Legal challenge over SADC tribunal powers

THE application by the Law Society of South Africa challenging the role played by President Jacob Zuma and the government in the closure of the Southern African Development Community (SADC) Tribunal has kicked off in the North Gauteng High Court in Pretoria.

Four commercial farmers dispossessed of their farms under former president Robert Mugabe were among those who joined the legal challenge.

Several heavyweight legal teams, which include advocate Dumisa Ntsebeza SC, acting for the Law Society, are asking a full Bench, headed by Judge President Dunstan Mlambo, to declare the actions of Zuma and ministers of Justice and International Relations and Co-operation in voting for, signing and planning to ratify the SADC Summit Protocol in 2014 unconstitutional.

The outcome of this legal challenge will have great significance for South African citizens and those of the other SADC countries. It is estimated that 230 million people will be affected.

Unlike the previous one, the 2014 protocol deprives citizens in the SADC region, which include South Africans, of the right to refer a dispute between citizens and their government to a regional court if they do not find relief in their own courts.

The applicants said by signing the 2014 protocol, the president had infringed on the rights of South African citizens to access justice in terms of the country’s Bill of Rights.

As the protocol now stands, it limits the jurisdiction of the SADC tribunal to disputes between member states and no longer between individual citizens and states in the SADC region.

The SADC tribunal was established in 2005 to resolve disputes involving southern Africa States and their citizens.

In 2009, Zimbabwe challenged the legitimacy of the tribunal on the basis that it had not been established according to international law norms.

This came after the tribunal criticised Zimbabwe’s land reform and ruled that the Zimbabwe government had to restore the land of the white farmers who had turned to the tribunal.

It was also ruled that Zimbabwe had to compensate them for the loss they had incurred.

This led to the protocol being revised, to remove the tribunal’s power to hear disputes brought by citizens against states. Its mandate was restricted to hear disputes between SADC member states only.

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.