Law Society of South Africa and Others v President of the Republic of South Africa and Others (20382/2015) [2018] ZAGPPHC 4; [2018] 2 All SA 806 (GP); 2018 (6) BCLR 695 (GP) (1 March 2018)

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[2018] ZAGPPHC 4
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Law Society of South Africa and Others v President of the Republic of South Africa and Others (20382/2015) [2018] ZAGPPHC 4; [2018] 2 All SA 806 (GP); 2018 (6) BCLR 695 (GP) (1 March 2018)

IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
HIGH COURT, PRETORIA)
Case
Number: 20382/2015
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
1/3/2018
In
the matter between:
LAW
SOCIETY OF SOUTH
AFRICA

1
ST
APPLICANT
LUKE
MUNYANDU
TEMBANI

2
ND
APPLICANT
BENJAMIN
JOHN
FREETH

3
RD
APPLICANT
RICHARD
THOMAS
ETHEREDGE

4
TH
APPLICANT
CHRISTOPHER
MELISH
JARRET

5
TH
APPLICANT
TENGWE
ESTATE (PVT)
LTD

6
TH
APPLICANT
FRANC
FARM (PVT)
LTD

7
TH
APPLICANT
And
PRESIDENT
OF THE REPUBLIC
OF
SOUTH
AFRICA

1
ST
RESPONDENT
THE
MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT

2
ND
RESPONDENT
THE
MINISTER OF INTERNATIONAL
RELATIONS
AND CO-OPERATION

3
RD
RESPONDENT
And
SOUTHERN
AFRICAN LITIGATION CENTRE

1
ST
AMICUS CURIAE
CENTRE
FOR APPLIED LEGAL STUDIES

2
ND
AMICUS CURIAE
JUDGMENT
The
Court
[1]
In this application the First and Second to Seventh Applicants seek
declaratory relief relating to two decisions by the Executive
to
support a resolution suspending the operation of the Southern African
Development Community Tribunal in 2011 and to sign the
subsequent
Protocol in 2014. The first decision was taken on 20 May 2011, when
the President decided to support a resolution in
effect suspending
the operation of this Tribunal, and the second decision was taken on
18 August 2014, when the President signed
the relevant Protocol which
limited the Tribunal’s jurisdiction to inter-state disputes to
the exclusion, henceforth, of
private parties. The First and Second
Amici Curiae
support the application of the First Applicant
albeit for different reasons.
All
the parties before us filed detailed written Heads of Argument, for
which we express our gratitude. They have been carefully
considered.
[2]
Before dealing with the crux of each party’s argument, it is
convenient to refer to the history of the Southern African

Development Community Treaty in the present context, and the history
of its Tribunal. This history has been set out in some detail
by the
Constitutional Court in
Government of the Republic of Zimbabwe
v Fick
2013 (5) SA 325
at 328
and further, where the
following
was stated
(with foot-notes
omitted).
“
The
SADC and its legal instruments
:
[5]
SADC was established in terms of the Treaty of the Southern African
Development Community (Treaty) that was signed on 17 August
1992 in
Windhoek, Namibia, by the Heads of State or Government of ten
Southern African States. Zimbabwe ratified the Treaty on

17 November 1992, as confirmed by its Attorney-General. And
the Treaty came into force on 30 September 1993.
South
Africa joined SADC by acceding to the Treaty on 29 August 1994.
Our Senate and National Assembly approved the Treaty
on 13 and
14 September 1995 respectively.
[6]
The purpose for the establishment of SADC was to achieve certain
regional developmental goals. Some of the key objectives are
set out
in the Preamble to the Treaty as: a collective realisation of the
progress and well-being of the peoples of Southern Africa;
promotion
of the integration of the national economies of Member States; the
need to mobilise international resources and secure
international
understanding, support and cooperation; and, more importantly, “the
need to involve the peoples of the Region
centrally in the process of
development and integration, particularly through the guarantee of
democratic rights, observance of
human rights and the Rule of Law”.
Member States bound themselves in terms of article 4(c) of the Treaty
to act in accordance
with the human rights, democratic - and Rule of
Law principles.
[7]
They undertook to adopt measures to promote the achievement of the
objectives of SADC and to “refrain from taking any
measure
likely to jeopardise the sustenance of its principles, the
achievement of its objectives and the implementation of the

provisions of this Treaty.” Added to this was the
responsibility to take all the necessary steps to accord the Treaty
the
force of national law and a commitment to “cooperate with
and assist institutions of SADC in the performance of their duties.”

One of those institutions to be cooperated with and assisted was the
Tribunal.
[8]
The Tribunal was established to ensure adherence to and the proper
interpretation of the Treaty as well as the adjudication
of such
disputes as may be referred to it. The composition, powers,
functions, procedures and other related matters were subsequently

provided for in a Protocol pertaining to the Tribunal (Tribunal
Protocol).
[9]
The coming into effect of the Tribunal Protocol depended on its
ratification by two-thirds of the Member States. It appears
that the
requisite number of ratifications was not obtained. As a result, the
Tribunal Protocol did not come into operation. This
hurdle was
overcome through the amendment of the Treaty by the SADC supreme
policy-making body known as the Summit, which comprises
the Heads of
State or Government of SADC Member States. It has the power to amend
the Treaty. And such amendment becomes operative
only after adoption
by the prescribed three-quarters of all Members of the Summit.
[10]
The amendment alluded to above was effected by the Summit in terms of
the Agreement Amending the Treaty of the Southern African
Development
Community (Amending Agreement). Article 16(2) of the Treaty was
amended to provide for the Tribunal Protocol to be
an integral part
of the Treaty, obviously subject to the adoption of the Amending
Agreement. This was notwithstanding the provisions
of article 38 of
the Tribunal Protocol which required ratification of the Tribunal
Protocol by two-thirds majority before it could
come into operation.
This amendment, therefore, removed the ratification requirement.
[11]
Consequently, the Amending Agreement came into force on the date of
its adoption by three-quarters of all Members of the Summit.
That
happened on 14 August 2001 in Blantyre, Malawi, where it was
signed by 14 Heads of State or Government including Zimbabwe
and
South Africa. Both South Africa and Zimbabwe are thus bound by the
amended version of the Treaty which incorporated the Tribunal

Protocol (Amended Treaty).
“
Was
the Treaty put into operation in terms of the Constitution
?
[27]
Our
Constitution
creates a mechanism in terms of which
international agreements can be ratified or acceded to and
domesticated. Section 231 of the
Constitution
provides:
“
(1)
the negotiating and signing of all international agreements is the
responsibility of the national executive.
(2)
An international agreement binds the Republic only after it has been
approved by resolution in both the National Assembly and
the National
Council of Provinces, unless it is an agreement referred to in
subsection (3).
(3)
An international agreement of a technical, administrative or
executive nature, or an agreement which does not require either

ratification or accession, entered into by the national executive,
binds the Republic without approval by the National Assembly
and the
National Council of Provinces, but must be tabled in the Assembly and
the Council within a reasonable time.
(4)
Any international agreement becomes law in the Republic when it is
enacted into law by national legislation; but a self-executing

provision of an agreement that has been approved by Parliament is law
in the Republic unless it is inconsistent with the
Constitution
or an act of Parliament.
(5)
The Republic is bound by international agreements which were binding
on the Republic when this
Constitution
took effect.”
[28]
The implications of compliance with this section were articulated by
Moseneke DCJ and Cameron J in
Glenister
v
President of the Republic of South Africa and Others
as
follows:
“
Now
plainly there are many ways in which the State can fulfil its duty to
take positive measures to respect, protect, promote and
fulfil the
rights in the
Bill
of Rights
.
This Court will not be prescriptive as to what measures the State
takes, as long as they fall within the range of possible conduct
that
a reasonable decision-maker in the circumstances may adopt. A range
of possible measures is therefore open to the State, all
of which
will accord with the duty the
Constitution
imposes, so long as the measures taken are reasonable.
And
it is here where the courts’ obligation to consider
international law when interpreting the
Bill of Rights
is of pivotal importance. Section 39 (1) (b) states that when
interpreting the
Bill of Rights
a Court ‘must
consider international law’. The impact of this provision in
the present case is clear, and direct. What
reasonable measures does
our
Constitution
require the State to take in order to
protect and fulfil the rights in the
Bill of Rights
?
That question must be answered in part by considering international
law. And international law, through the inter-locking grid
of
conventions, agreements and protocols we set out earlier,
unequivocally obliges South Africa to establish an anti-corruption

entity with the necessary independence.
That
is a duty this country itself undertook when it acceded to these
international agreements. And it is an obligation that became
binding
on the Republic, in the international sphere, when the National
Assembly and the NCOP by resolution adopted them, more
especially the
UN Convention.
”
(Footnote
omitted.)
[29]
Zimbabwe argues that our Parliament did not approve the Treaty in
terms of section 231 of the
Constitution
and that
non-compliance is a bar to the enforcement of the costs order in
South Africa. For these reasons, Zimbabwe concludes that
orders of
the Tribunal cannot be registered and enforced by South African
Courts.
[30]
This argument lacks merit. Our Parliament approved the Treaty in
1995. The Treaty and the Amended Treaty are thus binding on
South
Africa, at least on the international plane.
[31]
Article 32(2) of the Tribunal Protocol imposes a legal
obligation on South Africa to take all legal steps necessary to

