Widespread interest in Zimbabwean Constitutional challenge

Parties to the process (of whom some are South African nationals) also invited the South African Embassy in Harare to attend the proceedings tomorrow. It is however not yet known whether the South African Government will be sending observers to attend the hearing.

An independent South African observer, retired South African Appeal Court Judge Doug Scott has already left for Harare to attend the hearing tomorrow. Justice Scott also acts as an Appeal Court Judge in Lesotho from time to time. The civil rights initiative, AfriForums legal representative, Willie Spies will also attend the hearing in Harare on behalf of Afriforum and South African citizens affected by the land reform process.

The hearing is scheduled to start at 10:00 tomorrow (30 September 2010) in the Supreme Court of Zimbabwe, Harare.

A synopsis of the application is attached below.

For more information, call

Willie Spies

083-676-0639

IN THE SUPREME COURT OF ZIMBABWE CASE NO SC 81/10

HELD IN HARARE

In the matter between:

COMMERCIAL FARMERS UNION FIRST APPLICANT

AND

BATELEURS PEAK FARM HOLDINGS (PVT) LTD SECOND APPLICANT

AND

CHIREDZI RANCHING COMPANY (PVT) LTD THIRD APPLICANT

AND

LOUIS KAREL FICK FOURTH APPLICANT

AND

ANDREW PAUL ROSSLYN STIDOLPH FIFTH APPLICANT

AND

LIPGREEN FARMING (PVT) LTD SIXTH APPLICANT

AND

GRANDEUR RANCHING (PVT) LTD SEVENTH APPLICANT

AND

BLUE RANGES (PVT) LTD EIGHTH APPLICANT

AND

CHIRIGA ESTATES (PVT) LTD NINTH APPLICANT

AND

BUSI COFFEE ESTATE (PVT) LTD TENTH APPLICANT

VERSUS

THE MINISTER OF LANDS, AND

RURAL RESETTLEMENT FIRST RESPONDENT

AND

THE MINISTER OF JUSTICE SECOND RESPONDENT

AND

THE COMMISSIONER GENERAL OF THE ZIMBABWE REPUBLIC POLICE THIRD RESPONDENT

AND

THE AUDITOR GENERAL FOURTH RESPONDENT

AND

THE MINISTER OF FINANCE FIFTH RESPONDENT

AND

THE ATTORNEY GENERAL SIXTH RESPONDENT

AND

THE CHAIRMAN OF THE COMPENSATION COMMITTEE SEVENTH RESPONDENT

The General Grounds Upon Which The Application Is Founded

1. Applicants contend that certain of their rights enshrined in the Declaration of rights have been violated by virtue of the actions and omissions of the Respondents in the implementation of the ongoing national land resettlement exercise.

2. For the avoidance of doubt Applicants do not in this application seek to revisit the arguments as to the legality of contesting compulsory acquisition of land as was argued in the Supreme Court Case of Campbell (Application 124/06 and Judgment No 49/07).

3. Applicants intend to confine their relief to the manner in which the purported resettlement exercise is being carried out. However, as a matter of record, and again for the avoidance of doubt, Applicants reserve all their rights to benefit from any judgment arising as a consequence of the SADC Tribunal Case No 2/2007 involving Mr Campbell and 79 interveners vs. The Republic of Zimbabwe

PART II

OBJECTS OF APPLICATION/ RELIEF SOUGHT

Objects

4. The object of this application is generally to seek and secure the protection by the Courts of the Applicants in terms of Section 24 of the Constitution The individual Applicants and the CFU acting on behalf of its general membership complain that:

a) they are being improperly treated because of their race in contravention of Section 23 of the Constitution;

b) they are being denied protection of the law and equality before the law under Section 18 of the Constitution; and that

c) they are being unfairly tried on charges of contravening section 3 of the Gazetted Lands (Consequential Provisions) Act; and that

d) The racial imbalance sought to be addressed in the land reform programme has been achieved rendering any further evictions of white farmers unlawful; and that

e) The Ministers, ministry officials, magistrates, public prosecutors, court officials, police and military (all being public officials) mentioned in the body of the application and affidavits have breached their duties in terms of Section 18(1a) of the Constitution to uphold the rule of law and to act in accordance with the law.

