LSSA welcomes Constitutional Court judgment on the SADC Tribunal
The Law Society of South Africa (LSSA) welcomes yesterday’s Constitutional Court judgment which confirmed that former President Jacob Zuma’s participation in the decision-making process and his own decision to suspend the operations of the Southern African Development Community (SADC) Tribunal to be unconstitutional, unlawful and irrational. The Court also declared the President’s signature of the 2014 Protocol on the SADC Tribunal to be unconstitutional, unlawful and irrational, and has consequently directed the President to withdraw his signature from the 2014 Protocol.
‘This case is about South African individuals being deprived of access to a regional court irrationally and unconstitutionally. In South Africa, we have an independent and efficient judiciary, but we have no guarantee that it will always be so. It is not necessarily so for all our fellow citizens in other SADC countries. The LSSA commenced this journey to the Constitutional Court when it launched an application in the Gauteng High Court on 19 March 2015 to declare the actions of the President in voting for and signing 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 individual citizens and their government to a regional court (the SADC Tribunal) if they fail to find relief in their own courts. The LSSA noted that, by signing the 2014 Protocol, the President had 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 between member states only – and no longer between individual citizens and states – in the SADC region,’ say LSSA Co-Chairpersons, Mvuzo Notyesi and Ettienne Barnard.
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. The Constitutional Court confirmed this constitutional invalidity yesterday.
The Constitutional Court stated: ‘That signature of the singular most powerful constitutional being in our country [the President] also says to the SADC Member States that South Africa has shorn itself of its key responsibilities of protecting and promoting some of the values foundational to our democracy including fundamental rights. This constitutes a serious threat to the image and very essence of South Africa’s constitutional democracy and citizens’ rights. Our President’s signature is symbolic of a warm welcome by South Africa of the stealthy introduction of impunified disregard for and violation of fundamental rights or key [SADC] Treaty provisions. It inadvertently but in reality reassures all others that we would turn a blind eye to human rights abuses and non-adherence to the rule of law in their jurisdictions even if it affects our people.’
The Court noted: ‘Through his actions, we made common cause with other Member States in the region to deprive South Africans and citizens from other SADC countries of access to justice, even in circumstances where domestic courts lack the jurisdiction to entertain human rights and rule of law-related individual disputes.’
Recently the SADC Lawyers Association raised concern about the decline of the Rule of Law in the SADC region. In yesterday’s judgment, the Constitutional Court pointed out that individual disputes relating to alleged non-adherence to the dictates of human rights and the rule of law as well as undemocratic practices, constituted almost the entire list of disputes that were entertained and decided by the SADC Tribunal since its establishment and before it was ‘emasculated’ by the Summit and changed 2014 Protocol.
‘The LSSA urges our President and our Government to reflect seriously on this judgment and to take it into account when considering South Africa’s position with regard to the International Criminal Court. Also, we wish to point out that, although South Africa has ratified the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples’ Rights, it has yet to deposit its Declaration allowing individuals and NGOs to bring cases before the African Court. So at this stage, South African individuals and NGOs cannot bring cases to that court. We are thus prevented from accessing both the SADC Tribunal and the African Court on Human and Peoples' Rights,’ say Mr Notyesi and Mr Barnard.
The LSSA wishes to thank its legal team, Adv Dumisa Ntsebeza SC and Adv Tembeka Ngcukaitobi, as well as Pretoria law firm Mothle Jooma Sabdia Inc – the latter has acted pro bono for the LSSA throughout this matter.
ISSUED ON BEHALF OF THE CO-CHAIRPERSONS OF THE LAW SOCIETY OF SOUTH AFRICA, MVUZO NOTYESI AND ETTIENNE BARNARD
LSSA Communication
Barbara Whittle barbara@LSSA.org.za Tel: (012) 366 8800 or 083 380 1307
Nomfundo Jele nomfundom@LSSA.org.za Tel: (012) 366 8800 or 072 402 6344
Law Society welcomes Constitutional Court judgment on the SADC Tribunal
Law Society welcomes Constitutional Court judgment on the SADC Tribunal
Law Society codemns attack on Johannesburg advocate by BLF members
LSSA condemns attack on Johannesburg advocate by members of BLF
They add: ‘The attack involving the woman advocate is doubly unacceptable having taken place during the 16 Days of Activism against Gender-Based Violence. Assault is a criminal offence and we urge the authorities to investigate the matter urgently and bring the perpetrators to book. Justice must be done and seen to be done. In addition, we call on the leadership of BLF to condemn the actions of its members. There can be no justification or encouragement for such mob violence.’
The LSSA is deeply concerned at the increasing criminal behaviour in and around court buildings and against legal practitioners. We urge the Office of the Chief Justice to look into the aspect of negotiating upgraded security with the authorities so that members of the public, legal practitioners and judicial officers are safe within court precincts.
Attorneys and advocates are officers of the court. They must be able to practise freely without fear of intimidation, assault or fear for their lives. Legal practitioners must be able to consult freely with their clients and to represent their clients in court to provide effective legal representation. This is a right enshrined in our Constitution. Unwarranted attacks on legal practitioners are unacceptable and threaten our justice system and the rule of law. The United Nations Basic Principles on the Role of Lawyers, which guarantee the right of all persons to be assisted by a lawyer to protect their rights and to defend them in all stages of criminal proceedings, state that where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities. The Principles also stress that lawyers shall not be identified with their clients or their clients' causes as a result of discharging their functions.
ISSUED ON BEHALF OF THE CO-CHAIRPERSONS OF THE LAW SOCIETY OF SOUTH AFRICA, MVUZO NOTYESI AND ETTIENNE BARNARD
Contact:
Barbara Whittle barbara@LSSA.org.za Tel: (012) 366 8800 or 083 380 1307
Nomfundo Jele nomfundom@LSSA.org.za Tel: (012) 366 8800 or 072 402 6344
Law Society codemns attack on Johannesburg advocate by BLF members
Law Society press release: Law Society welcomes appointment of Adv Shamila Batohi as NDPP
We wish again to commend President Cyril Ramaphosa for the transparent and inclusive process which he set out for the applications, nominations, shortlisting and interviews. The profession, and the public in general, were able to follow the rigorous and robust interviews, and form opinions on the strengths and weaknesses of each candidate.
We also wish to thank Minister Jeff Radebe, who chaired the advisory panel, and all the panel members for their service, especially Richard Scott who represented the LSSA on the panel.
ISSUED ON BEHALF OF THE CO-CHAIRPERSONS OF THE LAW SOCIETY OF SOUTH AFRICA, ETTIENNE BARNARD AND MVUZO NOTYESI
LSSA Communications:
Barbara Whittle barbara@LSSA.org.za Tel: (012) 366 8800 or 083 380 1307
Nomfundo Jele nomfundom@LSSA.org.za Tel: (012) 366 8800 or 072 402 6344
