Centre for Human Rights Welcomes Constitutional Court’s Judgment on the invalidity of the disbandment of the SADC tribunal
Posted on December 17, 2018
On 11 December 2018, the Constitutional Court of South Africa in the matter between Law Society of South Africa and Others v. The President of the Republic of South Africa and Others, upheld the 1 March 2018 decision of the Northern Gauteng High Court that the President’s decision and signing of the 2014 Protocol which disbanded the Southern African Development Community (SADC) Tribunal was unconstitutional, unlawful and irrational. The Court thereby ordered the President to withdraw his signature from the 2014 Protocol to the SADC Tribunal.
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To provide some background, here are common known facts about the SADC Tribunal:
- SADC Tribunal was set up under a protocol to the SADC Treaty in 2000
- SADC Tribunal allowed access by both individuals and states
- SADC Tribunal decided the Campbell case against Zimbabwe in 2008 and
Zimbabwe in turn questioned the jurisdiction of the Tribunal
- The SADC Summit disbands the Tribunal pending the adoption of a new protocol.
- An amended Protocol which has been adopted had not yet come in to force but it excludes individual access to the court in the Tribunal’s jurisdiction and mandates.
Below are little known facts on the SADC Tribunal:
- During its lifetime it heard and concluded 16 cases
- Some of these cases were human rights cases, Gondo et al v Zimbabwe (right to dignity and integrity of person), Tembani v Zimbabwe (right to fair trial), Bach Transport v DRC (right to property)
- The SADC Tribunal helped shape human rights discourse in the sub-region
- The cases decided now lie at the mercy of the respondent states
- The SADC Summit washed its hands off enforcing compliance
- The Northern Gauteng High Court in South Africa on 1 March 2018 declared that the decision by former President Jacob Zuma to sign the 2014 Tribunal Protocol ousting individual access was ‘unlawful, irrational and therefore unconstitutional” in the case of Law Society of South Africa and Others v. The Republic of South Africa and Others
The decision from the Northern Gauteng High Court was appealed at the Constitutional Court. Below is an excerpt from the Constitutional Court’s judgement:
 The President’s decision to render the Tribunal dysfunctional is unconstitutional, unlawful and irrational. And so is his signature. The appropriate remedy is simply to declare his participation in arriving at that decision, his own decision and signing of the Protocol constitutionally invalid, unlawful and irrational.
 We cannot withdraw the President’s signature. But, we may direct him to withdraw his signature to the Protocol. One President is a successor in title of another and the obligations are similarly transferable from one to the other. For the execution of the duties attendant to the presidential office and antecedent authority is never really incumbent-specific. The power and obligations devolve from one personality to another – it is, after all, the Presidency. Whoever the President happens to be will be directed to withdraw the President’s signature to the Protocol.
The Centre for Human Rights welcomes this judgement from the Constitutional Court of South Africa, and hereby calls on the President of South Africa, President Cyril Ramaphosa to comply with this judgement and withdraw South Africa’s signature from the 2014 Protocol to the SADC Tribunal which withdraw the individual access from the Tribunal.
The Centre for Human Rights urges all SADC civil society organisations to put pressure on their governments not to ratify the amended protocol but to restore individual access to the Tribunal.
For more information, please contact:
Prof Frans Viljoen
Tel: +27 (0) 12 420 3228
Fax: +27 (0) 86 580 5743
Tel: +27 (0) 12 420 4532
Fax: +27 (0) 86 580 5743
- Author Centre for Human Rights