Law Society of South Africa and Others v President of the Republic of South Africa and Others (CCT67/18) [2018] ZACC 51; 2019 (3) BCLR 329 (CC); 2019 (3) SA 30 (CC) (11 December 2018)

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[2018] ZACC 51
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Law Society of South Africa and Others v President of the Republic of South Africa and Others (CCT67/18) [2018] ZACC 51; 2019 (3) BCLR 329 (CC); 2019 (3) SA 30 (CC) (11 December 2018)

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Heads of arguments

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 67/18
In
the matter between:
LAW
SOCIETY OF SOUTH
AFRICA
First Applicant
LUKE
MUNYANDU
TEMBANI
Second Applicant
BENJAMIN
JOHN
FREETH
Third Applicant
RICHARD
THOMAS
ETHEREDGE
Fourth Applicant
CHRISTOPHER
MELLISH
JARRET
Fifth Applicant
TENGWE
ESTATE (PVT)
LIMITED
Sixth Applicant
FRANCE
FARM (PVT)
LIMITED
Seventh Applicant
and
PRESIDENT
OF THE REPUBLIC OF
SOUTH
AFRICA
First Respondent
MINISTER
OF JUSTICE AND
CORRECTIONAL
SERVICES
Second Respondent
MINISTER
OF INTERNATIONAL
RELATIONS
AND COOPERATION
Third Respondent
and
SOUTHERN
AFRICA LITIGATION CENTRE
First Amicus Curiae
CENTRE
FOR APPLIED LEGAL STUDIES
Second Amicus Curiae
Neutral citation:
Law Society of South Africa and Others v President of the Republic
of South Africa and Others
[2018] ZACC 51
Coram:
Mogoeng
CJ, Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath
AJ, Khampepe J, Mhlantla J, Petse AJ and Theron J
Judgments:
Mogoeng CJ (majority): [1] to [97]
Cameron and Froneman JJ
(concurring): [98] to [105]
Heard
on:
30 August 2018
Decided
on:
11 December 2018
Summary:
Constitution — sections 231, 232, 7(1)-(2), 8(1) —
prematurity — constitutionality of the President’s
conduct
— signing of the 2014 Protocol — suspension of
the SADC Tribunal — removal of individuals’ access to the

Tribunal — access to justice
SADC Treaty —
articles 18 and 26 of Vienna Convention — customary
international law — international law obligations
—
unlawfulness — procedural irrationality
ORDER
On
application for confirmation of the order of the High Court of South
Africa, Gauteng Division, Pretoria:
1.
The order of constitutional invalidity made by the High Court
of
South Africa, Gauteng Division, Pretoria on 1 March 2018 in case
number 20382/2015 is confirmed in these terms:
1.1
The President’s participation in the decision-making process
and his own
decision to suspend the operations of the Southern
African Development Community Tribunal is unconstitutional, unlawful
and irrational.
1.2
The President’s signature of the 2014 Protocol on the Tribunal
in the
Southern African Development Community is unconstitutional,
unlawful and irrational.
1.3
The President is directed to withdraw his signature from the 2014
Protocol.
1.4
The President must pay costs to the applicants, including the costs
of two counsel.
1.5
There will be no costs payable to the Southern Africa Litigation
Centre and
the Centre for Applied Legal Studies.
2.
In this Court, the President must pay costs to the first to
seventh
applicants, including the costs of two counsel.
JUDGMENT
MOGOENG CJ
(Basson AJ, Dlodlo AJ, Goliath AJ, Khampepe J and Theron J
concurring):
Introduction
[1]
The executive in contradistinction to a ceremonial Presidency
of any nation is a repository of extensive powers.  And that is

a vital requirement for good governance to be a real possibility.
For the Head of State and Head of the Executive must of
necessity
wield enormous power for the effective and efficient coordination of
government
and State business.
[1]
[2]
More
importantly, the effective leadership or stewardship of the State can
never be undertaken by a weakened or lame duck President.
The
magnitude of presidential responsibilities demands that the incumbent
be clothed with sufficient governance-enabling
authority to be the
critical difference-maker and transformation-agent that national
aspirations demand of the office.
[2]
The President should, therefore, not be unnecessarily constrained in
the exercise of constitutional powers.  Properly
contextualised,
this was the message sought to be conveyed through this Court’s
statement:
“
[A]
court should be slow to impose obligations upon government which will
inhibit its ability to make and implement policy effectively
(a
principle well recognised in our common law and that of other
countries).  As a young democracy facing immense challenges
of
transformation, we cannot deny the importance of the need to ensure
the ability of the Executive to act efficiently and promptly.”
[3]
[3]
But this is not to be understood as an endorsement of, or a
solicitation for a licence to exercise presidential or executive
powers
in an unguided or unbridled way.  All presidential or
executive powers must always be exercised in a way that is consistent

with the supreme law of the Republic and its scheme, as well as the
spirit, purport and objects of the Bill of Rights, our domestic

legislative and international law obligations.  Our President is
never at large to exercise power that has not been duly assigned.

Crucially, public power must always be exercised within
constitutional bounds and in the best interests of all our people.
[4]
Returning
to international law, its centrality in shaping our democracy is
self evident.  For, in truth, it does enjoy
well-deserved
prominence in the architecture of our constitutional order.
Unsurprisingly, because we relied heavily on a
wide range of
international legal instruments to expose the barbarity and
inhumanity of the apartheid system of governance in our
push for its
eradication.  This culminated in that system rightly being
declared a crime against humanity by the United Nations
and its
demise.
[4]
And that
history informs the critical role that we need international law to
play in the development and enrichment of our
constitutional
jurisprudence and by extension the unarticulated pursuit of good
governance follow.
[5]
In
interpreting the Bill of Rights, courts are required to consider
international law.
[5]
Our
Constitution also insists that they not only give a reasonable
interpretation to legislation but also that the interpretation

accords with international law.
[6]
And unless otherwise inconsistent with our Constitution,
customary international law is law in this country.
[7]
Implicit in this position is that consistency with our
Constitution is a critical requirement for the acceptability and
applicability of international law to our country.  This then
ineluctably ought to inform our approach to the assessment of
the
President’s conduct that gave rise to this litigation.
[6]
As is the case with any conduct that is believed to be
inconsistent with the Constitution or that seems to flout the rule of
law,
of which legality is an integral part, the President’s
alleged impermissible exercise of power would ordinarily be open to

legal challenge in any court that has jurisdiction.  And that is
what this matter is about.
[7]
The
President’s negotiation and signing of the 2014 Protocol on the
Tribunal in the Southern African Development Community
(Protocol)
[8]
that seeks to denude the Southern African Development Community
Tribunal (Tribunal) of its jurisdiction over disputes of individuals

against Member States,
[9]
is
challenged on the bases that it is unconstitutional, unlawful and
irrational.
[10]
Similarly,
his decision to make common cause with his peers to not appoint
Members or Judges of the SADC Tribunal or to suspend
the operations
of the Tribunal is also said to be unconstitutional, unlawful and
irrational.
[11]
And the
desired remedy is to so declare and essentially direct the President
to withdraw his signature from the Protocol.
Background
[8]
The
Law Society of South Africa and six other applicants, who were
landowners in Zimbabwe,
[12]
launched an application in the Gauteng Division of the High Court,
Pretoria (High Court).  And they cited as respondents the

President of the Republic of South Africa and both the Ministers of
Justice and Correctional Services as well as International
Relations
and Cooperation.  Two amici curiae were admitted to render their
assistance to the Court.
[13]
[9]
The
application sought to challenge the decision to suspend the
operations of the Tribunal in so far as that decision relates to
our
President’s role in it.
[14]
The constitutionality of the signature he appended to the 2014
Protocol, that seeks to take away the Tribunal’s power
to
adjudicate individual disputes against a State party, is also under
attack.
[15]
To facilitate a proper appreciation of the implications of the
impugned conduct of the President and the validity or otherwise

thereof, it is essential that some context be given to that conduct.
[10]
The
historical reality of this matter is that the Republic of Zimbabwe
had embarked upon an ambitious land and agrarian reform programme.

