Mike Campbell (Pvt) Ltd v Republic of Zimbabwe

• Jurisdiction: South Africa
• Judge: Ariranga Govindasamy Pillay JP, Isaac Jamu Mtambo, SC J, Dr. Luis Antonio Mondlane J, Dr. Rigoberto Kambovo J, Dr. Onkemetse B. Tshosa J
• Judgment Date: 01 April 2014
• Court: Southern African Development Community Tribunal
• Citation: 2014 JDR 0335 (SADC)
• Docket Number: SADC (T) 2/2007
• Hearing Date: 01 March 2014
• Date: 28 November 2008

Delivered By H. E. Justice Dr. Luis Antonio Mondlane

I FACTUAL BACKGROUND

On 11 October, 2007, Mike Campbell (Pvt) Limited and William Michael Campbell filed an application with the Southern African Development Community Tribunal (the Tribunal) challenging the acquisition by the Respondent of agricultural land known as Mount Carmell in the District of Chegutu in the Republic of Zimbabwe. Simultaneously, they filed an application in terms of Article 28 of the Protocol on Tribunal (the Protocol), as read with Rule 61 (2) – (5) of the Rules of Procedure of the SADC Tribunal (the Rules), for an interim measure restraining the Respondent from removing or allowing the removal of the Applicants from their land, pending the determination of the matter.

On 13 December, 2007, the Tribunal granted the interim measure through its ruling which in the relevant part stated as follows:

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"[T]he Tribunal grants the application pending the determination of the main case and orders that the Republic of Zimbabwe shall 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, the farm known as Mount Carmell of Railway 19, measuring 1200.6484 hectares held under Deed of Transfer No. 10301/99, in the District of Chegutu in the Republic of Zimbabwe, by Mike Campbell (Pvt) Limited and William Michael Campbell, their employees and the families of such employees and of William Michael Campbell".

Subsequently, 77 other persons applied to intervene in the proceedings, pursuant to Article 30 of the Protocol, as read with Rule 70 of the Rules.

Additionally, the interveners applied, as a matter of urgency, for an interim measure restraining the Respondent from removing them from their agricultural lands, pending the determination of the matter.

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On 28 March, 2008, the Tribunal granted the application to intervene in the proceedings and, just like in the Mike Campbell (Pvt) Ltd. and William Michael Campbell case, granted the interim measure sought.

Mike Campbell (Pvt) Ltd. and William Michael Campbell case as well as the cases of the 77 other Applicants were thus consolidated into one case, hereinafter referred to as the Campbell case – vide Case SADC (T) No. 02/2008.

On the same day another application to intervene was filed by Albert Fungai Mutize and others (Case SADC (T) No. 08/2008). The Tribunal dismissed this application on the basis that it had no jurisdiction to entertain the matter since the alleged dispute in the application was between persons, namely, the Applicants in that case and those in the

Campbell case and not between persons and a State, as required under Article 15 (1) of the Protocol.

On 17 June, 2008, yet another application to intervene in the proceedings

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was filed. This was by Nixon Chirinda and others – Case SADC (T) No. 09/2008. The application was dismissed on the same ground as in Case SADC (T) No. 08/2008.

On 20 June, 2008, the Applicants referred to the Tribunal the failure on the part of the Respondent to comply with the Tribunal's decision regarding the interim reliefs granted. The Tribunal, having established the failure, reported its finding to the Summit, pursuant to Article 32 (5) of the Protocol.

In the present case, the Applicants are, in essence, challenging the compulsory acquisition of their agricultural lands by the Respondent. The acquisitions were carried out under the land reform programme undertaken by the Respondent.

We note that the acquisition of land in Zimbabwe has had a long history. However, for the purposes of the present case, we need to confine ourselves only to acquisitions carried out under section 16B of the Constitution of Zimbabwe (Amendment No. 17, 2005), hereinafter referred

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to as Amendment 17.

