South African Support For The Suspension Of The SADC Tribunal
This brief considers the relevance of a recent High Court judgment in which Zuma’s actions were declared unlawful, irrational and unconstitutional.
The case considered the jurisdictional limitations imposed on the Southern African Development Community Tribunal. Individuals' rights to access to justice and effective remedies for human rights violations are excluded, in contravention of international law.
On 1 March 2018, the Regional Hight Court, Pretoria (High Court) handed down judgment in an application brought by the Law Society of South Africa (LSSA) and members of the Tembani community in Zimbabwe to declare the suspension of the Southern African Development Community (SADC) Tribunal and the signing of the SADC Summit Protocol 2014, by former President Jacob Zuma (Zuma), to be unconstitutional.
The case is of significance given that the rights of South African citizens to access justice at the SADC Tribunal are implicated. This brief considers the context surrounding the importance and purpose of SADC and the actions of the South African Executive in relation to the SADC Tribunal. The brief goes on to outline the submissions of the parties including the justification of the Executive for its actions. Such actions are then considered in light of South Africa’s Constitutional as well as international law obligations. The relevance of the judgment’s finding that Zuma’s actions were unlawful, irrational and thus unconstitutional concludes the brief.
The SADC tribunal
SADC was established in terms of the SADC Treaty to allow Southern African Countries to, inter alia, respect, protect and promote human rights, democracy and the rule of law. South Africa joined SADC by acceeding to the Treaty in 1994. Article 4(c) of the Treaty binds Member States to act in accordance with human rights, democratic and rule of law principles. The SADC Tribunal (Tribunal) was created to properly adjudicate matters brought before it as well as ensure adherence to and proper interpretation of the Treaty.
The Tribunal Protocol regulates the composition, powers, functions, procedures and other related matters of the Tribunal. Due to the insufficient number of ratifying parties, the Treaty was amended to remove the ratification requirement. The Amending Agreement, which amended the Treaty to include the Tribunal Protocol (Amended Treaty), binds South Africa. In terms of section 231 of the Constitution, South Africa can ratify, accede to and domesticate international agreements. The Amended Treaty places an international law obligation on South Africa to ensure that its citizens have access to the Tribunal and that its decisions are enforced.
The Tribunal has the jurisdiction to adjudicate, as per article 15, “over disputes between States and between natural or legal persons and States.” Therefore the First Protocol allows access to any person to institute proceedings before the Tribunal.
In 2010 a meeting was held concerning the non-compliance of Zimbabwe with the decisions of the Tribunal. It was resolved that a Committee of Ministers of Justice and Attorneys-Generals should advise the Summit on the legal issues regarding Zimbabwe and review the role, responsibilities and terms of reference of the Tribunal.
The Summit subsequently deferred consideration of Zimbabwe’s non-compliance with the Tribunal pending the completion of a study on the role, responsibilities and terms of reference of the Tribunal.
It was resolved that members of the Tribunal whose terms of office expire in August 2010 would not be reappointed, and members whose term of office would have expired in October 2011 were not reappointed. Further, the Tribunal was prohibited from taking on more cases. This May 2011 decision resulted in the de facto suspension of the SADC Tribunal since, without judges, the Tribunal could not function.
In 2014, a new Protocol (Second Protocol) was concluded. Article 33 prescribes that the Tribunal will have jurisdiction on the interpretation of SADC Treaty and Protocols relating to disputes between member States. The result is that individuals (natural persons) are precluded from lodging disputes before the Tribunal. While a new Tribunal, the SADC Administrative Tribunal (SADCAT) was established, it only has jurisdiction to hear administrative matters between SADC States and SADC secretariat staff. Thus, neither the Tribunal nor SADCAT will have jurisdiction to hear human rights matters and individuals will not have direct access to them. This constitutes a retrogressive action in that individuals’ rights to access to justice and effective remedies for human rights violations are impeded.
The LSSA application
In the High Court, the following submissions were made.
LSSA argued that Zuma’s impugned conduct violated section 34 of the Constitution and is unconstitutional in that, inter alia, there was no prior consultation and that no information was furnished regarding the decision. Further, Zuma’s conduct is inconsistent with the duties of SADC member states under the SADC Treaty itself. It was attested that the Respondents’ (The President of the Republic of South Africa and the Ministers of Justice and Constitutional Development as well as International Relations and Cooperation) defences were technical and untenable.
