The Campbell Case – background, rulings

DECISIONS BY THE SADC TRIBUNAL

THE CAMPBELL CASE – ZIMBABWE

 

Mike Campbell (Pvt) Ltd et al. v. Republic of Zimbabwe is a case decided by the Southern African Development Community (SADC) Tribunal, based in Windhoek, Namibia.  The Tribunal held that the Zimbabwean government violated the SADC Treaty by denying access to the courts and engaging in racial discrimination against white farmers whose lands had been confiscated under the land reform program in Zimbabwe.

Mike Campbell, a Zimbabwean commercial farmer, purchased Mount Carmel farm in 1974 (full title vested in 1999). In July 2001, amid large-scale land invasions by "war veterans", Campbell received a government notice to acquire Mount Carmel in the district of Chegutu, but the notice was declared invalid by the High Court.  

In July 2004, a new notice of intent to acquire Mount Carmel was published in the official Government Gazette, but no acquisition notice was actually issued.

However, two months later, according to court filings, "persons purported to occupy the farm on behalf of Zanu PF spokesman Nathan Shamuyarira, claiming the former minister had been allocated the farm."  After three more preliminary notices to take the farm were published in 2004, Campbell applied to the High Court for a protection order.

Amendment 17 was added to Zimbabwe's constitution on September 14, 2005 to vest ownership of certain categories of land on the Zimbabwean government and to eliminate the courts' jurisdiction to hear any challenge to the land acquisitions.  Campbell initiated proceedings in court on May 15, 2006, challenging the validity of Amendment 17.

 In December 2006 the Gazetted Land (Consequential Provisions) Act passed into law, requiring all farmers whose land was compulsorily acquired by the government and who were not in possession of an official offer letter, permit, or lease, to cease to occupy, hold, or use that land within 45 days and to vacate their homes within 90 days.

On October 11, 2007, before the Supreme Court of Zimbabwe had delivered its judgment in the case, Campbell filed an application with the SADC Tribunal challenging the acquisition by the Zimbabwean government.

The Tribunal concluded that it had jurisdiction to hear the case because the dispute concerned "human rights, democracy and the rule of law," which are binding principles for members of the SADC.

Subsequently, 77 other farmers joined as parties in the proceedings against the government of Zimbabwe.

December 17, 2007

The Tribunal granted an interim measure ordering the government of Zimbabwe to take no steps, directly or indirectly, to evict commercial farmer Mike Campbell from the farm or interfere with his use of the land.

June 29, 2008

On 29 June 2008, Mike Campbell, his wife Angela and son-in-law, Ben Freeth, were abducted, brutally assaulted by “war veterans” and militia, and forced at gunpoint to sign a piece of paper stating they would withdraw from the main SADC Tribunal court case due to be argued the following month.  Campbell’s injuries were too severe for him to fly to Namibia for the case, but it was attended by Freeth who had recovered sufficiently from brain surgery.

November 28, 2008

 

Mike Campbell (left) and Ben Freeth at the SADC Tribunal in Windhoek in November 2008

Courtesy:  www.dailylife.com


The Tribunal's decision on this date addressed four main issues:

(1) Whether the Tribunal had jurisdiction to hear the case;

(2) Whether the plaintiffs had been denied access to domestic courts in violation of the SADC Treaty;

(3) Whether the Zimbabwean government had discriminated against the plaintiffs on the basis of race, and

(4) Whether the plaintiffs were entitled to compensation.

 

(1) The Tribunal held that it had jurisdiction to hear the case, because Amendment 17 had eliminated the plaintiffs' access to the domestic courts, and the plaintiffs were therefore entitled to seek remedy before the Tribunal.

(2) The Tribunal found that the plaintiffs had been deprived of their right to a fair hearing before being deprived of their rights.

(3) On the racial discrimination issue, the Tribunal held that the actions of the Zimbabwean government constituted indirect or "de facto" discrimination because implementation of Amendment 17 affected white farmers only.

