The application by the Law Society of South Africa (LSSA) in challenging the role President Jacob Zuma and government played in the closure of the Southern African Development Community (SADC) Tribunal, kicked off in the Gauteng High Court, Pretoria.
Four commercial farmers who were dispossessed of their farms under former President Robert Mugabe, were also among those who joined the legal challenge.
The heavyweight legal teams, which include Advocate Dumisa Ntsebeza SC, acting for the LSSA, is asking a full bench (three judges), headed by Judge President Dunstan Mlambo, to declare the actions of Zuma and Ministers of Justice and International relations and Cooperation in voting for, signing and planning to ratify the SADC Summit Protocol in 2014, to be declared unconstitutional.
The outcome of this legal challenge will not only have great significance for all South African citizens, but also for the citizens of the other SADC countries. It is estimated that about 230 million people will be affected.
Unlike the previous Protocol, the 2014 protocol deprives citizens in the SADC region, which include South Africans, of the right to refer a dispute between citizens and their government to a regional court if the fail to find relief in their own courts.
The applicants said that by signing the 2014 Protocol, the president has infringed on the right of South African citizens to access justice in terms of our Bill of Rights.
As the Protocol now stands, it limits the jurisdiction of the SADC Tribunal to disputes only between member states and no longer between individual citizens and states in the SADC region.
The SADC Tribunal was established in 2005 to resolve disputes involving southern Africa States and their citizens.
In 2009 Zimbabwe challenged the legitimacy of the Tribunal on the basis that it had not been established according to international law norms. This came after the tribunal had criticised Zimbabwe’s land reform and ruled that the Zimbabwe government must restore the land of the white farmers who had turned to the tribunal. It was also ruled that Zimbabwe had to compensate them for the loss they had incurred.
This led to the Protocol being revised, to remove the tribunal’s power to hear disputes brought by citizens against states. Its mandate was restricted to hear disputes between SADC member states only.
SADC lawyers association said the effect of this was to strip the whole of the SADC citizenry of the protection of an apex regional human rights court and to reduce platforms of accountability in the region.
“More importantly, it removed the safety net of an impartial and effective tribunal that enjoyed the supports of a strong regional body,” they said.
Zuma was one of the signatories of the resolution.
The Centre for Applied Legal Studies (CALS), which had entered the battle as a friend of the court, said by signing this Protocol, the presidency has effectively removed the rights of South Africans to access the Tribunal if they want to appeal cases that have been decided in our highest courts.
CALS said it was concerned that the presidency has entered into what is in effect an international treaty, without first consulting the people of South Africa.
Zuma and the presidency’s stance is that the signing of the Protocol was simply a preliminary step and it did not mean that they were supporting it. It was said that they were still examining the Protocol and they are still deciding whether to table it before parliament or not.
Advocate Jeremy Gauntlett SC, acting for the Zimbabwean farmers, on Monday said Government’s stance was to hold back and to first see what this court ruled, before it made a decision. Nine member countries have ratified it at this stage and if South Africa added itself to this, a majority vote would have been reached, meaning that the resolution will go through.