To pave the way for it, not only was the Constitution amended
to provide for land expropriation without compensation, but
to also
remove the pre-existing jurisdiction of the domestic courts of
Zimbabwe over disputes relating to expropriation without

compensation.
[16]
[11]
The only avenue open to those aggrieved by having been
deprived of their land in that constitutionally-sanctioned manner was
the
Tribunal.  And many farmers, including South African
citizens who had lost their land in this way, approached the
Tribunal.
And this really is why and how the matter ended up
here.  It is fundamentally about challenging the expropriation
of
land without compensation and the intended removal of the
Tribunal’s jurisdiction to determine the validity of that kind
of land expropriation that was done in terms of the Constitution of
Zimbabwe.
[12]
Individuals
referred their disputes with the Republic of Zimbabwe to the
Tribunal.  Those disputes implicated human rights
and the rule
of law.  The Tribunal, as was its duty to do, adjudicated issues
relating to Zimbabwe’s conduct with reference
to the relevant
provisions of the Treaty of the Southern African Development
Community (Treaty).
[17]
Its
conclusion was that Zimbabwe had violated certain provisions of the
Treaty and an order unfavourable to Zimbabwe was
accordingly
made.
[18]
What was then
left for Zimbabwe to do was to comply with the decision of the
Tribunal in line with the dictates of the rule
of law which are
cardinal to the very existence of the Treaty and SADC.
[13]
Zimbabwe
failed to comply with the order of the Tribunal.  It then became
necessary for the SADC Summit to reflect on this
non-compliance with
a binding decision.
[19]
Instead of facilitating enforcement, the Summit chose to
disregard the States’ binding Treaty obligations.  This
it
did by not only treating the relevant Treaty provisions and the
Tribunal decision as if they do not exist, but by also violating

their undertaking to support and promote the Tribunal whose decisions
bind Member States and by extension the Summit.
[20]
In all of these decisions we, the people of South Africa,
participated through our President.
[14]
The problem did not begin and end with this disregard for the
decision of the Tribunal.  Our President, together with leaders

of other SADC nations, decided to eviscerate the possibility of the
States ever being held to account for perceived human rights

violations, non-adherence to the rule of law or undemocratic
practices.  The source of that threat, of being obliged to
account
for the exercise of State or public power, was located in the
justiciability of individual disputes against the State.
[15]
As a result, the Summit resolved to suspend the operations of
the Tribunal by neither reappointing Members of the Tribunal whose

terms expired in 2010 nor replacing those whose term of office would
expire in 2011.  This was meant to emasculate the Tribunal
since
it would not be able to be quorate.  We, therefore, were party
to denying citizens of South Africa and other SADC countries
access
to justice at a regional level in relation to their disputes
including those relating to human rights, democracy and the
rule of
law.  It is contended that we have removed the rights they used
to have for no good reason and on no apparent rational
basis.
The objective for the suspension of the Tribunal appears to be to
render meaningless any favourable decision already
secured by
individuals against the State where finality or execution has not
been achieved, as long as the Tribunal is not quorate.
And this
is essentially what the second to the seventh applicants’
plight is about.
[16]
South
Africa, together with other States, did not rest our case there.  We
decided to put our intentions or plans beyond any
doubt.  As a
result, we agreed to and signed the Protocol that provides, among
other things, that “[t]he Tribunal shall
have jurisdiction on
the interpretation of the SADC Treaty and Protocols relating to
disputes between Member States”.
[21]
The obvious effect or intent of this provision is to strip the
Tribunal of its jurisdiction over individual disputes, including
a
challenge to what they regard as violations of the Treaty in relation
to human rights, democracy and the rule of law.
[17]
We reiterate that the suspension of the operations of the
Tribunal and the signing of the Protocol that seeks to emasculate the
Tribunal are challenged on the grounds that they are unlawful,
irrational and unconstitutional.
Jurisdiction
[18]
The
High Court has declared the conduct of the President
unconstitutional.
[22]
That
declaration relates to his decision, in collaboration with other SADC
leaders, to render the Tribunal dysfunctional
by not appointing its
Members whenever the need arose, to suspend the operations of the
Tribunal and to sign the Protocol whose
mission it is to deprive
individuals of pre-existing access to the Tribunal.
[19]
These
declarations of constitutional invalidity are on all fours with the
provisions of section 167(5) of the Constitution.
[23]
For, that section provides that this Court has the final say on
the constitutional validity of presidential conduct.  It
also
says that no order of unconstitutionality by any court would be of
any force or effect unless it has been confirmed by this
Court.
[20]
This matter is therefore properly before this Court.
Prematurity
[21]
A point was taken that this Court ought not to entertain this
matter because the application was launched prematurely.  It is

argued that the Protocol should have been left to travel its full
journey all the way to Parliament to first be given a binding
effect
before its validity could be challenged in a court of law.  Also
that since the President’s signature does not
give a binding
effect to the Protocol, it is inconsequential.
[22]
It is true that the Protocol would in terms of its own
provisions only be binding after being signed by the President and
ratified
by parliaments of a specified number of Member States.  And,
apart from the fact that it has not been signed by the prescribed

minimum number of States, none has ratified it.  On the face of
it, the Protocol appears to be of no force and effect.  But,

that is not necessarily dispositive of its consequentiality after
being signed and of the prematurity challenge.
[23]
Doctors
for Life
provides guidance with greater clarity on prematurity, albeit on a
somewhat different subject matter.
[24]
As a general proposition, legislative and comparable processes
must be left to run their normal and full course before courts

intervene.
[25]
This is
particularly so where appropriate checks and balances are in place to
secure the rights of those who might otherwise
have been
disadvantaged by actual or perceived irregularities.  One such
example is our elaborate law-making process which
has the added
advantage of the President’s constitutional power to send
legislation back to the National Assembly for reconsideration
or
refer it to the Constitutional Court for the determination of its
constitutionality before assenting to and signing it into
law.
[26]
All this is to be done to protect the rights and interests of
the public.
[24]
Courts
therefore ought to intervene in incomplete processes only when no
other avenue is realistically available to adequately address

whatever grievances the people might have.  It is for this
reason that this Court held that after Parliament has passed a
Bill
and before the President has assented to and signed it, the Court
lacks the competence to grant any relief relating to its

constitutionality.
[27]
The reason is not hard to find.  Both political arms of the
State are not only made up of elected representatives of
the people,
but the President bears the constitutional obligation to uphold,
defend and respect the Constitution.  And the
National Assembly
also has to “ensure government by the people under the
Constitution . . . by passing legislation”.
[28]
They are no less empowered and duty-bound to protect and advance the
best interests of the citizens than the courts.  This
would
explain why other arms must also be allowed to discharge their
obligations in terms of set procedures before courts may interfere,

barring exceptional circumstances.
[25]
Only under exceptional circumstances, is it permissible for
courts to intervene and grant relief in relation to a process that is

yet to be finalised.  As this Court correctly observed:
“
Courts
have traditionally resisted intrusions into the internal procedures
of other branches of government.  They have done
this out of
comity and, in particular, out of respect for the principle of
separation of powers.  But at the same time they
have claimed
the right as well as the duty to intervene in order to prevent the
violation of the Constitution.
.
. .
The
basic position appears to be that . . . courts take the view that the
appropriate time to intervene is after the completion
of the
legislative process. . . .  However, there are exceptions to
this judicially developed rule or ‘settled practice’.

Where immediate intervention is called for in order to prevent the
violation of the Constitution and the rule of law, courts will

intervene and grant immediate relief.  But intervention will
occur in exceptional cases, such as where an aggrieved person
cannot
be afforded substantial relief once the process is completed because
the underlying conduct would have achieved its object.”
[29]
Hasty
intervention that borders on prematurity is ordinarily inappropriate.
That said, the practice or rule is not inflexible.
The
interests of justice sometimes require court intervention, even if a
particular process might still not be complete.
A comparison
between the principles that govern a law-making process and those
applicable to the process prescribed for international
agreements is
thus necessary.
[26]
A
superficial reflection on the process to be followed before an
international agreement could be binding would suggest that it
bears
a striking similarity to our law-making process.
[30]
And if the two processes were in reality so similar as to be
virtually identical, then the judicial self-restraint urged
on us by
the “settled practice” would probably constrain us to
wait for Parliament to play its role in terms of section 231(2)

of the Constitution fully.  Only then could a court challenge to
the validity of a treaty be mounted, just as we have to wait
until
the President has played her part in a legislative process in terms
of section 79 of the Constitution.
[31]
[27]
But here lies the fundamental differences.  Parliament,
unlike the President, has no constitutionally-allocated power to send

an international agreement back to the SADC Summit for
reconsideration or for compliance with the applicable regulatory
framework.
Even if it did, it would be inconsequential since
many other Member States are involved and are not subject to the
authority
of our Parliament.  It is also not expressly clothed
with the same constitutional power as the President to refer the
agreement
to the Constitutional Court to certify its validity.  It
can only approve or reject the agreement.  More importantly,

unlike a Bill, the signing of a treaty by our President creates
far-reaching possibilities that could have irreversible consequences.

