By Barbara Whittle

The Law Society of South Africa (LSSA) launched an application in the Gauteng Division, Pretoria in March this year to declare the actions of the President, as well as the Minsters of Justice and International Relations and Cooperation in voting for, signing and planning to ratify the Southern African Development Community (SADC) Summit Protocol in 2014 as it relates to the SADC Tribunal, to be unconstitutional. The respondents filed notice to oppose in April.

‘Unlike the previous Protocol, the 2014 Protocol deprives 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 fail to find relief in their own courts. By signing the 2014 Protocol, the President has infringed the right of South African citizens to access justice in terms of our Bill of Rights,’ said LSSA Co-chairpersons Busani Mabunda and Richard Scott.

As the Protocol now stands, it limits the jurisdiction of the SADC Tribunal to disputes only between member states – and no longer between individual citizens and states – in the SADC region.

At the 2014 SADC Summit at Victoria Falls in August 2014, President Jacob Zuma signed the 2014 Protocol, which must now be ratified. The LSSA has brought the application in the interest of members of the public including the private sector, civil society, NGOs, workers and employers’ organisations and all citizens of our country in terms of s 38 of our Constitution.

Prior to its earlier suspension in 2010 by the SADC Summit, the SADC Tribunal received 30 matters and finalised 24, all instituted by individuals. No single case had been received from SADC member states. Of the 24 cases instituted by individuals, six were still pending. ‘It is highly unlikely that states will make use of the Tribunal to settle matters as they use diplomatic channels to do so,’ say Mr Scott and Mr Mabunda.

Other law societies and Bar councils in the SADC region have or are in the process of launching similar actions in their courts to challenge the ratification of the SADC Protocol in their countries. This resolution was taken by members societies at the SADC Lawyers Association annual general meeting held at Victoria Falls immediately after the SADC Summit last year (see 2014 (Oct) DR 17).

‘Also of concern to lawyers in the SADC region is the continued approach by the SADC states in making decisions on the SADC Tribunal without involving citizens of the country as required by Article 23 of the SADC Treaty, to which South Africa is a signatory,’ said Mr Mabunda and Mr Scott.

The Co-chairpersons pointed out: ‘We have an independent and efficient judiciary in our country at the moment, but we have no guarantee that it will always be so. As we know, the protection of our democratic values requires eternal vigilance. This is the specific duty of lawyers. We can cite the example of the irregular and arbitrary arrest and imprisonment of our colleague, human rights lawyer Thulani Maseko and editor and journalist Bheki Makhubu in Swaziland. The fact is that their trial and continued imprisonment – including recent solitary confinement – has little to do with them but rather with the democratic rights they stand for. The courts and judiciary in Swaziland have failed them. They now do not have recourse to the SADC Tribunal as citizens of SADC.’

• See also ‘SADC stakeholders form coalition to lobby for restoration of a SADC Tribunal’ in 2014 (Oct) DR 5; and ‘Whither the SADC Tribunal?’ in 2013 (May) DR 11.

• The documents relating to the SADC Tribunal matter can be viewed on the LSSA website at www.LSSA.org.za

Barbara Whittle, communication manager, Law Society of South Africa, barbara@lssa.org.za

This article was first published in De Rebus in 2015 (June) DR 11.