facilitate the execution of the decisions of the Tribunal created in
terms of the Treaty that our Parliament has approved.”
[3]
For present purposes the following conclusion of the Constitutional
Court is also relevant:
“
[48].
The Tribunal had jurisdiction over all disputes relating to the
interpretation and application of the Treaty and
over disputes
between Member States
and
natural or legal persons
(we underline). This was subject to prior exhaustion of all available
remedies unless otherwise domestically unavailable. Member
States are
required to take all measures necessary to ensure execution of the
decisions of the Tribunal. Provision is also
made for the
enforcement of the decisions of the Tribunal, the role of Member
States in that regard and the binding effect of those
decisions. What
all of these provisions boil down to, is that both Zimbabwe and South
Africa effectively agreed that domestic courts
in the SADC countries
would have the jurisdiction to enforce orders of the Tribunal made
against them.”
[4]
The Constitutional Court also held [par. 69] that the Amended Treaty,
incorporating the Tribunal Protocol, places an international
law
obligation on South Africa to ensure that its citizens have access to
the Tribunal and that its decisions are enforced. Section
34 of the
Constitution
must therefore be interpreted, and the common law developed, so as to
grant the right of access to our Courts, to facilitate the

enforcement of the decisions of the Tribunal in this country. This
would be achieved by regarding the Tribunal as a foreign Court
in
terms of our common law. It also had to be emphasized that South
Africa has an obligation to facilitate the enforcement of human

rights related orders made against the State, including those
stemming from the Amended Treaty, in accordance with international

instruments which bind South Africa in terms of s. 231 of the
Constitution
.
The Tribunal Protocol itself, impose a duty on Member States to take
all measures necessary to ensure the execution of the decisions
of
the Tribunal.
[5]
In its written Heads of Argument, the First Applicant correctly sets
out the broader facts relating to the First Protocol of
the community
and the suspension decision as follows:
“
16.
On 7 August 2000 the SADC passed the Protocol on the Tribunal in the
SADC (the First Protocol). Former President Thabo Mbeki
represented
the South African Government.
The
First Protocol did not restrict the ability of individuals to have
access to the Tribunal. Article 15 stated that the scope
of
jurisdiction of the Tribunal is “over disputes between States
and between natural or legal persons and States”.
Article 27
drew a distinction between the States and “other parties”.
The rules of the Tribunal which were an addendum
to the Protocol
defined an “Applicant” as “a person, member state
or institution that has submitted an application
to the Tribunal”.
“Person” was defined to mean “natural or legal
person”.
Rule
24 distinguished between Member States and other persons. It
provided that Member States and institutions shall be represented

before the Tribunal by an agent appointed for each case. On the
other hand, other persons were entitled to be represented by
agents
or other persons were entitled to be represented by agents or other
persons authorized by them. Rule 33, which governed
proceedings
instituted by way of application contained no restriction in
relation to the standing of the person who could institute
an
application before the Tribunal.
As
such, consistent with the terms of the Treaty, the First Protocol
guaranteed access to any person to institute proceedings
before the
Tribunal. But in August 2010, with the attendance and participation
of President Jacob Zuma, the first indication
was given that this
right of access to the Tribunal might be taken away.
In
the meeting of Heads of State and Government, held in Windhoek,
Namibia, between 16 and 17 August 2010, an item was presented

concerning the non-compliance with decisions of the Tribunal. Item 9
of the Minutes of that meeting dealt with this issue. It
was stated
that in September 2009 at a meeting of the Summit held in Kinshasa
in the Democratic Republic of Congo the subject
of Zimbabwe’s
failure to comply with the decisions of the Tribunal was discussed.
It had been resolved to ask the Committee
of Ministers of Justice
and Attorneys-General to hold a meeting on the legal issues
regarding Zimbabwe and to advise the Summit.
It was also asked that
the Committee of Ministers of Justice and Attorneys-General should
“review the roles, responsibilities
and terms of reference of
the Tribunal”.
When
the meeting of August 2010 was convened, further “acts of
non-compliance by the Republic of Zimbabwe with regard to
the
Tribunal’s earlier decisions” were brought up. Notably
the case
Fick: LK
and Others v The Republic of Zimbabwe (case number SADC (T) 01/2010)
was presented. It established that Zimbabwe had not complied with
decisions of the Tribunal. No reasons appear why Zimbabwe had
not
complied with decisions of the Tribunal. At any rate, decision 19
contains the resolutions of that meeting. It records:
“
9.3
Summit endorsed the recommendation of Council in paragraph 9.3 not to
reappoint members of the Tribunal whose term of office
expires in
August 2010, for another 5 (five) year term, pending the report of
the Tribunal from Ministers of Justice and Attorneys-General.
9.4
Summit agreed that the
members of the Tribunal shall remain in office pending the report on
the Tribunal from Ministers of Justice
and Attorneys-General but
shall not entertain new cases until the extraordinary summit has
decided on the legal status and roles
and responsibilities of the
Tribunal.
9.5
Summit deferred
consideration of the non-compliance with the Tribunal ruling in
Fick:
LK and Others v The Republic of Zimbabwe (case number SADC (T)
01/2010)
by
Zimbabwe, pending the completion of a study on the role,
responsibilities and terms of reference of the SADC Tribunal”.
In
respect of the report of the Ministers of Justice and
Attorneys-General decision 20 was taken. In terms of this decision

the following was resolved
“
10.2
Summit decided that:
i.
A study shall be
undertaken and completed within six months
of
Summit meeting of August 2010, to review the role and
responsibilities of the Tribunal;
ii.
The Committee of
Ministers of Justice or Attorneys-General
shall
involve members of the SADC Tribunal in the study;
iii.
The outcome of the study
shall be presented by the
Committee
of Ministers of Justice or Attorneys-General at an extraordinary
summit”.
It
shall be recalled that the appointment of the Tribunal is not
discretionary, but obligatory under Article 16. Similarly, the

appointment of members to the Tribunal is mandatory.
The
decision to suspend the appointment of members of the Tribunal was
extraordinary. Its effect was that the Tribunal could not
function.
Yet, the South African Government sought no parliamentary approval
prior to its participation and endorsement of the
decision. This was
despite the fact that the Government knew that the appointment of
members to the Tribunal was mandatory.
The
matter was tabled again at a further meeting of the Heads of State
in May 2011. Since it is this decision that is the subject
matter of
the present dispute, it must be quoted in full.
“
3.2.2
Re-appointment and replacement of members of the SADC
Tribunal
3.2.2.1
Summit recalled that, at
its meeting held in Windhoek, Namibia, in August 2010, it;
(i)
endorsed the Council’s
recommendation not to
reappoint
members of the Tribunal whose term of office would expire in August
2010, for another five year term, pending the report
on the Tribunal
from the Committee of Ministers of Justice/Attorneys-General; and
(ii)
decided that the members of the
Tribunal should not entertain any new cases until the extraordinary
summit has decided on the legal
status and roles and responsibilities
of the Tribunal.
3.2.2.2
Summit noted that, the
Committee of Ministers of Justice/Attorneys-General, at its meeting
held in Swakopmund, Namibia, in April
2011, noted that the study on
the role, responsibilities and terms of reference of the SADC
Tribunal had been finalised. The study
confirms the validity of the
Protocol on the Tribunal and the rules of procedure thereof, and that
the Tribunal is properly constituted.
3.2.2.3
Summit noted that, in
terms of Articles 6 (1) and (2) of the Protocol on the Tribunal and
the rules of procedure thereof, members
shall be appointed for a term
of five years and may only be appointed for a further term of five
(5) years.
3.2.2.4
Summit also noted that:
(i)
Out of the members initially
appointed, four were selected through a lot that took place on 31
October 2008 and their term of office
shall expire at the end of
three years after the selection;
(ii
)
Currently some of the members’
tenure of office has either expired on 31 August 2010, or it will
expire on 31 October 2010;
and
(iii)
There is need not only to
reappoint the members whose term expired in August 2010, but also to
replace those members whose term
of office will expire on 31 October
2011.
3.2.2.5
Summit considered the
recommendation of Council not to approve the reappointment and
replacement of the members of the SADC Tribunal
pending the
conclusion of the review process referred in paragraph 2.2.1.5
above”.
Two
decisions were then taken. First, it was decided not to reappoint
the members whose term of office expired on 31 August 2010.
Second,
members whose term of office would have expired on 31 October 2011
were not reappointed. While the Respondents argue
that President
Zuma was not present at the meeting of May 2011, they admit that he
was duly represented and the decision was
taken on his behalf. The
Respondents have characterized the decision of May 2011 as the
“suspension of the SADC Tribunal”.
This characterisation
is correct. Without Judges, the Tribunal could not function. It was
thus suspended.”
The
Second Protocol
:
[6]
The review by SADC of the functioning of the Tribunal resulted in the
conclusion of a new Protocol on the Tribunal, which was
signed on 18
August 2014. The First Respondent is signatory to this Protocol on
behalf of South Africa. This Protocol is a significant
departure from
the First Protocol. Article 33 deals with material jurisdiction and
provides that the Tribunal will have jurisdiction
on the
interpretation of the SADC Treaty and Protocols relating to disputes
between member States. The result is that individuals
are precluded
from lodging disputes before the Tribunal. Only member States can.
According to the First Applicant, this lies at
the heart of the
second issue to be decided. They contend that it was unlawful for the
South African Government to sign this Protocol
that infringed the
Constitution
.
[7]
In a joint submission, the parties referred to the following
undisputed facts:
The
2014 Protocol was adopted by the Summit in terms of a consensus
decision in which the President participated, and the President

signed the 2014 Protocol after its adoption;
There
was no public consultation process which preceded the President’s
signature of the 2014 Protocol;
There
has not yet been ratification by Parliament of this Protocol
pursuant to the President’s signature;
The
President, Cabinet and other Government Respondents await the
outcome of this application to decide whether to seek Parliament’s

ratification of this Protocol.
The
Law Society’s argument
:
[8]
The First Applicant’s argument can be summarized as follows:
The
President’s impugned conduct violates s. 34 of the
Constitution
;
The
President’s impugned conduct is otherwise unconstitutional,
inter alia
for failing to facilitate any prior consultation,
and refusing to furnish any information or reasons despite repeated
requests;
The
President’s impugned conduct is also inconsistent with the
duties of SADC member states under the SADC Treaty itself;
The
Respondents’ defences are technical and untenable.
[9]
The First Applicant therefore sought the following relief as per its
Notice of Motion:
“
1.
It is declared that the Respondent’s participation in
suspending the SADC Tribunal and his subsequent signing of the 2014

