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[2012] ZASCA 122
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Government of the Republic of Zimbabwe v Fick and Others (657/11) [2012] ZASCA 122 (20 September 2012)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 657/11
In the matter between:
GOVERNMENT OF THE REPUBLIC OF
ZIMBABWE
......................................................................................
Appellant
and
LOUIS KAREL FICK
.........................................................
First
Respondent
RICHARD THOMAS ETHEREDGE
............................
Second
Respondent
WILLIAM MICHAEL CAMPBELL
...............................
Third
Respondent
THE PRESIDENT OF THE REPUBLIC
OF SOUTH AFRICA
.......................................................
Fourth
Respondent
Neutral citation:
Government of the Republic of Zimbabwe v Fick & others
(657/11)
[2012] ZASCA 122
(20 SEPTEMBER 2012)
Coram:
NUGENT, VAN HEERDEN
and MALAN JJA, SOUTHWOOD and ERASMUS AJJA
Heard:
27 AUGUST 2012
Delivered: 20 SEPTEMBER 2012
Summary: Tribunal of Southern
African Development Community – enforcement – whether
competent – whether binding
on Zimbabwe.
___________________________________________________________
ORDER
___________________________________________________________
On appeal from North Gauteng High
Court, Pretoria (R D Claassen J sitting as court of first instance):
The appeal is dismissed with
costs that include the costs of two counsel.
___________________________________________________________
JUDGMENT
___________________________________________________________
NUGENT JA (VAN HEERDEN and MALAN
JJA and SOUTHWOOD and ERASMUS AJJA CONCURRING)
[1] This appeal has a long
history that I relate later in this judgment. For the moment a
summary will suffice to explain what is
before us. It arises from
litigation between the Republic of Zimbabwe (the appellant, which I
will refer to as Zimbabwe) and two
former farmers in that country
(the respondents) before the Tribunal of the Southern African
Development Community (SADC). In one
instalment of those proceedings
the Tribunal ordered Zimbabwe to pay the legal costs of the
respondents. Zimbabwe declined to do
so, whereupon the respondents
applied to the North Gauteng High Court to have the costs order
recognised in this country. The proceedings
were commenced by edictal
citation authorised by that court (Tuchten J). Zimbabwe declined to
participate in the proceedings and
an order was made by default by
Rabie J recognizing the order of the Tribunal. A writ of execution
was then issued authorising
the Sheriff for the district of Cape Town
to attach immovable properties belonging to Zimbabwe and to sell them
in execution of
the Tribunal’s costs order.
[2] Zimbabwe was prompted into
action when it became aware that its properties were scheduled to be
sold in execution. Believing
that the properties were to be sold
under the authority of the respondents’ writ it applied
urgently to the North Gauteng
High Court for relief aimed at setting
it aside.
1
Its belief was mistaken. It was
not the respondents’ writ that had initiated the scheduled
sales but instead a writ that had
been issued in favour of an
unrelated judgment creditor.
[3] Zimbabwe then commenced a
fresh application for rescission of the order that had been made by
Rabie J recognizing the order
of the Tribunal.
2
Later it launched yet a further
application for rescission of the order that had been made by Tuchten
J.
3
[4] The three applications –
the application to set aside the writ, the application to rescind the
order of Rabie J, and the
application to rescind the order of Tuchten
J – were consolidated and came before R D Claassen J, who
dismissed them.
4
Zimbabwe now appeals his order
with the leave of the learned judge.
[5] I deal later with the Treaty
that established the SADC and its Tribunal, and with its powers and
functions, but it is as well
first to expand upon that brief summary
of the facts.
[6] The starting point is
Zimbabwe’s land reform policy, which was incorporated in s 16B
of its Constitution. That section
was introduced by the Constitution
of Zimbabwe Amendment Act 17 of 2004, with effect from 16 September
2005. The policy reflected
in that section was elementary and to the
point. In summary, agricultural land that had been, or would in the
future be, identified
in the Gazette was confiscated by the state,
without compensation other than for improvements on the land. The
section went on
to oust the jurisdiction of the courts to challenge a
confiscation.
[7] The respondents were amongst
those whose farms were confiscated. Because the Constitution
precluded challenges to the confiscation
in the domestic courts the
respondents, together with 76 others whose land had been confiscated,
turned instead to the Tribunal
for relief.
5
[8] Zimbabwe was represented in
the proceedings before the Tribunal by its Deputy-Attorney General.