(4) Finally, the Tribunal held that the plaintiffs were entitled to compensation for the expropriation of their lands.

June 5, 2009 – Application to declare Government of Zimbabwe in Contempt

After Mike Campbell and another applicant named Richard Thomas Etheredge filed a new application to declare the Government of Zimbabwe in contempt, the Tribunal held that the Government of Zimbabwe had failed to comply with the Tribunal's previous decision.  The Tribunal stated that it would report its finding to the Summit of the SADC.

Post-Decision Developments

Non-enforcement of the Tribunal's Judgment

Mike Campbell applied to register the Tribunal's judgment of November 28, 2008 in the High Court on December 23, 2008, but the application was not accepted with no reasons given. Over a hundred prosecutions of white farmers continue because they remain on their lands.

The High Court issued orders in April 2009 to evict the invaders on Mount Carmel, but nothing was done by the police to enforce the orders.  No mention of the Tribunal's decision was made at the SADC's summit in early September 2009.

Threats, Intimidation and Fires

After February 2009, Mike Campbell, Ben Freeth and his family received threats from invaders. Mike Campbell and his wife were eventually forced out of their home and Mount Carmel was invaded. Ben Freeth's and Mike Campbell's homesteads were destroyed in fires on August 30, 2009 and September 2, 2009, respectively.

 

The Freeth family homestead was burnt to the ground on August 30, 2009.

Worker homes and the linen factory, a women’s upliftment project, were also destroyed.

Zimbabwe Denies the Legitimacy of the Tribunal

Zimbabwe's Justice Minister Patrick Chinamasa wrote to the Tribunal to inform of Zimbabwe’s withdrawal from the Tribunal in a letter written on August 7, 2009, arguing that it did not have jurisdiction over Zimbabwe because the Tribunal's Protocol has not yet been ratified by two-thirds of the total members of the SADC, as required by the organization's treaty, and stated that Zimbabwe would no longer be bound by any of the Tribunal’s past or future judgments.

Decision by the High Court Not to Register the SADC Tribunal's Judgement in Zimbabwe

Judge Patel of the High Court issued a decision on January 26, 2010 in which he held that the SADC Tribunal was properly constituted and had jurisdiction to hear Campbell's case, but its decision could not be registered for purposes of enforcement. Judge Patel's decision relied on two main reasons:

First, the Supreme Court of Zimbabwe had confirmed the constitutionality of the land reform program, and registering the SADC Tribunal's judgment in Zimbabwe would challenge the Supreme Court's decision and undermine its authority; this would be contrary to public policy.

Second, if the Zimbabwean government complied with the SADC Tribunal's decision, it would contravene section 16B of the Constitution (introduced by Amendment 17 in 2005); this could not be allowed because the Constitution is the supreme law of Zimbabwe.

http://en.wikipedia.org/wiki/Mike_Campbell_(Pvt)_Ltd_and_Others_v_Republic_of_Zimbabwe#The_SADC_Tribunal

SADC Tribunal contempt Rulings

First contempt application – 2008:

The first time the Zimbabwe government was held in contempt of court by the SADC Tribunal was immediately following the violent election in June 2008.  Everybody was astounded during the contempt hearing when the Zimbabwe Government representatives marched out while the court was in full session and the Judge President was in the process of speaking to the assembled court.  This is believed to be the only time in the history of international courts that defendants have walked out in such a manner. The SADC Tribunal directed that the issue be put before the SADC Summit in August 2008.

Second contempt application – 2009:

The second time the Zimbabwe Government was held in contempt of court by the Tribunal was in June 2009.  By that time Mike Campbell and Ben Freeth had had the final judgment which had allowed them to continue living in their homes and farming.  However, by then there was flagrant and widespread contempt taking place. 

