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Case
in the SADC Tribunal: Luke Munyadu Tembani vs. Government of Zimbabwe
SADC
Tribunal
June 03, 2009
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The
Legal Assistance Centre in Windhoek, Namibia will tomorrow (Thursday
4 June) argue the case of Luke Munyadu Tembani against the Zimbabwe
Government in the SADC Tribunal.
Luke Munyadu
Tembani was one of the first indigenous commercial farmers in independent
Zimbabwe. Mr Tembani, now 71 years of age, and his entire family
stand to be evicted from the land on which they have been residing,
and he farming, for the last 27 years.
The reason for
the imminent eviction is the realisation of a debt by an organ of
the Government of Zimbabwe without recourse to the courts. The value
of the debt is less than half of the value of the farm from which
they stand to be evicted.
To protect his
family and himself from the devastating effect of such eviction,
Mr Tembani relies in this application on protection granted in terms
of international law. These legal standards are rendered justiciable
by this Tribunal in terms of article 4(c) and article 6(1) of the
SADC Treaty and Protocol.
The application
involves the validity of section 38 of the Agriculture Finance Corporation
Act [Cap 18:02] of Zimbabwe ("the AFA"). The AFA sanctions
extra-curial unauthorised and unsupervised sales in execution of
agricultural land. It furthermore excludes subsequent judicial remedies.
It represents self-help of a kind struck down under a number of
constitutional dispensations, including at least one in SADC, and
inimical to international law.
The specific
human rights protected under the SADC Treaty and relied upon in
this application are the right to protection of law; the right against
arbitrary deprivation of property; the rights not arbitrarily to
be evicted or subjected to interferences with family life; and rights
incidental thereto.
The
background is as follows:
- In 1983,
after many years of experience as a commercial farm manager, Mr
Tembani acquired a lease with an option to buy in respect of a
commercial farm of 1265 hectares in Zimbabwe, called the Remainder
of Minverwag (which, it may be noted, is Afrikaans for 'little
expected') of Clare Estate Ranch, in Nyazura District ("the
property"). He then exercised an option to buy the property
and became the registered owner in 1985. Thus what could hardly
be expected before Zimbabwe's independence three years before
was realised: a black person was a freehold farmer of a commercial
farm.
- Ever since
he has been farming and residing with his family on the property.
They are all to this day solely dependent upon it for their home
and livelihood.
- Mr Tembani,
appropriately as a successful large-scale commercial farmer, has
over the years invested considerable time and resources on developing
the farm's irrigation, improving his employees' housing and founding
a first primary school for 320 children living on the farm and
in the surrounding area, a church hall, and numerous farming facilities.
- To finance
these and other farming ventures, he took loans from the parastatal
bank, now named the Agricultural Bank of Zimbabwe ("ABZ").
In terms of the loan agreements, Mr Tembani's farm has been pledged
as security for his debts.
- Since 1997,
when the Zimbabwean economy started experiencing a steep inflation
curve, interest rates rose rapidly. To ensure his ability to honour
his debts despite the economic difficulties, Mr Tembani successfully
requested authorization from ABZ to subdivide the farm. This was
to enable him to sell an uninhabited smaller portion of the farm
if necessary. Approval for subdivision was also obtained from
the relevant planning authorities.
- Due to exorbitant
interests rates coupled with the in duplum rule and other circumstances,
it was particularly difficult for Mr Tembani to ascertain the
balance of his loan account with ABZ. Apparently even the bank's
own officials were at a loss to gauge the balance, because despite
repeated requests, they could not satisfactorily verify the amount.
Estimations ranged from Z$4 million to Z$15 million, and later
from Z$5 million to Z$11 million.
- Mr Tembani
disputed the evaluations, but never received a detailed account
from ABZ. Despite the uncertainty over the balance of the loan
account, and despite his steps to ensure funds to settle it, the
ABZ invoked section 38(2) of the AFA. It purported to take the
farm in realization of the debt, without any court process. On
29 November 2000 it sold the entire undivided property in execution
for a mere Z$6 million. But, to the knowledge of the officials
of ABZ, this sum only equaled the market value of the smaller,
uninhabited portion divided off. Henceforth Mr Tembani persistently
protested against the sale in execution and its sequelae. He immediately
appointed an independent sworn valuator, who estimated the property's
forced sale value at Z$15 million at that time, and instituted
legal proceedings.
- This led
to his initial success in the High Court. However, on appeal the
Supreme Court - each member of which bar one, it was not disputed
in the proceedings before the Tribunal in the Campbell matter,
is the recipient of one or more 'redistributed' farms - on 19
November 2007 eventually upheld the execution sale. It held that
Zimbabwe's municipal (domestic) law authorises a summary and forced
sale of property to meet any alleged debt and ousts the courts'
jurisdiction to hear a disputed debt. The Supreme Court specifically
held that such sale was not in violation of any fundamental right
protected by the Constitution
of Zimbabwe or any other law.
- During the
protracted court process, Mr Tembani made numerous settlement
proposals in vain efforts to avert losing everything. These would
have secured the identical financial result of a sale in execution
to both ABZ and the buyer (who has throughout been fully apprised
of all relevant information regarding the true market value of
the property, the subdivision, the forced sale and Mr Tembani's
objections), while not depriving Mr Tembani and his family of
their home and livelihood. But these proposals were all rejected.
Then, while the appeal to the Supreme Court was still pending,
ABZ unilaterally transferred the farm despite Mr Tembani's protest.
- In spite
of this, Mr Tembani and his family have remained in occupation
of the farm and he has precariously to date continued farming
activities (although on a reduced scale).
However, eviction
proceedings have now been instituted against him, his family and
employees resident on the farm. The Tribunal on 21 May 2009 ordered
that the Government of Zimbabwe should not proceed with action to
evict Tembani and his family pending the finalization of this substantive
application, which will be heard tomorrow (4 June 2009).
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