It was submitted in argument
before us by counsel for Zimbabwe that
the Tribunal’s jurisdiction over Zimbabwe was challenged in
those proceedings but
that is not correct. What was said to have been
a jurisdictional challenge was a dilatory objection taken to the
proceedings on
the grounds that they were premature, in that the
applicants had not exhausted their domestic remedies. Needless to
say, bearing
in mind the constitutional ouster of domestic remedies
in Zimbabwe, the objection was dismissed. At a stage in the
proceedings
an application by Zimbabwe for a postponement was refused
whereupon Zimbabwe’s representatives withdrew and failed to
participate
further.
[9] On 28 November 2008 the
Tribunal found in favour of the applicants before it and made the
following orders:
‘
For
the reasons given, the Tribunal holds and declares that:
(a) by unanimity,
the Tribunal has jurisdiction to entertain the application;
(b) by unanimity,
the Applicants have been denied access to the courts of Zimbabwe;
(c) by a majority of
four to one, the Applicants have been discriminated against on the
grounds of race; and
(d) by unanimity,
fair compensation is payable to the Applicants for their lands
compulsorily acquired by the Respondent.
The Tribunal further
holds and declares that:
(1) by unanimity,
the Respondent is in breach of its obligations under Article 4(c)
6
and, by a majority of four to one, the Respondent is in
breach of its obligations under Article 6(2)
7
of the Treaty;
(2) by unanimity,
Amendment 17 is in breach of Article 4(c) and, by a majority of four
to one, Amendment 17 is in breach of Article
6(2) of the Treaty;
(3) by unanimity,
the Respondent is directed to take all necessary measures, through
its agents, to protect the possession, occupation
and ownership of
the lands of the Applicants, except for Christopher Mellish Jarret,
Tengwe Estates (Pvt) Ltd, and France Farm
(Pvt) Ltd that have already
been evicted from their lands, and to take all appropriate measures
to ensure that no action is taken,
pursuant to Amendment 17, directly
or indirectly, whether by its agents or others, to evict from, or
interfere with, the peaceful
residence on, and of those farms by, the
Applicants, and
(4) by unanimity,
the Respondent is directed to pay fair compensation, on or before 30
June 2009, to the three applicants, namely,
Christopher Mellish
Jarret, Tengwe Estates (Pvt) Ltd, and France Farm (Pvt) Ltd.’
[10] On 7 August 2009 Zimbabwe
for the first time voiced an objection to the jurisdiction over it of
the Tribunal in a letter written
by its Minister of Justice to the
Registrar of the Tribunal. His letter referred to the Protocol under
which the Tribunal had been
established, and amendments to the SADC
Treaty that I deal with later. He said, amongst other things, that
the Protocol was not
binding upon Zimbabwe, in that it ‘has not
yet been ratified by the requisite two thirds of the total membership
of SADC
as provided for under Article 38 of the [Protocol],’
and that the amendment of the SADC Treaty had not yet entered into
force,
in that it ‘has not yet been ratified by the requisite
two thirds of the total membership of SADC as required under
International
Law and as read with Article 41 of the original
Treaty’, and in particular, had not been ratified by Zimbabwe.
In those circumstances,
it was said:
‘
we
hereby advise that, henceforth, we will not appear before the
Tribunal and neither will we respond to any action or suit that
may
be instituted or be pending against the Republic of Zimbabwe before
the Tribunal. For the same reasons, any decisions that
the Tribunal
may have made or may make in the future against the Republic of
Zimbabwe are null and void
.’
[11] Consistent with its
expressed intentions Zimbabwe failed to comply with the Tribunal’s
orders. On 7 May 2009 two of the
applicants in those proceedings (the
second and third respondents before us) once again approached the
Tribunal, on that occasion
for a declaration that Zimbabwe was in
breach and contempt of its order.
8
Once again Zimbabwe chose not to
participate in the proceedings. On 5 June 2009 the Tribunal found
that Zimbabwe had indeed failed
to comply with its order and ruled
that it would report its findings to the Summit for ‘appropriate
action’ to be taken,
as provided for by Article 32(5) of the
Protocol. It also ordered Zimbabwe to pay the applicants’
costs, to be agreed between
the parties or, failing agreement, to be
determined by the Registrar of the Tribunal. The costs could not be
agreed and they were
determined by the Registrar at US$ 5 816,47
and ZAR 112 780,13.
