SADC TRIBUNAL CASE – February 5, 2018

Representing the Centre for Applied Legal Studies, Michael Bishop of the LRC’s Constitutional Litigation Unit argued before the Gauteng High Court in Pretoria that the South African Presidency cannot bind South Africa to international treaties without first consulting the public.

The Southern Africa Development Community (SADC) Tribunal was established in 2005 to resolve disputes involving southern African governments and their citizens. After the Tribunal ruled in 2009 that the government of Zimbabwe must restore the land of four commercial farmers, who had turned to the tribunal, and compensate them for losses incurred, Zimbabwe challenged the legitimacy of the tribunal. The tribunal’s protocol was revised in 2014, removing its power to hear disputes brought by citizens against governments and restricting its mandate to disputes between SADC member states.

The Law Society of South Africa (LSSA) is challenging the actions of South African President Jacob Zuma and his Ministers of Justice and International Relations and Cooperation in voting for, signing, and planning to ratify the SADC Summit Protocol of 2014. The LSSA is asking a full bench of three judges, headed by Judge President Dunstan Mlambo, to declare their actions unconstitutional because they infringe on the right of South African citizens to access justice under South Africa’s Bill of Rights.

The LRC is representing the Centre for Applied Legal Studies from the University of the Witwatersrand’s School of Law as a friend of the court, arguing that the Presidency cannot bind South Africa to international treaties without first consulting the public. The LRC argues that President Zuma has effectively removed the rights of South Africans to access the tribunal if they want to appeal cases that have been decided in South Africa’s highest courts.

Nine member countries have already ratified the protocol. If South Africa ratifies the protocol as well, a majority vote will have been reached, affecting the right of 230 million people throughout southern Africa to bring cases before the tribunal.

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