Between the signing and possible ratification by our Parliament
the door is, where appropriate majorities have been secured,
thrown
wide open to other Member States immediately to sign, ratify and act
on what has been agreed upon.  When a binding
international
agreement has been signed and ratified by the necessary majority,
citizens of those countries and our own citizens
who might be
prejudicially affected by changes in those countries could, depending
on the state of governance there, bear the full
brunt of the
injurious provisions of the agreement even before we ratify it
ourselves.
[28]
And the need to circumvent that challenge promptly is what
Doctors for Life
had in mind by saying that—
“
intervention
will occur in exceptional cases, such as where an aggrieved person
cannot be afforded substantial relief once the process
is completed
because the underlying conduct would have achieved its object.”
[32]
[29]
Here,
the constitutional role of the National Executive in relation to
international agreements has fully played itself out and
there is
nothing left to be done in terms of section 231(1).
[33]
But, that negotiated and signed Protocol poses a serious threat
to the constitutional and Treaty rights of our citizens and
the
Treaty rights of citizens of the rest of the SADC countries who might
wish to seek recourse to the Tribunal.  In line
with
Doctors
for Life
,
it is necessary to immediately prevent a violation of our
Constitution and the rule of law.  And this Court had the
following
to say about the justiciability of legal threats:
“
In
finding that the attack on the constitutionality of section 10(2) was
not ripe for determination, the High Court erred.  The
Director
of Public Prosecutions had not only informed the appellant that such
a certificate would be relied upon in the extradition
enquiry but had
furnished the appellant with a copy of the certificate.  The
rights claimed by the appellant under the Bill
of Rights were thus
clearly threatened.  Such threat was sufficient to entitle the
appellant to approach the High Court for
relief under section 38 of
the Constitution.  It is there expressly provided that anyone
acting in their own interest may
approach a competent court ‘alleging
that a right in the Bill of Rights has been . . . threatened’”.
[34]
The
right in the Bill of Rights and the Treaty that is being threatened
here is the right of access to justice.  And the threat
extends
to the rule of law.
[30]
The President of South Africa is not just any of the many
other constitutional office-bearers in the Republic.  She is
indeed
an embodiment of supreme power.  When all others fail, it
is to that repository of raw power that we all ought to turn.  It

is in the President that citizens justifiably pin their hopes by
reason of the vast and unrivalled capacities she has as a singular

centre of extensive constitutional powers.  Her signature on
official documents, especially international agreements is therefore

not ordinary – it is never inconsequential.
[31]
Our signing of the Protocol is thus very weighty and
significant.  It announces to all that South Africa is about to
make a
radical paradigm shift that is inextricably tied up to who we
are as a nation.  Specifically, it signifies that access to
justice, a commitment to the rule of law and the promotion of human
rights would no longer be a paramount feature of our national
vision
and international relations.
[32]
That signature of the singular most powerful constitutional
being in our country also says to the SADC Member States that South
Africa has shorn itself of its key responsibilities of protecting and
promoting some of the values foundational to our democracy
including
fundamental rights.  This constitutes a serious threat to the
image and very essence of South Africa’s
constitutional
democracy and citizens’ rights.  Our President’s
signature is symbolic of a warm welcome by South
Africa of the
stealthy introduction of impunified disregard for and violation of
fundamental rights or key Treaty provisions.
It inadvertently
but in reality reassures all others that we would turn a blind eye to
human rights abuses and non-adherence to
the rule of law in their
jurisdictions even if it affects our people.
[33]
The additional factor to take into account is that our
President signed the Protocol on 18 August 2014 − more than
four years
ago.  But, the Executive has not yet handed it over
to Parliament to discharge its section 231(2) constitutional
responsibilities.
How much longer can aggrieved parties be
reasonably expected to wait before their court challenge would be
regarded as mature?
This point also disposes of the prematurity
issue.
[34]
Another
basis for addressing the prematurity question is the Vienna
Convention on the Law of Treaties (Vienna Convention).
[35]
I say this aware that in
Harksen
,
[36]
this Court simply assumed that it applies without saying why.
It adopted this approach but cautioned that the Vienna Convention’s

applicability and status as “customary international law is by
no means settled”.
[37]
It was subsequently recognised by our courts in several
instances.
[38]
That
recognition does not appear to have been a product of a reflection on
whether the requirements for an international
agreement to become
customary international law were met.  It seems that our courts
simply applied it.  Its applicability
was therefore a
consequence of a ready acceptance that there has been compliance.  It
thus behoves us to examine whether the
Vienna Convention has in
reality become customary international law and thus applies to South
Africa.
[35]
There
are several ways in which a State may become bound by a treaty like
the Vienna Convention.  It may sign and ratify, accept
or
approve it.
[39]
It may
also accede to an already negotiated treaty in whose processing it
was not involved.
[40]
The exchange of instruments that constitute a treaty is another way
of becoming bound and so is any other way agreed to.
Other
mechanisms through which a State may express its consent to be bound
are an official statement to that effect in its official
platforms of
communication.
[41]
That
conduct is regarded as an acceptance of the binding effect of a
treaty by any State that embarks on it.  And a
State would also
become bound by a treaty or aspects of a treaty if its domestic court
considers either to be part of customary
international law.
[36]
Although
South Africa is not party to the Vienna Convention, it is bound by
some of its major provisions
[42]
like articles 18 and 26.
[43]
That is so for two reasons.  One, an official pronouncement that
the Vienna Convention is accepted by South Africa
as customary
international law has been posted on Parliament’s website and
that of the Office of the Chief State Law Advisor.
And that, as
indicated, is universally recognised evidence of a State’s
acceptance of international custom and its binding
effect on it.
In line with trite international law practice, the binding effect of
the Vienna Convention is limited to its
main provisions that are by
now known to be part of customary international law.  Two, the
International Court of Justice
(ICJ) has itself made this
observation:
“
The
Court has no need to dwell upon the question of the applicability in
the present case of the Vienna Convention of 1969 on the
Law of
Treaties.  It needs only to be mindful of the fact that it has
several times had occasion to hold that some of the
rules laid down
in that Convention might be considered as a codification of existing
customary law.”
[44]
[37]
Professor Christopher Greenwood, a Judge of the ICJ, has this
to say:
“
[M]any
treaties are . . . important as authoritative statements of customary
law.  A treaty which is freely negotiated between
a large number
of States is often regarded as writing down what were previously
unwritten rules of customary law.  That is
obviously the case
where a treaty provision is intended to be codificatory of the
existing law.  A good example is the Vienna
Convention on the
Law of Treaties, 1969. . . .  [E]very court which has considered
the matter has treated its main provisions
as codifying customary law
and has therefore treated them as applying to all States whether they
are parties to the Convention
or not.”
[45]
[38]
Not only have we officially accepted that the main provisions
of the Vienna Convention are part of customary international
law, but Professor Greenwood’s authoritative article,
which was published by the United Nations, and the ICJ decisions

also confirm that the major provisions of the Vienna Convention like
articles on interpretation doctrines and the good faith doctrine

amount to a codification of customary international law.  More
importantly, Professor Greenwood alludes to the need for
a court
to consider the applicability of a treaty and, in a sense, to have
sound reasons for treating such a treaty as applicable
in its
jurisdiction.  And section 232 of the Constitution provides that
“[c]ustomary international law is law in the
Republic unless it
is inconsistent with the Constitution or an Act of Parliament”.
The question then arises whether
those main provisions of the
Vienna Convention, article 18 in particular, are consistent with
the Constitution.
[39]
Section 231(2) of the Constitution provides that an
international agreement “binds the Republic only after it has
been approved
by resolution in both the National Assembly and
National Council of Provinces”.  It is common knowledge
that our
Parliament never ratified the Vienna Convention.  But,
it is now settled that its main provisions like articles 18 and 26
are part of the customary international law envisaged in section 232
of the Constitution.  Are the terms of article 18
of the
Vienna Convention that appear to clothe the Protocol with a
binding effect immediately upon signature not inconsistent
with the
provisions of section 231(2) of our Constitution?  The
section states that an international agreement will bind
the Republic
“only after” parliamentary ratification, whereas article
18 provides that the signing of a treaty imposes
an obligation on the
State “to refrain from acts which would defeat the object and
purpose of the treaty”.  Meaning,
if an individual were to
take South Africa to the Tribunal now, South Africa would be
obligated to object to or resist its jurisdiction
in obedience to the
dictates of article 18.  It also begs the question, if this
article constrains the State from acting
freely before parliamentary
approval of the treaty, is it then consistent with the provisions of
section 231(2) of the Constitution
as it is in effect required to be
by section 232?
[40]
But, I am satisfied that there is no conflict.  Article
18 alludes to the need for Parliament to still ratify.  It does

no more than restrain a State that has signed a treaty from acting in
a manner inconsistent with the spirit of that treaty or its
own
commitment as borne out by the signature, pending ratification.
It binds the State but only to the extent of conscientising
the State
about the new direction it has committed itself to.  It does not
do away with or undermine Parliament’s constitutional
authority
to ratify or not to ratify.  The assumption probably is that no
Head of State or Head of Government would sign a
treaty that does not
broadly accord with the Constitution, laws of her country and binding
treaty obligations, or advance the State’s
best interests.
[41]
It
follows on the force of article 18 that serious consequences flow
from a mere signing of an international agreement by a State.
For
these reasons, the President’s signature cries out for prompt
intervention before the majority required by the
Protocol signs,
ratifies and acts on it.  That would help us avoid a situation
where, by the time Parliament rejects the Protocol
or a court sets
its ratification aside on the basis that it was processed
impermissibly, “the underlying conduct would have
achieved its
object”.
[46]
This
case falls within that special category that need not wait for the
whole section 231 process to be finalised before
litigation is
justifiable.  “[I]mmediate intervention is called for in
order to prevent the violation of the Constitution
and the rule of
law.”
[47]
[42]
The application was therefore not launched prematurely.
The nature and implications of the President’s conduct require

speedy intervention to secure substantial and effective relief.
The
implications and invalidity of the President’s conduct
[43]
Much as one may try to be surgical or categorical in dealing
with the different issues concerning the validity of the President’s

conduct, it is impracticable to achieve that goal sensibly.  Simple
logic requires that an all-inclusive approach be adopted
here.
Before I go any further and to avoid any possible
misunderstanding in relation to whether the President is personally,

or in some legally unrecognisable way, bound by any undomesticated
treaty, we need to put this issue to rest at this early stage.
Any
reference to the President being bound by an undomesticated treaty
must be understood as a reference to the binding effect
of that
instrument on her merely as a representative of the State.  In
other words, it is the State alone that is itself bound
by that
undomesticated legal instrument.  The reservation expressed by
my Colleagues Cameron J and Froneman J in their concurring
judgment
must thus be understood in this context and so should any other
reference to this issue in the previous and subsequent
paragraphs of
the majority judgment.  It has also been made abundantly clear
in this majority judgment that relevant constitutional
provisions,
including sections 7 and 8, are relied on for the determination of
the lawfulness, rationality and constitutionality
of the President’s
conduct.
[44]
That said, every issue that arose for determination is, or is
traceable to, an offshoot of a masterplan that was devised by the
Summit at the instance of the Republic of Zimbabwe.  Clearly,
Zimbabwe did not want to comply with the unfavourable decisions
made
against it by the Tribunal.  It then crafted a strategy that
would be fatal to the possibility of the Tribunal ever embarrassing

it again.
[45]
In all of the above efforts to paralyse the Tribunal, Zimbabwe
had a willing ally in South Africa, as represented by our President.

