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
(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.

1Case No 77881/09.
2Case No 47945/10.
3Case No 72184/10.
4Government of the Republic of Zimbabwe v Fick (47945/10, 72184/10, 77881/09) [2011] ZAGPPAC
76 (6 June 2011).

[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.

5Mike Campbell (Pvt) Ltd v Republic of Zimbabwe (2/2007) [2008] SADCT 2 (28 November 2008).

[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.‟

6Article 4(c): „SADC and its Member States shall act in accordance with the following principles: …
(c) human rights, democracy and the rule of law.‟
7Article 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‟.

[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

8Campbell v Republic of Zimbabwe (SADCT) (03/2009) [2009] SADCT 1 (5 June 2009).

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 Ltd9 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,

92003 (6) SA 1 (SCA) paras 6 and 11.
10At para 11.

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.

11We were furnished with a typescript copy of the judgment and not its citation.

[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 Zimbabwe12 – 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 (13th ed. 2004) at 407; Forsyth:

12(HC33/09) [2010] ZWHHC 1 (26 January 2010).

Private International Law (4th 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 1995 (1) SA 677 (A) at 685B-E and in
Purser v Sales 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.

13The 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.
14Counsel 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.

[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.‟

15The 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.
16Article 40: „This Treaty shall be ratified by the signatory States in accordance with their
constitutional procedures‟.
17Article 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.‟

[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:

18The Democratic Republic of the Congo, the Republic of Mauritius, the Republic of Seychelles, and
the Republic of South Africa.

„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 3rd 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 14th 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
(a)
The interpretation and application of the Treaty
(b)
– (c) ….
Article 15: SCOPE OF JURISDICTION
1. The Tribunal shall have jurisdiction over disputes between Member States, and
between natural or legal persons and Member States.
2. 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.
3. 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
1. 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.
2. Member States and institutions of the Community shall take forthwith all
measures necessary to ensure execution of decisions of the Tribunal.
3. 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.

4. Any failure by a Member State to comply with a decision of the Tribunal may be
referred to the Tribunal by any party concerned.
5. 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