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Luke M Tembani and Others v President of the Republic of South Africa and Another (167/2021) [2022] ZASCA 70


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Luke M Tembani and Others v President of the Republic of South Africa and Another (167/2021) [2022] ZASCA 70

Legal scales

20th May 2022


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Click here to read the full judgment on Saflii

[1]        To facilitate what has been described as an ambitious land and agrarian reform programme, the Constitution of the Republic of Zimbabwe was amended to provide for land expropriation without compensation, as also, to remove the jurisdiction of the domestic courts of Zimbabwe over disputes relating to expropriation without compensation.[1] Some farmers, including South African citizens, who had lost their land in consequence of the implementation of the programme, turned to the Southern African Development Community (SADC) Tribunal (the Tribunal). The Tribunal held that the jurisdiction of the Zimbabwean courts had been ousted ‘from any case related to the acquisition of agricultural land and that the applicants [in that matter] were therefore unable to institute proceedings under the domestic jurisdiction’.[2] It concluded that Zimbabwe was in breach of certain of its obligations under the SADC Treaty (the Treaty)[3] and, inter alia, ordered it to pay fair compensation. Zimbabwe, however, failed to comply with the order of the Tribunal.


[2]        In September 2009, at a meeting of the Summit (being the supreme executive body constituted by the Treaty and comprising the Heads of State of the member states of SADC) held in Kinshasa in the Democratic Republic of Congo, Zimbabwe’s failure to comply with the decisions of the Tribunal was raised. It was resolved to ask the Committee of Ministers of Justice and Attorneys-General (the Committee) to hold a meeting on the legal issues regarding Zimbabwe and to advise the Summit. The Committee was also asked to ‘review the roles, responsibilities and terms of reference of the Tribunal’.

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