Protocol on the SADC Tribunal is declared unconstitutional.”
[10]
It was argued that: the President’s decisions are
unconstitutional and in conflict with the Founding Treaty. The SADC

Treaty is binding in the Republic, as the Constitutional Court has
held. The Treaty establishes the Tribunal as the prime instrument
to
ensure compliance and adherence to the terms of the Treaty. The
Treaty also specifies the obligations of Member States. Those

obligations cut across the State and individual divide. Member States
have direct obligations towards any person in their territories.

Member States are also duty-bound to comply with the principles of
democracy, human rights and the Rule of Law. They are also under
an
obligation not to discriminate against any person on the grounds as
listed.
[11]
The Tribunal, being the key institution to ensure compliance with the
terms of the Treaty must therefore be established and
its members
must be appointed. The failure to appoint members and to establish
the Tribunal is itself an infringement of the terms
of the Treaty.
The Heads of Government are only entitled to decide the term of
Office of a particular Judge, and they are not entitled
to decide
whether or not to establish the tribunal or whether to appoint Judges
to the Tribunal. Once appointed, the Tribunal is
bound to hear cases
which fall within its jurisdiction. If member States detract from the
norms contained in the Treaty, the only
Organ with the institutional
power, authority and jurisdiction to ensure compliance is the
Tribunal itself. According to the First
Protocol, and its articles 15
and 17, the scope of jurisdiction of the Tribunal was “over
disputes between States and between
natural or legal persons and
States”. The only limitation was that contained in art. 15.2 in
terms of which no natural or
legal person could bring an action
against the State without first exhausting internal remedies.
[12]
The decisions of May 2011 were material. Firstly, Judges were not
appointed. Secondly, the Tribunal was suspended. No Protocol
or
Treaty was concluded in this regard. South Africa was a party to this
decision and endorsed it. The decision had the effect
of suspending
the continued operation of the material terms of the Treaty and the
First Protocol.
The
question therefore arose whether it was constitutionally competent
for the South African Government to take an executive decision
whose
effect was to suspend South Africa’s obligations under an
International Treaty.
The
provisions of s. 231 of the
Constitution
are relevant in this context:
In
Glenister v President of
the Republic of South Africa and Others
2011 (3) SA 347
(CC)
,
it was held that the main force of s. 231 (2), is directed at South
Africa’s legal obligations under International Law.
An
international agreement approved by Parliament becomes binding on the
Republic. South Africa may therefore not act contrary
to its binding
obligations. In the context of the
Glenister
decision
supra
,
and with reference to the provisions of s. 7 (2) of the
Constitution
,
it was stated that Government must act reasonably in fulfilling its
international obligations.
[13]
The question therefore arose, in the present context, whether the
President acted reasonably when endorsing the suspension
of the
Tribunal. It was contended that he did not do so and hence acted
unconstitutionally. South Africa is bound by the Treaty
and the First
Protocol. The two instruments have been made binding through the
process envisaged by s. 231 of the
Constitution.
The decision to endorse
the suspension of the Tribunal was in conflict with binding
obligations of South Africa. It was submitted
that the President
cannot perform an act on an international plane that would be
inconsistent with such legal obligations. Should
he do so, he would
act unreasonably. With reference to
National
Commissioner of Police v Southern African Human Rights Litigation
Centre and Another
2015 (1) SA 315
(CC) par. 37 to 40
,
it was contended that the relevant
dicta
were to the effect that the Executive lacks authority to conduct
itself at an international level in a manner that is in conflict
with
its binding Treaty obligations. Reasonableness in that context
entails the obligation that there must be a justifiable basis
for
decisions of the Government. In the present instance, so it was
submitted, there was none.
[14]
In the Answering Affidavit of the Respondents, the justification was
offered that “the view taken by the President after

consultation with his advisors and all relevant Departments at this
stage was that a partial and temporary moratorium on receiving
new
cases was necessary in order to best address the challenges being
faced in relation to the SADC Tribunal and its powers and
the
concerns raised by certain member States, including in relation to
the jurisdiction of the Tribunal”. The President stated
that he
did not oppose the consensus view taken by the Summit on the
recommendation of the Council of Ministers to put in place
a partial
moratorium for a limited duration. The final decision taken during
May 2011 was made by a consensus. The consensus decision
of the
Summit took into account the interests of the majority of member
States on this issue.
[15]
It was accordingly contended that this reasoning was flawed,
irrational and unreasonable. The Council of Ministers and
Attorneys-General
had resolved that the jurisdiction of the Tribunal
was not inconsistent with the mandate of the Tribunal in accordance
with the
Treaty. The relevant Committee of Ministers of Justice and
Attorneys-General had
noted at its meeting in April in 2011 that the Protocol on the
Tribunal was valid as well as the rules of
procedure thereof and also
that the Tribunal had been properly constituted. It is notable that
this report did not make any mention
of any concerns raised by
“certain Member States” as contended for. It can be
stated however that the only issue, in
our view, which appears to
have instigated the review of the Treaty was the apparent
non-compliance with judgments of the Tribunal
by Zimbabwe in the
context of the so-called “land-reform” that the
Constitutional Court in the
Fick
decision
supra
[par.
3] referred to. (at p. 328) The record clearly indicates that this
was the main issue that confronted the Member States. The
applicant
argued that there was no factual foundation to suggest that several
Member States had raised concerns about the jurisdiction
of the
Tribunal. There was therefore, so the argument continued, no rational
basis for the President to support the decision suspending
the
operation of the Tribunal and the President’s pleaded reasons
were not supported by the record submitted. Accordingly,
it was
contended that the President laboured under a complete
misapprehension as to the correct facts or misconstrued the correct

facts.
[16]
The applicant contended further that it could therefore not be argued
that his decision bore a rational relationship to the
purpose for
which the power of the Executive was conferred and the decision
therefore failed the rationality test that applies
as clearly held by
the Constitutional Court in
Democratic Alliance v President of
South Africa and Others
2013 (1) SA 248
at par. 27
. It was
made clear by the Court that the Executive could exercise no power
and perform no function beyond that conferred by law
and that the
power must not be construed. Any such decision must also be
rationally related to the purpose for which the power
was conferred,
otherwise the exercise of such power would be arbitrary and at odds
with the Constitution.
The
2014 Protocol – in conflict with binding international
obligations
:
[17]
Under this heading it was contended by the First Applicant that the
singular feature of the 2014 Protocol was to alter the
jurisdiction
of the Tribunal so that no individual or private party could lodge
disputes with the Tribunal. The jurisdiction of
the Tribunal was
hence restricted to disputes between member States and disputes
between States and SADC itself. What was challenged
under this
heading was the participation of the President in signing the
Protocol. It was clear that the Treaty entitled individuals
access to
the Tribunal if principles of human rights, the Rule of Law and
democracy were infringed by States. Both the Treaty and
the First
Protocol are binding in South Africa since the provisions of s. 231
of the
Constitution
were complied with in bringing them into operation. Although they
both remain binding, the Executive has effectively attempted
to undo
obligations of South Africa under those Treaties. The Executive had
no power to act as it did. It was clear from
Democratic
Alliance
decision
supra
(at par. 43), that the exercise of all public power, including
conducting international relations must comply with the
Constitution
.
Their withdrawal from a binding International Treaty was an executive
act which constituted the exercise of public power and was
therefore
subject to constitutional control by means of the principle of
legality.
[18]
A statement by the Executive that it no longer intended to be bound
by its international obligations by means of depositing
notification
has concrete legal effects in international law “as it
terminates Treaty obligations, albeit on a deferred basis”.
It
was therefore contended that the combined effect of South Africa’s
participation in the 2011 decision and the August 2014
decision, was
to suspend South Africa’s obligations in international law,
contrary to the provisions of the Treaty and the
First Protocol. This
took place without the approval of Parliament. In the
Democratic
Alliance
decision
supra
(par. 51) the following was
said: “It should also be borne in mind that prior parliamentary
approval is required before instruments
of ratification may be
deposited with the United Nations. From that perspective, there is a
glaring difficulty in accepting that
the reverse process of
withdrawal should not be subject to the same parliamentary process.
[19]
The necessary inference, on a proper construction of s. 231, so the
applicants argued, is that Parliament retains the power
to determine
whether to remain bound to an International Treaty. This is
necessary, so the argument goes, to give expression to
the clear
separation of powers between the National Executive and the
legislature embodied in this section. If it is Parliament
which
determines whether an international agreement binds the country, it
contended that it is constitutionally untenable that
the Executive
can unilaterally terminate such agreement”. It was therefore
argued that if it is accepted that South Africa’s
participation
in the two decisions constituted the effective abolition of South
Africa’s obligations in international law,
that decision should
have been endorsed by Parliament before it could have any effect. It
was thus argued that it is no answer
for the Government to argue that
the 2014 Protocol was yet to be ratified by Parliament. The fact was
that South Africa remained
bound by the Treaty and the First
Protocol. Without terminating the First Protocol, the Executive has
no authority to participate
in a decision in conflict with South
Africa’s binding obligations. If it was the intention of South
Africa to withdraw from
its obligations, both under the Treaty and
the First Protocol, it should have obtained Parliamentary endorsement
first. On this
basis its failure in this regard was fatal to its
case.
Procedural
irrationality
:
[19]
It was contended that the 2014 decision was also irrational on
procedural grounds. While the role of South Africa on an
international
level was plainly a policy issue, it was not
unconstrained. The ultimate authority resided with Parliament and
when Parliament
exercises its legislative power, it is bound by the
requirement to ensure public participation in its decisions.
See:
Doctors for Life International v Speaker of the National
Assembly and Others
[2006] ZACC 11
;
2006 (6) SA 416
CC at par. 61
.
It
was contended that taking into account the following special
considerations in this particular case, public participation was

