NEWS & ANALYSIS

High Court rules against Zuma in SADC Tribunal matter - AfriForum

Executive had no authority to participate in a decision in conflict with SA’s binding obligations

Judgment in court case against President Zuma and the South African government for their role in the closure of the SADC Tribunal

Today the Pretoria High Court handed down judgment in the prolonged the court application against former South African President Jacob Zuma and his government for their role in the closure of the regional human rights court, the Southern Development African Community’s SADC Tribunal in 2012.

The court found that “South Africa remains bound by the [SADC] Treaty and the First Protocol. Amending the Treaty and without terminating the First Protocol, the Executive has no authority to participate in a decision in conflict with South Africa’s binding obligations.

The application was launched in April 2015 by The Law Society of South Africa to declare the actions of President Zuma, as well as the Minister of Justice, Michael Masutha, and the Minister of International Relations and Co-operation, Ms Maite Nkoana-Mashabane, unconstitutional in relation to SADC’s 2014 Protocol.

The South Africa Litigation Centre, admitted as a friend of the court (amicus curiae), together with The Centre for Applied Legal Studies, argued that the right of access to courts was not limited to the right to domestic courts, but also entitled access to a regional court. 

South African civil rights group AfriForum successfully assisted four Zimbabwean farmers and two agricultural companies to intervene in the case. The farmers lost their properties as part of Zimbabwe’s land reform policies. They successfully approached the SADC Tribunal in 2008 to protect their property rights but the Tribunal was eventually suspended and thereafter left to die a natural death. 

Main argument was given at the hearing on February 5, 2018. 

Willie Spies, the legal representative of AfriForum, expressed his satisfaction with the outcome. He said it was important that the 277 million citizens of the SADC region understood the role of regional tribunals and their critical importance in protecting the rights of all citizens.

“When individual citizens, civil society groups and activists are denied access to justice in their own countries, they must be able to challenge decisions that may have an impact on democracy and their human rights through a higher court of arbitration,” he explained.

“Regional courts exist throughout the world, including Europe (The European Court of Justice), the Caribbean (the Caribbean Court of Justice) and South America (The Central American Court of Justice), and they have a vital role in Africa to protect human rights and rule of law,” he said.

The Economic Community of West African States (ECOWAS)’s Community Court of Justice (ECCJ), for example, has become an increasingly active and bold adjudicator of human rights. Since acquiring jurisdiction over human rights complaints in 2005, the ECOWAS Court has issued numerous decisions condemning human rights violations by member states.[i] 

The East African Court of Justice, which was established as the judicial organ of the East African Community, commenced operation on 30 November 2000.

Ohene Yaw Ampofo-Anti of GroundUp , a joint project of Community Media Trust and the University of Cape Town's Centre for Social Science Research, raises another important point regarding the significance of the Zuma court case.

He noted in an article published the day before the judgment (February 28, 2018) that “the case may allow the court to make a ruling on the proper delineation of powers between the executive and Parliament in relation to making treaties binding in South Africa; it also raises the closely related question of whether public consultation is always required before a treaty is signed.”

During the period that the SADC Tribunal was operational (2007-2010), it adjudicated in 18 disputes. Cases tended to fall within one of three categories: individuals versus SADC itself (employment disputes), incorporated companies versus national governments (commercial disputes), and individuals versus national governments (human rights cases).[ii]

It was the human rights cases, every one of them brought against the Zimbabwean government, that were of particular relevance for explaining the suspension of the court in 2011 and its unilateral closure by the SADC Heads of State in 2012.

Most notably, in the Gondo case, the SADC Tribunal awarded damages of nearly US$17 million to nine Zimbabwean victims of organised violence and torture, in a landmark ruling that yet again exposed Harare's flagrant disregard of the rule of law.

The victims suffered bullet wounds, beatings and even paralysis as a result of the physical violence at the hands of the Zimbabwean police and soldiers.

Willie Spies
Legal Representative: AfriForum, Pretoria

Ben Freeth
SADC Tribunal Rights Watch

Footnotes:

[i] Alter Hefer McAllister ECOWAS Community Court of Justice (2014) (see here)

[ii] Merran Hulse, Silencing a supranational court: The Rise and Fall of the SADC Tribunal (25 October 2012) (see here)