The High Court, North Gauteng Division on 5 February, 2018, heard an application brought by the Law Society of South Africa (LSSA) and six other individual challenging two decisions of the President of South Africa. The Southern Africa Litigation Centre (SALC) and the Centre for Applied Studies (CALS) were admitted to join as amicus curiae. The Court was requested to determine the constitutionality of the President’s participation in the decision of the SADC Summit (made up of the Heads of State or Government of the Member States) to suspend the SADC Tribunal in May 2011 and his signing of a new Protocol for the SADC Tribunal in 2014 was unconstitutional. The new 2014 Protocol grants jurisdiction to the Tribunal to hear inter-state cases only. The original SADC Tribunal allowed individuals to bring cases before the court. The new Protocol removes this individual access. The 2014 Protocol is not yet in force as it has not received enough ratifications from the SADC Member States. Regarding South Africa specifically, although President Zuma signed the 2014 Protocol, it has not yet been sent to Parliament for ratification.
The case was scheduled to be heard over three days but was concluded in a day. It was heard by a full bench comprising of Judge President Mlambo, Judge Mnqibisa-Thusi and Judge Fabricius, who heard the submission of all parties in just one day.
The LSSA, the first applicants, were represented by Adv. Dumisa Ntsebeza SC and Adv. Tembeka Ngcukaitobi.
The Second to Seventh Applicants were represented by Adv. Jeremy J. Gauntlett SC QC and F. B. Pelser.
The First Amicus Curiae were represented by Adv. Jatheen Bhima
The Second Amicus Curiae were represented by Adv. Michael Bishop, Adv. Gina Synyman and Adv. Zinhle Ngwenya
The State were represented by Adv. Gilbert Marcus, SC, Andreas Coutsoudis and Adv. Hephzibah Rajah
Overview of the Applicants and why they were part of the case
The SADC Lawyers Association resolved in 2014 that each Member Association should file legal suits challenging the decision of the Executive in participating in the suspension of the SADC Tribunal. The LSSA launched this application acting in its own interest, as well as the interest of the public to challenge the two executive decisions.
The Second to Seventh Applicants were either successful applicants or those that had an interests in the following cases which were adjudicated by the SADC Tribunal: Tembani v Republic of Zimbabwe (SADC (T) 07/2008  SADCT 3 (14 August 2009); Mike Campbell (Pvt) Ltd v Republic of Zimbabwe (2/2007) SADCT 2 (28 November 2008) and Government of Zimbabwe v Fick 2013 (5) SA 325 (CC).
The First Amicus curiae is a regional non-governmental organization that Seeks to promote and advance human rights and the rule of law in Southern Africa. They joined the case to provide an international law perspective that the right of access to justice as enshrined under article 34 of the Constitution of South Africa includes the right to access regional and international courts.
The second Amicus curiae joined the case to argue that the President has an obligation to undertake public consultation prior to signing an international agreement even though such an agreement will still need the approval of Parliament.
There were robust arguments before the court. We present an overview of those arguments here:
The LSSA attacked the President’s participation in two decisions that led to the inoperation of the SADC Tribunal as being unconstitutional. First, the LSSA argued that the President’s participation in the SADC Summit decision of May, 2011 to suspend its operation was unconstitutional. Since the decision is unconstitutional it has a bearing on the process of ratification of the 2014 Protocol by the South African Parliament.
On simultaneous prematurity and tardiness
It was argued by the State the application by the applicants was premature as it was too late to challenge the suspension of the Tribunal (the filing was four years the Tribunal’s suspension). The State also argued that the application was filed too early to challenge the President’s signing of the 2014 Protocol, which has not been ratified by any SADC Member States nor has it entered into force. Counsel for the LSSA argued that the decision to suspend the Tribunal and sign the Protocol cannot be seen in isolation, but instead must be seen as a connected set of decisions with the purpose of undermining the Tribunal. In addition, the President’s involvement in forming the Summit’s decision to suspend as well as his signature of an international instrument have the legal effect, individually and collectively. On the suspension decision, the State argued that the Applicants must challenge the SADC Summit for its decision and could not challenge the President’s individual role in forming that decision. SADC Summit decisions are done by consensus.
Whether comity trumps constitutional obligations
In its heads of argument, the State had argued that the President’s participation in the decision to suspend the Tribunal in 2011 was a matter of comity, as Summit decisions at SADC are adopted by consensus. However, counsel seemed to abandon this point, admitting that the interests of comity do not trump the President’s constitutional obligations. Instead, the State claimed, there were simply no constitutional violations to speak of.
Does the executive have authority to act contrary to international obligations?
The 2nd through 7th Applicants (the Tembani Applicants) argued that the removal of the Tribunal’s jurisdiction to hear cases brought by individuals, typically on human rights matters in the Tribunals short existence, violated article 4(c) of the SADC Treaty, in which Member States commit to “act in accordance with…human rights, democracy and the rule of law”. Both in process and substance, the President participated in the violation of South Africa’s international obligations enshrined within the SADC Treaty.
In written submissions and oral argument, the Applicants also alleged that the President’s actions violate section 34 of the Constitution, which ensures that South Africans have the “right to have any dispute resolved by the application of law decided in a fair public hearing before” the appropriate adjudicative body. Counsel for the State admitted that the 2011 suspension of the Tribunal has the effect of rendering the SADC Tribunal non-functional and that the primary objective of the 2014 Protocol was to remove the jurisdiction of the Tribunal to hear cases filed by individuals.