The non-appointment of new Judges and non-renewal of expired
terms was a scheme designed to ensure that the Tribunal would
not
function because it would not be quorate.  Added to this mix was
the decision to impose a moratorium on the referral of
individual
disputes to the Tribunal and the signing of the Protocol that seeks
to essentially make this state of affairs permanent.
Procedural
irregularity and unlawfulness
[46]
The Constitution vests extensive powers in the President.
And rightly so.  But—
“
the
exercise of the powers must not infringe any provision of the Bill of
Rights; the exercise of the powers is also clearly constrained
by the
principle of legality and, as is implicit in the Constitution, the
President must act in good faith and must not misconstrue
the powers.
These are significant constraints upon the exercise of the
President’s power.”
[48]
[47]
In
Affordable Medicines
, we said:
“
The
exercise of public power must therefore comply with the Constitution,
which is the supreme law, and the doctrine of legality,
which is part
of that law.  The doctrine of legality, which is an incident of
the rule of law, is one of the constitutional
controls through which
the exercise of public power is regulated by the Constitution.
It entails that both the Legislature
and the Executive ‘are
constrained by the principle that they may exercise no power and
perform no function beyond that conferred
upon them by law’.
In this sense the Constitution entrenches the principle of legality
and provides the foundation
for the control of public power.”
[49]
[48]
What
the principle of legality entails in the present context is that our
President may only exercise power that was lawfully conferred
on her
and in the manner prescribed.  That power must be exercised in
good faith and should not be misconstrued.  Legality
therefore
exists to ensure that the repository of public power stays within the
vital limits of the power conferred and being exercised.
Both
Houses of our Parliament resolved, in terms of the predecessor of
section 231(2) of our Constitution,
[50]
to ratify the Treaty.
[51]
For
this reason, no constitutional office-bearer, including our President
may act, on behalf of the State, contrary to its provisions.
They
are all, as agents of the State, under an international law
obligation to act in line with its commitments made in terms
of that
Treaty.  And there was and still is no legal basis for the
President to act contrary to the unvaried provisions of
a binding
Treaty.
[49]
Whatever
the President does must accord with the Constitution and the law.
The Protocol that operationalised the Tribunal
is an integral part of
the Treaty.  The jurisdiction of the Tribunal may therefore only
be lawfully tampered with in terms
of the provisions of the Treaty
that regulate its amendment.  And it cannot properly be amended
in terms of a protocol.  It
may only be amended by
three quarters of the SADC Member States.
[52]
The Summit, however, sought to amend the Treaty through a
protocol, thus evading compliance with the Treaty’s more

rigorous threshold of three-quarters of all its Member States.  The
protocol route would have been an easy way out in that
it only
requires the support of ten Member States to pass.
[53]
But, it is not a legally acceptable procedure for stripping the
Tribunal of the most important aspect of its jurisdiction.
[50]
We signed and ratified the Treaty not merely as a consequence
or “misfortune” of the imperatives of geo-political
location.
It was a thoughtful and appropriate decision to take
for the good of our people, our democracy, the image of the SADC
region and,
by extension, of Africa.  This is so because the
provisions of the Treaty, its institutions and set agenda accord with
our
progressive constitutional vision.  Our President, however,
signed the Protocol that was not even supported by three-quarters
of
the Member States.  And as the High Court correctly held—
“
[a]ny 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.”
[54]
[51]
In
terms of the Treaty, the Executive and Parliament commit us to the
entrenchment of a human rights culture, a democratic order
and
adherence to the rule of law.
[55]
To give teeth to this commitment and in apparent recognition of the
doctrine of separation of powers at a regional level,
the Tribunal
was established.  Its stated mandate was “to ensure
adherence to and the proper interpretation of the provisions
of this
Treaty”.
[56]
To guarantee its independence, dignity and effectiveness, its
decisions are “final and binding”.
[57]
Not only do Member States undertake not to do anything that
could undermine human rights, democracy and the rule of law,
but they
have also vowed to essentially protect and promote the role of the
Tribunal as one of the institutions of SADC created
by the
Treaty.
[58]
Their decision to amend the Treaty through the Protocol evidences a
failure to adhere to the provisions or proper meaning
of the Treaty.
[52]
More
importantly, the Tribunal is an institution of SADC and the Treaty
requires “a resolution supported by three-quarters
of all
members to dissolve . . . any of its institutions”.
[59]
What the Summit did was to effectively dissolve the Tribunal by
taking away its critical functions – the resolution
of
individual disputes relating to alleged non-adherence to the dictates
of human rights and the rule of law as well as undemocratic

practices.  These, after all, constitute almost the entire list
of disputes that the Tribunal have entertained and decided
since its
establishment.  And as a direct consequence of a series of
actions taken by our President and his counterparts,
the Tribunal has
been dysfunctional for a very long time, rendering it effectively as
good as dissolved.
[53]
Our Treaty obligations, which militate against the President’s
impugned decisions and conduct, stand because the Treaty has
never
been amended so as to repeal its provisions relating to individual
access to the Tribunal, human rights, the rule of law
and access to
justice.  This means that when our President decided to be party
to the suspension of the Tribunal and to actually
sign the Protocol,
he was acting in a manner that undermined our international law
obligations under the Treaty.
[54]
Additionally,
this Court has previously observed that our country is under an
obligation to protect the Tribunal and resist “any
attempt to
undermine or subvert” the role and authority of the Tribunal
and the obligations that flow from that Treaty.
[60]
This is the consequence of our duty to fulfil our international
law obligations.  And it finds support from article 26
of
the Vienna Convention.
[55]
This
article codifies a pre-existing customary international law position
which in effect is that in approaching the decisions like
rendering
the Tribunal dysfunctional, the negotiations to amend the Treaty, and
signing the Protocol, the President was required
to act in good faith
and in a manner consistent with the country’s obligation to
uphold the spirit, object and purpose of
the Treaty.
[61]
And this, he failed to do thus rendering this conduct unlawful on
this ground as well.  He could only have been acting
in good
faith and with due regard to the object and purpose of the Treaty if
he did not opt for an amendment procedure that makes
it easier to
amend but is not even provided for by the Treaty.  Sadly, he
misconstrued his powers.
[56]
Our
President thus acted unlawfully by following an impermissible or
irregular procedure.  Worse still, not only did he not
have the
power to not appoint or renew the terms of Members of the Tribunal
but also lacked the authority to suspend its operations.
This
illegality of his conduct also stems from purporting to exercise
powers he does not have.  And it cannot be overemphasised
that
his conduct was also unlawful in that he failed to act in good faith
and in pursuit of the object and purpose of the Treaty
we have bound
ourselves to.
[62]
Juxtaposing
the Tribunal with apex national courts
[57]
A matter of great importance that need only be flagged at this
stage is whether the Tribunal has jurisdiction even where national

apex courts have pronounced themselves on the same issue between the
same parties, which would then elevate it to a super-regional
court
or whether its jurisdiction is only triggered when a domestic court
lacks jurisdiction in a particular matter, involving
alleged
violation of treaty provisions, as is the case with Zimbabwe.
[58]
To
facilitate a proper appreciation of the point, reference to article
15 of the 2000 Protocol is essential.
[63]
It provides:
“
1.
The Tribunal shall have jurisdiction over disputes between States,
and between natural
or legal persons and States.
2.
No natural or legal person shall bring an action against a State
unless he or
she has exhausted all available remedies or is unable to
proceed under the domestic jurisdiction.
3.
Where a dispute is referred to the Tribunal by any party the consent
of other
parties to the dispute shall not be required.”
[59]
This article seems to imply that disputes relating to issues
provided for by both the Treaty and national constitutions are
“appealable”
or justiciable before the Tribunal even
after the highest court of any SADC country has finally disposed of
the matter.  The
precondition for a natural or legal person to
have access to the Tribunal only after he or she has “exhausted
all available
remedies . . . under domestic jurisdiction” seems
to allude to that possibility.  And that might mean that the
Tribunal
could even set aside the decisions of apex courts.
[60]
It may well be that the Executive and Legislature need to
reflect on whether there is a need to do anything at all about these
apparently
conflicting positions.  And it really cannot do any
harm but could do a lot of good to our constitutional democracy and
good
governance to alert them to the possible conflict in case they
are not alive to it.  Since this is not an issue that has been