necessary for the rationality of the decision:
The
special significance of public participation;
The
effect of the decision on rights conferred;
The
nature of the power being exercised; and
The
constitutional provisions which impose Parliament as the body with
the last word on Treaty making.
[20]
These factors, it was contended, show that it was especially
important that any decision that would endorse the suspension
of a
body such as the Tribunal, must have been preceded by a public
consultation process. It was noticeable that the Executive
had
provided no reasons why it did not engage in the public consultation
process before the decision was taken. It seemed that
it was content
with the argument that because a decision was of an executive nature,
there was no duty to consult. The premise
of this argument was
flawed, so it was said, because a duty to consult was triggered by
the nature of the decision and its public
significance.
[21]
The applicant pointed out that the Government itself acknowledged
that the effect of the decision was to deprive South Africans
their
entitlement to access the Tribunal. That entitlement was granted when
the Treaty was signed, and indeed when the First Protocol
was passed
in terms of s. 231
Constitution
. As such, South
Africans became entitled to certain rights conferred by the Treaty
and the Protocol with effect from 2000. Those
rights became exigible
at the instance of any person on South African soil. Those rights
could not be taken away at the whim of
the Executive without public
consultation. It did accordingly not avail the Government to argue
that the provisions of s. 34 of
the
Constitution
do not
guarantee access to the SADC Tribunal. The issue, it was contended,
is not whether s. 34 of the
Constitution
guarantees
such access, but the issue is simply that access to the Tribunal is
guaranteed by the Treaty and the First Protocol.
Both of these are
binding and this is clear from the
Fick
decision
supra
.
The impugned decisions were therefore unconstitutional.
[22]
In the context of the State Respondents’ defences that in
respect of the 2011 decision an undue delay has occurred, Applicants

point out that this decision continues to have operative effect
s
to date. Furthermore, the applicant points out that there was a
lengthy exchange of correspondence between it and the Government
and
that had the application been brought before the 2014 decision, most
probably the criticism would have been that the first
decision was of
a temporary nature and that any application prior to the 2014
decision would have been regarded as being premature
by the
Respondents. As far as the defence of prematurity in respect of the
second decision is concerned, Applicants argued that
while Parliament
may well deliberate in the future, whether to endorse the decision or
not, this would have no bearing on whether
the decision has any legal
effects.
[23]
The applicant contended that in International Law the decision of the
Government applies. Parliament’s role is not to
decide whether
or not South Africa is bound on the international plain. Its decision
will merely concern whether or not the particular
decision taken by
the Executive will also be binding in the Republic. Whether or not
South Africa is entitled to participate in
the decision to
reconstitute the Tribunal in breach of South Africa’s
international obligations is plainly a matter that
falls within the
parameters of the principle of the Rule of Law. It was therefore open
to this Court to decide whether or not the
conduct of the Government
violated the
Constitution
.
The
Second to Seventh Applicants’ argument (The Tembani
Applicants)
:
[24]
On behalf of these Applicants it was pointed out that the principles
of SADC law confirmed by the Tribunal were consistent
with
international law and South African law. They include the
well-established principle also recognised by the South African

Constitutional Court that “the concept of the Rule of Law
embraces at least four fundamental rights, namely, the right to
have
an effective remedy, the right to have access to an independent and
impartial Court or Tribunal, the right to a fair hearing
before an
individual is deprived of a right, interest or legitimate
expectation, the right to equal treatment before the law and
the
right to equal protection of the law”.
See:
Zondi v MEC for
Traditional and Local Government Affairs
2005 (3) SA 589
(CC) at par.
82
.
[25]
These applicants contended that the Tribunal also confirmed a
principle previously articulated by the African Commission in

litigation concerning Zimbabwe.
See:
Gondo v Republic of
Zimbabwe SADCT 05/2008
.
It
is that the Rule of Law is a necessary condition for human rights,
and that it requires the existence of Courts and Tribunals
to resolve
disputes. Reference was made to
Zimbabwe
Lawyers for Human Rights and the Institute for Human Rights and
Development in Africa (on behalf of Andrew Barkley Meldrum)
Zimbabwe
294/04
, where the
African Commission held that when the Zimbabwean Government refused
to comply with certain High Court orders, it undermined
the
independence of the Courts which was a violation of art. 26 of the
African Charter. It also found as a fact that Zimbabwe “persistently

flouted orders of its own High Court”.
[26]
It was further pointed out that the SADC Tribunal also confirmed the
legal principle, namely that the SADC Treaty itself, through
art. 4,
which entrenches human rights and the Rule of Law, imposes a “legal
obligation” on SADC “as a collective
and as individual
Member States”. The Tribunal also subsequently reiterated that
art. 6 (1) of the Treaty similarly imposes
an obligation on Member
States of SADC to respect, protect and promote the “twin
fundamental rights”, being “the
right of access to the
Courts and the right to a fair hearing”.
See:
Campbell v Republic of
Zimbabwe SADCT 03/07
.
Thus,
contended the Tembani applicants
,
this obligation therefore rests
on member States and their functionaries, and is not only exigible
collectively against Heads of
State acting collectively
qua
SADC Summit.
[27]
It was further contended by the Tembani applicants that the source of
the Tribunal’s jurisdiction to determine disputes
between
individuals and States is art. 4 (c) of the SADC Treaty itself. This
was reinforced by art. 6 (1) of the Treaty and comparative
authority
as confirmed and applied by the Tribunal. In
Campbell
supra
,
the Tribunal also held that depriving citizens of judicial protection
is “inimical to the principle of the Rule of Law”
and the
Rule of Law indeed requires “having access to the Courts”
and the Rule of Law therefore precludes limitations
on the
international human right to have any claim brought before a Court or
Tribunal restricting or reducing “the access
left to the
individual in such a way or to such an extent that the very essence
of the right is impaired”.
[28]
The Tribunal, it was pointed out, also adopted a
dictum
of the
House of Lords in Jackson v Attorney-General UKHL
[2005] UKHL 56
;
(2006) 1 A.C.
262
at par. 159
, where the following was said: “The
Courts will treat with particular suspicion (and might even reject)
any
attempt
to subvert the Rule of Law by removing
governmental action affecting the rights of the individual from all
judicial scrutiny”.
It was therefore argued that in respect of
the State Respondents’ point of prematurity, this dictum made
it clear that it
is not only inclusive and concluded subversions of
the Rule of Law which attract Courts’ scrutiny. Any type of
conduct, even
only an inchoate attempt, is justiciable. In the
context of the
Campbell
decision
supra
, and its
sequelae
it is obvious that if an attempt to become
justiciable only after it is choate, then the attempt would have
already destroyed an
individual’s ability to initiate judicial
scrutiny.
[29]
Accordingly, argued the Tembani applicants, it is clear from the
sequelae
of the
Campbell
judgment, which the
Zimbabwean Government ignored, that the SADC Summit, in issuing the
2014 Protocol, acted contrary to the advice
by the SADC Ministers of
Justice and Attorneys-General. These instances had adopted a
consultant’s report to the effect that
the SADC Tribunal had
correctly applied the law and that its orders should be respected and
enforced. In the context of the consensus
decision-making process,
the expert report recorded that this actually meant that “any
SADC member State is able to veto
a Summit decision unless the Treaty
provides otherwise”. Accordingly, the First Respondent was not
a victim of a consensus
decision. The roles were in fact inversed, he
created consensus by not exercising his veto powers. It is also
noteworthy that the
SADC Tribunal’s own Judges described the
Summit’s actions against the Tribunal as “illegal and
arbitrary”
and “taken in bad faith”. This was said
after the SADC Tribunal was approached by some of the Second to
Seventh Applicants
to review and set aside the purported suspension
of the Tribunal’s jurisdiction. However, by the time the
application could
be lodged, the Tribunal had already been disabled
by the SADC Summit. It could therefore not rule on the illegality of
the action
and the Judges’ observation was therefore made
extracurially
.
[30]
Having been unable to gain access to the Tribunal, to rule on the
interference with its jurisdiction, these Applicants thereupon
lodged
a case in the African Commission. This too resulted in a judgment
which defeated the First Respondent’s defence based
on
collective conduct. South Africa did however not oppose the
African
Commission
case which was based substantially on the same
causes of action involved in the present application. The African
Commission however
ruled that it only had jurisdiction over member
States and with reference to art. 7 and 26 of the African Charter it
held that
these provisions entrenched only the right to access to
justice before national Courts.
The
result is that the SADC Heads of State are not capable of being held
collectively accountable
qua
SADC Summit before any
international forum. Therefore individual accountability of each Head
of State must necessarily exist at
the national level.
[31]
The Tembani Applicants’ causes of action are that the
President’s signature is contrary to the SADC Treaty,
retrospectively
affects vested rights and is furthermore irrational,
arbitrary and
mala fide
. It was contended that none of the
Respondents’ Answering Affidavits addressed any of the issues
invoked by these Applicants.
Violation
of the SADC Treaty
:
[32]
The Tembani Applicants say that this very first issue raised in their
Founding Affidavit was not addressed at all by the Respondents.
This
involves the violation of the SADC Treaty itself. This Treaty
establishes the Tribunal as an integral Organ of SADC. Article
9 (1)
(g) of the SADC Treaty makes this clear. The Treaty also provides in
art. 16 (1) that it is a function of the Tribunal to
ensure adherence
and the proper interpretation of the Treaty. Decisions by the SADC
Tribunal are also final and binding according
to art. 16 (5). The
Treaty also provides that “human rights, democracy and the Rule
of Law” are founding principles,
and that SADC and its member
States “will act in accordance with them”, according to
art. 4 (c). Member States are
also precluded from “taking any
measure likely to jeopardize the sustenance of its principles, the
achievement of its objectives
and the implementation of the
provisions of this Treaty”. See art. 6 (1) “furthermore,
member States are obliged to
cooperate with and assist institutions
of SADC in the performance of their duties”, according to art.
6 (6).
[33]
It was therefore contended that any act which detracted from the SADC
Tribunal’s exercise of its human rights jurisdiction
at the
instance of individuals is inconsistent with the SADC Treaty itself,
and violates the Rule of Law. The President’s
signature of the
2014 Protocol was such an act.
It
was further submitted that any Protocol to the SADC Treaty is a
subordinate legal instrument. It may not permissibly emasculate
a
SADC Organ established by the Treaty itself. It was contended that
the desired result was illegally contrived through an attempt
to
repeal and replace the 2000 Protocol on the Tribunal by the 2014
Protocol.
[34]
The President’s signature, so the Answering Affidavit states,
was “intended to demonstrate that South Africa was
open to
considering the ratification of a Protocol”, which terminated
the human rights jurisdiction which the Tribunal conclusively
held
the SADC Treaty vested in it. It was contended by the Tembani
applicants, that at the very least this signature, on the President’s