Both sets of Applicants touched on the fact that the Summit acted contrary to articles 16 and 36 of the SADC Treaty, by failing to follow the Treaty’s procedure on amendment. Since the SADC Tribunal Protocol was incorporated as an integral part of the SADC Treaty, it was incumbent upon the Summit to amend the SADC Treaty in order to change the jurisdiction of the Tribunal. Instead, the Summit suspended the Tribunal and adopted the 2014 Protocol, contrary to the provisions of its own founding instrument.
On Monday, the State did not address whether vested rights had been taken away from as many as 230 million Southern Africans, which was consistent with the challenged actions of the SADC Summit. Based on the minutes of their deliberations, the SADC Summit did not address the removal of rights mentioned in the expert opinion SADC solicited and which the SADC Ministers of Justice and Attorneys General supported. Counsel for SALC, the first amicus curiae, discussed the number of regional and international tribunals providing access to individual complainants and urged the Justices to see SADC’s original intent to be part of that trend.
Is there is authority for public participation pre-signature or ratification of a treaty?
There was some debate over the submission of CALS, the second amicus curiae, as to whether the President needs to undergo a process of public participation before signing an international agreement. CALS argued that when an international agreement goes before Parliament after signature, Parliament may only accept or reject the agreement as a whole; therefore, it is necessary for public participation prior to signature in order ensure that the public’s interests are reflected in the content of the agreement. Counsel for CALS relied on several sources of law to support this assertion including the Constitutional Court cases of Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC) (Glenister II) and Doctors for Life International v Speaker of the National Assembly and Others 2006 (6) SA 416 (CC), the constitutional rights of freedom of expression, freedom of information and political rights under article 19 and international sources such as the International Covenant on Civil and Political Rights (ICCPR).
The State was of the view that the prerogative to decide on which treaties to enter into rests with the President in consultation with his Cabinet, and that public consultation should come after signature when Parliament is deciding whether or not to approve the agreement. Under this rationale, the State argued that this requirement has not been breached yet, as the President is still determining whether to put the 2014 Protocol before Parliament and the time for public participation has not yet arrived. State counsel said that the President has such respect for the courts that he was waiting on the Judges’ ruling before taking further action.
The State’s lawyer suggested, in making the comity admission above, that the Applicants failed to allege that the President had acted illegally or unconstitutionally. But Judge Fabricius asked CALS’s advocate whether the Court needed to consider all of the potential violations or if, once it determined there was some violation or illegality, it could simply address that ground and disregard the others. In response, counsel relied on case authority of S v Jordan (2002) 6 SCA 642, a Constitutional Court decision, to suggest it is favorable for the High Court address all grounds raised.
The State’s primary arguments were: (1) that the suspension decision could only be brought against the SADC Summit, of which the President is merely a member; and (2) the signing of the 2014 Protocol did not have a significant legal effect and could not affect rights as the said Protocol has not been ratified by any Member State, let alone entered into force. The State used the Tembani Applicants’ focus on the 2014 Protocol as an excuse to limit its discussion of the suspension decision, focusing on the lack of effect that a signature on the 2014 Protocol has. However, the State seemed to admit that the President’s signature was the first in a series of steps in the adoption of an agreement into South African law.
As noted above, counsel for the LSSA responded that these were merely the two significant decisions out of several that, when viewed together, constituted the irrational action of the President to act outside of the SADC Treaty and in violation of the South African constitution. Because people’s rights had vested within and, for some, judgments already been delivered by the Tribunal, the President’s actions clearly had justiciable consequences. At first, the Tembani Applicants claimed the signing of the 2014 Protocol, the result of that review triggered by the suspension, would retroactively affect the suspension, but later agreed that the court could review “the meat in the stew”.
Significance of the Case
This case is significant very important in protecting for the rule of law and access to justice in the SADC region. This case has exposed how Southern African our leaders within the region take decisions without regard to whether this could affect or limit citizen’s people’s rights. The case has exposed disclosed that SADC leaders who appeared to look narrowly at how to remove were only looking at removing the judges from the Tribunal and thereby disabling the operations of the Court. This act was carried out hastily and without regard to the consequences at the behest of Zimbabwe and purely to satisfy Zimbabwe’s annoyance with the decisions that were emanating from the Tribunal. They did so without regard to the vested rights of citizens. This has resulted in the unfortunate situation where the Tribunal has been suspended; the contracts of the judges and staff have not been renewed and it has ceased to operate. It is unfortunate that this was done simply because the Tribunal decided against a fellow member state, Zimbabwe.
In reserving judgment on the matter, the Judge President announced that he will deliver the High Court’s opinion. The Judges appeared familiar with the parties’ arguments and on top of the legal issues in court.
This case has exposed one instance of how leaders within the region make decisions without regard to the rule of law and access to justice. The move to dismantle the Tribunal and remove its human rights jurisdiction came in response to several judgments against the government of Zimbabwe. Instead of sanctioning Zimbabwe for violating the rights of its citizens and failing to comply with the orders of the SADC Tribunal, the SADC Heads of State moved quickly to remove the judges from the Tribunal and disable the operations of the Court. They did so without regard to the vested rights of their citizens.
This case follows similar cases in Tanzania and Mozambique which have challenged the actions of their respective Heads of State in suspending the Tribunal. This case should, therefore, be the beginning of a long and concerted effort to restore the SADC Tribunal. Regardless of the outcome of the case, the SADC Heads of State and Government must be pushed to realize that they are accountable to their citizens and must always act for their benefit.