JOSIAS van Zyl, MD of Swissborough Diamond Mines, and eight other mining companies in dispute with Lesotho, have applied to the Southern African Development Community (Sadc) Tribunal to set aside the “effective suspension” of the tribunal by the Sadc summit last year.
The Sadc summit’s decision, in August last year, was that the tribunal would not hear any new cases, pending a six-month review of its “role, functions and terms of reference”.
This followed the Zimbabwean government’s challenge to the legality of the tribunal in the wake of a series of decisions against it.
But Mr van Zyl and a number of nongovernmental organisations have said the “review” amounts to an “effective suspension” because, on top of not taking any new cases, it was coupled with the lapsing or nonrenewal of tenure of three of the tribunal’s regular judges and three of the nonregular judges.
Swissborough and the others want their dispute with Lesotho decided and they want the summit’s decision that the tribunal should not hear any new cases declared invalid. They have asked the tribunal to order an immediate extraordinary summit of heads of state to “remedy” its decision. The problem is that the protocol says there should be at least 10 judges on the tribunal.
While the protocol provides for a quorum of three judges, the weight of opinion is that there should be at least five members available to make up a bench.
The case was registered yesterday and given a case number by the registrar of the tribunal. But it is unclear what will happen next. The applicants have asked an additional judge be appointed in order to form a quorum.
Another possibility is that, since the bar is only the “hearing” of new cases, it is possible the initial pre-hearing aspects of the case, like the exchange of court papers, could proceed and that the hearing then take place once the review has been complete.
The review is meant to last only six months. This means the tribunal should be running next month . But in November a group of nongovernmental organisations including the Southern African Litigation Centre expressed doubt about whether such a comprehensive review could be completed in that time.
The summit has appointed independent consultants to undertake the review.
Yesterday, the Sadc Lawyers Association and the International Commission of Jurists held a workshop to make recommendations to the consultants.
One of the issues raised was a lack of transparency in how judges are appointed to the tribunal.
The protocol also does not make provision for how judges could be removed.
The problem of enforcing tribunal judgments was also discussed, with some delegates saying the protocol should provide that an award of the tribunal be “final and binding for all purposes” within the law of all member states — instead of what it says now, that judgments be enforced as “foreign judgments” according to members states’ local laws.