own version, signalled South Africa’s participation in an
initiative of the Zimbabwean Government to undermine an essential

SADC institution’s ability to enforce a fundamental SADC
objective: compliance with the Rule of Law and human rights.
It
was therefore submitted that the Tembani Applicants had established
their first cause of action, even on the First Respondent’s
own
version, which does not even attempt to refute the founding papers on
this issue.
Retrospective
interference with vested rights
:
[35]
A submission was further that this second issue was also not
addressed by the First Respondent. The Tembani Applicants and
others,
whom they represent, had vested rights in the SADC Tribunal awards.
The enforcement of these awards is provided for in
the Treaty itself
as per art. 32, and in the 2000 Protocol as per art. 32 (4) and (5).
By frustrating and terminating access to
the Tribunal, vested rights
had been interfered with retrospectively. In all of this, the First
Respondent participated on his
own version. Nothing in the Answering
Affidavit meets this challenge, and where no case is made out in the
Answering Affidavit,
it could not be done in argument.
Irrationality
and arbitrariness
:
[36]
It was contended that this ground was the only one which the First
Respondent purported to meet. As a matter of law, if the
President’s
signature cannot rationally be related to a legitimate Government
purpose, authorized by s. 231 (1) of the Constitution
and the SADC
Treaty, then the President acted irrationally.
These applicants pointed out
that in
Albutt v Centre
for the Study of Violence and Reconciliation
2010 (3) SA 293
(CC) at
par. 51
, it was held
that where a “decision is challenged on the grounds of
rationality, Courts are obliged to examine the means
selected to
determine whether they are rationally related to the objective sought
to be achieved”. In
Democratic
Alliance v Minister of International Relations and Cooperation
supra
at
par.
64
and
Kaunda
v President of the Republic of South Africa
2005 (4) SA 235
(CC) at
79 to 80
, it was also
held that rationality is an entry-level requirement for any exercise
of public power, this is also so where the power
relates to
engagement in foreign relations. In
Fick
supra
,
at par. 39, the Constitutional Court also held that the South African
Constitution
promotes democracy, human rights and the Rule of Law, as does the
SADC Treaty which similarly entrenches these principles, and
also
imposes an obligation on member States to promote them. Accordingly,
so it was argued, the President’s signature cannot
be connected
to the promotion of any of these principles. It was therefore
contended that nowhere in the Answering Affidavits has
it been
suggested that signing the 2014 Protocol could conceivably be
connected to any of these principles.
[37]
Factually therefore, so it was argued, the irrationality of the
signature was therefore self-evident. The Tribunal’s

jurisdiction was simply signed away, contrary to the advice of the
Ministers of Justice and Attorneys-General and contrary to the

recommendation of the independent expert appointed to conduct the
review of the Tribunal.
This,
it was submitted
,
was clearly arbitrary and irrational. The clear illegality is
aggravated by the fact that it was not even the SADC Treaty which
was
purportedly amended, but merely the subordinate Protocol on the SADC
Tribunal. It was therefore at the very least irrational
to even
merely append a signature to a Protocol which impeded the Tribunal’s
jurisdiction. It was furthermore so in circumstances
where no
alternative had been provided to people with vested rights for the
Tribunal and without consulting them. Nor could there
be any rational
justification for ousting access to the Tribunal to the bearer of
human rights.
[38]
The question arose: how would this fundamental element of the Treaty
hence be enforced? It could not be exclusively enforced
in domestic Courts in that this
would be entirely contrary to the SADC Treaty itself, as well as the
dual obligation of South Africa
under international as well as
domestic law. Also, on the facts it has proved impossible. Zimbabwe,
the procurer of the Tribunal’s
demise, had already ousted its
domestic Courts’ jurisdiction to entertain certain human rights
violations. The 2014 Protocol
completed the ouster of this human
rights jurisdiction and this is a matter which was either entirely
absent from the President’s
mind, or which he condoned. The
answering papers fail to address this topic altogether. In the
context of the argument of the First
Respondent, that consensus
formed the basis for the relevant decisions, it was contended that
this was a circular argument and
therefore irrational. Consensus
existed because the President agreed. His agreement however preceded
the consensus and was therefore
a
condictio
sine qua non
for such.
Consensus could therefore not be raised as a rationale. It is clear
from the
Democratic
Alliance
decision
supra
at par. 34, that both the process by which the decision was made, and
the decision
itself,
must be rational. The same was held in
Minister
of Home Affairs v Scalabrini Centre
2013 (6) SA 421
(SCA) at par. 69
.
The
submission was therefore that it was clear from the process that the
interest of rights bearers under the Treaty and the Tribunal’s

orders where the victims of human rights abuses were not taken into
account. Neither was the Rule of Law, the South African
Constitution
or even the Constitutional Court’s judgment in
Fick
supra
. (delivered on 27 June 2013).
[39]
It was also contended by the First Respondent in the Answering
Affidavit that the signature to the Protocol would not bind
South
Africa, nor was it intended to do so. This is however not the effect
of s. 231 (3) of the
Constitution
, which provided that
a Treaty like the Protocol indeed bound South Africa on its mere
signature. This rationale was self-defeating.
It created an effect
which the President’s deponent now avers he did not intend.
This means that the signature is in any
event irrational and
arbitrary, because there is no connection between intention and
effect. Nor is there any connection between
the intention expressing
comity and respect for SADC and its member States and the empowering
provision s. 231 (1) of the
Constitution
, which also
advises the President to sign international instruments. It is s. 84
(2) (h) and (i) of the
Constitution
which confer on the
President’s responsibility for diplomatic recognition, comity,
respect or graces. Furthering diplomatic
relations is not a
constitutionally authorized purpose to be fulfilled through signing
Treaties under s. 231 (1) of the
Constitution
.
[40]
It is also clear according to the Tembani Applicants that the
President’s signature did not “ensure respect for
an
institution”. In fact it severely undermined a crucial SADC
Institution, the Tribunal. In so doing it detracted from SADC’s

own stature and institutional accountability and violated the SADC
Treaty itself. There was also no suggestion that any of the
six
States which did not sign the Protocol undermined “the ongoing
political and economic integration” of SADC, or
convey their
disrespect for SADC or a SADC Member State by not signing the 2014
Protocol. The contention therefore that the President’s

signature “furthered” these considerations by signing the
Protocol, was unsubstantiated and unfounded. It was submitted
that it
was a further example of the Presidency’s previous unsuccessful
attempt to invoke diplomatic, political and policy
casuistry to
defend it - to Zimbabwe as clearly appears from the decision in
President of the Republic of South Africa v MG Media Ltd
2015
(1) SA 92
(SCA) at par. 29 to 30
. It was also inconsistent
with the constitutional recognition in
Fick
supra
of
the objectives of SADC. The Constitutional Court’s judgment in
this case demonstrated in fact the rationale for individual
access to
the SADC Tribunal. It was specifically held that the Tribunal “was
created to entertain, among other issues, human
rights related
complaints, particularly by citizens against their States”,
according to the Constitutional Court. The Tribunal
is an essential
SADC Organ and it is the only overseer of certain material founding
principles of the SADC Treaty, namely the Rule
of Law and human
rights.
The
prematurity defence
:
[41]
It was contended that even if prematurity had been properly
established in the affidavits, the Respondent accepted that this