raised by any of the parties, it is best left open for another day.
Irrationality
[61]
The
evolution of our constitutional jurisprudence culminated in a
principle that recognises that rationality applies not only to
the
decision, but also to the process in terms of which that decision was
arrived at.  And this applies to our President acting
either as
Head of the Executive or Head of State.
[64]
In
sum, the exercise of the power to amend the Treaty must in relation
to both the process leading up to the amendment
and the amendment
itself, be rationally related to the purpose for which that power to
amend was exercised.
[65]
The principle was laid down in these terms:
“
It
is by now axiomatic that the exercise of all public power must comply
with the Constitution, which is the supreme law, and the
doctrine of
legality, which is part of the rule of law.  More recently, and
in the context of section 84(2)(j), we held that,
although there is
no right to be pardoned, an applicant seeking pardon has a right to
have his application ‘considered and
decided upon rationally,
in good faith, [and] in accordance with the principle of legality.’
It follows therefore that
the exercise of the power to grant pardon
must be rationally related to the purpose sought to be achieved by
the exercise of it.
. . .
All
this flows from the supremacy of the Constitution. The President
derives the power to grant pardon from the Constitution and
that
instrument proclaims its own supremacy and defines the limits of the
powers it grants.  To pass constitutional muster
therefore, the
President’s decision to undertake the special dispensation
process, without affording victims the opportunity
to be heard, must
be rationally related to the achievement of the objectives of the
process.  If it is not, it falls short
of the standard that is
demanded by the Constitution.”
[66]
[62]
In
Simelane
, we reiterated its application to process
in these terms:
“
[W]e
must look at the process as a whole and determine whether the steps
in the process were rationally related to the end sought
to be
achieved and, if not, whether the absence of a connection between a
particular step (part of the means) is so unrelated to
the end as to
taint the whole process with irrationality.”
[67]
Here,
the “step to the end” sought to be achieved is the
procedure followed to effect the desired amendment.  In
other
words, the Protocol is that vehicle that was chosen to drastically
reduce the jurisdiction of the Tribunal through an amendment.
[63]
And in
Masetlha
, this Court said:
“
[T]he authority
conferred must be exercised lawfully, rationally and in a manner
consistent with the Constitution.  Procedural
fairness is not a
requirement.”
[68]
[64]
The
proposition in
Masetlha
might be seen as being at variance with the principle of procedural
irrationality laid down in both
Albutt
[69]
and
Simelane
.
[70]
But it is not so.  Procedural fairness has to do with
affording a party likely to be disadvantaged by the outcome the

opportunity to be properly represented and fairly heard before an
adverse decision is rendered.
[71]
Not so with procedural irrationality.  The latter is about
testing whether, or ensuring that there is a rational connection

between the exercise of power in relation to both process and the
decision itself and the purpose sought to be achieved through
the
exercise of that power.
[65]
The question to be answered in this case therefore is not
whether anybody was heard or not heard or dealt with in terms of a
fair
or arbitrary and oppressive process.  It is whether the
procedure for the exercise of the power to suspend the Tribunal and

amend the jurisdiction of the Tribunal is rationally related to the
realisation of the purpose for which the power to amend the
Treaty
was conferred and exercised by our President together with other SADC
Heads of State and Heads of Government, on behalf
of Member States.
[66]
In
Simelane
, for instance, the broad question was
whether the process followed in the exercise of the presidential
power to appoint the National
Director of Public Prosecutions
was rationally related to the legitimate governmental purpose of
ensuring that the would-be
incumbent is tested for the qualities
required of the person the President was given the power to appoint.
In this case,
the question is whether the suspension or
amendment is effected in terms of a process that ensures that our
President and his counterparts
do not lightly veer off the
fundamental guarantees and progressive provisions of the Treaty and
the spirit of our Constitution
that must of necessity be taken into
account in exercising the power to amend the Treaty as they purported
to do.  Does the
process accord with the need to amend the
Treaty in a drastic way only in circumstances where there is a proper
appreciation of
and respect for the sanctity of key treaty
provisions?
[67]
As
the Treaty stands, one of its fundamental objectives is to ensure
that there is a Tribunal in place to interpret its provisions
which
would in turn facilitate adherence to its terms.  And SADC
itself is in terms of that Treaty obligated to promote access
to
justice, democracy, human rights and the rule of law.  But, the
Summit, on behalf of Member States, has the power
to amend the
Treaty and to even disestablish its institutions.
[72]
To take those far-reaching decisions requires that a procedure,
consistent with the magnitude of those decisions be followed.
That
procedure must also accord with the purpose for which the provisions
to be amended exist and the reasons for which the
power to amend was
conferred.  And that is the amendment procedure that requires
three-quarters of all Member States.
[73]
[68]
The purpose for the conferment and exercise of the power to
amend the Treaty is to do what is in the best interests of the people

of SADC.  That power is therefore never to be exercised
lightly.  It is to be exercised in a manner consistent with the

seriousness of its consequences to ensure that the invaluable gains
and interests of the people of SADC are preserved.  The
exercise
of the power to amend the Treaty must reflect that steps followed in
the process leading to the amendment bear a rational
relationship
with the legitimate purpose for which the power to amend was
conferred or exercised.
[69]
It is necessary to reiterate that the legitimate purpose for
prescribing an amendment process that requires the support of
three-quarters
of Member States is designed to render it very
difficult to fatally amend provisions that relate to the very essence
of the Treaty,
like the protection of human rights, access to the
Tribunal and the rule of law.  We emphasise that the purpose for
regulating
the power to amend so tightly is to secure the best
interests of SADC citizens.  An amendment like the downgrading
of the
status of the Tribunal is therefore required to be
overwhelmingly supported.  The procedure for the amendment
through the
Protocol that was followed is not only unavailable to the
Member States, but also frustrates the purpose for giving them the
power
to amend the Treaty.  It requires a lesser majority
support to pass than the amendment procedure prescribed by the
Treaty.
[70]
And it is the means that so taints the decision to amend that
it has no rational relationship with the purpose sought to be
achieved
through the exercise of the power to amend.  This
disregard for the amendment procedure set out in the Treaty and the
concomitant
failure to appreciate the purpose for the exercise of the
power to amend within the context of binding Treaty provisions is
irrational
and invalidates the President’s conduct in relation
to the amendment.
[71]
It is not only unlawful to suspend the operations of the
Tribunal in terms of non-existent power but also irrational.  And
this is one more ground for the invalidation and setting aside of the
President’s participation in the decision to suspend
the
operations of the Tribunal and amend its jurisdiction.
Unconstitutionality
of the signature
[72]
The
President signed the Protocol that seeks to take away a pre-existing
individual right of access to the Tribunal.  And the
question is
whether section 231(1) of the Constitution, read with the Bill of
Rights and duly guided by a proper appreciation of
the broader scheme
of our Constitution and binding international law, allows him to do
that.  This is so because not only
is the Constitution our
supreme law, but any conduct that is inconsistent with it is invalid
and falls to be set aside.
[74]
The power to negotiate and sign an international agreement derives
from section 231(1).  The supremacy and scheme
of the
Constitution in which it is located must of necessity guide the
exercise of that power.
[73]
In
Fick
, we said:
“
South
Africa has essentially bound itself to do whatever is legally
permissible to deal with any attempt by any Member State to
undermine
and subvert the authority of the Tribunal and its decisions as well
as the obligations under the Amended Treaty.  Added
to this, are
our own constitutional obligations to honour our international
agreements and give practical expression to them, particularly
when
the rights provided for in those agreements, such as the Amended
Treaty, similar to those provided for in our Bill of Rights,
are
sought to be vindicated.  We are also enjoined by our
Constitution to develop the common law in line with the spirit,