[12] In December 2009 the two
applicants in that application, together with Louis Karel Fick, who
had been amongst the applicants
in the first case before the
Tribunal, applied to the North Gauteng High Court for leave to
commence proceedings against Zimbabwe
by edictal citation. The
proceedings contemplated were an application for orders declaring the
rulings made by the Tribunal on
28 November 2008 and 5 June 2009 ‘to
be registered in terms of article 32 of the Protocol of the SADC
Tribunal by the High
Court of South Africa’ and ‘declaring
the quantum of the costs pursuant to the latter ruling to be as
determined by
the Registrar of the Tribunal’. On 13 January
that court (Tuchten J) authorized the proceedings and directed
service of the
application upon Zimbabwe by delivering a copy to the
offices of the Attorney-General in Harare and upon the administrative
head
of its Minister of Justice in Harare.
[13] The application was duly
served and Zimbabwe entered a notice of its intention to oppose the
application, but withdrew that
notice on 1 February 2010. It alleges
that after filing the notice of its intention to oppose it was
‘advised that, as a
sovereign state, it was judicious that it
does not subject itself to the courts of another sovereign state, in
this case the Republic
of South Africa’, and withdrew its
notice on that advice. It alleges that a letter to that effect
accompanied the notice
of withdrawal but no such letter has been
produced.
[14] The application came before
Rabie J who granted the following order by default on 25 February
2010:
‘
It
is ordered that the rulings by the [SADC] Tribunal delivered on 28
November 2008 and 5 June 2009 are declared to be registered
i.e.
recognised and enforceable in terms of article 32 of the Protocol of
the SADC Tribunal by the High Court of South Africa,
and the quantum
of the costs pursuant to the latter ruling is to be declared to be as
determined by the Registrar of the SADC Tribunal
in the allocator
attached, namely US$ 5 816.47 and ZAR 112 780.13.’
[15] I deal first with the two
applications before the court below to rescind the orders made by
Tuchten J and Rabie J respectively.
[16] Rule 42 of the Uniform Rules
allows for rescission of a judgment granted in the absence of a
party. As pointed out by this
court in
Colyn
v Tiger Food Industries Ltd
9
the rule contemplates the
correction of mistakes or irregularities and is for the most part a
restatement of the common law. In
order to succeed at common law an
applicant must show good cause, which generally requires an applicant
to (a) give a reasonable
explanation for the default (b) show that
his application is bona fide and (c) show that he has a bona fide
defence to the claim
that prima facie has some prospect of success.
10
[17] It is not necessary to deal
with the first two requirements. In both cases Zimbabwe has failed to
demonstrate that the orders
ought not to have been granted. I
commence with the order made by Tuchten J.
[18] On the face of it rescission
of the order made by Tuchten J is misconceived because the order has
already been exhausted. Nonetheless,
I think it emerges from the
affidavit filed in support of that application, and from argument
that ensued, that the application
was directed in substance to a
declaration that the main proceedings were a nullity. There are two
primary grounds upon which that
case was advanced. The first was that
Zimbabwe was said to have had sovereign immunity from civil
proceedings in this country.
The second was that it was said not to
have been competent to commence the proceedings by edictal citation.
For both contentions
Zimbabwe relied upon the provisions of the
Foreign States Immunities Act 87 of 1981
.
[19] Before dealing with those
submissions it is convenient shortly to dispose of a subsidiary
attack upon the order. It is well
established that an applicant for
ex parte relief must make full disclosure of all facts relevant to
the order that is sought and
that where the applicant fails to do so
a court has a discretion to set aside the order on that ground alone.
There is no suggestion
that material facts were withheld in this
case. But it was submitted that the respondents had failed to
disclose in their affidavits
the provisions of the Act. The
respondents were not obliged to make reference in their founding
affidavit to laws that might have
been relevant to their application.
No doubt counsel who moves an ex parte application is obliged to
bring to the attention of
the court any laws of which he or she is
aware that might impact upon the application but that is something
else. I should add
that there is no reason to believe that counsel
who moved the application breached that duty.
[20] The Act provides in s 2
that ‘[a] foreign state shall be immune from the jurisdiction
of the courts of the Republic
except as provided in the Act, or in
any proclamation issued thereunder’ (there are no such
proclamations that are now material)
and that ‘[a] court shall
give effect to the immunity conferred by this section even though the
foreign state does not appear
in the proceedings in question’.
But under s 3 a foreign state forfeits that immunity ‘in
proceedings in respect
of which the foreign state has expressly
waived its immunity’. In this case it is clear that Zimbabwe
forfeited such immunity
as it might have had by expressly submitting
itself to the SADC Treaty and the Protocol. I elaborate upon that
finding after I
have dealt with other issues relating to those
instruments later in this judgment.
