Tribunal decision contrary to Zim policy

The following is the Summary of the Judgment in Gramara (Pvt) Ltd and another v The Government of Zimbabwe and Others
PATEL, J

Harare,

Facts of the Case

This case was an application for the Registration of the SADC Tribunal Judgment in the matter of Mike Campbell (Pvt) Ltd and others versus the Republic of Zimbabwe by 2 out of the 77 applicants in that case.

This case found that the rights of white farmers to approach a court for redress and not be discriminated against on the basis of race in Zimbabwe were unreasonably denied by Constitutional amendment number 17 which provides the entire legal basis for the Land Reform Programme.

(The SADC treaty, whilst holding that the decisions of the Tribunal are final and binding, prescribes that enforcement and domestication of inter alia, judgments of the Tribunal must take place in accordance with the local laws of the relevant member states.

Member states are obliged to ensure that their local laws provide for the domestication of SADC Tribunal decisions.) Zimbabwean common law allows for applications for the registration of international judgments not covered by the….(missing words). 

Questions to be determined by the Court

The Court summarized the questions before it as follows:

1.       Whether the SADC Tribunal was endowed with the Jurisdictional Competence to rule over the case before it in the Campbell matter; and

2.       Whether the enforcement of the SADC Tribunal decision in that case would be contrary to public policy in Zimbabwe.

Judgment

With regard to the first question, the court held that the SADC Tribunal did have the jurisdictional competence to adjudicate over the Campbell case and further recognized the legitimacy of the SADC Tribunal.

With regard to the second question the application for registration was dismissed. The court held that this was contrary to public policy in Zimbabwe.

Reason for the court’s decision (ratio dacidendi)

Interestingly, the court cited the fact that Zimbabwe as well as other SADC member states had fully participated in the Troika system and the business of this newly constituted organ whose legal basis is the same as that of the Tribunal (namely the Amendment to the SADC Treaty of 2001)

The rationale behind dismissing the application for registration seems to be that foreign judgments could not be recognized if they were contrary to “public policy” and “prior judicial precedent” (referring specifically to a judgment by the Supreme Court in the Campbell case). The court held that it was not good public policy to undermine the authority of the Courts in Zimbabwe.

Addressing the argument that the applicants had a reasonable expectation that the Zimbabwean Government would abide by its international obligations the court held that the beneficiaries of land reform had a reasonable expectation that Government would effectively implement land reform which outweighed the other conflicting expectation.