Law Society of South Africa and Others v President of the Republic of South Africa and Others

• Jurisdiction: South Africa
• Citation: 2019 (3) SA 30 (CC)

Law Society of South Africa and Others v President of the Republic of South Africa and Others
2019 (3) SA 30 (CC)

2019 (3) SA p30

Citation	2019 (3) SA 30 (CC)
Case No	CCT 67/18; [2018] ZACC 51
Court	Constitutional Court
Judge	Mogoeng CJ, Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Mhlantla J, Petse AJ and Theron J
Heard	December 11, 2018
Judgment	December 11, 2018
Counsel	S Ntsebeza SC (with T Ngcukaitobi, T Ramogale and N Makhaye) for the first applicant.; J Gauntlett SC (with FB Pelser) for the second to seventh applicants.; G Marcus SC (with A Coutsoudis and H Rajah) for the respondents.; J Bhima (with T Scott) for the first amicus (the Southern Africa Litigation Centre).; M Bishop (with G Snyman and Z Ngwenya) for the second amicus (the Centre for Applied Legal Studies).

Flynote : Sleutelwoorde

President C — Conduct — Constitutionality — Participation decision to suspend operations of SADC Tribunal and subsequent signing of 2014 Protocol stripping it of its jurisdiction to hear complaints by individuals against member states — President's conduct unconstitutional, unlawful and irrational — Constitution, s 231(1).

International law — International agreements, treaties and conventions — D Vienna Convention on Law of Treaties (1969) — Constituting binding customary international law — Constitution, s 232; Vienna Convention, art 18.

Headnote : Kopnota

In May 2011 the then State President (President Zuma) supported a resolution E by the Southern African Development Community Summit (the supreme organ of the SADC, consisting of its heads of state) to suspend the operation of the SADC Tribunal. Then, in August 2014, the President signed the 2014 Protocol to the SADC Treaty (see next paragraph for more on Treaty). The 2014 Protocol, though never ratified, effectively stripped the Tribunal of its jurisdiction to hear complaints by individuals against member states. F The present case deals with the legality of those two presidential acts.

The SADC was established by the SADC Treaty of 1994. Member states bound themselves to a human rights culture, a democratic order and the rule of law. The Tribunal was established to ensure adherence to the Treaty and adjudicate disputes referred to it. The original Tribunal Protocol, which regulated the Tribunal's procedure, allowed the adjudication of complaints by individuals against member states. South Africa approved the Treaty and G Tribunal Protocol in 1995.

The President's conduct had its origins in the Zimbabwe land reform programme. Zimbabwe had removed its courts' jurisdiction over the matter, leaving the Tribunal as the only forum available to affected landowners. In a complaint by several of them, the Tribunal ruled that Zimbabwe had H violated the Treaty. Spurred on by Zimbabwe, the Summit — including President Zuma — reacted by suspending the Tribunal and stripping it of its human rights mandate via the 2014 Protocol.

The Law Society (the first applicant) [*] approached the Pretoria High Court for an order declaring President Zuma's conduct unconstitutional. The President argued that the application was premature since the 2014 Protocol was I not yet binding, as it was yet to be ratified by Parliament. But the High

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Court found in favour of the Law Society and referred its order of invalidity A to the Constitutional Court for confirmation.

Two sections of the Constitution were relevant: s 231(1), which vests the responsibility of negotiating and signing international agreements in the executive; and s 232, which provides that customary international law is law in South Africa unless it clashes with the Constitution or an Act of B Parliament. Also relevant was art 18 of the Vienna Convention on the Law of Treaties (1969), which obliges states to refrain from defeating the object and purpose of a treaty that it has signed but not ratified. South Africa is not a party to the Vienna Convention.

Majority judgment per Mogoeng CJ (Basson AJ, Dlodlo AJ, Goliath AJ, Khampepe J and Theron J concurring) C

While the 2014 Protocol was, due to its non-ratification, not binding on the face of it, that did not necessarily dispose of its consequentiality or of the prematurity challenge (see [22]). Courts were entitled to intervene in an unfinalised process to prevent a violation of the Constitution or the rule of law (see [25]). Here immediate relief was required due to the serious threat the President's signature of the 2014 Protocol posed to the constitutional D and Treaty rights of those who might seek recourse to the Tribunal (see [29]). The prematurity question could also be addressed from the perspective of art 18 of the Vienna Convention, which formed part of customary international law under s 232 of the Constitution and obliged South Africa not to act against the spirit of an unratified international agreement such as the 2014 Protocol (see [34] – [40]). In summary, the President's signature of E the 2014 Protocol had serious consequences which required prompt intervention to prevent a violation of the Constitution and the rule of law (see [41]).