The Tembani applicants were the successful parties awarded compensation by the SADC Tribunal for the expropriation of their farm land by the Zimbabwean government. Zimbabwe refused to comply with the Tribunal’s decision. The non-compliance was referred to the Tribunal for relief. The Tribunal found that Zimbabwe had failed to comply and referred the matter to the Summit which granted a costs order against Zimbabwe.
In response to the SADC ruling against it, Zimbabwe embarked on a contempt offensive against the Tribunal. The Tembani applicants approached the High Court, Pretoria in South Africa to enforce the costs order.  This court registered the costs order, facilitating its enforcement in South Africa and issued a writ of execution authorising the attachment and sale in execution of certain Zimbabwean owned properties in South Africa to satisfy the cost order. Zimbabwe challenged this decision in the Supreme Court of Appeal, unsuccessfully and then in the Constitutional Court which also dismissed the appeal. These judgments are significant as they develop the common law so as to facilitate the enforcement of the decisions of the Tribunal in South Africa.
The Tembani Applicants contended that:
i. Zuma’s signature is contrary to the SADC Treaty. Through various articles, the Treaty binds member states to act in accordance with the founding principles of “human rights, democracy and the Rule of Law”. Further, member states are precluded from taking measures that jeopardize such principles. Zuma’s signature, which terminated the human rights jurisdiction of the Tribunal and undermined an essential SADC institution’s ability to enforce a SADC objective, was inconsistent with the Treaty itself.
ii. Zuma’s actions frustrated and terminated access to the Tribunal and interfere with vested rights retrospectively. The Tembani Applicants themselves had vested rights since they had won their case before the Tribunal was suspended.
iii. Zuma’s actions are irrational, arbitrary and mala fide. Zuma’s signature could not rationally be related to a legitimate government purpose authorised by 231 (1) of the Constitution and the Treaty as it was contrary to the advice of the Ministers of Justice and Attorneys-General, without consultation and without providing an alternative to the people. It was argued that the Rule of Law is a necessary condition for human rights, and that it requires the existence of courts and tribunals to resolve disputes.
The Respondents defended the litigation, contending that the case was brought too late in respect of challenging the suspension of the Tribunal which occurred in 2011, but too early with regard to challenge concerning Zuma’s signature. Zuma’s signature did not bind South Africa as the Protocol would need to be placed before Parliament for approval and since no decision had been taken to do that, the decision was not unlawful, irrational or in bad faith.
This “prematurity defence” asserted that Zuma’s signature was preliminary in nature and did not, and was not intended to, bind South Africa. It only demonstrated that South Africa was open to considering the ratification of the Protocol. Counsel for the Respondents conceded however that such signature was not insignificant and would serve to trigger a process that would lead to ratification by Parliament after public participation.
Reasonableness would require a justifiable basis for the decisions of Government. Government contended that “a partial and temporary moratorium on receiving new cases was necessary in order to best address the changes being faced in relation to the SADC Tribunal…the consensus decision of the Summit took into account the interests of the majority of member States on the issue.”
It was also asserted that Zuma’s decision was, accordingly, not irrational and in line with the provisions of section 231 of the Constitution as the Executive has a broad discretion as to what should be taken into account regarding the 2012 SADC Summit that approved the negotiation of a Protocol that would change the nature of the SADC Tribunal to receive only State complaints. The signature was rationally related to the purpose of South Africa conducting its foreign affairs.
The question the High Court was faced with was whether it was constitutionally competent for the South African Government to take an executive decision with the effect of suspending South Africa’s obligations under an international treaty.
Section 231 of the Constitution deals with international agreements. The decision to endorse the suspension of the Tribunal was in conflict with South Africa’s legal obligation. Section 231 was complied with in bringing both the Treaty and the First Protocol into operation but was not complied with in terms of the suspension. It was done without the approval of Parliament. In terms of the separation of powers doctrine, the Executive cannot unilaterally terminate an International Treaty. The termination must be endorsed by Parliament before it can have any effect.
The effect of the above is that South Africa remained bound by the Treaty and the First Protocol. Without the proper termination of the First Protocol (requiring Parliamentary approval) the Executive cannot participate in a decision in conflict with such obligations.
