SADC Tribunal matter
LSSA application on the 2014 SADC Protocol as it relates to the SADC Tribunal
On 1 March 2018 the Gauteng High Court: Pretoria, declared the President’s participation in the suspension of the operations of the SADC Tribunal and his subsequent signing of the 2014 Protocol to be unlawful, irrational and unconstitutional. This action suspended the right of the citizens of this country to take disputes to the SADC Tribunal. The Constitutional Court confirmed the constitutional invalidity on 11 December 2018.
The Court held that the President’s participation in the decision-making process and his own decision to suspend the operations of the SADC Tribunal was unconstitutional, unlawful and irrational.
The President’s signature of the 2014 Protocol on the Tribunal was unconstitutional, unlawful and irrational and the President was directed to withdraw his signature from the 2014 Protocol.
- Download the Constitutional Court judgment here. The LSSA welcomed the Constitutional court judgment – read more here.
- View the Constitutional Court papers here.
- Download the Gauteng High Court judgment here. The LSSA welcomed the Gauteng High Court judgment – read more here.
Background
The LSSA launched the application in the High Court: Gauteng Division on 19 March 2015 to declare the actions of the President as well as the Ministers of Justice and International Relations and Cooperation in voting for, signing and planning to ratify the SADC Summit Protocol in 2014 as it relates to the SADC Tribunal, to be unconstitutional. The matter was heard in the High Court: Gauteng Division on 5 February 2018 before Judge President Mlambo, Judge Mngqibisa-Thusi and Judge Fabricius.
The LSSA wasreprsented by Adv Dumisa Ntsebeza SC and Adv Tembeka Ngcukaitobi briefed by Mothle Jooma Sabdia Inc (acting pro bono for the LSSA in this matter). Judgment was reserved.
LSSA Notice of Motion: Part 1 and Part 2
LSSA replying affidavit of 10 March 2017.Read here.
LSSA press release of 21 April 2015 on launch of application: Read here
Other court papers below.
CALS to argue SADC changes require public consultation: Read here.
SALC advisory – Read here. SALC fact sheet on the matter – Read here.
Message of solidarity to the LSSA from the SADC Lawyers Association –Read here.
The Law Society of South Africa (LSSA) launched the application in the High Court: Gauteng Division on 19 March 2015 to declare the actions of the President as well as the Ministers of Justice and International Relations and Cooperation in voting for, signing and planning to ratify the SADC Summit Protocol in 2014 as it relates to the SADC Tribunal, to be unconstitutional. Unlike the previous Protocol, the 2014 Protocol deprives citizens in the SADC region – including South Africans – of the right to refer a dispute between citizens and their government to a regional court if they fail to find relief in their own courts. By signing the 2014 Protocol, the President has infringed the right of South African citizens to access justice in terms of our Bill of Rights. As the Protocol now stands, it limits the jurisdiction of the SADC Tribunal to disputes only between member states – and no longer between individual citizens and states – in the SADC region.
The Intervention Application by Tembani et al dated 24 July 2015 and the amicus applications by the Southern Africa Litigation Centre (SALC) and the Centre for Applied Legal Studies (CALS) are below.
Other law societies and Bar councils in the SADC region have or are in the process of launching similar actions in their courts to challenge the ratification of the SADC Protocol in their countries. This resolution was taken by members societies at the SADC Lawyers Association annual general meeting held at Victoria Falls immediately after the SADC Summit in 2014 (see 2014 (Oct) DR 17).
- ‘SADC stakeholders form coalition to lobby for restoration of a SADC Tribunal’ in 2014 (Oct) DR 5. View.
- ‘Whither the SADC Tribunal?’ in 2013 (May) DR 11. View
