[Press Statement] HIGH COURT RULES SUSPENSION OF SADC TRIBUNAL BY PRESIDENT UNCONSTITUTIONAL

 

 

The Gauteng Division of the High Court handed down judgment in the matter of Law Society of South Africa and others v The President of the Republic of South Africa and others on 1 March 2018 ruling that the President's participation in the suspension of the Southern African Development Community (SADC) Tribunal was unconstitutional. The case, brought initially by the Law Society of South Africa (LSSA), challenged South Africa's former President's role in the suspension of the SADC Tribunal in 2011 and his further participation in the adoption of a new SADC Tribunal Protocol which removed the rights of citizens to petition the tribunal for legal redress in 2014. 

 

Lawyers for Human Rights (LHR) represented the Southern Africa Litigation Centre (SALC) who appeared as amicus curiae in a case.  SALC had argued:

 

- The South African Constitution guarantees South African citizens access to justice which includes justice at a domestic, regional and international level;

- South Africa's parliamentary ratification of the SADC Treaty and the First Protocol had created a right for individuals to access a regional tribunal; 

- As such, the 2014 Protocol, which was adopted by the SADC Summit hindered this access by depriving citizens of access to the Tribunal;

 

The Court stated that the actions suspending the Tribunal clearly removed the rights of persons to lodge disputes at the tribunal and could not be rationally connected to the purpose of the SADC Treaty. The Court further stated that the actions suspending the Tribunal and the further adoption of the 2014 Protocol not only violated the SADC Treaty itself but also the South African Constitution. The Court further held that the Executive has no authority to participate in a decision in conflict with South Africa's binding obligations. It clarified that Parliament holds the authority to withdraw South Africa from its present obligations. 

 

The Court declared that the President's actions of participating in the suspension of the Tribunal in 2011 and signing the 2014 Protocol were unlawful, irrational and unconstitutional. The decision has been referred to the Constitutional Court for confirmation.

 

LHR welcomes the judgment of the High Court in upholding the rights of individuals to access justice including access to regional tribunals and in upholding the rule of law in the exercise of Executive power.

 

For more information please contact Wayne Ncube, Strategic Litigation Programme Manager on 011 339 1960 or Carol Mohlala, Media and Communications Manager on 079 238 9826