The President's decision to suspend the Tribunal was unlawful because he followed an impermissible and irregular procedure, purported to exercise powers he did not have, and failed to act in good faith and in pursuit of the F object and purpose of the Treaty (see [56]). And his disregard for procedure meant that his conduct was also irrational, in the sense of not being rationally related to the end sought to be achieved, namely the reduction of the Tribunal's jurisdiction (see [62], [64], [70]). In addition, his signature of the 2014 Protocol was unconstitutional because he lacked the authority to sign away constitutional and Treaty rights of access to justice. To the G extent that he purported to do so, he acted contrary to his constitutional obligations and impermissibly exercised his powers under s 231(1) of the Constitution (see [84]).

Concurring minority judgment per Cameron J and Froneman J (Mhlantla J and Petse AJ agreeing) H

The irrationality and unlawfulness of the President's conduct sprang not from any affront the President directly inflicted on international law, but from the infringement of our own Constitution (see [98], [103], [105]). This was because the President could not directly fall foul of the international law of treaties — only a sovereign state or international organisation could (see [100]). I

Order

The President's participation in the decision-making process and his decision to suspend the operations of the Southern African Development Community Tribunal was unconstitutional, unlawful and irrational, as was his signature of the 2014 Protocol (which had to be withdrawn) (see [97]). The Presidency had to pay the applicants' costs. J

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Cases cited

Southern Africa A

Administrator, Transvaal, and Others v Traub and Others1989 (4) SA 731 (A): referred to

Administrator, Transvaal, and Others v Zenzile and Others B 1991 (1) SA 21 (A) ((1991) 12 ILJ 259; [1990] ZASCA 108): referred to

Affordable Medicines Trust and Others v Minister of Health and Others2006 (3) SA 247 (CC) (2005 (6) BCLR 529; [2005] ZACC 3): applied

Albutt v Centre for the Study of Violence and Reconciliation, and Others2010 (3) SA 293 (CC) (2010 (2) SACR 101; 2010 (5) BCLR 391; [2010] ZACC 4): dicta in paras [34] – [35] applied

Democratic Alliance v President of the Republic of South Africa and Others C 2013 (1) SA 248 (CC) (2012 (12) BCLR 1297; [2012] ZACC 24): applied

Doctors for Life International v Speaker of the National Assembly and Others2006 (6) SA 416 (CC) (2006 (12) BCLR 1399; [2006] ZACC 11): applied

Economic Freedom Fighters v Speaker, National Assembly D 2016 (3) SA 580 (CC) (2016 (5) BCLR 618; [2016] ZACC 11): applied

Geuking v President of the Republic of South Africa and Others2003 (3) SA 34 (CC) (2003 (1) SACR 404; 2004 (9) BCLR 895; [2002] ZACC 29): dictum in para [33] applied

Glenister v President of the Republic of South Africa and Others E 2011 (3) SA 347 (CC) (2011 (7) BCLR 651; [2011] ZACC 6): referred to

Government of the Republic of Zimbabwe v Fick and Others2013 (5) SA 325 (CC) (2013 (10) BCLR 1103; [2013] ZACC 22): applied

Harksen v President of the Republic of South Africa and Others2000 (2) SA 825 (CC) (2000 (1) SACR 300; 2000 (5) BCLR 478): referred to

Law Society of South Africa v President of the Republic of South Africa F [2018] 2 All SA 806 (GP) (2018 (6) BCLR 695): confirmed on appeal

Masetlha v President of the Republic of South Africa2008 (1) SA 566 (CC) (2008 (1) BCLR 1; [2007] ZACC 20): applied

Mike Campbell (Pvt) Ltd and Others v Republic of Zimbabwe G [2008] SADCT 2: referred to

Minister of Home Affairs and Others v Tsebe and Others2012 (5) SA 467 (CC) (2012 (10) BCLR 1017; [2012] ZACC 16): referred to

Mohamed and Another v President of the Republic of South Africa and Others (Society for the Abolition of the Death Penalty in South Africa and Another Intervening)2001 (3) SA 893 (CC) (2001 (2) SACR 66; 2001 (7) BCLR 685; H [2001] ZACC 18): referred to

Premier, Mpumalanga v Executive Committee, Association of State Aided Schools, Eastern Transvaal1999 (2) SA 91 (CC) (1999 (2) BCLR 151; [1998] ZACC 20): applied

President of the Republic of South Africa and Others v Quagliani and Two Similar Cases2009 (2) SA 466 (CC) (2009 (4) BCLR 345; [2009] ZACC 1): I referred to

President of the Republic of South Africa and Others v South African Rugby Football Union and Others2000 (1) SA 1 (CC) (1999 (10) BCLR 1059; [1999] ZACC 11): applied

S v Makwanyane and Another1995 (3) SA 391 (CC) (1995 (2) SACR 1; 1995 (6) BCLR 665; J [1995] ZACC 3): referred to.

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International Court of Justice A

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