purport and objects of the Bill of Rights.”
[75]
[74]
And in
Glenister
, we spoke poignantly about the legal
and constitutional implications of Parliament’s resolution to
approve an international
agreement:
“
[O]ur
Constitution takes into its very heart obligations to which the
Republic, through the solemn resolution of Parliament, has
acceded,
and which are binding on the Republic in international law, and makes
them the measures of the State’s conduct in
fulfilling its
obligations in relation to the Bill of Rights.”
[76]
[75]
A
proper determination of the constitutionality of the President’s
conduct requires that several principles be taken into
account.
First, the Bill of Rights is not only the cornerstone of our
democracy, but also binds all arms of the State and
applies to all
law.  Second, the State has a constitutional obligation to
protect, respect, promote and fulfil the Bill of
Rights.
[77]
Third, we have the duty to honour our international law
obligations and act consistently with that commitment and that
extends
to not undermining or subverting the authority of the
Tribunal.
[78]
Fourth, international law that is reconcilable with our
Constitution is an essential tool in ascertaining whether our
constitutional
obligations have been discharged and fundamental
rights upheld.
[79]
Fifth, we recognise access to the Tribunal as an important instrument
for the reinforcement of the constitutional right of
access to
justice in South Africa.
[80]
And sixth, the exercise of power must promote and seek to
fulfil, rather than undermine, the rights in the Bill of Rights.
[81]
[76]
The
President is, generally speaking, empowered to negotiate and sign
international agreements on our behalf.
[82]
For this reason, when he participated in the Summit discussions
on the future of the jurisdiction of the Tribunal, he was
negotiating
a possible international agreement and signed the Protocol,
exercising these executive powers.  And that negotiation
process
is, broadly speaking, innocuous.  It is the product of such a
process that ought to matter the most.  For it
is always open to
the Executive to participate in negotiations provided, in doing so,
they do not align us with decisions that
are inimical to our
constitutional dream.
[77]
The President may therefore not approve anything that
undermines our Bill of Rights and international law obligations.  We
are about access to justice and access to all appropriate
justice-dispensing platforms.  He thus lacked the authority to
sign
any international agreement that seeks to frustrate the
pre-existing right of South Africans to access justice, that was
secured
for them by our supreme law-making body.  As long as
fundamental rights, like access to justice, that are protected by an
international agreement also remain an integral part of our
Constitution, the President may not, without a prior and proper
amendment
to remove those rights, initiate a process that constitutes
a threat to them.  And it was in this spirit that we had the
following
to say specifically about the Treaty:
“
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.”
[83]
[78]
The
obligation to respect, protect, promote and fulfil the rights in the
Bill of Rights,
[84]
which
includes the right of access to justice, does not only find
application at a domestic level.  It is inseparable from

whatsoever is done in the name of the State, regardless of where and
with whom.  The President’s power in terms of section

231(1) is permissibly exercisable only insofar as it is aimed at
protecting, promoting, respecting and fulfilling the rights in
the
Bill of Rights.  The proper exercise of that power is therefore
inextricably connected to the fulfilment of these obligations.

There is just no room for deviation, particularly where citizens’
existing rights are likely to be undermined or extinguished
at any
level where they used to be enjoyed.
[79]
The President signed a Protocol that unabashedly sought to put
us and the people of SADC in a position that is worse than before.

He, however, does not have the power to act as if section 7(1)
and (2) and section 8(1) of the Constitution do not exist.
He
may also not act as if article 26 of the Vienna Convention, duly
undergirded by customary international law, is not
binding.  Not
even Parliament has the authority to ratify that Protocol in terms of
section 231(2) as long as the Bill of
Rights and international law,
in the form of the Treaty that binds it, still contains rights that
would be effectively undermined
thereby or whose violation would thus
be facilitated at a regional level.
[80]
In
signing the Protocol, the President was effectively issuing a very
serious threat to all citizens that their right of access
to justice
through the Tribunal was going to be taken away.  Sadly, that
individual right of access was immediately frozen
when the provisions
of article 18 of the Vienna Convention were activated by the
President’s signature.  Whether he
realised the profundity
of his actions or not, he was effectively renouncing some of the
foundational values of our democracy.
He effectively
disregarded “the rights of all people in our country”.
[85]
He
was in reality announcing to SADC and the world at large that a
critical aspect of what defines our constitutional
democracy will no
longer be respected, protected, promoted or fulfilled.
[81]
Through his actions, we made common cause with other Member
States in the region to deprive South Africans and citizens from
other
SADC countries of access to justice, even in circumstances
where domestic courts lack the jurisdiction to entertain human rights

and rule of law-related individual disputes.
[82]
Extensive
as the powers of the President rightly are, when negotiating and
signing international agreements purportedly in terms
of section
231(1), she must act in a manner that accords with the spirit,
purport and objects of the Bill of Rights.  Just
as our
constitutional jurisprudence does not condone the extradition of
alleged or convicted criminals to jurisdictions that may
impose the
death penalty for offences they are suspected or convicted of,
[86]
it is constitutionally impermissible, as long as our Constitution and
the Treaty remain unchanged, for the President to align herself
with
and sign a regressive international agreement that seeks to take away
the citizens’ right of access to justice at SADC
level.
[83]
The individual right of access to the Tribunal was still
protected by the Treaty when the President signed the impugned
Protocol.
Our Constitution, duly strengthened by our
jurisprudence in relation to the binding effect of the Treaty and its
access to
justice provisions, still provides for the individual right
of access to justice.  And the procedure for amending the Treaty

that requires a three-quarters majority still applied.  Our
President’s signature on the Protocol that required a lesser

majority support to take away the right of access to justice flouts
the principle of legality which is an incident of the rule
of law –
one of the foundational values of our democracy.  He purported
to exercise the power he does not have.
[84]
Additionally, he sought to remove the right of access to
justice or access to the Tribunal when the Treaty and our
Constitution
still provided for it and required of us and other
Member States to protect it.  Finally, he effectively
emasculated the Tribunal
in disregard for our international law
obligation to protect and promote its role.  Measuring the
President’s conduct
on the scale of our Constitution, this
Court’s jurisprudence and our international law obligations, he
acted contrary to
his constitutional obligations and exercised his
section 231(1) powers in an impermissible manner.
[85]
The advancement of human rights and freedoms, the rule of law
and a democratic government that is accountable are some of the
foundational
values of our democratic order.  Our duty as a
nation or the State is to protect and promote these values and the
citizens’
right of access to the Tribunal through state
machinery.  Our President lacks the authority to negotiate and
sign away our
fundamental and treaty right of access to justice and
to potentially prejudice citizens of other SADC countries in that
manner.
To the extent that he purported to do so, his conduct
is unconstitutional.
Public
participation
[86]
A point was taken that the signature of the President is
constitutionally invalid by reason of its disregard for the
requirements
of our participatory democracy.  It was argued that
the President was obliged to consult the public before signing the
Protocol.
And because he failed to do so, it is also contended
that his signature is invalid.
[87]
Public
participation in the law-making process is a requirement,
specifically provided for in our Constitution,
[87]
that must be met by our law-making institutions. But, participatory
democracy is not provided for in similar terms in relation
to the
exercise of presidential or executive power.  The negotiation
and signing of international agreements like the impugned
Protocol is
an exercise of executive power.  And there is no legal provision
or principle that even remotely imposes an obligation
on the
Executive to invite the public to participate in its decision-making
processes as proposed.  Desirable though it might
be, we would
be straining even the scheme of the Constitution if we were to
elevate public consultation to the level of a requirement.
It
is always open to the Executive, whenever it deems it fitting to do
so, to involve the public.  But a failure to do so,
however
enriching to the decision making process it might otherwise have
been, can never rise to the level of a failure to
fulfil a
constitutional obligation to consult the public.
[88]
There is thus no merit in the contention that the public
should have been consulted in compliance with the dictates of
participatory
democracy before the President negotiated or signed the
impugned Protocol.
The
need for sound diplomatic relations
[89]
Our President is never at large to do whatever leaders of
other nations consider to be in the best interests of our and their
nations.
She is always to be guided by the Constitution and the
law.  For she is the nation’s constitutional messenger and

may only do what would benefit us and project our country in a
positive light.  And we promise in the Preamble to our
Constitution
to “[b]uild a united and democratic South Africa
able to take its rightful place as a sovereign State in the family of
nations”.
The words “rightful place as a sovereign
state” are quite telling.
[90]
Disagreement with other SADC family members is healthy, and
typical of the richness that diversity at a regional level ought to
bring into the fold.  It is not a sign of hostility, but a
function of the seriousness with which any democratic and truly

sovereign State ought to approach and discharge its obligations or
play its role when the rule of law or the essence of justice
is
sought to be undermined in our region.  Comity and sound
diplomatic relations ought never to be a product of illegal or

unconstitutional compromises that could, rightly or wrongly, be
viewed as capitulating to the desires of others to exercise unchecked

power to the potential prejudice of the rights of citizens.
[91]
The correct approach to sound diplomatic relations and
international cooperation here is, from a correct South African
perspective,
fundamentally about the protection and promotion of the
essence of our Bill of Rights and of the Treaty, namely, access to
justice,
human rights, democracy, the rule of law and the
independence and effectiveness of institutions that strengthen good
governance.
We ought to relate cordially with other nations and
not to dictate to them.  Similarly, we are never to feel obliged

to relinquish our sovereignty and rightful place in the family of
nations at the altar of diplomacy, comity and the need for consensus.