The Court held that the principle of legality underlies our constitutional dispensation and no power can be lawfully exercised unless permitted. The signature of the Protocol was unlawful as it was unconstitutional and is therefore liable to be set aside.
The test for rationality is that Zuma’s signature must be related to a legitimate governmental purpose. The irrationality is self-evident as both the Constitution and the Treaty similarly promote democracy, human rights and the rule of law. Signing the Protocol undermines these principles as well as the SADC institution itself. There is no rationale for signing of the Protocol that limits the Tribunal’s jurisdiction contrary to the recommendation of independent experts, Ministers of Justice and Attorneys-General without public participation. Such action is unauthorised by section 231 of the constitution and is thus contrary to the Rule of Law, for being irrational, unauthorized and repugnant in the context of access to justice.
The decision was procedurally irrational in that a decision that would endorse the suspension of the Tribunal should have been preceded by a public consultation process. The Executive did not provide reasons as to why it did not engage in public consultation. For the Executive to deprive South Africans of their entitlement to access the Tribunal which was conferred by the Treaty and the Protocol was unconstitutional.
As such, the Court ruled that Zuma’s participation in suspending the SADC Tribunal as well as the subsequent signing of the 2014 Protocol is unlawful, irrational and unconstitutional. The Applicants and the amicus curiae were awarded costs and the order was referred to the Constitutional Court for confirmation.
The significance of the judgment is multi-fold. Firstly, the judgment amounts to a well-deserved rebuke of the Executive’s actions in contravention of the Constitution. Secondly, the judgment reiterates the importance of the separation of powers doctrine and how the courts play a pivotal role in checks and balances mechanisms.
The Court was able to make a ruling on the proper delineation of powers between the Executive and Parliament in relation to international agreements. The judgment also highlights the importance of public participation – a key instrument of a functioning democracy. Further, the judgment serves to entrench the rights of litigants to access justice at a regional level. This accords with international trends to provide relief on an international or regional level to individuals who cannot access such relief on a domestic front.
Ultimately, the judgment furthers the pursuit of effective remedies for human rights contraventions upholding and promoting constitutional tenets including the right to effective remedy, access to an independent and impartial court, fair hearing and equal protection of the law.
Legal Researcher, Helen Suzman Foundation.
 Law Society of South Africa and Others v President of the Republic of South Africa and Others (20382/2015)  ZAGPPHC 4.
 Treaty of the Southern African Development Community (1993) 32 ILM 116, Preamble and article 4 (The Treaty).
 Id article 16.
 The SADC Summit is responsible for the overall policy direction and control of functions of the community, ultimately making it the policy-making institution of SADC.
 Section 34 deals with “Access to Courts” and provides that: “Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.”.
 It was contested that the failure to appoint members and establish the Tribunal is itself an infringement of the terms of the Treaty. The Heads of Government are only entitled to decide the term of office of a particular Judge, not to decide whether or not to establish the Tribunal or whether to appoint Judges to the Tribunal. The outcome of the May 2011 decision was that the continued operation of the material terms of Treaty and the First Protocol were suspended.
 Firstly, an order for leave to commence proceedings by edictal citation was granted. (Fick and Others v Government of the Republic of Zimbabwe, Case No 77880/2009, North Gauteng High Court, Pretoria, 13 January 2010 (Unreported)). Secondly, the registration of the costs order was ordered, facilitating its enforcement in South Africa. (Fick and Others v Government of the Republic of Zimbabwe, Case No 77881/2009, North Gauteng High Court, Pretoria, 25 February 2010 (Unreported)). Thirdly, Zimbabwe applied for the suspension of the writ of execution and the recession of the service and registration orders. The three applications were consolidated are well all dismissed (Government of the Republic of Zimbabwe v Fick and Others  ZAGPPHC 76).
 Government of the Republic of South Africa v Fick and Others  ZASCA122.
 Government of the Republic of Zimbabwe v Fick and Others ZACC 22; 2013 (5) SA 325 (CC); 2013 (10) BCLR 1103 (CC).
 See Law Society of South Africa and Others v President of the Republic of South Africa and Others(20382/2015)  ZAGPPHC 4 at para 25.
 The importance of public participation in relation to the rationality of a decision was noted in Doctors for Life International v Speaker of the National Assembly and Others (CCT12/05)  ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) at para 61.
 Section 172(2)(a) provides that “When deciding a constitutional matter within its power, a court— must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency”.