Constitutional Court rules president’s suspension of SADC tribunal unlawful

Date: 12/12/2018

Lawyers for Human Rights welcomes the Constitutional Court’s judgement, handed down yesterday, 11 December 2018,  in the matter of Law Society of South Africa and Others v President of the Republic of South Africa and Others.  The matter concerned the constitutionality of the President’s signature of the 2014 Protocol stripping the SADC Tribunal of its jurisdiction over individual disputes with Member States, as well as the constitutionality of his participation in the decision to suspend the operation of the SADC Tribunal.

The Court held that the actions of the President were unlawful in that they violated the amendment procedure of the SADC Treaty and the President did not have the requisite authority to suspend the operations of the Tribunal.

“Fundamentally, this case concerns the right of access to justice, and specifically access to courts at a regional level”, said Wayne Ncube, head of LHR’s Strategic Litigation Programme, which represented the Southern Africa Litigation Centre, admitted as amicus curiae in the matter.

“The issue for determination before the Court was whether the President acted unconstitutionally, irrationally, and unlawfully in participating in the decision to essentially suspend the SADC Tribunal.  The outcome confirms that where executive power is exercised – on the international stage or otherwise – such power must be in line with the principles of the Constitution”.

The Court held that the SADC Tribunal suspension was unlawful because it violates the Constitution, where both the SADC treaty and the Constitution enhance access to justice, which includes access to courts.  The President’s actions undermined these rights. The judgement emphasized that the President failed to act in good faith and in pursuit of the object and purpose of both the SADC Treaty and our own Constitution.  Accordingly, the President has been ordered to withdraw his signature from the 2014 Treaty.


For more information contact:

Wayne Ncube

Phone: 011 339 1960


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