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

2009 (2) ZLR p96

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 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 Corporation to 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

2009 (2) ZLR p97

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