South Africa: Amicus curiae in Law Society of South Africa case challenging SA signing of new SADC Tribunal protocol

Salc : Staff Writer

SALC was admitted as amicus curiae in the matter of the Law Society of South Africa and others vs the President and Others. At the hearing SALC made submissions pertaining to relevant international and regional law legal basis for citizens to access a regional tribunal. These arguments were made to buttress the point that the suspension of the SADC Tribunal by the SADC Summit violated the rights of South African citizens to access justice before the Tribunal.

The facts leading to this case were that in 2011, the SADC Summit adopted a decision to suspend the operations of the SADC Tribunal. The Tribunal has remained suspended and in August 2014 the SADC Summit adopted a new Protocol on the Tribunal. Under this Protocol the SADC Tribunal is only permitted to hear inter-state disputes, removing the previous access granted to individual citizens of SADC to bring matters before the Tribunal as stipulated in the 2000 SADC Tribunal Protocol. The 2014 Protocol was signed by President of South Africa, Jacob Zuma.  The applicants in this matter, the Law Society of South Africa and others, challenged the decision of the President of South Africa to participate in the 2011 suspension of the SADC Tribunal and also his signing of the 2014 SADC Tribunal Protocol as being unconstitutional. The North Gauteng High Court agreed with the applicants and declared the action of the President of South Africa in participating in the suspension of the Tribunal and subsequently signing the 2014 Protocol on the SADC Tribunal as being unlawful, irrational and unconstitutional. In terms of the provisions of section 172 (2) (a) of the Constitution of the Republic of South Africa, the Court referred its order to the Constitutional Court for confirmation. The State filed a Notice of Appeal against part of the confirmed Judgment, which was opposed by all parties.

On 11 December, 2018, the Constitutional Court handed down Judgment where it confirmed the order of constitutional invalidity made by the High Court under these terms:

  1. The President’s participation in the decision making process and his own decision to suspend the operations of the Southern African Development Community Tribunal is unconstitutional, unlawful and irrational.
  2. The President’s signature of the 2014 Protocol is unconstitutional, unlawful and irrational.
  3. The President is directed to withdraw his signature from the 2014 Protocol.

Download relevant Court Papers by clicking on the links below:

High Court Papers:
First Applicant’s Notice of Motion and Founding Affidavit
Respondents’ Answering Affidavit
SALC Amicus Application
Judgment of the High Court

Constitutional Court Papers:
State Notice & Grounds of Appeal

SALC HoA

LSSA HoA

STATE’s HoA

STATE REPLY TO SALC HOA

STATE REPLY TO CALS

2018-08-20 CALS Heads SADC CC

CONSTITUTIONAL COURT JUDGMENT