|
Back to Index
Legal
opinion: The status of rulings by SADC Tribunal vis-à-vis
the Government of Zimbabwe
J.J.
Gauntlett SC, Prof J.L. Jowell QC and F.B. Pelser
September 03, 2009
Download
this article
- Word
2000 version (31.5KB)
- Acrobat
PDF version (23.9KB)
If you do not have the free Acrobat reader
on your computer, download it from the Adobe website by clicking
here.
Related Documents:
The SADC Tribunal
judgement of 28 November 2008 on the Zimbabwean farm case - Read
Case in the
SADC Tribunal: Luke Munyadu Tembani vs. Government of Zimbabwe -
SADC Tribunal - Read
SADC Tribunal
ruling, 5 June 2009 - Read
Ex Parte: Commercial
Farmers Union
In Re: The status
of rulings by the South African Development Community (SADC) Tribunal
vis-à-vis the Government of Zimbabwe
Opinion
- J.J. Gauntlett
SC (former Chairman of the General Council of the Bar, South Africa)
- Prof
J.L. Jowell QC (member of Blackstone Chambers and former law dean,
University College London and Vice-Provost)
- F.B.
Pelser
Chambers, Cape
Town and London
A. Introduction
1. Our Consultant
is the Commercial Farmers Union.
2. Over the
past two years we have been engaged in litigation in the South African
Development Community (SADC) Tribunal to obtain orders declaring
the purported land seizure programme in Zimbabwe in breach of the
country's international law obligations under the SADC Treaty.
In November 2008 the Tribunal granted such an order, on three separate
grounds. These were that the land seizure programme constituted
racial discrimination, an infringement of the right of access to
courts, and an arbitrary taking without adequate compensation, each
in breach of Zimbabwe's Treaty obligations.
3. We have been
informed of the public statement now by the Minister of Justice
of the Government of Zimbabwe, Mr P Chinamasa M.P., asserting that
"any decision that the Tribunal may have or may make in future
against the Republic of Zimbabwe is null and void" and purporting
to withdraw from the jurisdiction of the SADC tribunal. We have
been asked to advise urgently as to the legal validity of this statement.
4. In our view,
the assertion lacks any legal foundation. We note that it is made
some ten months after the main ruling by the SADC Tribunal in favour
of the applicant Zimbabwe farmers, their workers and families, and
some three months after the finding by the Tribunal that the Government
of Zimbabwe is acting in defiance of the main ruling, and awarding
costs against the Government of Zimbabwe. It also follows on a Tribunal
ruling in favour of a Black Zimbabwe farmer whose land had also
been seized under Land Bank legislation, also with a costs order
against the Government of Zimbabwe. The statement significantly
is made just days in advance of the SADC Summit's meeting,
which has been asked by the Tribunal in terms of the latter order
to consider enforcement steps against Zimbabwe as a SADC Member.
5. The grounds
for our views are, in summary, fourfold:
(a) Zimbabwe
is a signatory to the SADC Treaty;
(b) Zimbabwe is bound to the Protocol despite not ratifying it;
(c) Zimbabwe has conceded the SADC Tribunal's jurisdiction;
and
(d) the SADC Tribunal has held that Zimbabwe is subject to its jurisdiction.
Download the full document
Please credit www.kubatana.net if you make use of material from this website.
This work is licensed under a Creative Commons License unless stated otherwise.
TOP
|
