SADC Tribunal features in SA High Court application – may proceed to Constitutional Court
The saga of the disbanded SADC Tribunal continued this week in South Africa when an application was filed before their High Court arguing that South African President, Jacob Zuma acted outside his constitutional powers when he supported the suspension of the tribunal in 2011 at the SADC Summit.
Professor Gerhard Erasmus, an associate at the Trade Law Centre in Stellenbosch, said on Friday the unprecedented application was set down for hearing this week. “The Court is asked to declare President Zuma’s support of the suspension of the Tribunal of the Southern African Development Community (SADC), by the Summit in 2011, and the adoption of a SADC Protocol in 2014 to establish a new Tribunal (without power to hear complaints by individuals) unconstitutional, in breach of South Africa’s international obligations, and invalid.”
Prof Erasmus is an international trade and constitutional law expert. He was one of the team of three lawyers who drafted the Namibian Constitution for the Constitutional Assembly in 1989.
This week’s application in the South African High Court was brought by the Law Society of South Africa, four Zimbabwean nationals, two resident Zimbabwean companies, the Southern African Litigation Centre (SALC), and the Centre for Applied Legal Studies (CALS).
“They claim that the President’s actions were irrational, that the constitutional right of access to court has been violated, and that prior public consultations had to take place,” said Prof Erasmus.
The SADC Tribunal was established in 2005 and delivered around15 judgements in cases filed by private individuals and organisations.
It was suspended in 2011 during the SADC Summit in Windhoek when disgraced Zimbabwean President, Robert Mugabe, lobbied his co-Heads of State for an illegal intervention. This happened after a Zimbabwean National successfully petitioned the court to declare the theft of land in Zimbabwe in breach of human rights and to institute restitution.
In this week’s application, President Zuma’s legal team argued that a South African Court has now been asked to venture into “the heartland of the executive’s exclusive competence in foreign policy and international relations” which they claimed will violate the separation of powers doctrine.
Zuma’s lawyers argued that the right of access to court does not guarantee access to international courts and, therefore, does not apply. There is also no constitutional duty to conduct public hearings in respect of executive actions of the kind under investigation. They further argued that this application was brought too late in respect of the 2011 decision to suspend the original Tribunal and too early as far as the adoption of the new Protocol is concerned.
“The new Protocol has not yet been ratified, is not in force, and has not yet been submitted to the South African Parliament in terms of Section 231 of the South African Constitution,” stated Prof Erasmus
“This matter could go all the way to the Constitutional Court. However, it is not quite clear what the nature of an effective remedy could be if the application succeeds. The relief sought is only for an order to declare the 2011 and 2014 actions by the President invalid. The Court is not asked to give domestic effect to any of SADC’s legal instruments. Neither is it argued that South African citizens or persons in South Africa require a right of appeal to a SADC Tribunal should the South African Constitutional Court fail to “protect” them,” Erasmus pointed out.
“The most immediate challenge with regard to bringing SADC closer to a rules-based arrangement lies with the Member States. They should comply with the obligations accepted as part of SADC membership. Dispute settlement should be practised; it is not an offence to the dignity of another sovereign state. It is, in fact, a confirmation of sovereignty to honour international legal obligations freely entered into. And the most effective protection of human rights is ensured via justiciable national constitutions,” he continued.