Court says Zimbabwe wrong to take over German company's farm

Court says Zimbabwe wrong to take over German company's farm

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• Zimbabwe farmer loses fight, faces eviction

• African tribunal deals blow to Zim land seizures

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• Joram Nyathi: Propaganda has its limits

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By Lindie Whiz
Posted to the web: 14/12/2008 23:21:49
A GERMAN company has used a bilateral agreement to evict a black Zimbabwean farmer in the prime farming area of Figtree, Matabeleland South Province.

N & N Farming (Pvt) Ltd obtained an eviction order through the High Court in Harare on November 19. Justice Mavangira granted the order.

The Deputy Sheriff enforced the eviction order on Leonard Nzima, who was offered the piece of land, identified in court as Subsection 1 McGee Lucky Tweedale, through a government offer letter dated March 3, 2006.

The Deputy Sheriff, in the company of police officers, swooped on the farm last week Tuesday to carry out the eviction.

Esthel Ndebele, described in court as the wife of a late senior civil servant in the district, was also evicted, although she was not cited as a respondent in the court papers.

Nzima was cited as a third respondent in the matter, with the Ministry of State Security responsible for Land, Land Reform and Resettlement, the Ministry of Foreign Affairs and the Attorney General’s Office also added to the court application as respondents.

Nzima is a beneficiary of the controversial and chaotic land reform programme in which started in 2000. Twelve white farmers were killed as marauding war veterans and landless villagers marched onto their farms.

None of the respondents in the application turned up for a hearing on February 28, and the judge made an order based on their default and after lawyers for N & N Farming addressed the court on the merits of the application.

Nzima and his lawyer, Thabisa Sibanda, of James, Moyo-Majwabu and Nyoni deny being served with the notice of the hearing and plan to appeal against the eviction order.

But a major legal hurdle, which was the thrust of N & N Farming’s application, is a bilateral agreement between the governments of Zimbabwe and federal government of Germany.

Justice Mavangira declared that the N & N Farming owns the remainder of McGee Lucky Farm under Deed of Transfer No 2308/00 (Newlands).

"Newlands is subject to the full protection of the law and security in accordance with the provisions of Section 16 (9b) of the Constitution of Zimbabwe as read with the agreement between the Government of the Republic of Zimbabwe and the Federal Republic of German concerning the Encouragement and Reciprocal Protection Investment that was entered into on 14 April 2000. It continues to subsist and is binding to the Government of Zimbabwe," reads the order.

Justice Mavangira further declared that Newlands has not been competently and validly acquired by the Government of Zimbabwe under the provisions of section 5 (1) of the Land Acquisition Act or with regards the provisions of section 16B of the Constitution of Zimbabwe.

The section concerns the expropriation of property and the judge adds that any purported acquisition of Newlands is null and void for want of compliance with "mandatory and peremptory prior requisite set out in the agreement between the two governments".

The judge further declared that the offer letter dated 3 March 2006 in favour of Nzima was incompetent, invalid and of no force or effect by reason of the subsistence of the Bilateral Protection and Investment Agreement in favour of the applicant.

The Harare judgement comes hard on the heels of a SADC Tribunal Court ruling that Zimbabwe's violent land reform exercise did discriminate against 78 white commercial farmers who had filed a group application challenging the seizure of their farms.

The President of the tribunal, Judge Lius Mondlane, ruled that Zimbabwe was in breach of the SADC treaty with regards to discrimination when it seized the farms.

Robert Mugabe has already rubbished the ruling, saying it was “an exercise in futility”.
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