The revival of the SADC Tribunal by South African courts : a contextual analysis of the decision of the Constitutional Court of South Africa

• Jurisdiction: South Africa
• Record Number: dejure_v52_n1_a23
• Published date: 01 April 2019
• Date: 01 April 2019
• DOI: 10.10520/EJC-1ac32eadee
• Pages: 415-432
• Published By: University of Pretoria
• Author: Mkhululi Nyathi,Moses Retselisitsoe Phooko

Revival of theSADCTribunal by South African courts415

The revival of theSADCTribunal by South

African courts: A contextual analysis of the

decision of the Constitutional Court of

South Africa

Moses Retselisitsoe Phooko

Dip Human Rights, LLB LLM LLD

Associate Professor, Department of Private Law, University of Johannesburg

Mkhululi Nyathi

LLB LLM LLD

Independent Researcher, Bulawayo, Zimbabwe

SUMMARY

This article provides a critical analysis of the judgment of the

Constitutional Court of South Africa in Law Society of South Africa and

Others v President of the Republic of South Africa and Others.1 The article

analyses the decision and its implications on South African constitutional

law and the future conduct of international relations by the South African

executive. It further provides a broader legal-historical context of the

Southern African Development Community (SADC) decision-making

processes and the SADC region’s general relationship to the rule of the law.

Ultimately, the paper discusses the reasoning of the minority judgment to

try to make sense of it.

1Introduction

Having been disbanded by the Summit of the Heads of State or

Government (Summit) of the Southern African Development Community

(SADC),2 there is now a possibility, at least in theory, that the SADC

Tribunal might be revived. There is also the likelihood that SADC citizens

might again have the opportunity to bring their cases, be they of

commercial, human rights or of any other nature, to the regional judicial

institution when they believe that they have been failed by domestic

1Law Society of South Africa and Others v President of the Republic of South

Africa and Others(CCT67/18) [2018] ZACC 51; 2019 (3) BCLR 329 (CC);

2019 (3) SA 30 (CC).

2Communiqué Extraordinary Summit Heads of State and Government of the

Southern Africa Development Community Windhoek, Republic of Namibia

20 May 2011 http://www.swradioafrica.com/Documents/SADCSummit24

0511.pdf (accessed 2019-08-20).

How to cite: Phooko & Nyathi ‘The revival of the SADC Tribunal by South African courts: A contextual analysis

of the decision of the Constitutional Court of South Africa ’ 2019 De Jure Law Journal 415-432

http://dx.doi.org/10.17159/2225-7160/2019/v52a21

4162019 De Jure Law Journal

courts of SADC Member States.3 For all this, thanks to the intervention of

South Africa’s domestic courts.4

In a landmark decision that has far reaching implications for South

African constitutional law and South Africa’s international relations, the

South African Constitutional Court has announced, confirming a High

Court decision, that the constitutional prescription that the President

must always act rationally and lawfully is not only valid in the domestic

arena, but follows the President even when conducting international

relations.5

The case of Law Society of South Africa and Others v President of the

Republic of South Africa and Others,6is refreshingly disruptive of the

classical view which seem to be still part of the jurisprudence of some

constitutional democracies, that give too much deference to the

executive when it comes to the conduct of international relations;7 where

the executive reigns supreme with very limited, if any, judicial and

parliamentary oversight.

The Constitutional Court has held that in disbanding the SADC

Tribunal and purporting to replace it with a weaker one and doing so

contrary to the provisions of the SADC Treaty, the Summit acted

unlawfully and irrationally. Consequentially, the South African

President’s participation in the decision-making processes and his own

decisions to suspend the operations of the SADC Tribunal, and his

signature on the 2014 Protocol on the Tribunal in the Southern African

Development Community (2014 Tribunal Protocol) were, by reason of

sections 7(1) and (2) and section 8(1) of the South African Constitution,

unconstitutional, unlawful and irrational.8 The court then ordered the

president to withdraw his signature from the 2014 Tribunal Protocol.

3Ngatane “Ramaphosa withdraws SA from controversial SADC Tribunal

Protocol” https://ewn.co.za/2019/08/18/ramaphosa-withdraws-sa-from-con

troversial-sadc-tribunal-protocol (accessed 2019-08-19); Asmeslash

“Southern African Development Community (SADC) Tribunal” https://

www.mpi.lu/fileadmin/mpi/medien/research/MPEiPro/2496_Southern_

African_Development_Community_Tribunal.pdf (accessed 2019-08-19).

4Law Society of South Africa and Others v President of the Republic of South

Africa and Others (CC) supra. Law Society of South Africa and Others v

President of the Republic of South Africa and Others (20382/2015) [2018]

ZAGPPHC 4; [2018] 2 All SA 806 (GP); 2018 (6) BCLR 695 (GP). See also

Ngatane supra; Asmeslash supra; Swart “A house of justice for Africa:

Resurrecting the SADC Tribunal” https://www.brookings.edu/blog/africa-in-

focus/2018/04/02/a-house-of-justice-for-africa-resurrecting-the-sadc-tribun

al/ (accessed 2019-08-19).

5Law Society of South Africa and Others v President of the Republic of South

Africa and Others (CC) supra.

6Law Society of South Africa and Others v President of the Republic of South

Africa and Others (CC) supra.

7See African Peer Review Mechanism Country Review Report No. 8 on The

Federal Republic of Nigeria (Review Report is on file with authors).

8Law Society of South Africa and Others v President of the Republic of South

Africa and Others (CC) supra, para 93.