TEMBANI v REPUBLIC OF ZIMBABWE 2009 (2) ZLR 96 (SADC)

Flynote

Constitutional law — Constitution of Zimbabwe — s 16(7)(d) — provision in conflict with articles 4(c) and 6(1) of SADC Treaty — Zimbabwe in breach of its obligations thereunder — s 16(7)(d) — preventing access to the courts a breach of international law.

Costs — appeal — appeal to SADC Tribunal — costs normally borne by parties per thereto — exceptional circumstances justifying departure to normal rule — reprehensible conduct by respondent — order by Tribunal that respondent to pay applicant's costs

Human rights — breach of natural justice — denial of right of hearing before independent and impartial court — Constitution of Zimbabwe — s 16(7)(d) — effect of — denial of access to courts

International law — treaties — SADC Treaty — art 4(1) — interpretation — principles — requirement to act in accordance with human rights, democracy and the rule of law — Agricultural Finance Act [Chapter 18:02] — s 38 — section authorizing Agricultural Finance Corporationto attach and sell, without recourse to the courts, property which was the subject of a loan — such provision contrary to rule of law and rules of natural justice

Practice and procedure — Protocol on SADC Tribunal — art 15(2) — appeals to SADC Tribunal — party bound to exhaust domestic remedies first — application of rule — rule does not apply where it would be wholly pointless for a party to do so

Statutes — Agriculture Finance Corporation Act [Chapter 18:02] — s 38(2) — section authorizing Agricultural Finance Corporation to attach and sell, without recourse to the courts, property which was the subject of a loan — section in conflict with arts 4(c) and 6(1) of SADC Treaty — such

A provision contrary to rule of law and rules of natural justice — sale of farm illegal and void