[21] So far as its objection to
the commencement of the proceedings is concerned counsel for Zimbabwe
relied upon s 13 of the
Act, which provides for service of
process upon foreign states as follows:
‘
(1)
Any process or other document required to be served for instituting
proceedings against a foreign state shall be served by being
transmitted through the Department of Foreign Affairs and Information
of the Republic to the ministry of foreign affairs of the
foreign
state, and service shall be deemed to have been effected when the
process or other document is received at that ministry.
(2) Any time
prescribed by rules of court or otherwise for notice of intention to
defend or oppose or entering an appearance shall
begin two months
after the date on which the process or document is received as
aforesaid.
(3) A foreign state
which appears in proceedings cannot thereafter object that subsection
(1) has not been complied with in the
case of those proceedings.
(4) No judgment in
default of appearance shall be given against a foreign state except
on proof that subsection (1) has been complied
with and that the time
for notice of intention to defend or oppose or entering an appearance
as extended by subsection (2) has
expired.
…
(7) …
subsection (1) shall not be construed as affecting any rules of court
whereby leave is required for the service of
process outside the
jurisdiction of the court.’
[22] In support of his submission
that service in that manner is peremptory counsel for Zimbabwe
referred us to a decision of the
United States Court of Appeals for
the Fifth Circuit in the matter of
Magness
v Russian Federation
.
11
I do not think that decision is
of assistance and I need not deal with it. It was decided on a
construction of the statute in question,
which does not correspond
with the present statute.
[23] Under Rule 5(1) the leave of
the relevant court is required to serve process instituting
proceedings outside the Republic.
Subsection (7) of the Act makes it
clear that that applies as much where proceedings are brought against
a foreign state. I have
some difficulty seeing why a court that may
authorize proceedings against a foreign state should be precluded
from directing how
service should take place. Although s 13 is
expressed in peremptory terms it is not uncommon for such language to
be construed
as being permissive when seen in its context. But in any
event in this case Zimbabwe appeared in the proceedings by noting its
intention to oppose. While that does not in itself constitute a
submission to the jurisdiction of the court subsection (3) makes
it
plain that having done so it cannot thereafter object to the manner
of service.
[24] It was also submitted that
the proceedings are a nullity because the notice of motion did not
allow two months for Zimbabwe
to note its intention to oppose as
provided for in subsection (2). That submission has no merit. That
section operates to preclude
default judgment being granted –
by which I mean judgment in default of the respondent noting its
intention to oppose the
proceedings – before expiry of that
period. Once the respondent entered the proceedings quite obviously
the purpose of the
provision was achieved.
[25] There are no grounds for
finding that the proceedings were improperly commenced and the court
below correctly refused to ‘rescind’
the order made by
Tuchten J. I turn to the order made by Rabie J.
[26] It was submitted that it was
not competent for a court in this country to recognise the order of
the Tribunal for various reasons.
Most of those were advanced before
and rejected by Patel J in the High Court of Zimbabwe in a related
case –
Gramara
(Pvt) Ltd v Government of the Republic of Zimbabwe
12
–
in which two of the
applicants in the main proceedings before the Tribunal applied to
register in Zimbabwe its orders of 28 November
2008.
[27] The submissions were
repeated in this court without any attempt to demonstrate where the
learned judge had erred. It would
be superfluous to reformulate the
erudite reasoning of the learned judge for rejecting the submissions
that are relevant to this
appeal, and I quote liberally from those
parts of his judgment in which he did so, respectfully adopting as my
own the reasoning
of the learned judge.
[28] The first submission was
that an order of the Tribunal, even if binding upon Zimbabwe, is not
enforceable in this country.
Precisely why that is so was not fully
developed in argument but it falls to be rejected, if only on common
law grounds. The common
law on the subject was expressed by Patel J
as follows:
‘
Both
in England and in South Africa, it is well established that foreign
judgments are recognizable and enforceable under the common
law. See
North and Fawcett:
Cheshire
and North’s Private International Law
(13
th
ed. 2004) at 407; Forsyth:
Private
International Law
(4
th
ed. 2003) at 389. In South Africa, the procedure for and scope of
recognition proceedings are lucidly expounded in Joubert (ed.):
The
Law of South Africa
(First Reissue, 1993) Vol. 2 at para. 476, as follows:
“
...
the present position is that a foreign judgment is not directly
enforceable in South Africa; but if it is pronounced by a proper
court of law and certain requirements are met any determination
therein (for example of a party’s rights or status) will
be
recognized and the judgment will in fact found a defence of
res
judicata
if it would have founded such a defence had it been a South African
judgment. In addition, an authenticated foreign judgment constitutes
a cause of action and as such is enforceable by ordinary action in a
South African court, including, where appropriate, an action
for
provisional sentence or for a declaratory order or for default
judgment.
