"The Respondents jointly, and all those acting through them are interdicted forthwith from carrying out any farming or any other activities and operations and erecting illegal structure in applicant's property namely Thornton Farm situated in Chimanimani District for which applicant has a right of occupation referred to in Applicant's Affidavit hereto.
The Respondents and all those through then [sic] are interdicted from going to applicant's property on Thornton Farm, without the applicant's express authority and consent thereby interfering with the applicant's operations in anyway in the property.
The Respondents and all those through then [sic] are ordered to give applicant and its employees undisturbed right of use to its property namely Thornton Farm, Chimanimani.
The Respondents to remove all illegal structures on Applicant's property forthwith."
The order was made final on 30 January 2013 and appears to remain in place to date (see Application, para. 3.10).
(a) The Tribunals have prima facie jurisdiction over the merits of the disputes, as pleaded in their Requests for Arbitration and in their Memorial, and as confirmed by the Tribunal in PO No. 5 (see Application, paras. 5.1-5.2);
(b) The Claimants seek the preservation of three existing rights, being (i) their entitlement to the return of Thornton Farm, including the plantations thereon; (ii) their right to participate in these proceedings without being intimidated directly or indirectly by the Respondent or other persons; and (iii) their right that the dispute between the parties is not aggravated by the Respondent (see Application, paras. 6.3-6.6);
(c) The Claimants submit that the presence of the Thornton Party is highly prejudicial - and therefore meets the criterion of urgency - given the nature of the investment in question (i.e., the plantations), as their presence presents a serious risk of catastrophic forest fire that could destroy the plantations and Thornton Farm's value. The Claimants submit that their right not to be intimated and their right to the non-aggravation of the dispute is also prejudiced by the presence of the Thornton Party, noting the attack on the workers' village (see Application, paras. 8.1-8.4); and
(d) The Claimants submit that irreparable harm or damage will occur – thereby satisfying the criterion of necessity – if provisional measures are not ordered because the matters engaged by the rights the preservation of which is sought in this Application cannot be fully remedied by compensation (see Application, paras. 9.1-9.4).
"The general assumption in Zimbabwe is that between now and 14 August 2013 there will be a national election. The last national election (in 2008) was marked by political violence. Human Rights Watch has warned that the forthcoming elections will also be violent. The Claimants are very concerned that if large numbers of Settlers are allowed onto the Estates it greatly increases the chances of political violence occurring on the Estates, whether between Settlers or between Settlers and the Claimants' 6.500 employees.
The chance of such violence is increased because it is reasonable to assume that the Settlers have political views that are opposed to those of the Claimants' employees (note the attack on the workers' village on 2 July 2013 – see para. 3.17 above). This divergence in political opinion arises out of a number of matters, including the fact that the ruling party, ZANU-PF, initiated the expropriation [sic: of] the Claimants' land in 2005, which the Settlers wish to occupy, but which could destroy the livelihood of the Claimants' employees.
Further, the chance of violence is increased by the fact that the congregation of large numbers of people in one place acts as magnet for political activists seeking to promote political violence.
There is also an air of despondency among some rural people partly arising out of the fact that food security is on the rise as a result of the expropriation of the large scale farming sector.
Finally, there have been a number of Invasions on the Estates that have been brought to the attention of the tribunals to date. As a result of the correspondence that the Respondent had submitted to the Tribunals in regard to an earlier application for provisional measures (that concerned the Muzite Party) the Claimants had understood that the Respondent intended to instruct its Police force to stop Settlers invading the Estates. However, the Respondent appears to be no longer willing to do so, or at least to be inconsistent as to whether or not it will act in such circumstances. If the Tribunals accept the grounds of this application in regard to Thornton Farm, then those grounds are equally applicable to all properties within the three Estates. In such circumstances it would be far more efficient to have one order in regard to all of the Estates as opposed to the Claimants having to make an application each time there is an Invasion of a particular property." [citations omitted]
"Under domestic law, execution of the Provisional Order granted to Claimants on 14th January 2013, C-000860, meant that the court official designated to execute such orders, being the messenger of court, became functus officio together with the police who were empowered to arrest the Thornton Party after the successful execution of the order.
In terms of domestic procedure, any defiance of the court order after its successful execution can only be cured by an order of contempt made by the same court that granted the defied order. Such contempt order does not involve the police, as it is a civil matter where the applicant must approach the civil court on application and the concerned party is given an opportunity to respond.
In such proceedings the domestic court will issue further orders designed to stop/mitigate the contempt. In the event that such an order involves the police or any arm of the State to assist in diminishing the contempt, then the Respondent will be obliged to act."
"While the proceedings are suspended, the Respondent's reporting obligations pursuant to Procedural order No. 5 remain in place: the Respondent is to continue to provide an update to the Members of the Tribunals on the 15th of each month until the commencement of the hearing on jurisdiction and the merits."
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