By Nomfundo Jele

The Law Society of South Africa (LSSA) has welcomed the decision by President Cyril Ramaphosa to withdraw South Africa’s signature from the 2014 Protocol on the Tribunal in the Southern African Development Community (SADC) in compliance with the Constitutional Court (CC) ruling.

In March 2015, in Law Society of South Africa and Others v President of the Republic of South Africa and Others 2019 (3) SA 30 (CC), the LSSA launched an application in the High Court to declare the actions of former President Jacob Zuma, as well as the Ministers of Justice and International Relations and Cooperation in voting for, signing and planning to ratify the SADC Summit Protocol in 2014 as it related to the SADC Tribunal, to be unconstitutional.

The 2014 Protocol deprived citizens in the SADC region – including South Africans – of the right to refer a dispute between citizens and their government to a regional court if they failed to find relief in their own courts. By signing the 2014 Protocol, former President Zuma infringed the right of South African citizens to access justice in terms of the Bill of Rights. The 2014 Protocol limited the jurisdiction of the SADC Tribunal to disputes only between member states – and no longer between individual citizens and the SADC member states – in the SADC region.

In March 2018 the Gauteng Division of the High Court in Pretoria, declared former President Zuma’s participation in the suspension of the operations of the SADC Tribunal and his signing of the 2014 Protocol to be unlawful, irrational and unconstitutional. The CC confirmed this constitutional invalidity in December 2018.

The SADC Tribunal is supposed to be a body that allows member states, and citizens access, should internal remedies fail them, but in 2014 when former Zimbabwe President Robert Mugabe – did not want farmers who lost their farms to seek relief there – convinced other states to sign a protocol that would prevent individuals from going to the tribunal.

In a press release LSSA President, Mvuzo Notyesi said: ‘The LSSA could not sit by silently and let this happen as we strongly believe in enhancing access to justice, which includes access to the courts. We are elated that our efforts were not in vain. The SADC summit in Tanzania noted South Africa’s withdrawal in compliance with the Constitutional Court ruling’.

Nomfundo Jele, Communications Officer, Law Society of South Africa, nomfundom@lssa.org.za