Resettlement & Another
SC49/07.
In
essence, the Supreme Court confirmed the constitutionality of the
programme as implemented under section 16B of the Constitution.
Counsel
for the respondents submits that the judgment of the SADC Tribunal is
in total disharmony with the decision of the Supreme Court in Case
No. SC49/07.
Although
I do not perceive any direct conflict between the two decisions
inasmuch as the Supreme Court was seized with the constitutionality
of the programme under domestic law while the Tribunal's judgment
centres on the violation of rights and obligations under the SADC
Treaty, it must nevertheless be accepted that the indirect
consequence of the Tribunal's judgment is to impugn the legality of
the programme sanctioned by the Supreme Court.
The
potential conflict between the two decisions is actualized in the
instant case because the effect of registering the Tribunal's
judgment in Zimbabwe would be to challenge the decision of the
Supreme Court within its jurisdictional domain and thereby undermine
the authority of that Court in Zimbabwe.
Any
such result could surely not be contemplated as conforming with
public policy in Zimbabwe and must militate against the registration
of the Tribunal's decision by this Court.
In
any event, there is a further and more direct basis for declining the
registration and consequent enforcement of the Tribunal's decision
in this country.
As
indicated above, the decision directs the Government of Zimbabwe to
do several things. In particular, the Government is ordered to
protect
the possession, occupation and ownership of the lands of the
applicants. It must also ensure that no action is taken to evict the
applicants from their lands or to interfere with their peaceful
residence thereon. In addition, it is required to pay fair
compensation to the applicants for their lands compulsorily acquired
by the Government.
As
already indicated, the applicants' lands were acquired by the
Government in terms of section 16B of the Constitution without any
compensation payable in respect of the land itself.
If
the Tribunal's judgment were to be registered by this Court and
subsequently voluntarily complied with or enforced 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.
Section
3 of the Constitution proclaims what is axiomatic, viz. that:
“This
Constitution is the supreme law of Zimbabwe and if any other law is
inconsistent with this Constitution that other law shall, to the
extent of the inconsistency, be void.”
The
obvious implications of the supremacy of the Constitution are
twofold.
(i)
Firstly, to the extent that the common law is invoked to enforce a
foreign judgment, the common law must be construed and applied so as
to conform with the Constitution and any feature of the judgment that
conflicts with the Constitution cannot, as a matter of public policy,
be recognised or enforced in Zimbabwe.
The
notion of public policy cannot be deployed and insinuated under cover
of the common law to circumvent or subvert the fundamental law of the
land. (ii) Secondly, I consider it to be patently contrary to the
public policy of any country, including Zimbabwe, to require its
government to act in a manner that is manifestly incompatible with
what is constitutionally ordained.
Although
the Tribunal's decision, strictly regarded, is confined to the 79
applicants before it, its ramifications extend to the former owners
of all the agricultural land that has been acquired by the Government
since 2000 in terms of section 16B of the Constitution.
In
effect, enforcement of the decision vis-a-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 exercise, 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.
As
for the doctrine of legitimate expectation, the applicants before the
Tribunal and others in their position are absolutely correct in
expecting the Government of Zimbabwe to comply with its obligations
under the SADC Treaty and to implement the decisions of the Tribunal.
However,
I take it that there is an incomparably greater number of Zimbabweans
who share the legitimate expectation that the Government will
effectively implement the land reform programme and fulfil their
aspirations thereunder.
Given
these countervailing expectations, public policy as informed by basic
utilitarian precept would dictate that the greater public good must
prevail.
In
the result, having regard to the foregoing considerations and the
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 that judgment
would be fundamentally contrary to the public policy of this country.
Costs
The
applicants have not succeeded in the eventual outcome of this case.
Nevertheless, it cannot be doubted that the issues raised herein are
matters of paramount public importance and that their proper
ventilation in these proceedings is of public value and benefit.
I
therefore deem it just and equitable that the parties should bear
their own legal costs.
The
application is accordingly dismissed with no order as to costs.
Gollop
& Blank,
applicants' legal practitioners
Civil
Division of the Attorney-General's Office,
respondents' legal practitioners
Mlotshwa
& Co.,
intervener's legal practitioners
