Top guns challenge Zuma's backing of SADC tribunal
Publish date: 12 February 2018
Issue Number: 761
Diary: IBA Legalbrief Africa
Some of SA's top legal minds came together in the Gauteng High Court (Pretoria) last week in a case which seeks to declare President Jacob Zuma's signing, and planned ratification, of the SADC Summit Protocol unconstitutional. Brought by the Law Society of SA (LSSA), the application challenges the SADC tribunal which, unlike its predecessor, deprives citizens in the 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. The Pretoria News reports that the change came after Zimbabwe, which had been ordered by the previous tribunal to restore land taken from farmers, challenged the legitimacy of the body. The SADC Lawyers Association said the effect of this was to strip the whole of the SADC citizenry of the protection of an apex regional human rights court and to reduce platforms of accountability in the region. 'More importantly, it removed the safety net of an impartial and effective tribunal that enjoyed the supports of a strong regional body,' they said. By signing the new 2014 protocol, the applicants argued, Zuma has infringed on the right of SA citizens to access justice in terms of the Bill of Rights. The Centre for Applied Legal Studies, which has joined the case as a friend of the court, said it was concerned that the Presidency has entered into what was in effect an international treaty, without first consulting the people of SA. Advocate Dumisa Ntsebeza SC is acting for the LSSA and the case is being heard by a full Bench, headed by Judge President Dunstan Mlambo. As reported in Legalbrief, judgment was reserved on Tuesday.
Zuma and the Presidency's response is that the signing of the Protocol was simply a preliminary step and it did not mean that they were supporting it, according to the Pretoria News report. They said they were still examining the Protocol and deciding whether to table it before Parliament or not. Advocate Jeremy Gauntlett SC, acting for four commercial farmers who were dispossessed of their farms under former President Robert Mugabe, said their stance was to hold back and to first see what the court ruled, before making a decision. Nine member countries have ratified the protocol and if SA added to this, a majority vote would have been reached, and the resolution will go through.