We thus have to relate with other sister countries with an
unshakeable purpose of contributing to the realisation of a more

just, equal, peaceful, human rights-oriented, truly democratic order
and shared prosperity.  This is especially so in a region
that
has a long and painful history of struggling for the attainment of
these good governance, economic development, growth and

stability-enhancing goals of universal application.
[92]
It follows that considerations of comity and the quest for
sound diplomatic relations cannot assist the President in his
endeavour
to insulate his signature from constitutional invalidation.
Remedy
[93]
The President’s decision to render the Tribunal
dysfunctional is unconstitutional, unlawful and irrational.  And
so is
his signature.  The appropriate remedy is simply to
declare his participation in arriving at that decision, his own
decision
and signing of the Protocol constitutionally invalid,
unlawful and irrational.
[94]
We cannot withdraw the President’s signature.  But,
we may direct him to withdraw his signature to the Protocol.  One

President is a successor in title of another and the obligations are
similarly transferable from one to the other.  For the
execution
of the duties attendant to the presidential office and antecedent
authority is never really incumbent-specific.  The
power and
obligations devolve from one personality to another – it is,
after all, the Presidency.  Whoever the President
happens to be
will be directed to withdraw the President’s signature to the
Protocol.
Costs
[95]
Barring exceptional circumstances, the amici curiae are not
entitled to costs.  They routinely apply to be our friends and
real friends hardly ever plead for an opportunity to assist, only to
have others burdened with foreseeable financial obligations
that flow
from their unsolicited intervention.  It was no doubt with this
understanding that the two amici curiae were upfront
in courteously
renouncing the High Court order awarding them costs and are not
asking for costs in this Court.
[96]
Costs will thus follow the result, but only for the parties.
And no costs, in this Court and in the High Court, will be
awarded
to the amici curiae.
Order
[97]
In the result, the following order is made:
1.
The order of constitutional invalidity made by the High Court
of
South Africa, Gauteng Division, Pretoria on 1 March 2018 in case
number 20382/2015 is confirmed in these terms:
1.1
The President’s participation in the decision-making process
and his own
decision to suspend the operations of the Southern
African Development Community Tribunal is unconstitutional, unlawful
and irrational.
1.2
The President’s signature of the 2014 Protocol on the Tribunal
in the
Southern African Development Community is unconstitutional,
unlawful and irrational.
1.3
The President is directed to withdraw his signature from the 2014
Protocol.
1.4
The President must pay costs to the applicants, including the costs
of two counsel.
1.5
There will be no costs payable to the Southern Africa Litigation
Centre and the Centre for
Applied Legal Studies.
2.
In this Court, the President must pay costs to the first to
seventh
applicants, including the costs of two counsel.
CAMERON
AND FRONEMAN JJ (Mhlantla J and Petse AJ concurring):
[98]
We have had the pleasure of reading the judgment of brother
Mogoeng CJ (majority judgment).  We agree largely with the
approach
and reasoning as well as with the order in that judgment.
Our concurrence in the reasoning has one reservation.
That
is the basis for the Court’s finding that the President
behaved irrationally and unlawfully in agreeing to the destruction
of
the Tribunal by amending the Treaty and signing the 2014 Protocol.
That irrationality and that unlawfulness spring not
from any
affront the President directly inflicted on international law, but
from the infringement of our own Constitution.
This is
primarily a review of the President’s exercise of public power
and the bounds of its lawfulness.  Our own Constitution,
in
particular sections 7(2) and 8(1), provides the foundation from which
the review must proceed.  It is the Constitution
that determines
the lawful boundaries the President’s conduct violated.
[99]
The
majority judgment proceeds on the premise that amending the Treaty
was unlawful because the President acted in breach of the
Treaty
itself.  The majority judgment thus seems to locate the
unlawfulness of the President’s conduct directly in
international law norms.
[88]
It is true that, since the President holds office under the
Constitution, and his powers proceed from the Constitution alone,

conduct that is wrongful under the Constitution may, under
international law, be attributed to the country of whose highest
office
he is the incumbent.
[100]
But
the President cannot, in this or any other capacity, directly fall
foul of the international law of treaties.  Only a sovereign

State or an international organisation can.  Only these
creatures of international law have the capacity to become Party to
a
treaty, and, as a corollary, to breach the provisions of a
treaty.
[89]
As a subject
of international law itself, South Africa is bound by the Vienna
Convention and the Treaty.  But, directly,
the President is
not.  The President is bound by the Constitution.  It is
the Constitution that enswathes the President
with the obligation to
ensure that his conduct does not result in a breach of South Africa’s
international obligations.
[101]
By
agreeing to amend the Treaty and by thus agreeing to strip away
pre existing rights of access to justice that the Treaty
had
conferred on South Africans, the President failed to fulfil his
obligation, under our Constitution: to “respect, protect,

promote and fulfil” the rights in the Bill of Rights.
[90]
That failure was a breach of the Constitution.  The unlawfulness
of the President’s conduct derives from its breach
of sections
7(2) and 8 of the Constitution.
[91]
It does not derive directly from any violation of international
treaty provisions.
The
same reservation applies to the approach of the majority judgment to
irrationality.
[92]
This
likewise appears to apply the principle of irrationality to the
President’s conduct in the setting of international
law, rather
than in the sole context of domestic law.  This does not seem
feasible.  It was the conduct of the President,
irrational and
irregular as it was under our Constitution, that resulted in South
Africa, as a sovereign State, violating its international

obligations.  South Africa’s conduct, through its highest
office-bearer, the President, breached South Africa’s

obligations under the Treaty.  That was in the sphere of
international law.  But this same conduct, irrational and
irregular
within our own constitutional framework, did not constitute
an international law violation on the part of the President himself.

Only in the conduct of the South African State, represented by its
highest incumbent, could international law be violated.
[102]
It is thus in the Constitution alone that we should ground the
finding that the President behaved irrationally and unlawfully, and

not directly under international law or treaty provisions.
[103]
Once
we locate the ground for reviewing the President’s conduct in
the Constitution, and the Constitution alone – in
the failure
to “respect, protect, promote and fulfil” South Africa’s
international law commitments to access
to justice for its
people,
[93]
we are spared
unnecessary complexity.  We do not need to examine the tangled
question of when and how an international treaty
becomes domesticated
within South Africa.
[104]
This approach also spares us the need to engage in the debate
on President’s individual capacity in the realm of the law of

treaties.  But what remains clear is that the President’s
conduct, resulting as it did in a breach by South Africa of
its
obligations under an international treaty as a State, was
impermissible under the Constitution, as irrational and unlawful.
For the First
Applicant:
D Ntsebeza SC, T
Ngcukaitobi, T Ramogale and N Makhaye instructed by Mothle
Jooma Sabdia Inc
For the Second to
Seventh Applicants:
J Gauntlett SC QC
and F B Pelser instructed by Hurter Spies Inc
For the
Respondents:
G Marcus SC, A
Coutsoudis and H Rajah instructed by State Attorney
For the First
Amicus Curiae:
J Bhima and T Scott
instructed by Lawyers for Human Rights
For the Second
Amicus Curiae:
M Bishop, G Snyman
and Z Ngwenya instructed by Legal Resources Centre
[1]
See for example,
Economic
Freedom Fighters v Speaker of the National Assembly; Democratic
Alliance v Speaker of the National Assembly
[2016] ZACC 11
;
2016 (3) SA 580
(CC);
2016 (5) BCLR 618
(CC) (
EFF
)
at para 20;
Masetlha
v President of the Republic of South Africa
[2007] ZACC 20
;
2008 (1) SA 566
(CC);
2008 (1) BCLR 1
(CC)
(
Masetlha
)
at para 77;
Premier,
Province of Mpumalanga v Executive Committee Association of
Governing Bodies of State Aided Schools: Eastern Transvaal
[1998]
ZACC 20
;
1999 (2) SA 91
(CC);
1999 (2) BCLR 151
(CC) (
Premier,
Mpumalanga
)
at para 41.
[2]
See
Masetlha
id at para 78 and
EFF
id at paras 20-1.
[3]
Premier,
Province of Mpumalanga
above
n 1
at para 41.
[4]
Article 1 of the International Convention on the Suppression and
Punishment of the Crime of Apartheid, 30 November 1973.
[5]
Section 39(1)(b) of the Constitution.
[6]
Section 233 of the Constitution.
[7]
Section 232 of the Constitution.
[8]
Protocol on the Tribunal in the Southern African Development
Community adopted on 21 February 2014.  There has not yet been

ratification by Parliament of this Protocol pursuant to the
President’s signature.
[9]
Id at article 33.
[10]
Law
Society of South Africa v President of the Republic of South Africa
[2018] 2 All SA 806
(GP) (High Court judgment) at para 72.
[11]
Id.
[12]
Mr Luke Munyandu Tembani, Mr Benjamin John Freeth, Mr Christopher
Mellish Jarret, Mr Richard Thomas Etheredge, Tengwe Estate
(Pvt)
Limited and France Farm (Pvt) Limited.
[13]
The Southern Africa Litigation Centre (SALC) and the Centre for
Applied Legal Studies (CALS).  The words
amici
curiae
mean
friends of the court.
[14]
High Court judgment above n 10 at para 1.
[15]
Id.
[16]
Constitution of Zimbabwe Amendment (No
11) Act 30
of 1990; Chapter
20:10 of the Land Acquisition Act of 1992; Constitution of Zimbabwe
(No
12) Act 4
of 1993; and Constitution of Zimbabwe Amendment (No
14) of 1994.
[17]
The Treaty was originally established in 1992 and has subsequently
been amended several times, with the latest version being
the
consolidated treaty of 2015.
[18]
Mike
Campbell (Pvt) Ltd v The Republic of Zimbabwe
[2008]
SADCT 2 (28 November 2008).
[19]
The Summit comprises the Heads of State and the Heads of Government
from the SADC Member States.  It is the supreme organ
of SADC.
[20]
Articles 6(1) and 16(5) of the Treaty above n 17.
[21]
Article 33 of the Protocol.
[22]
High Court judgment above n 10 at paras 67 and 72.
[23]
Section 167(5) of the Constitution provides:
“
The
Constitutional Court makes the final decision whether an Act of
Parliament, a provincial Act or conduct of the President is

