On Tuesday, 11 December 2018 at 14h00 the Constitutional Court handed down judgment in an application for confirmation of an order of constitutional invalidity made by the High Court of South Africa, Gauteng Division, Pretoria (High Court).
The background is that on 7 August 2000, the Southern African Development Community (SADC) passed the Protocol on the Tribunal (2000 Protocol) to establish the jurisdiction of the Tribunal and deal with related matters. The primary role of the SADC Tribunal is to interpret the SADC Treaty (Treaty) in order to promote democracy, human rights and the rule of law. It resolves inter-State disputes and disputes between States and individuals relating to the provisions of the Treaty. South Africa acceded to the Treaty in terms of the Interim Constitution.
In Mike Campbell (Pvt) Ltd v The Republic of Zimbabwe, the Tribunal held that the Zimbabwean government’s constitutional provision on land expropriation without compensation violated the Treaty. It then ordered the government to protect farms that had not been repossessed and to pay compensation for those that had already been expropriated. The Zimbabwean government failed to comply with this ruling.
Subsequent to that non-compliance, the SADC meeting of the Heads of State and Heads of Government (Summit) discussed that non-compliance and took a decision in 2010 to suspend the operations of the Tribunal – a decision that the President of South Africa supported. On 18 August 2014, he signed the Protocol on the SADC Tribunal (2014 Protocol). Article 33 of the 2014 Protocol precludes individuals from lodging complaints against SADC Member States before the Tribunal. It thereby takes away the Tribunal’s jurisdiction to hear disputes between Member States and their citizens.
The High Court declared the President’s participation in the suspension of the operations of the Tribunal and his subsequent signing of the 2014 Protocol unlawful, irrational and unconstitutional.
In a majority judgment, written by Mogoeng CJ (Basson AJ, Dlodlo AJ, Goliath AJ, Khampepe J, Theron J concurring), the Constitutional Court confirmed the order of constitutional invalidity made by the High Court. The majority held that the President must always exercise public power in a manner that is consistent with the Constitution and its scheme, the spirit, purport and objects of the Bill of Rights, and our domestic legislative and international law obligations. Mogoeng CJ reasoned that customary international law enjoins any State that has signed a treaty, to act consistently with its objects pending ratification. This, according to the majority, means that the 2014 Protocol had a binding effect on South Africa soon after the President signed it. The application to have the signature withdrawn was therefore not launched prematurely and parliamentary ratification was not required before applicants could bring this application.
The majority also held that binding customary international law requires of states to always act in good faith and in furtherance of the object and purpose of the treaties that they have signed. It observed that the Treaty required South Africa to promote the rule of law and the right to access to justice which is provided for by both the Treaty and the Constitution. The majority held that the President failed to do by suspending the operations of the Tribunal and denying citizens’ access to it, in terms of power and procedure that does not exist as the Treaty does not provide for amendments to be made through the 2014 Protocol, as the SADC Member States purported to do. They also lack the power to suspend the operations of the Tribunal. The majority thus concluded that the conduct of our former President in all these respects was unlawful, irrational and constitutionally invalid.
It was for these reasons that the President was ordered to withdraw his signature from the 2014 SADC Protocol and the High Court order was confirmed.
In a separate concurrence, Cameron J and Froneman J (Mhlantla J and Petse AJ concurring) concur with the remedy and order of the majority judgment, but for one reservation in the reasoning of the majority judgment. In their view, the basis for concluding that the President acted irrationally and unlawfully does not lie in any breach of international law or the provisions of the Vienna Convention on the Law of Treaties or SADC Treaty directly. This is because individuals, even constitutional office-bearers, like the President, cannot as individuals violate international law. Only States and international organisations can commit breaches of international law and treaties. In contrast, the concurring judgment contends that it is sufficient for the Court to find that the President’s conduct was unlawful as it contravened sections 7(2) and 8 of the Constitution, as the case hinged on constitutional limits to the exercise of executive power.