Third contempt application – with an enforcement order - 2010:

The third contempt application in the Tribunal in June 2010 dealt with the outrageous judgment of the Zimbabwe High Court that land reform was “public policy” and therefore for the “public good”.  The application also dealt with the continued incarceration of farmers, their show trials, the severe intimidation of them and their workers and the general selective application of the law in Zimbabwe.  This allows the homes and livelihoods of hundreds of thousands of people to be taken without compensation or any due process of law and the land to become derelict with the infrastructure on the farms asset stripped.

First contempt judgment – 2009:

Upholding the claims of 79 landowners, the SADC Tribunal held that that the seizure of land by the Government of Zimbabwe was arbitrary, racially discriminatory and contrary to the rule of law.  The tribunal also ordered the Zimbabwean Government to protect the occupation of those of the applicants who remained on their land and to pay compensation to those who had been evicted.

Second contempt judgment – July 2010:

The Tribunal found that the Zimbabwe Government had failed to comply with the decision of 28 November 2008 and reported this failure to the Summit to take appropriate action. Despite this, the Tribunal said the Zimbabwe Government had continued to violate the judge’s decision.

The Tribunal listed the three areas of continued violation of the decision of the Tribunal and therefore the SADC Treaty as:

  1. The lives, liberty and property of all those whom the decision meant to protect had been endangered
  2. The letter from the Zimbabwe Minister of Justice and Legal Affairs, Patrick Chinamasa, was cited.  Chinamasa noted that “any decisions that the Tribunal may have made or may make in the future against the Republic of Zimbabwe are null and void.” 
  3. The refusal of Justice Bharat Patel to register the judgment in the High Court of Zimbabwe – announced by Justice Patel on January 26 - was also cited as a reason for Zimbabwe’s continued violation.

The ruling recalled that the Campbell case “directed the Respondent (the Zimbabwe Government) to take all necessary measures through its agents to protect the possession, occupation and ownership of the land of the applicants and to take all appropriate measures to ensure that no action is taken directly or indirectly, whether by its agents or others, to evict the applicants from, or interfere with their peaceful residence on the land.”        

South African High Court ruling – February 2010

In February 2010, South Africa’s North Gauteng High Court ordered that the SADC Tribunal rulings against the seizure of farmers land in Zimbabwe should be registered, recognised and enforceable by the South African government.

South African Supreme Court ruling – September 2012

On September 20, 2012 South Africa’s Supreme Court of Appeal in Bloemfontein handed down a 23-page judgment in the appeal of the Zimbabwe government against the North Gauteng High Court's registration and enforcement of a SADC Tribunal ruling and the subsequent attachment of Zimbabwe government-owned property in Cape Town.

Despite being subject to the jurisdiction of the Tribunal, the Zimbabwe government declined to pay the costs order levied by the Tribunal in June 2009.

In its ruling, the Supreme Court of Appeal dismissed the Zimbabwe government’s appeal with costs, which included the costs of two counsel. 

Despite the Zimbabwe government’s claims to the contrary, the Supreme Court of Appeal confirmed in its judgment that, according to the SADC Treaty, the decisions of the Tribunal were final and binding.

Appeal Judge R W Nugent said that, according to Article 32 of the SADC Treaty, “Decisions of the Tribunal shall be binding upon the parties to the dispute in respect of that particular case and enforceable within the territories of the Member States concerned.”  South Africa is a SADC member state.

The planned sale will make international legal history as it is believed to be the first sale in execution of property belonging to a state that has committed gross human rights violations.

South African Constitutional Court

A week after South Africa’s Supreme Court of Appeal ruling, Zimbabwe’s Attorney General, Johannes Tomana, said he was preparing to file an appeal at South Africa’s Constitutional Court.

"We have spent a lot of money fighting in the South African courts and it all comes down to the fact that South Africa is disrespecting the diplomatic immunity that governs relations between sovereign states and is defying a directive by regional leaders to stop the work of the (SADC) Tribunal," Tomana said.

January 2013