Gramara (Private) Limited and Colin Bailie Cloete v Government of the Republic of Zimbabwe and Attorney-General of Zimbabwe and Norman Kapanga (Intervener)

The two applicants were among 79 parties in a case adjudicated by the SADC Tribunal (Mike Campbell (Pvt) Ltd & Others v The Republic of Zimbabwe Case No. SADC(T) 2/2007) on 28 November 2008, in which judgment was given in their favour. The applicants sought registration of the SADC Tribunal's decision for enforcement in Zimbabwe. The Tribunal's decision had declared that Zimbabwe violated Articles 4(c) and 6(2) of the SADC Treaty regarding human rights, democracy, rule of law and non-discrimination; that fair compensation was payable to the applicants for lands compulsorily acquired; and that the Government must protect the possession, occupation and ownership of the applicants' lands and ensure no evictions. The applicants' lands had been acquired under section 16B of the Constitution (Amendment 17 of 2005) as part of Zimbabwe's land reform programme, which vested agricultural land in the State with effect from 14 September 2005 without compensation except for improvements. Norman Kapanga held an offer letter to occupy the applicants' property and sought to intervene.

• Whether the SADC Tribunal had jurisdictional competence to adjudicate the Campbell case
• Whether the SADC Treaty Amendment Agreement of 2001 entered into force without ratification by Member States
• Whether the Protocol of the Tribunal required ratification by Zimbabwe to bind it to the Tribunal's jurisdiction
• Whether recognition and enforcement of the SADC Tribunal's judgment would be contrary to public policy in Zimbabwe
• Whether a foreign judgment can be recognized and enforced under common law where no statutory mechanism exists
• Whether Norman Kapanga had sufficient interest to be joined as an intervener
• Whether the supremacy of the Constitution precludes enforcement of a foreign judgment inconsistent with constitutional provisions

The application for registration of the SADC Tribunal judgment was dismissed. The court made no order as to costs, finding that the issues raised were of paramount public importance and that proper ventilation of these matters was of public value and benefit, making it just and equitable that parties bear their own costs.

The binding legal principles established are: (1) Amendments to the SADC Treaty are adopted by decision of three-quarters of the Summit and enter into force immediately upon adoption without requiring ratification by individual Member States. (2) The Protocol of the SADC Tribunal, as amended, forms an integral part of the SADC Treaty and binds Member States without requiring separate ratification. (3) Foreign judgments, including decisions of international tribunals, may be recognized and enforced under Zimbabwean common law even in the absence of specific statutory provision, provided the general requirements for recognition are met. (4) A foreign judgment cannot be recognized and enforced if it is contrary to public policy, conflicts with an overriding statute, or was obtained without observance of principles of natural justice. (5) The Constitution of Zimbabwe is supreme, and to the extent that enforcement of a foreign judgment would require the Government to act in a manner manifestly incompatible with constitutional provisions, such enforcement is contrary to public policy and must be refused. (6) Public policy at the municipal level must be assessed with reference to both domestic law (including the supremacy of the Constitution) and international obligations, but where there is direct conflict, the Constitution prevails. (7) While a State cannot invoke domestic law to absolve itself from international obligations at the international level, at the municipal level, courts must apply and uphold the Constitution as supreme law.

PATEL J made several important non-binding observations: (1) He expressed doubt (without deciding the issue) as to whether the general stricture in Article 4(c) of the SADC Treaty regarding "human rights, democracy and the rule of law" sufficiently invests the SADC Tribunal with capacity to adjudicate alleged violations of human rights committed by Member States against their own nationals, noting this jurisdictional point was not raised by the parties. (2) He observed that customary international law forms part of the law of Zimbabwe except to the extent it conflicts with statute or prior judicial precedent, affirming obiter dicta from Barker McCormac (Pvt) Ltd v Government of Kenya. (3) He commented that it would be contrary to principle to restrict the scope of recognition proceedings by reference to specific remedies enjoined by a foreign judgment, suggesting that declaratory and injunctive relief (not just money judgments) should be capable of recognition. (4) He noted that pacta sunt servanda is a fundamental tenet of international law, and States cannot invoke internal law to avoid treaty obligations at the international level, though this does not necessarily mean international law prevails at the municipal level. (5) He observed that while the Campbell decision was confined to 79 applicants, its ramifications would extend to all former owners of agricultural land acquired since 2000 under the land reform programme. (6) He commented on the political enormity and practical impossibility of reversing all land acquisitions and relocating beneficiaries of land reform.

This case is of significant importance in Zimbabwean and regional jurisprudence as it: (1) clarified the process by which amendments to the SADC Treaty enter into force, determining that such amendments can be adopted by Summit decision without requiring subsequent ratification by Member States; (2) confirmed that Zimbabwe is subject to the jurisdiction of the SADC Tribunal; (3) affirmed that foreign judgments, including those of international tribunals, can be recognized and enforced under common law in Zimbabwe, even in the absence of specific statutory provision; (4) established the framework for recognition of foreign judgments under Zimbabwean common law, adopting the South African position; (5) demonstrated the tension between international law obligations and domestic constitutional supremacy; (6) established that while international obligations create legitimate expectations of compliance as a matter of public policy, enforcement of a foreign judgment that conflicts with the Constitution and fundamental domestic public policy (such as land reform) will be refused; (7) illustrated the limits of international tribunal decisions in the face of overriding constitutional provisions and domestic public policy considerations; and (8) established that the doctrine of supremacy of the Constitution prevails over international law obligations at the municipal level, while acknowledging that this does not absolve the State from international responsibility.