The Law Society of South Africa’s counsel in the SADC Tribunal matter, advocate Dumisa Ntsebeza SC (right) and advocate Tembeka Ngcukaitobi.

By Barbara Whittle

The Law Society of South Africa (LSSA) has welcomed the judgment on 1 March by the Gauteng Division of the High Court in Pretoria relating to the Southern African Development Community (SADC) Tribunal. The court declared that former President Jacob Zuma’s decision to sign the 2014 SADC Protocol, suspending the right of South African citizens to take disputes to the SADC Tribunal, was declared to be unlawful, irrational and thus unconstitutional.

‘Pending confirmation by the Constitutional Court, this judgment is a victory for all South Africans, and we hope it will be so for all SADC citizens,’ said outgoing LSSA Co-chairpersons Walid Brown and David Bekker in a press release following the judgment. They added: ‘As we said when we instituted the case against the president and the Ministers of Justice and International Relations in 2015, by signing the 2014 SADC Protocol, the president infringed the right of South Africans by agreeing to limit the jurisdiction of the SADC Tribunal to disputes only between member states – and no longer between individual citizens and states, without consultation.’

The Co-chairpersons noted: ‘As the court has said, by signing the Protocol, the president “severely undermined the crucial SADC institution, the Tribunal. It detracted from SADC’s own stature and institutional accountability and violated the SADC Treaty itself”. The court also added that the president had no authority to participate in a decision in conflict with South Africa’s binding obligations and that if the intention was to withdraw from South Africa’s obligations under the Treaty and the Protocol, the consent of Parliament would have to be obtained first. The president’s failure to do so is unlawful and irrational.’

The LSSA urged President Cyril Ramaphosa to note the judgment and rectify this unlawful and irrational action, once the judgment has been confirmed by the Constitutional Court.

The LSSA launched the application in the High Court on 19 March 2015. 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 infringed the right of South African citizens to access justice in terms of our Bill of Rights. 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.

Four Zimbabwean farmers, Luke Thembani, Ben Freeth, Richard Etheredge, Chris Jarret, as well as two Zimbabwean farming estates, Tengwe Estates and France Farm, were admitted as applicants, and the Southern Africa Litigation Centre and the Centre for Applied Legal Studies as amicus curiae. The matter was heard in the High Court on 5 February 2018 before Judge President Dustin Mlambo, Judge Nomonde Mngqibisa-Thusi and Judge Hans Fabricius. The court ruled that the applicants and amicus were entitled to the costs of the application, including costs of two counsel.

In its statement, the LSSA thanked its legal team, advocate Dumisa Ntsebeza SC and advocate Tembeka Ngcukaitobi, as well as Pretoria law firm Mothle Jooma Sabdia Inc – the latter acted pro bono for the LSSA in this matter.

Barbara Whittle, Communication Manager, Law Society of South Africa, barbara@lssa.org.za

This article was first published in De Rebus in 2018 (April) DR 12.