South African High Court declares President’s participation in suspending SADC Tribunal unlawful
Law Society of South Africa and Others v President of the Republic of South Africa and Others, Case No. 20392/2015
Court: High Court of South Africa (Gauteng High Court, Pretoria)
Date of judgment: 1 March 2018
On 1 March 2018, the Gauteng High Court, Pretoria (the High Court) declared that the President of the Republic of South Africa (the President) had acted unlawfully, irrationally and thus unconstitutionally in participating in the suspension of the Southern African Development Community (SADC) Tribunal.
At the crux of the matter before the High Court were two decisions taken by the Executive: (i) in May 2011, when the President decided to support a resolution in effect suspending the operation of the SADC Tribunal; and (ii) in August 2014, when the President signed the 2014 Protocol of the SADC Tribunal (the 2014 Protocol), which limited the jurisdiction of the SADC Tribunal to inter-state disputes only, and therefore excluded individuals and private parties from being able to lodge complaints before the Tribunal.
The SADC Tribunal was established in terms of the Treaty of the Southern African Development Community (the SADC Treaty), and the composition, powers, functions and procedures of the Tribunal are set out in the Protocol Pertaining to the Tribunal (the First Protocol). According to article 15 of the First Protocol, the scope of jurisdiction of the Tribunal lies over disputes between natural or legal persons and states. In terms of the Rules of the Tribunal, which were added as an addendum to the First Protocol, an applicant is defined as a person, member state or institution that has submitted an application to the Tribunal.
At a meeting of Heads of State and Government in 2010, an item was presented concerning the non-compliance with decisions of the Tribunal. According to the minutes of the meeting, it was reflected that, in particular, Zimbabwe’s failure to comply with decisions of the Tribunal was discussed, and it was resolved that the Committee of Ministers of Justice and Attorneys-General would hold a meeting on the legal issues regarding Zimbabwe, and would further review the roles, responsibilities and terms of reference of the Tribunal.
Pending the report to be prepared by the Ministers of Justice and Attorneys-General, the SADC Summit decided that members of the Tribunal would not be reappointed on expiry of their terms in office, and that no new cases would be entertained. It was further decided that the consideration of Zimbabwe’s failure to comply with the Tribunal’s rulings would be deferred under after the completion of the report.
As noted by the High Court, the decision to suspend the appointment of members of the SADC Tribunal was extraordinary, as its effect was that the Tribunal could not function, and was taken despite the appointment of members being mandatory. The South African government did not seek parliamentary approval prior to its participation and endorsement of the decision.
At a further meeting of Heads of State in May 2011, it was noted that the Committee of Ministers of Justice and Attorneys-General had finalised their study, and confirmed the validity of the First Protocol and Rules of Procedure, as well as that the Tribunal was properly constituted. It was nevertheless then decided that no members of the Tribunal would be reappointed, including those whose terms had expired in 2010 or those whose terms would be expiring later in 2011.
In 2014, the 2014 Protocol was concluded. The President signed the 2014 Protocol on behalf of South Africa. In terms of article 33 of the 2014 Protocol, individuals were precluded from lodging disputes before the Tribunal; instead, only member states could lodge disputes. There was no public consultation that preceded the President’s signature of the 2014 Protocol, and it has not yet been ratified by Parliament.
The applicants argued that the combined effect of South Africa’s participation in these decisions was to impermissibly suspend South Africa’s obligations under international law. According to the President, signing the 2014 Protocol was only intended to demonstrate that South Africa was open to considering the ratification of such an instrument.
The High Court agreed with the applicants that the decisions taken in effect suspended the activities of the Tribunal by imposing a moratorium on its activities, and interfered with vested rights. The High Court held that the President’s signature to the 2014 Protocol was unlawful and unconstitutional, and therefore liable to be set aside. This was equally so in respect of the President’s participation in suspending the SADC Tribunal. As stated by the High Court (at para 67): “The Tribunal and its jurisdiction lie at the heart of the SADC Treaty and fulfil one of its main purposes. Its emasculation by way of its de facto suspension was therefore similarly in conflict with the [SADC Treaty] and South Africa’s constitutional obligations”.
The High Court went on to hold that the President’s signature of the 2014 Protocol could not be connected to the promotion of democracy, human rights and the rule of law, which were entrenched in the SADC Treaty. In this regard, the High Court described the irrationality of the President’s signature as “self-evident”, summarising the position (at para 69) as follows:
Having regard to the facts, it is clear that the irrationality of the signature is self-evident. Instead of supporting the Tribunal, as the [SADC Treaty] envisages, and at the instance of the violator of the Tribunal’s orders (the Zimbabwe Government), the Tribunal’s jurisdiction was simply signed away, contrary to the advice of the Ministers of Justice and Attorneys-General, contrary to the recommendation of the independent expert appointed to conduct a review on the Tribunal, without consultation and approval of the South African Parliament, in ignorance of the fact that the [SADC Treaty] and the First Protocol had become part of our domestic law, without consulting any of the affected persons whose complaints had been upheld by the Tribunal, and where no alternative had been provided to such litigants who had obtained vested rights before the Tribunal.”
According to the High Court, the 2014 Protocol severely undermined the SADC Tribunal and detracted from SADC’s own stature and institutional accountability, and violated the SADC Treaty itself.
At present, South Africa remains bound by the SADC Treaty and the First Protocol, and the Executive has no authority to participate in a decision in conflict with South Africa’s binding obligations. If it were the intention to withdraw from South Africa’s obligations under the SADC Treaty and the First Protocol, the Executive would first have to obtain consent from Parliament to do so.
Accordingly, the High Court declared that the President’s participation in suspending the SADC Tribunal and the subsequent signing of the 2014 Protocol was unlawful, irrational and thus unconstitutional. The order has now been referred to the Constitutional Court for confirmation in accordance with section 172(2)(a) of the Constitution.
The full judgment is accessible here.
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