A South African
court will not pronounce upon the merits of any issues or factor of
law tried by the foreign court and will not
review or set aside its
findings though it will adjudicate upon a ‘jurisdictional fact’
establishing international
competency”
.
The general
requirements for recognition and enforcement of foreign judgments are
set out in Joubert (
op
cit
),
at para 477. These requirements were adopted and applied by the
Appellate Division in
Jones
v Krok
[1994] ZASCA 177
;
1995
(1) SA 677
(A) at 685B-E and in
Purser
v Sales
[2000] ZASCA 135
;
2001
(3) SA 445
(SCA) at 450D-G. In
Jones’s
case, CORBETT CJ
summarized these requirements as follows:
“
As
explained in Joubert ..., the present position in South Africa is
that a foreign judgment is not directly enforceable, but provided
(i)
that the court which pronounced the judgment had jurisdiction to
entertain the case according to the principles recognized
by our law
with reference to the jurisdiction of foreign courts (sometimes
referred to as ‘international jurisdiction or
competence’)
(ii) that the judgment is final and conclusive in its effect and has
not become superannuated; (iii) that the
recognition and enforcement
of the judgment by our Courts would not be contrary to public policy;
(iv) that the judgment was not
obtained by fraudulent means; (v) that
the judgment does not involve the enforcement of a penal or revenue
law of the foreign State;
and (vi) that enforcement of the judgment
is not precluded by the provisions of the Protection of Businesses
Act 99 of 1978, as
amended.”’
[29] While the authorities
referred to in that passage from the judgment are directed at the
enforcement of a judgment of the domestic
courts of a foreign country
I see no reason to disagree with Patel J that they are applicable as
well to an order of an international
tribunal whose legitimacy has
been accepted. There is also no question that the order now sought to
be enforced satisfies all the
requirements of paras (ii)-(vi)
13
tabulated in the extract from the
judgment in
Jones v
Krok
that is cited in
the passage above. What remains is only whether the Tribunal had
jurisdiction to entertain the case, which was
hotly contested by
Zimbabwe, as foreshadowed by the letter written by its Minister of
Justice that I referred to earlier.
14
[30] There is yet a further
reason why the order of the Tribunal is enforceable in this country –
which is that Zimbabwe submitted
itself to its enforceability –
but it is convenient to revert to that after dealing with the
jurisdictional question.
[31] It is surprising that the
jurisdiction of the Tribunal should be contested by Zimbabwe, bearing
in mind that its Deputy-Attorney
General raised no such objection
when he appeared before the Tribunal on behalf of Zimbabwe, that
Zimbabwe nominated one of its
judges to membership of the body, and
that its own high court has rejected the contention. Nonetheless, the
contention having been
raised it is necessary to deal with it. For
that I need to outline the circumstances in which the Tribunal was
created.
[32] The SADC was constituted
under a Treaty signed in Windhoek in August 1992 by the heads of
state or government of certain states
in the southern African
region,
15
including Zimbabwe, and ratified
by the signatory states as required by Article 40.
16
The Treaty came into force the
following year under Article 41.
17
[33] The Treaty created various
institutions that included the Summit – the supreme
policy-making institution of the SADC
– which comprised the
heads of state or government of member states (Article 10). Provision
was made in Article 36(1) for
amendment of the Treaty by adoption of
the amendment ‘by a decision of three quarters of all the
Members of the Summit’.
[34] Article 16 provided for the
establishment of the Tribunal. Its establishment and its powers and
procedures were provided for
as follows:
‘
1.
The Tribunal shall be constituted to ensure adherence to and the
proper interpretation of the provisions of this Treaty and subsidiary
instruments and to adjudicate upon such disputes as may be referred
to it.
2. The composition,
powers, functions, procedures and other related matters governing the
Tribunal shall be prescribed in a Protocol
adopted by the Summit.
…
.
5. The decisions of
the Tribunal shall be final and binding.’
[35] A Protocol on the Tribunal
was signed by the heads of state or governments of member states (who
comprised the Summit) in 2000.
It provided in Article 35 that
‘
[t]his
Protocol shall be ratified by Signatory States in accordance with
their constitutional procedures’
and in Article 38 that
‘
[t]his
Protocol shall enter into force thirty (30) days after deposit in
terms of Article 43 of the Treaty, of instruments of ratification
by
two thirds of the States’.