constitutional, and must confirm any order of invalidity made by the
Supreme Court of Appeal, the High Court of South Africa,
or a court
of similar status, before that order has any force.”
[24]
Doctors
for Life International v Speaker of the National Assembly
[2006] ZACC 11
;
2006 (6) SA 416
(CC);
2006 (12) BCLR 1399
(CC)
(
Doctors
for Life
).
[25]
Id at para 69.
[26]
Id at para 55 and section 79(1), (4) and (5) of the Constitution.
[27]
Doctors
for Life
above
n 24 at para 56
.
[28]
Sections 83(b) and 42(3) of the Constitution.
[29]
Doctors
for Life
above
n 24 at paras 68-9
.
[30]
Id at paras 54-6.
[31]
Section 79(1) of the Constitution states that—
“
[t]he
President must either assent to and sign a Bill passed in terms of
this Chapter or, if the President has reservations about
the
constitutionality of the Bill, refer it back to the National
Assembly for reconsideration.”
[32]
Doctors
for Life
above
n 24 at para 69.
[33]
Section 231(1) of the Constitution provides:
“
The
negotiating and signing of all international agreements is the
responsibility of the national executive.”
[34]
Geuking
v President of the Republic of South Africa
[2002] ZACC 29
;
2003 (3) SA 34
(CC);
2004 (9) BCLR 895
(CC) at para
33.
[35]
23 May 1969.
[36]
Harksen
v President of the Republic South Africa
[2000]
ZACC 29; 2000 (2) SA 825 (CC); 2000 (5) BCLR 478 (CC).
[37]
Id at para 26.
[38]
Id at para 27.  See also
Government
of the Republic of Zimbabwe v Fick
[2013] ZACC 22
;
2013 (5) SA 325
(CC);
2013 (10) BCLR 1103
(CC)
(
Fick
)
at fn 44;
Glenister
v
President
of the Republic of South Africa
[2011] ZACC 6
;
2011 (3) SA 347
(CC);
2011 (7) BCLR 651
(CC) at para
9;
President
of the Republic of South Africa v Quagliani; President of the
Republic of South Africa v Van Rooyen;
Goodwin
v Director-General, Department of Justice and Constitutional
Development
[2009] ZACC 1
;
2009 (2) SA 466
(CC);
2009 (8) BCLR 785
(CC) at para
19; and
S
v Makwanyane
[1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC).
[39]
See article 11 of the Vienna Convention above n 35.
[40]
Id article 15.
[41]
Rubin “The international legal effects of unilateral
declarations” (1977) 71
American
Journal of International Law
1.
[42]
Gabčíkovo-Nagymaros
Dam Case
(
Hungary
v Slovakia
)
ICJ Rep 1997 (
Gabčíkovo-Nagymaros
)
at para 46;
Kasikili/Sedudu
Islands
(
Botswana
v Namibia
)
[1999] ICJ Rep 1045 at para 18;
Legal
Consequences for States of the Continued Presence of South Africa in
Namibia
(
South
West Africa
)
[1971] ICJ Rep 3 at para 94;
Fisheries
Jurisdiction Case
(
Federal
Republic of
Germany
v Iceland
)
[1973] ICJ Rep 49 at para 36.  See also [37].
[43]
Articles 18 and 26 require States that have signified their consent
to be bound by a treaty to perform their obligations under
that
treaty and to refrain from acts that are contrary to the objects and
purpose of that treaty.
[44]
Gabčíkovo-Nagymaros
above
n 42 at para 46.
[45]
Greenwood “Sources of International Law: An Introduction”
(
United
Nations Audiovisual Library of International Law,
2008)
at 2-3.  Certified information from the UN website states that
there are 45 signatories to the Vienna Convention
and a total
of 116 parties to it as a result of subsequent accession, succession
and ratification.
[46]
Doctors
for Life
above
n 24 at para 69.
[47]
Id.
[48]
President
of the Republic of South Africa v South African Rugby Football Union
[1999] ZACC 11
;
2000 (1) SA 1
(CC);
1999 (10) BCLR 1059
(CC) (
SARFU
)
at para 148.
[49]
Affordable
Medicines Trust v Minister of Health
[2005]
ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC) (
Affordable
Medicines
)
at para 49.
[50]
Section 231(2) of the Constitution provides:
“
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).”
[51]
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.  This was done in terms
of section 231(2) and (3) of the interim Constitution.
[52]
Article 35(1) of the Treaty.
[53]
Article 53 of the Protocol.
[54]
High Court judgment above n 10 at para 64.
[55]
Preamble and Article 4 of the Treaty.
[56]
Article 16(1) of the Treaty.
[57]
Article 16(5) of the Treaty.
[58]
Articles 4(c) and 6(1) and (6) of the Treaty.
[59]
Article 35(1) of the Treaty.
[60]
See
Fick
above n 38 at para 59.
[61]
See article 26 of the Vienna Convention above n 35.
[62]
See article 26 of the Vienna Convention above n 35.
[63]
Protocol on Tribunal in the Southern African Development Community,
2000.
[64]
Democratic
Alliance v President of South Africa
[2012] ZACC 24
;
2013 (1) SA 248
(CC);
2012 (12) BCLR 1297
(CC)
(
Simelane
)
at paras 34-5.
[65]
Id at para 36.
[66]
Albutt
v Centre for the Study of Violence and Reconciliation
[2010]
ZACC 4
;
2010 (3) SA 293
(CC);
2010 (5) BCLR 391
(CC) at paras 49-50;
Affordable
Medicines
above
n 49 at paras 75 and 77.
[67]
Simelane
above n 64 at para 37.
[68]
Masetlha
above n 1 at para 78.
[69]
Albutt
above
n 66 at paras 49-52.
[70]
Simelane
above
n 64 at paras 36-7.
[71]
This is the issue that
Masetlha
above n 1 addresses at, for instance, para 74.  This is why
Administrator
of the Transvaal v Zenzile
[1990]
ZASCA 108
;
1991 (1) SA 21
(A) and
Administrator
of Transvaal v Traub
[1989]
ZASCA 90
;
1989 (4) SA 731
(A) were central to the determination of
whether procedural fairness finds application in challenges relating
to the exercise
of Presidential and Executive powers.  Yet,
rationality was readily acknowledged as a valid ground for
challenging the constitutional
validity of the President’s
exercise of her powers.
[72]
Article 35 of the Treaty.
[73]
Article 36 of the Treaty.
[74]
See
Albutt
above n 66 at paras 49-50.
[75]
Fick
above n 38 at para 59.
[76]
Glenister
above
n 38 at para 178.
[77]
Sections 7 and 8 of the Constitution.
[78]
Fick
above
n 38 at para 59.
[79]
Glenister
above
n 38 at para 178.
[80]
Fick
above
n 38 at para 69. See also section 34 of the Constitution.
[81]
SARFU
above
n 48 at para 148.
[82]
See
Section 231(1) of the Constitution.
[83]
Fick
above n 38 at para 69.
[84]
See section 7 of the Constitution.
[85]
Section 7(1) of the Constitution.
[86]
Minister
of Home Affairs v Tsebe, Minister of Justice and Constitutional
Development v Tsebe
[2012] ZACC 16;
2012 (5) SA 467
(CC);
2012 (10) BCLR 1017
(CC);
and
Mohamed
v President of the Republic of South Africa (Society for the
Abolition of the Death Penalty in South Africa Intervening)
[2001] ZACC 18; 2001 (3) SA 893 (CC); 2001 (7) BCLR 685 (CC).
[87]
Section 59 of the Constitution provides:
“
(1)
The National Assembly must—
(a)
facilitate public involvement in the legislative and other processes

of the Assembly and its committees; and
(b)
conduct its business in an open manner, and hold its sittings, and

those of its committees, in public.”
Section
72 of the Constitution provides:
“
(1)
The National Council of Provinces must—
(a)
facilitate public involvement in the
legislative and other processes of the Council and its committees;
and
(b)
conduct its business in an open manner, and hold
its sittings, and those of its committees, in public.”
Section 118 of the
Constitution provides:
“
(1)
A provincial legislature must—
(a)
facilitate public involvement in the
legislative and other processes of the legislature and its
committees; and
(b)
conduct its business in an open manner, and hold
its sittings, and those of its committees, in public.
”
[88]
[56] referring to article 26 of the Vienna Convention as well as the
Treaty’s provisions on amendment.
[89]
International treaty law primarily concerns itself with the rights
and duties of States vis-à-vis other States.  Article
2
of the Vienna Convention provides that treaties are “international
agreement[s] concluded between States in written form
and governed
by international law, whether embodied in a single instrument or in
two or more related instruments and whatever
its particular
designation”.  This is with the exception of
international criminal law (where individuals can be held

accountable for international crimes set out in international
treaties) and some international organisations.  See also

Dugard,
International
Law: A South African Perspective
4
ed (Juta & Co, Cape Town 2012).
[90]
Section 7(2) of the Constitution.
[91]
Glenister
above
n 38 at paras 157, 182 and 190-2.
[92]
[61] to [71].
[93]
Section 7(2) and section 8(1) of the Constitution.