Court would have to exercise a discretion whether or not to uphold
the point. Respondents contend that this discretion is “informed”

by the fact that s. 231 of the
Constitution
requires executive
action first, and legislative action later. It was submitted that
this is the wrong approach. Section 231 (1)
conferred an exclusive
power on the National Executive. Ratification is an executive act and
not a legislative competence. No legislative
action is required by
Parliament under the Protocol. The Protocol is of a technical,
administrative or executive nature and does
not require parliamentary
approval. The second issue which “should inform” this
Court’s discretion, so the Respondents
contend, is that the
Court entertaining the merits might “run the real risk of
pre-judging and pre-empting the constitutional
competence entrusted
to Parliament to consider whether to approve this international
agreement”.
This
is an incorrect legal supposition. Because of the nature of the
Protocol, the
Constitution
“entrusts” the “competence” to the Executive.
No constitutional responsibility on the part of Parliament
exists.
[42]
The third issue was a suggestion that “exceptional
circumstances” had to be established before pre-empting “any

consideration by Parliament”. This too, has been over-taken by
the actual factual situation subsequently disclosed. It is
that the
Executive did not actually intend to present the Protocol to
Parliament for its approval. That is why this had not happened
in the
time since signature. It is clear that no decision had been taken to
place this Protocol before Parliament for approval.
The Respondents
also confirmed that they have no intention of obtaining any
parliamentary approval before this Court’s determination
of
this
matter.
[43]
In our view if, exceptional ‘circumstances’ are required,
the Tembani Applicants have demonstrated the existence
of such. Nine
of the required 10 signatures to the Protocol have already been
provided and it was therefore critical that the legality
of signing
the Protocol be established and that the First Respondent’s
signature be removed. Each of the issues which the
Respondents invoke
in this context actually support a discretion that this Court ought
to exercise in favour of entertaining the
application, even if it
were indeed to have been “premature”. The reliance on the
“separation of powers issue”
is legally misconceived,
Courts must assert their authority whenever it is constitutional
permissible to do so, irrespective of
the issues who is involved.
See:
Economic Freedom Fighters v Speaker, National Assembly
2016 (3)
SA 580
(CC) at par. 93
. At present there is no extant
parliamentary process. The application also does not seek to
prescribe anything at all to Parliament.
Parliament is not sited and
no relief is sought against it. In the present case, the Court is
merely asked to fulfil the authority
entrusted exclusively to the
judiciary: the determination of issues of legality.
[44]
It was also contended by the applicants that the point was
obstructionist. It only existed because the President never sought

the parliamentary approval which was now contended on his behalf was
required. We agree and we point out that the point was also

inconsistent with a binding precedent. In
Democratic
Alliance
supra
,
a Full Court of this Division rejected such an argument. It held that
the Court was not concerned with what Parliament “might
or
might not do in future”. The Court was concerned with the
question whether another arm of Government, the Executive, had

“already acted unconstitutionally”. On this basis alone
the Court was not only entitled, but constitutionally joined
to
enquire into the conduct of the Executive. Seeking to “oust”
the Court’s jurisdiction by invoking prematurity
was “not
permissible”, the Full Court held.
[45]
The same applies
a fortiori
in this case. As contended by the
applicants, this is so because there is no eminent parliamentary
process at all. It is clear
from other decisions of the
Constitutional Court in any event, that where constitutional rights
threatened, it was not necessary
to await the implementation of the
measure before approaching a Court.
See:
Abahlali Base Mjondolo Movement SA v Premier of the Province of
Kwa-Zulu Natal
2010 (2) BCLR 99
(CC) at par. 14
; and
Jordaan
v City of Tshwane Metropolitan Municipality
[2017] ZACC 31
(29 August
2017) at par. 6
.
It
was correctly contended, in our view, that this case was not
concerned with prospective, hypothetical or abstract events. It
is
concerned with the
premature
signing of the 2014 Protocol.
This has occurred and the First Respondent himself now contends that
the outcome of this case is
awaited to inform his decision whether or
not to seek parliamentary approval. There was therefore no
prematurity or un-ripeness.
Serious illegality, which no
parliamentary process can ever purge, even were any ever to be
pursued, vitiated the President’s
signature, and therefore
overwhelming national and international public interest, and the
compelling interests of justice warrant
exercising this Court’s
discretion in favour of hearing the matter, even were there to have
been any degree of prematurity.
Collective
(non) accountability?
[46]
It was submitted by the applicants that it was not open to the
President to disavow individual accountability or to invoke
consensus
decision-making. His consent preceded consensus and depends on him
not exercising veto powers. The Constitutional Court
has also made
the President’s individual responsibility for the exercise of
powers vested in the National Executive quite
clear. See:
Economic
Freedom Fighters v Speaker, National Assembly
supra
at
par. 20. It is clear that the President’s responsibility is to
respect the
Constitution
and the Rule of Law in the
exercise of every public power. In exercising powers vested
specifically in the National Executive, by
s. 231 (1) of the
Constitution
(as the Respondent concedes), the
President attracts judicial scrutiny of his own “election”
to sign a Treaty. This
is so because it was held in
Glenister v
President of the Republic of South Africa
2011 (3) SA 347
(CC) at
par. 89
, the separate, executive conduct of signing an
international agreement under s. 231 (1) of the
Constitution
creates its own “different legal consequences”.
The
remedy
:
[47]
The submission was that the correct legal position was well
established: a declaratory order of invalidity was mandatory and

appropriate and effective consequential relief is constitutionally
required. See:
Economic Freedom Fighters supra at 103
and
Fose v Minister of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC)
at par. 69
. On the Respondents’ pleaded case the
signature was merely a formal act and on that basis it is quite
capable of being retracted
by formal communication to SADC
Secretariat. In the
Democratic Alliance
decision
supra
,
a Full Court of this Division has already held that the withdrawal of
an impugned notice constituted just and equitable relief
(at par.
81). The equivalent relief in the circumstances of this case was
therefore an order directing the withdrawal of the President’s

signature. It was also contended that as regard costs, the
President’s conduct in this litigation has been shown to have

been oppressive and unreasonable. It was therefore just and equitable
that the Tembani Applicants should be awarded their costs,
both in
respect of the main application and the belatedly – conceded
intervention application. In respect of the latter,
the Attorney and
client scale would be appropriate.
The
Centre for Applied Legal Studies’ argument
:
[48]
The argument raised by the Centre is
[48.1]
The effect of signing an
international instrument that can bind South Africa, will always have
serious and practical consequences,
and generally presents Parliament
with a fait accompli regarding a treaty’s terms;
[48.2]
Comparative practice supports
the proposition that a final public consultation process is both
practical and desirable before the
Executive signs treaties;
[48.3]
Under South African law there
exists a default obligation on the National Executive to consult
prior to signing a treaty. This flows
from:
(a) The participatory nature of the
South African democracy;
(b) The principle of legality and the
requirement of procedural rationality; and
(c) Section 7 (2) of the
Constitution.
[49]
It should be noted at this stage that the last mentioned proposition
was not supported by any of the Applicants, nor did they
seek such
relief. It is neither necessary, nor desirable for this Court to make
such a wide-ranging finding on the facts of the
present matter.
Context is everything in law, and there may well be instances where
prior consultation is neither necessary nor
desirable. The content of
any obligation to consult may vary from case to case as well. Added
to this is the obligation of a Court
not to exceed its powers by
entering the decision-making processes of the Executive unduly, and
certainly not by issuing an order
that would bind the Executive
authority irrespective of the facts of each particular case. The
principle of separation of powers
would prohibit this type of
approach.
See:
Doctors for Life International v Speaker of the National
Assembly
[2006] ZACC 11
;
2006 (6) SA 416
(CC) at par. 37
, and
Electronic
Media Network Ltd v e.tv (Pty) Ltd
2017 (9) BCLR 1108
(CC).
[50]
As far as comparative practices and regional instruments are
concerned, they indeed show a welcome tendency to support the