[36] Whether the Protocol was
ratified as required by Article 35 is neither here nor there. In 2002
it was amended, under the hand
of the presidents or heads of
government of all Member States (including Zimbabwe) by the deletion
of articles 35 and 38. Whatever
the position might have been before
that, clearly the adoption of the amended Protocol, constituting its
adoption by the Summit,
made it binding upon Member States.
[37] But, submitted counsel for
Zimbabwe, the Protocol, and its amendments, required ratification
under Article 22 of the Treaty.
That Article, in the original Treaty,
provided as follows:
‘
1.
Member States shall conclude such Protocols as may be necessary in
each area of co-operation, which shall spell out the objectives
and
scope of, and institutional mechanisms for, co-operation and
integration.
2. Each Protocol
shall be approved by the Summit on the recommendation of the Council,
and shall thereafter become an integral part
of this Treaty.
3. Each Protocol
shall be subject to signature and ratification by the parties
thereto.’
[38] That Article must be seen in
its context. It appears in Chapter 7 of the Treaty, which deals with
‘co-operation’
between member states. In brief the
chapter provides that member states will co-operate to foster
regional development and integration
in the areas of food security,
land and agriculture, infrastructure and services, and so on. The
protocols referred to in that
Article are clearly protocols concluded
to that end and not to the Protocol on the Tribunal.
[39] Any doubt there might be on
that score is dispelled by an amendment that was made to Article 16
in 2001 under the signature
of the heads of state or government of
all the member states, which by then included other states,
18
amongst which was the Republic of
South Africa. Perhaps the draftsman was not alive to the fact that
the protocols referred to in
that Article were confined to protocols
on co-operation, or perhaps the draftsman wished merely to eliminate
doubt, but subsection
(2) of Article 16 was amended by the insertion
of the words I have underlined so as to read as follows:
‘
2.
The composition, powers, functions, procedures and other related
matters governing the Tribunal shall be prescribed in a Protocol
which
shall, notwithstanding the provisions of Article 22 of this Treaty,
form an integral part of this Treaty,
adopted
by the Summit.’
[40] The position taken by
Zimbabwe, however, is that the amendments that were made to the
Treaty were also not binding upon it.
For his finding that Zimbabwe
was bound by the Protocol the learned judge in
Gramara
relied
upon the amendment (perhaps himself overlooking the fact that
protocols under Article 22 were in any event confined to protocols
for co-operation), and rejected the submission that it was not
binding. His reasons for finding that Zimbabwe was bound by the
amendment, and thus by the Protocol, were expressed as follows:
‘
Article
39 makes it abundantly clear that ratification by two-thirds of the
signatory States was a pre-requisite for the entry into
force of the
Treaty itself. However, amendments to the Treaty are governed by an
entirely different procedure prescribed in Article
36.1, as follows:
“
An
amendment of this Treaty shall be adopted by a decision of
three-quarters of all the Members of the Summit”.
The term “Summit”
is defined in Article 1 of the Treaty as:
“
...
the Summit of the Heads of State or Government of SADC established by
Article 9 of this Treaty”
.
Article 10 of the
Treaty (in its unamended form) is instructive as to the composition
of the Summit and its decision-making process.
It provides as follows
in its relevant portions:
“
1.
The Summit shall consist of the Heads of State or Government of all
Member States, and shall be the supreme policy-making institution
of
SADC.
3. The Summit shall
adopt legal instruments for the implementation of the provisions of
this Treaty ....
8. Unless otherwise
provided in this Treaty, the decisions of the Summit shall be by
consensus and shall be binding.”
The combined effect
of these provisions is that an amendment to the Treaty is not
concluded by way of ratification by Member States
but is adopted by a
decision of not less than three-quarters of the Summit, comprising
the Heads of State or Government of all
Member States. Furthermore,
the decision of the Summit to adopt the amendment is binding on all
Member States. The amendment becomes
operative immediately thereafter
and there is no need for any further ratification by Member States in
order to bring the amendment
into force and effect.
…
.
Article 9.1(f) as
read with Article 16 provides for the establishment of the SADC
Tribunal. Article 16.2 as amended provides that:
“
The
composition, powers, functions, procedures and other related matters
governing the Tribunal shall be prescribed in a Protocol
which
shall, notwithstanding the provisions of Article 22 of this Treaty,
form an integral part of this Treaty
,
adopted by the Summit.” [Amendment underlined]
The meaning and
effect of the amending words are clear, to wit, the Protocol of the
Tribunal forms an integral part of the Treaty
without the need for
its ratification by the Member States. To clarify this position and
dispel any doubt on the matter, all the
Member States, including
Zimbabwe, concluded and signed the Agreement Amending the Protocol on
Tribunal on the 3
rd
October
2002. By virtue of Articles 16 and 19 of this Agreement, Articles 35
and 38 of the Protocol of the Tribunal, which required
ratification
of the Protocol by two-thirds of the Member States, were repealed
in
toto
, thereby obviating the need to ratify
the Protocol.
