SA must withdraw vote on SADC tribunal

Zuma’s backing to downgrade it – after Zim refused to obey its order to pay farmers for land grabs – declared illegal

THE Constitutional Court has ordered President Cyril Ramaphosa to withdraw South Africa’s support for the downgrading of the SADC Tribunal after it had ordered the Zimbabwean government to compensate aggrieved white farmers whose farms were seized.

Yesterday, the country’s apex court found former president Jacob Zuma acted illegally, unconstitutionally and irrationally by backing the suspension of the regional tribunal after Zimbabwe had refused to comply with its orders.

The court also declared Zuma’s decision to sign the 2014 protocol on the tribunal – which effectively blocked individuals from further lodging complaints against SADC member states before the tribunal – as unlawful, unconstitutional and irrational.

The matter originated from the 2010 decision by SADC heads of state to suspend the operations of the tribunal.

It was created in 2000 to interpret the SADC Treaty to ensure the promotion of democracy, human rights and the rule of law in the regional bloc.

Aggrieved farmers complained to the tribunal over the Zimbabwean farm seizures.

The tribunal held that the Zimbabwean government’s constitutional provision on land expropriation without compensation was unlawful as it violated the SADC Treaty.

The tribunal also directed the Zimbabwean government to pay compensation for farms already repossessed and to protect those that had not been seized.

The government refused to implement this order, and instead lobbied SADC countries for the suspension of the tribunal’s operations.

Chief Justice Mogoeng Mogoeng said the tribunal’s jurisdiction could only be lawfully tampered with within the terms of the SADC Treaty, which could only be amended by three-quarters of SADC member states, and not through a protocol. “The protocol route would have been an easy way out, in that it only requires the support of 10 member states to pass.

“But it is not a legally acceptable procedure for stripping the tribunal of the most important aspect of its jurisdiction,” Justice Mogoeng said.

He added that Ramaphosa would now have to withdraw Zuma’s signature to the 2014 protocol on the tribunal.

“For the execution of the duties attendant to the presidential office and antecedent authority incumbent-specific.

“The power and obligations devolve from one personality to another – it is, after all, the Presidency. Whoever the president happens to be will be directed to withdraw the president’s signature,” he said.

Justice Mogoeng said Zuma’s conduct undermined South Africa’s international-law obligations under the SADC Treaty by supporting the illegal suspension of the tribunal and by signing in support of the amendment of its jurisdiction.

“The illegality of his conduct also stems from purporting to exercise powers he does not have.

“It cannot be overemphasised that his conduct was also unlawful in that he failed to act in good faith and in pursuit of the object and purpose of the treaty we have bound ourselves is never really to,” he said.

The application to the court was lodged for the confirmation of an order of constitutional invalidity that had already been handed down by the Gauteng High Court, Pretoria.

The aggrieved farmers – some of them South African – were represented by the Law Society of SA, with the South African Litigation Centre and the Centre for Applied Legal Studies participating as friends of the court.

Justice Mogoeng stressed that Zuma should have disagreed with SADC member states that wanted to cushion the Zimbabwean government by downgrading the tribunal, as he was only allowed to do what would benefit South Africa and project it in a positive light.

The Presidency has been ordered to pay the costs for the applicants.