resolution of human rights disputes. It is also a fact in a number of
instances. National documents require the Executive to consult
before
signing a treaty. For present purposes a discussion is not necessary.
It is a topic that could well be addressed by the
legislature,
namely, how the values are protected in the domestic law-making
process are also (or should also) be protected in
the international
law-making process. On this topic useful reference can be made to the
1997
New Zealand Law
Commission
report
titled “
The Treaty
Making Process: Reform and the Role of Parliament
.
For
present purposes it is not necessary to decide whether s. 7 (2) of
the Constitution of South Africa imposes a default obligation
on the
Executive to consult the public when negotiating and signing
treaties, and the question is deliberately left open.
The
South African Litigation Centre argument
:
[51]
The arguments raised were as follows:
The
application of regional and international law to the establishment of
an individual’s right of access to the SADC Tribunal;
The
interpretation of s. 34 of the
Constitution
within an international and regional context.
In
general, the submission was that South Africa’s parliamentary
ratification of the SADC Treaty and First Protocol created
the right
of individuals to access a regional tribunal. The 2014 Protocol
hinders this access. The First Amicus Curiae therefore
supported the
relief sought by the Applicants.
The
Respondents’ defence
:
[52]
In the Answering Affidavits (deposed to by Government officials, but
confirmed by the First Respondent), the deponents say
that the
relevant challenge to the President’s signature of the 2014
Protocol is premature, and did not bind South Africa,
which would
require the Protocol to be placed before Parliament for approval, and
no decision had been taken to do that. It was
also said that the
decision was neither unlawful, irrational nor taken in bad faith.
[53]
As far as the defence of prematurity was concerned, it was said that
the 2014 Protocol expressly provides that it will only
come into
force if, and when, it has been ratified, in accordance with each
State’s own constitutional provisions, by 10
Member States out
of the 15 Member States of SADC. When that happens, it will only bind
those States that have ratified it. The
President’s signature
did not bind South Africa to the Protocol as envisaged by the
provisions of s. 231 of the
Constitution
, nor did it
bring the Protocol into effect. Thus, the President’s signature
could not be said to have affected any rights
or interests of any
parties, including those of the Tembani Applicants.
It
is further submitted that the Government was still considering
whether or not to place the Protocol before Parliament to seek
its
approval. However, the President, in consultation with the Cabinet
and other Government Respondents, was awaiting the outcome
of this
case before taking a final decision, whether or not to table the
Protocol before Parliament.
Factually,
the SADC Tribunal has been suspended in terms of a decision taken by
the SADC Summit in May 2011.
[54]
It was submitted that the President’s decision was not
irrational and
in
line with the provisions of s. 231 (1) of the
Constitution
,
the exercise was one of executive competence in relation to foreign
affairs, in respect of which the Executive has a broad discretion
as
to what should be taken into account. It was contended that the
President took into account that the SADC Summit had since 2012

approved the negotiation of a Protocol that would change the nature
of the SADC Tribunal to receive only State complaints. The

President’s decision to sign the Protocol was therefore based
on the recognition that the negotiations for the Protocol had
been
concluded, and out of comity and mutual respect for SADC in the
Member States of SADC, the Protocol represented the collective,

multi-lateral, negotiations of the SADC Member States.
[55]
The decision of the President recognized, so it was contended, that
the signature of the Protocol was only preliminary and
formal in
nature, it did not, and was not intended to bind South Africa. The
President’s signature was therefore intended
to demonstrate
that South Africa was open to considering the ratification of a
Protocol that represented the outcome of the collective,

multi-lateral negotiations of the SADC Member States. The signature
was therefore rationally related to the purpose of conducting
South
Africa’s foreign affairs in that the Protocol was adopted by
SADC and was in line with a prior determination made by
the SADC
Summit. It was therefore “simply a formal, preliminary step”.
[56]
Expanding on these topics, it was argued by Mr G. Marcus SC,
appearing for the respondents, that the nature of the decision-making

process of the First Respondent, would determine the ambit of the
review before us. It was a consensus decision taken in accordance

with the provisions of art. 10 of the Treaty. Consensus was a product
of compromise amongst States who were all on equal footing,
but had
diverse legal systems, and diverse economic systems. International
relations lay at the heartland of the Executive, and
this fact would
constrain any judicial review. Mr Marcus specifically conceded that
he was not submitting or proposing that the
signature of the
President was without legal significance, but emphasized that it was
only the first step in a process that would
lead to ratification by
Parliament after public participation, and finally after the document
of ratification had been filed with
the Secretariat of SADC. He
agreed that the signing would trigger the relevant parliamentary
process.
He
also referred to the provisions of s. 35 of the Treaty which provided
for the dissolution of SADC and any of its institutions.
Obviously
this had not occurred, but individual rights were indeed removed, as
in future the SADC Tribunal would only have jurisdiction
to deal with
disputes between States, and not between individuals and States.
[57]
The 2014 Protocol had not been ratified by any Member State as yet,
and because the envisaged parliamentary process was unknown
and
unpredictable, the application at this stage was premature, ran the
argument. As far as the argument based on irrationality
of the First
Respondent’s conduct was concerned, it was argued that it was a
fallacy to presume that the only rational model
was one which
provided for the Tribunal’s jurisdiction between individuals
and Member States. There was no such one rational
model. He agreed
that if the Treaty itself had been breached, that would be the end of
the matter, and the Applicants would have
to succeed. Before this
Court could make any order, it had to identify the breach of an
obligation by the First Respondent. The
Protocol of 2000 indeed
provided for jurisdiction that would involve individual complaints
against Member States, whilst the Protocol
of 2014, envisaged taking
away such jurisdiction.
[58]
As far as the suspension of the 2000 Protocol was concerned, he
argued that an unacceptable delay had occurred by the First
Applicant
only filing its Notice of Motion during March 2015. This delay had
not been properly explained. The explanation for the
delay did also
not cover the entire period.
The
Applicants’ reply
:
[59]
Mr Gauntlett SC on behalf of the Tembani Applicants emphasized the
fact that Mr Marcus SC had conceded that the President’s

signature was not without legal significance. It was his submission
that the only need to hold that such was a necessary step to
put the
parliamentary process into operation. With reference to the dictum of
the Constitutional Court, par. 2 of the
Fick
decision
supra
,
he emphasized that context was important: it was the duty of the
First Respondent to foster and embrace the notion of human rights,

and that went to the heart of the matter. (See s. 7 (2) of the
Bill
of Rights
which states
that the State must respect, protect, promote and fulfil the rights
in the
Bill of Rights
).
[60]
Mr Ngcukaitobi, replying on behalf of the First Applicant emphasized
that the relevant executive act was the trigger point
that would set
the parliamentary process in action, and as such it had to satisfy
the standard of legality. Unless this decision
was taken subsequent
acts could not be taken and these would be covered with a veneer of
legality. The 2011 decision should also
not be seen in isolation. It
was part of a continuum and it was certainly connected to the 2014
decision. That decision had nothing
to do with an argument based on
art. 35 of the Treaty dealing with dissolution. It merely decided not
to renew the terms of office
of Judges and also not to reappoint
them. This was an illegal act. The President should not have
participated in such illegality.
As far as the delay was concerned,
he pointed to the fact that the Summit itself had asked for an expert
opinion, and also for
a memorandum by the Council of Ministers before
dealing with the import and consequences of the Zimbabwe
Fick
decision. The Applicants therefore had to wait for such an outcome
and in the interim had also approached the African Commission.

Furthermore, there was no prejudice to anyone inasmuch as no factual
issues were involved. His submission was simply that the President

had participated in an illegality in conflict with the terms of the
Treaty which had been made binding by the South African Parliament.

In his view, we could dispose of the case on the narrow basis of
illegality.
Discussion
and findings
:
[61]
The background to the establishment of SADC and the Tribunal has been
set out in some detail in the judgment of
Fick
supra
.
Paragraph 6 of that judgment specifically refers to the establishment
of a human rights culture and the purpose of the Tribunal.
The Treaty
in its Preamble, states that the Heads of State of the various States
are “mindful of the need to involve the
people of the region
centrally in the process of development and integration, particularly
through the guarantee of democratic
rights, observance of human
rights and the Rule of Law”. SADC, according to art. 3 is an
international organisation. Article
4 refers to its principles and
states that the Member States shall act in accordance with principles
including those of “human
rights, democracy and the Rule of
Law”. Article 6 provides for an undertaking that Member States
shall take all necessary
steps to accord this Treaty the force of
national law. Article 9 establishes the Tribunal. Article 10 provides
that the Summit
shall consist of the Heads of State of Member States
shall be responsible for the overall policy direction and control of
the functions
of SADC. The Tribunal was established by way of art. 16
which also provide that its position, powers and functions shall be
prescribed
in Protocol, which shall, notwithstanding the provisions
of art. 22 of this Treaty, form an integral part of this Treaty,
adopted
by the Summit. Article 22 in turn, deals with Protocols to be
concluded and the ratification of such by Member States. Article 16

