On 30th August 2018, the Constitutional Court of South Africa will hear an appeal brought by the state against the decision of the High Court in the case of Law Society of South Africa and others v The President of the Republic of South Africa and others. The Court will also hear arguments as part of confirmation proceedings in support of the high court’s decision from the applicants and the Southern Africa Litigation Centre (SALC).
Background to the case:
On the 1st March 2018, the Gauteng Provincial High Court in Pretoria delivered its judgment in the matter where the President’s actions were found to be unlawful and unconstitutional. The President’s decision in contributing to the demise of the Southern African Development Community (SADC) Tribunal was invalidated.
The challenge was brought by the Law Society of South Africa and others against two decisions of former South African President, Jacob Zuma. The first decision concerned the role that the former President played in the suspension of the SADC Tribunal in 2011. In that decision, the President participated in the decision as adopted by the SADC Summit to suspend the operation of the SADC Tribunal. The second decision, which was made in 2014, concerned the former President’s role in adopting and signing a new SADC Tribunal Protocol which, if it enters into force, would remove the rights of individual citizens to petition the Tribunal for legal redress.
SALC has been admitted as amicus curiae. SALC is arguing that the President’s actions deprived citizens of the right to access justice before a regional court. Since the rights of citizens were infringed without following due process of law including parliamentary consultations, the President’s actions were unlawful and unconstitutional. SALC is also arguing that the SADC Summit incorrectly followed a wrong procedure in suspending the SADC Tribunal in 2011 and, also in adopting a new Protocol for the SADC Tribunal in 2014. The cumulative effect of these impugned decisions is that the President’s actions were irrational and, therefore, unconstitutional.
The State’s position:
In the notice of appeal the State seeks to overturn the High Court decision that the former President’s action in signing the 2014 Protocol was unlawful. The state argues that the former President’s signature did not have any legal effect of binding South Africa to the new Protocol. Since the signature had no legal effect, there were no rights that were affected and hence no action to be challenged.
Interestingly, the State has not appealed the Court’s finding that the former President’s participation in the suspension of the Tribunal was unconstitutional. This means that that part of the judgment is still binding on the State.
SALC is represented by Lawyers for Human Rights and Advocates Jatheen Bhima and Thai Scott.
For further details on the case, please see here.