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Ruling on land case - Mike Campbell and others
Southern African Development Community (SADC) Tribunal
July 18, 2008

Case No: SADCT:11/08

In the matter between:

Mike Campbell (Pvt) Limited Applicants and Others

and

The Republic Of Zimbabwe Respondent

Coram:

Hon. Justice Dr Mondlane - President
Hon. Justice Pillay - Member
Hon. Justice Mtambo, Sc - Member
Hon. Justice Dr. Kambovo - Member
Hon. Justice Dr Tshosa - Member

Applicants' agents - J.J. Gauntlett, Sc, Adrian Phillip De Bourbon, Sc and E.M. Angula

Respondent's agents - F.C. Maxwell and M.T. Dinha

Hon. Justice M.C.C. Mkandawire - Registrar
Mr Dennis Shivangulula - Court Clerk

Ruling

This is an urgent application filed by the applicants on 30th June 2008, seeking in substance, a declaration to the effect that the respondent is in breach and contempt of the orders of the Tribunal of the 13th December, 2007 and 28th March, 2008 (CASE NO SADC (T) 2/07 In the Matter between Mike Campbell (Pvt) Ltd and The Republic of Zimbabwe CASE NO SADC (T) 02/08, In the Matters between Gideon Stephanus Theron versus The Republic of Zimbabwe and two others, CASE NO SADC (T) 03/08, Douglas Stuart Taylor-Freeme and three Others versus The Republic of Zimbabwe and two Others, CASE NO SADC (T) 04/08, Andrew Paul Rosslyn Stidolph and fifty eight Others versus The Republic of Zimbabwe and two Others, CASE NO SADC (T) 06/08, Anglesea Farm (Pvt) Ltd and twelve Others versus The Republic of Zimbabwe and Another respectively) and of the respondent's representative's formal undertaking to the Tribunal, on 28th May, 2008, of compliance with the orders.

The two orders specified that the respondent should take no steps, or permit no steps to be taken, directly or indirectly, whether by its agents or by orders, to evict from, or interfere with the peaceful residence on, and beneficial use of, their properties in respect of the applicants, their employees and the families of such employees.

At the outset of the hearing of the application, learned Counsel for the respondent made a request for a postponement of the hearing for one hour in order to consult with his principals. The Tribunal granted him an adjournment of thirty minutes. When the hearing resumed, learned Counsel for the respondent made a formal motion for a postponement in order to adduce evidence in rebuttal. The Tribunal did not accede to the motion, since on 14th July 2008 a counter-affidavit had already been filed on behalf of the respondent and that Counsel had sufficient notice of the hearing to adduce counter evidence.

We have considered the counter-affidavit of the respondent, which is substantially to the effect that there is a state of lawlessness prevailing in the country and that the authorities have difficulty in addressing the problem of intimidation and violence committed by certain people.

We hold, however, that the applicants have adduced abundant material to show that the existence of the failure on the part of the respondent and its agents to comply with the decisions of the Tribunal has been established. In this connection, we need only to reproduce the letter of 11th June, 2008 sent to the legal firm Coghlan, Welsh and Guest, the advisers of the applicants, where it is amply demonstrated that the respondent's aim is to prosecute the applicants for remaining on their lands, and subsequently evicting them therefrom upon conviction, and which reads as follows:

Attention: Mr. A.N.B. Masterson

Re: SADC TRIBUNAL INTERIM ORDER: RELIEF FOR INTERVENERS

Previous correspondence refers.

The provisional order of the SADC Tribunal cannot and has not suspended the Attorney General's Constitutional responsibility to prosecute violators of any of Zimbabwe's existing criminal laws such a section 3 of the Gazetted Lands (Consequential Provisions) Act.

As I stated in my previous minute to yourselves the Attorney-General's Office is proceeding with the prosecutions.

Yours sincerely,
J Tomana DEPUTY ATTORNEY-GENERAL-CRIME
CC: Acting Attorney-General - Justice Patel

Consequently, pursuant to Article 32 (5) of the Protocol on Tribunal, the Tribunal will report its finding to the Summit for the latter to take appropriate action.

We make no order as to costs.

Made this 18th Day of July, 2008 at Windhoek in the Republic of Namibia.

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