they are well placed to deal with the legal issues involving national law . . . . However, where the municipal
law does not offer any remedy or the remedy that is offered is ineffective, the individual is not required to
exhaust the local remedies. Further, where, as the African Charter on Human and People's Rights states, ".
. . it is obvious . . . that the procedure of achieving the remedies would have been unduly prolonged," the
individual is not expected to exhaust local remedies. These are circumstances that make the requirement
of exhaustion of local remedies meaningless, in which case the individual can lodge a case with the
international tribunal".
We would add that one of the aims concerning exhaustion of local remedies is to prevent individuals from
abuse of remedies through concurrent proceedings and thus the requirement aims at avoiding parallelism
of proceedings.
The effect of section 38 of the Act and indeed section 16(7) (d) of the Constitution of the Respondent is that
the jurisdiction of the courts of law in Zimbabwe is ousted whenever agricultural land is acquired in the
circumstances obtaining in the present application. This has been confirmed in the decisions of the
Supreme Court, the highest Court in that country, which we have already referred to above.
Thus, it would be meaningless, in our view, to insist that the Applicant should have first exhausted his
domestic remedies. In the circumstances, we are of the view that the Applicant is properly before us and
that we have jurisdiction to consider the application, and we now proceed to do so.
3. Denial of Access to the Courts
The next issue to be decided is whether or not the Applicant has been denied access to the courts and
deprived of a fair hearing, in breach of Articles 4(c) and 6(1) of the Treaty when in November 2000 his
immovable property, a farm, which he had mortgaged to ABZ as security for his loans, pursuant to various
loan agreements, had been seized and sold by ABZ after he had defaulted on his debts.
It is to be noted that the loan agreements entered into by the Applicant with ABZ derived their authority
from, and are governed by, the then provisions of section 40(2) and (2a) of the Act which have now been
replaced by similar provisions in section 38(2), as stated already.
Section 40(2) and (2a) of the Act stated as follows:
"(2) The Corporation may in the case of an advance in respect of which security is given, including any
security by way of notarial bond or note of hand, stipulate that it shall be a condition of the advance that if
any advance in respect of which security has been given becomes repayable in terms of subsection (1) the
Corporation, in addition to the powers conferred by subsection (1), shall be entitled, subject to the
provisions of subsection 2(a), after a period of ten days have elapsed since the posting of a registered letter
of demand addressed to the borrower at his last known address or at the address given to him in his
application for the advance to enter upon and take possession of the whole or any part of the security
concerned and to dispose of such security in accordance with the provisions of the Second Schedule.
(2a) The Corporation shall be entitled to exercise the powers conferred upon it in accordance with any
condition referred to in subsection (2) as soon as it has posted a registered letter of demand to the
borrower in terms of that subsection where in any event referred to in paragraph (c), (d) or (e) of subsection
(1) occurs: Provided that the Corporation shall not dispose of any security so seized until the period of ten
days has elapsed since the posting of the registered letter of demand."
The Supreme Court of the Respondent had the opportunity, in John Nyamukusa v Agricultural Finance
Corporation SC 174/94 and Augustine Renusu Chizikikani v Agricultural Finance Corporation SC
123/95, of construing section 40(2) and (2a) of the Act, together with clause 6 of the loan agreements, and
came to the inevitable conclusion that ABZ could seize and take possession of the mortgaged property of
the defaulting debtor without any recourse to a court of law. Moreover, the Court in Nyamukusa, cited
above, held that the seizure of the mortgaged property of the defaulting debtor, as in the present case, was
specifically sanctioned by section 16 (7) (d) of the Constitution of the Respondent, already referred to
above.
The decision in these two cases was reaffirmed in Agricultural Bank of Zimbabwe v Tembani and
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