Section 16B of Amendment 17 provides as follows:

"16B: Agricultural land acquired for resettlement and other purposes

(1) In this section -

"acquiring authority" means the Minister responsible for lands or any other Minister whom the President may appoint as an acquiring authority for the purposes of this section;

"appointed day" means the date of commencement of the Constitution of Zimbabwe Amendment (No. 17) Act, 2004 (i.e. 16 September, 2005)

(2) Notwithstanding anything contained in this Chapter-

(a)

all agricultural land -

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(i)

that was identified on or before the 8th July, 2005, in the Gazette or Gazette Extraordinary under section 5 (1) of the Land Acquisition Act [Chapter 20:10], and which is itemized in Schedule 7, being agricultural land required for resettlement purposes; or

(ii)

that is identified after the 8th July, 2005, but before the appointed day (i.e. 16th September, 2005), in the Gazette or Gazette Extraordinary under section 5 (1) of the Land Acquisition Act [Chapter 20:10], being agricultural land required for resettlement purposes; or

(iii)

that is identified in terms of this section by the acquiring authority after the appointed day in the Gazette or Gazette Extraordinary for whatever purposes, including, but not limited to-

A. settlement for agricultural or other purposes; or

B. the purposes of land reorganization, forestry, environmental conservation or the utilization of wild life or other natural

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resources; or

C. the relocation of persons dispossessed in consequence of the utilization of land for a purpose referred to in subparagraph A or B;

is acquired by and vested in the State with full title therein with effect from the appointed day or, in the case of land referred to in subparagraph (iii), with effect from the date it is identified in the manner specified in that paragraph; and

(b)

no compensation shall be payable for land referred to in paragraph (a) except for any improvements effected on such land before it was acquired.

(3) The provisions of any law referred to in section 16 (1) regulating the compulsory acquisition of land that is in force on the appointed day, and the provisions of section 18 (1) and (9), shall not apply in relation to land referred to in subsection (2) (a) except for the purpose of determining any question related to the payment of compensation referred to in subsection (2) (b), that is to say, a person having any right or interest in the land -

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(a)

shall not apply to a court to challenge the acquisition of the land by the State, and no court shall entertain any such challenge;

(b)

may, in accordance with the provisions of any law referred to in section 16 (1) regulating the compulsory acquisition of land that is in force on the appointed day, challenge the amount of compensation payable for any improvements effected on the land before it was acquired".

Amendment 17 effectively vests the ownership of agricultural lands compulsorily acquired under Section 16B (2) (a) (i) and (ii) of Amendment 17 in the Respondent and ousts the jurisdiction of the courts to entertain any challenge concerning such acquisitions. It is on the basis of these facts that the present matter is before the Tribunal.

II SUBMISSIONS OF THE PARTIES

It was submitted, in substance, on behalf of the Applicants that:

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(a)

the Respondent acted in breach of its obligations under the Treaty by enacting and implementing Amendment 17;

(b)

all the lands belonging to the Applicants which have been compulsory acquired by the Respondent under Amendment 17 were unlawfully acquired since the Minister who carried out the compulsory acquisition failed to establish that he applied reasonable and objective criteria in order to satisfy himself that the lands to be acquired were reasonably necessary for resettlement purposes in conformity with the land reform programme;

(c)

the Applicants were denied access to the courts to challenge the legality of the compulsory acquisition of their lands;

(d)

the Applicants had suffered racial discrimination since they were the only ones whose lands have been compulsory acquired under Amendment 17, and

(e)

the Applicants were denied compensation in respect of the lands

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compulsorily acquired from them.

Learned Counsel for the Applicants submitted, in conclusion, that the Applicants, therefore, seek a declaration that the Respondent is in breach of its obligations under the Treaty by implementing Amendment 17 and that the compulsory acquisition of the lands belonging to the Applicants by the Respondent was illegal.

The learned Agent for the Respondent, for his part, made submissions to the following effect:

1.

the Tribunal has no jurisdiction to entertain the application under the Treaty;

2.

the premises upon which acquisition of lands was started was on a willing buyer willing seller basis and that the land was to be purchased from white farmers who, by virtue of colonial history, were in possession of most of the land suitable for agricultural

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purposes;

3.

the Respondent continues to acquire land from mainly whites who own large tracts of land suitable for agricultural resettlement and this policy cannot be attributed to racism but to circumstances brought about by colonial history;

4.

the Respondent had also acquired land from some of the few black Zimbabweans who possessed...