also provides that the decisions of the Tribunal shall be final and
binding.
[62]
The actual decision of the Summit in August 2010, May 2011 and August
2012, have already been referred to above.
It
is clear that these not only removed the rights of persons to lodge
disputes against States, but in effect “suspended”
the
activities of the Tribunal by imposing a “moratorium” on
its activities. How these decisions could ever rationally
contribute
to the purpose of the Treaty and the First Protocol, was never
explained by anyone.
The
legality argument
:
The
violation of the SADC Treaty itself
:
[63]
We have referred to the relevant articles of the Treaty and
especially art. 9 (1) (g), which establishes the SADC Tribunal
as an
integral organ of SADC. We have referred to the founding principles
relating to “human rights, democracy and the Rule
of Law”,
and the obligation of Member States to act in accordance with them as
per art. 4 (c). It is clear that Member States
are also precluded
from “taking any measure likely to jeopardize the sustenance of
its principles, the achievement of its
objectives and the
implementation of the provisions of this Treaty”. (Article 6
(1)).
[64]
On behalf of the Tembani Applicants, Mr Gauntlett SC correctly
submitted, in our view, that any act which detracted from the
SADC’s
Tribunal’s exercise of its human rights jurisdiction, at the
instance of individuals, was inconsistent with
the SADC Treaty
itself, and violated the Rule of Law. The President’s signature
of the 2014 Protocol was such an act. Any
Protocol to the SADC Treaty
is a subordinate legal instrument and it is not permissible to
emasculate a SADC organ established
by the SADC Treaty itself, in
this manner. The SADC Treaty itself was not amended and the desired
result was illegally contrived
through an attempt to repeal and
replace the 2000 Protocol on the Tribunal by the 2014 Protocol.
According to the President’s
Answering Affidavit, his signature
“was intended to demonstrate that South Africa was open to
considering the ratification
of a Protocol”, which terminated
the human rights jurisdiction which the Tribunal conclusively held
the SADC Treaty vested
in it. Thus, at the very least, on the First
Respondent’s own papers, the signature signalled South Africa’s
participation
in a conspiracy initiated by the President
Mugabe-regime in Zimbabwe to undermine an essential SADC
institution’s ability
to enforce a fundamental SADC objective:
compliance with the Rule of Law and human rights. This topic is
wholly dealt with by Cowell
(2013) “
The
Death of the Southern African Development Community Tribunal’s
Human Rights Jurisdiction”
13 (1) Human Rights Law Review 153
at 164
.
[65]
We are persuaded by Mr Gauntlett SC when he submitted that the
Tembanis’ first cause of action had been clearly established

even on the First Respondent’s own papers, which did not even
attempt to refute the founding papers on this issue. It was
also
contended in addition that the retrospective interference with vested
rights aspect was not even dealt with in the Respondents’

Affidavits. The Tembani Applicants had vested interests in SADC
Tribunal awards and the enforcement of these awards was specifically

provided for in the Treaty itself and the 2000 Protocol. All these
vested rights had been interfered with retrospectively with
the
participation of the First Respondent.
[66]
On behalf of the First Applicant, Mr Ntsebeza SC, and with him Mr
Ngcukaitobi, had contended that the First Respondent’s
actions
relating to the 2011 suspension and the 2014 Protocol were in clear
conflict with the terms of the Treaty itself, the terms
of the First
Protocol and the provisions of s. 231 (4) and (5) of the
Constitution
of South Africa
. The actions were taken without approval of
Parliament. The
Amici
had also intended that the provisions of
s. 7 (2) of the
Bill of Rights
were applicable as well.
These submissions are cogent.
[67]
It is clear that conduct in conflict with provisions of the
Constitution
is self-evidently unconstitutional as well
as illegal and is liable to be set aside by a Court. The principle of
legality underlies
our constitutional dispensation and no power can
be lawfully exercised unless permitted.
See:
Fedsure Life Assurance Ltd v Greater Johannesburg Transitional
Metropolitan Council
[1998] ZACC 17
;
1999 (1) SA 374
(CC)
. The Rule of Law is
supreme.
We
are therefore of the view that the First Respondent’s signature
to the 2014 Protocol was unlawful in the sense of being

unconstitutional and is therefore liable to be set aside. Much of the
same reasoning applies to the First Respondent’s participation

in suspending the SADC Tribunal. The Tribunal and its jurisdiction
lie at the heart of the SADC Treaty and fulfil one of its main

purposes. Its emasculation by way of its de facto suspension was
therefore similarly in conflict with the Founding Treaty and South

Africa’s constitutional obligations.
Irrationality
and arbitrariness
:
[68]
It is clear from numerous decisions of the Constitutional Court, as
well as this Court, in the context of the present facts,
that if the
President’s signature to the 2014 Protocol cannot rationally be
related to a legitimate Government purpose authorized
by s. 231 (1)
of the
Constitution
and the SADC Treaty, the President
acted irrationally.
See:
Albutt v Centre for the Study of Violence and Reconciliation
2010 (3) SA 293
(CC) at par.
51, and
Pharmaceutical
Manufacturers Association of South Africa: In re: Ex parte President
of the Republic of South Africa
[2000] ZACC 1
;
2000 (2) SA 674
(CC) at par. 85
,
and
Democratic Alliance v Minister of International Relations
and Cooperation
supra
at par. 64
.
As
has been pointed out, in the
Fick
decision
supra
,
the Constitutional Court held that our
Constitution
promotes democracy, human rights and the Rule of Law. The SADC Treaty
similarly entrenches these principles, and also imposes an
obligation
on Member States to promote them. It is true, with reference to the
detailed argument on behalf of the Tembani-Applicants
that we have
referred to, that the President’s signature cannot be connected
to the promotion of any of these principles.
In none of the Answering
Affidavits filed on behalf of the President, have any of these
principles been invoked. Neither has it
been suggested that signing
the 2014 Protocol, could conceivably be connected to any of these
principles.
[69]
Having regard to the facts, it is clear that the irrationality of the
signature is self-evident. Instead of supporting the
Tribunal, as the
Treaty envisages, and at the instance of the violator of the
Tribunal’s orders (the Zimbabwe Government),
the Tribunal’s
jurisdiction was simply signed away, contrary to the advice of the
Ministers of Justice and Attorneys-General,
contrary to the
recommendation of the independent expert appointed to conduct a
review on the Tribunal, without consultation and
approval of the
South African Parliament, in ignorance of the fact that the Treaty
and the First Protocol had become part of our
domestic law, without
consulting any of the affected persons whose complaints had been
upheld by the Tribunal, and where no alternative
had been provided to
such litigants who had obtained vested rights before the Tribunal.
The Zimbabwe
Fick
judgment and its import were ignored, as was the Constitutional
Court’s judgment in the
Fick
decision. None of these material issues were dealt with in the
Respondents’ Answering Affidavits, and there is no explanation

why the Protocol was signed by the President if, as is now contended,
it was not intended to bind South Africa.
[70]
Section 84 (2) (h) and (i) of the
Constitution
confer
on the President the responsibility for diplomatic recognition,
comity, respect or graces. Furthering diplomatic relations,
is not a
constitutionally-authorized purpose to be fulfilled through signing
treaties under s. 231 (1) of the
Constitution
. As a
matter of logic it is also so that if, as now contended, the
signature is insignificant, then in any event there was no rationale

for executing it. If it is purposeless, no purpose is served by the
act of signing the Protocol. If it was done for “respect”

on the process of terminating SADC’s Tribunal’s
individual jurisdiction, then it was certainly unauthorized by s. 231

(1) of the
Constitution
, and thus contrary to the Rule
of Law, for being irrational, unauthorized and repugnant to the Rule
of Law in the context of access
to justice.
[71]
In any event, it is clear that the President’s signature could
not “ensure respect for an institution” as
the
Respondents would have it. In fact, it severely undermined the
crucial SADC institution, the Tribunal. It detracted from SADC’s

own stature and institutional accountability and violated the SADC
Treaty itself, as we have pointed out. Such conduct is plainly

inconsistent with the Constitutional Court’s recognition in
Fick
supra
,
of the objectives of SADC, and it is abundantly clear that this
judgment was not even considered by the Respondents.
As
we have pointed out, South Africa remains bound by the 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.
If it was
the intention to withdraw from South Africa’s obligations under
both the Treaty and the Protocol, consent of Parliament
had to be
obtained first. Failure to do so, in the present context, is unlawful
and furthermore irrational.
[72]
As a result, the Applicants’ argument relating to the
rationality of the President’s conduct must be upheld. There
is
no reason not to grant the order sought by the Law Society in terms
of prayer 1 of its Notice of Motion.
The
following orders are therefore made:
It
is declared that the First Respondent’s participation in
suspending the SADC Tribunal and his subsequent signing of the
2014
Protocol on the SADC Tribunal is declared unlawful, irrational and
thus, unconstitutional;
The
Applicants as well as the First and Second Amicus Curiae, are
entitled to the costs of the application, including the costs
of two
Counsel, which includes the costs pertaining to the intervention
application;
In
terms of the provisions of section 172 (2) (a) of the Constitution
of the Republic of South Africa, this order is referred
to the
Constitutional Court for confirmation.
_____________________________
JUDGE
D. MLAMBO
JUDGE
PRESIDENT OF THE GAUTENG DIVISION OF THE HIGH COURT
I
AGREE
_____________________________
JUDGE
N. MNGQIBISA-THUSI
JUDGE
OF THE GAUTENG DIVISION OF THE HIGH COURT
I
AGREE
_____________________________
JUDGE
H.J FABRICIUS
JUDGE
OF THE GAUTENG DIVISION OF THE HIGH COURT
Case
number: 20382/15
Counsel
for the Law Society of South Africa: Adv D. Ntsebeza SC
Adv
T. Ngcukaitobi
Instructed
by:  Mothle Jooma Sabdia Inc
Counsel
for the Tembani Applicants: Adv J. Gauntlett SC QC
Adv
F. Pelser
Instructed
by:  Hurter Spies Inc
Counsel
for the Southern African Litigation Centre: Adv J. Bhima
Instructed
by:  Southern African Litigation Centre
Counsel
for the Centre for Applied Legal Studies: Adv M. Bishop
Adv
G. Snyman
Adv
Z. Ngwenya
Instructed
by:  Legal Resources Centre
Counsel
for the State: Adv G. Marcus SC
Adv
A. Coutsoudis
Adv
H. Rajah
Instructed
by: The State Attorney
Date
of Hearing: 5 February 2018
Date
of Judgment: 1 March 2018 at 10:00