To conclude this
aspect of the case, my assessment of and determination on the
jurisdictional capacity of the Tribunal is as follows.
On the 14
th
of August 2001, the Amendment Agreement was signed by 13
out of the 14 Heads of State or Government of the Member States,
including
Zimbabwe, thereby concluding the process of its adoption
and entry into force. In my view, there can be no doubt whatsoever
that
the Agreement was duly adopted in terms of Article 36.1 of the
Treaty and that it became binding upon all the Member States on the
date of its adoption. It follows that as from that date, by virtue of
Article 16.2 of the Treaty as amended, the Protocol of the
Tribunal
constituted an integral part of the Treaty and became binding on all
Member States without the need for its further ratification
by them.
It also follows that the Republic of Zimbabwe thereupon became
subject to the jurisdiction of the tribunal and that the
jurisdictional competence of the Tribunal in the
Campbell
case, which was heard and determined in 2008, cannot now
be disputed.’
[41] Persisting in Zimbawe’s
contention that it was not bound by the amendments to the Treaty its
counsel submitted next that
the Vienna Convention on Treaties 1969
demanded that the amendments be ratified. That submission, too, has
no merit. The Convention
makes itself clear that the terms of any
particular treaty determine the manner in which it becomes binding.
[42] There is no merit in the
submission that Zimbabwe is not bound by the Treaty as amended, or by
the Protocol as amended. Indeed,
I associate myself with the
following observations of Patel J:
‘
[The
Government of Zimbabwe’s] position in this regard, premised on
the
ex
post facto
official
pronouncements repudiating the Tribunal’s jurisdiction, is
essentially erroneous and misconceived. Their position
is rendered
even more untenable by the conduct of SADC governments, including the
Government of Zimbabwe, subsequent to the adoption
of the Amendment
Agreement, which conduct has been entirely consistent with the
provisions of the Treaty as amended by the Agreement.’
[43] The consolidated Protocol as
it stood at the time relevant to this appeal contained the following
provisions:
‘
Article
14 BASIS OF JURISDICTION
The Tribunal shall
have jurisdiction over all disputes and all applications referred to
it in accordance with the Treaty and this
Protocol which relate to
The interpretation
and application of the Treaty
–
(c) ….
Article 15: SCOPE OF
JURISDICTION
The Tribunal shall
have jurisdiction over disputes between Member States, and between
natural or legal persons and Member States.
No natural or legal
person shall bring an action against a Member State unless he or she
has exhausted all available remedies
or is unable to proceed under
the domestic jurisdiction.
Where a dispute is
referred to the Tribunal by any party the consent of the other
parties to the dispute shall not be required.
Article 32:
ENFORCEMENT AND EXECUTION
The law and rules
of civil procedure for the registration and enforcement of foreign
judgments in force in the territory of the
Member State in which the
judgment is to be enforced shall govern enforcement.
Member States and
institutions of the Community shall take forthwith all measures
necessary to ensure execution of decisions of
the Tribunal.
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.
Any failure by a
Member State to comply with a decision of the Tribunal may be
referred to the Tribunal by any party concerned.
If the Tribunal
establishes the existence of such failure, it shall report its
finding to the Summit for the latter to take appropriate
action.’
[44] It was not disputed before
us, and was expressly acknowledged in the affidavits filed by
Zimbabwe, that Article 32(3) renders
decisions of the Tribunal
enforceable in the territories of all member states. By its adoption
of that Article Zimbabwe clearly
both waived any immunity it might
otherwise have been entitled to claim from the jurisdiction of the
courts of member states and
agreed that orders of the Tribunal would
be enforceable in those courts.
[45] While it was submitted that
the Treaty and the Protocol has not been ‘domesticated’
in this country, in that it
has not been ratified by Parliament, that
submission misses the point. It is not that the instruments are being
enforced –
only that by its act Zimbabwe has submitted to the
jurisdiction and enforcement. No grounds have been advanced why
Zimbabwe should
not be held to its express undertakings.