5. The Applicants respectfully submit that these wrongs are being inflicted upon them in the course of a deliberately planned operation that has been devised and is being organised and implemented or allowed to be implemented by these Respondents and other elements of the Government of Zimbabwe as a final step in an overall revolutionary objective of emasculating the white commercial farming community of this country, taking occupation of all white occupied farm land and by seizing the movable assets of many farmers for the people.

6. This objective is the clear policy and agenda of the Respondents. Put differently there is nothing in the attitude, conduct and behaviour of Respondents to suggest that the latter seriously perceive that there is an opportunity for white farmers to continue to occupy farm land in Zimbabwe. Indeed Government strategy is the antithesis of this.

7. The Applicants complain:-

7.1 That the land that they are occupying, whether it is State Land or not, is being seized and occupied by holders of offer letters with the support of Government officials before the Applicants have had a chance to defend or make their claims of right to retain occupation.

7.2 That occupations are accompanied by seizures of farm equipment and materials, again supported by Government officials, without regard to the legal procedures prescribed for such acquisitions.

7.3 That they are being prosecuted because they are white and without being accorded fair trials. No such prosecutions are being brought against indigenous people save for certain employees of white farmers who are charged as occupying the land as if they were the white farmer.

7.4 That the Administrative Court processes for the confirmation of the seizure of movable assets are being abused and/or ignored.

7.5 All these actions are being taken or allowed to be taken against them and other white farmers because they are white farmers who are still on the land. They also complain that they are being required to vacate the land for the purpose of favouring particular individuals who have been granted offer letters for land that has been kept productive by white farmers rather than for the purpose of land reform in general

Relief Sought.

8. The Applicants seek the protection of the law as provided for in subsections (1) and (1a) of section 18 of the Constitution by placing a moratorium on:

8.1 the occupation by holders of offer letters for agricultural land which is still or already occupied by third persons particularly those white farmers who may have been in occupation at the time of enactment of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28]

8.2 the institution and pursuit of prosecutions against such people under section 3 (3)(a) of the foresaid Act.

8.3 the seizure of farm equipment and material by the holders of offer letters and the acquisition of such property in the name of the First Respondent.

8.4 the institution and pursuit of proceedings of the Administrative Court in applications by the Minister of Lands for confirmation of the acquisition of movable items so acquired.

The applicants pray that the moratorium remains operative pending an application by the respondents to show cause why they contend the racial imbalance as envisaged in the Land Reform programme has not been addressed.

9. The Applicants pray that this moratorium be granted for the reasons set out under the following principal headings:-

21.1 Resettlement has been conducted largely outside the law.

21.2 Resettlement has been conducted in disregard of the law

21.3 Existence of bona fide and reasonable grounds for continuing in occupation.

21.4Withholding of formal instruments of authority

21.5Denial of fair trials.

21.6The extent, magnitude and weight of the evidence in support of

paragraphs 21.1 to 21.5 above

and the Applicants pray that the order be granted in the form set out in the draft order annexed to the end of these papers.

22 The principal averments and contentions of Applicants in support of this application are contained in PARTS III, IV, V, VI and VII. This Honourable Courts attention is drawn to the fact that Applicants appreciate that the contents in these parts are to a large extent couched in general format. The approach so adopted by Applicants is deliberate and is specifically intended to avoid unnecessary prolixity whilst at the same time canvassing a broad spectrum of matters and issues considered pertinent and necessary to highlight in order to justify the relief sought.

23 What then follows in PART VIII are the individual affidavits of some of the Applicants in which greater detail and particularity is revealed of the facts as they currently present on the ground. It is submitted that the affidavits in part VIII further amplify and fortify the general contents of Parts III, IV, V and VI and in the result provide the necessary factual basis for the relief sought. For convenience and clarity, annexures to this affidavit are collated in a bundle marked Part IX.