[46] There is one further matter
that can be disposed of briefly. I pointed out earlier in this
judgment that the Tribunal, having
found that Zimbabwe had defied its
order, ruled that the matter be referred to the Summit for
‘appropriate action’
to be taken. It appears that the
Zimbabwe authorities took the opportunity to voice their objections
to other member states, and
that discussions ensued that had not
reached finality by the time the present proceedings were commenced.
On that basis it was
submitted before us – as I understand the
submission – that the order may not be enforced until those
discussions have
been concluded.
[47] There is no basis for that
submission. Article 32(5) of the Protocol requires the Tribunal, once
having found that a member
state has failed to comply with its
decision, to ‘report its finding to the Summit for the latter
to take appropriate action’.
The ‘action’
contemplated by that Article is action directed at compelling the
offending state to mend its ways. That
Zimbabwe has engaged its
fellow members in discussions aimed at reaching an alternative
solution is no reason why the order may
not meanwhile be enforced.
[48] No defence to the
respondents’ claim for recognition and enforcement of the costs
order of the Tribunal has been demonstrated
by Zimbabwe and its
application to rescind the order was rightly refused.
[49] There remains the
application to suspend the writ. In their heads of argument counsel
for Zimbabwe submitted that the writ
had not been served. While that
might provide grounds for resisting the sale of its property it is
immaterial to the validity of
the writ. No further grounds were
advanced for setting aside the writ and the court below cannot be
faulted for having dismissed
that application.
[50] The appeal is dismissed with
costs that include the costs of two counsel.
__________________
R W NUGENT
JUDGE OF APPEAL
APPEARANCES:
For appellant: P M Mtshaulana SC
M Lekoane
Instructed by:
Mathopo Mashimane Mulangaphuma
Inc, Sandton
Honey & Partners,
Bloemfontein
For respondents: J J Gauntlett SC
F B Pelser
Instructed by:
Hurter Spies Attorneys, Kloofsig,
Centurion
Rossouws Attorneys, Bloemfontein
1
Case
No 77881/09.
2
Case
No 47945/10.
3
Case
No 72184/10.
4
Government
of the Republic of Zimbabwe v Fick
(47945/10, 72184/10,
77881/09) [2011] ZAGPPAC 76 (6 June 2011).
5
Mike
Campbell (Pvt) Ltd v Republic of Zimbabwe
(2/2007) [2008] SADCT
2 (28 November 2008).
6
Article
4(c): ‘SADC and its Member States shall act in accordance with
the following principles: … (c) human rights,
democracy and
the rule of law.’
7
Article
6(2): ‘SADC and Member States shall not discriminate against
any person on grounds of gender, religion, political
views, race,
ethnic origin, culture, ill health, disability, or such other ground
as may be determined by the Summit’.
8
Campbell
v Republic of Zimbabwe
(SADCT) (03/2009) [2009] SADCT 1 (5 June
2009).
9
2003
(6) SA 1
(SCA) paras 6 and 11.
10
At
para 11.
11
We
were furnished with a typescript copy of the judgment and not its
citation.
12
(HC33/09)
[2010] ZWHHC 1
(26 January 2010).
13
The
two cases differ in this respect that what was sought to be enforced
in that court was the orders made in the main proceedings.
In that
regard Patel J held that to enforce those orders in Zimbabwe would
be contrary to public policy in that it would run
counter to the
Constitution of Zimbabwe that expressly allowed for its land reform
policy. Needless to say those considerations
do not apply in this
country. But in any event the present case is directed at the costs
order made by the Tribunal, albeit that
the order of Rabie J
extended to the main proceedings as well.
14
Counsel
for Zimbabwe referred us in argument to a paper written by Richard
Frimpong Oppong: ‘Enforcing judgments of the
SADC Tribunal in
the domestic courts of member states’ (apparently yet to be
published) while interesting, the paper does
not assist in deciding
this case.
15
The
People’s Republic of Angola, the Republic of Botswana, the
Kingdom of Lesotho, the Republic of Malawi, the Republic
of
Mozambique, the Republic of Namibia, the Kingdom of Swaziland, the
United Republic of Tanzania, the Republic of Zambia and
the Republic
of Zimbabwe.
16
Article
40: ‘This Treaty shall be ratified by the signatory States in
accordance with their constitutional procedures’.
17
Article
41: ‘This Treaty shall enter into force thirty (30) days after
the deposit of the instruments of ratification by
two thirds of the
States listed in the Preamble.’
18
The
Democratic Republic of the Congo, the Republic of Mauritius, the
Republic of Seychelles, and the Republic of South Africa.