1/31/2024 0 Comments Zimbabwe v fick zacc![]() Article 33 prescribes that the Tribunal will have jurisdiction on the interpretation of SADC Treaty and Protocols relating to disputes between member States. In 2014, a new Protocol (Second Protocol) was concluded. This May 2011 decision resulted in the de facto suspension of the SADC Tribunal since, without judges, the Tribunal could not function. Further, the Tribunal was prohibited from taking on more cases. It was resolved that members of the Tribunal whose terms of office expire in August 2010 would not be reappointed, and members whose term of office would have expired in October 2011 were not reappointed. The Summit subsequently deferred consideration of Zimbabwe’s non-compliance with the Tribunal pending the completion of a study on the role, responsibilities and terms of reference of the Tribunal. It was resolved that a Committee of Ministers of Justice and Attorneys-Generals should advise the Summit on the legal issues regarding Zimbabwe and review the role, responsibilities and terms of reference of the Tribunal. In 2010 a meeting was held concerning the non-compliance of Zimbabwe with the decisions of the Tribunal. The Tribunal has the jurisdiction to adjudicate, as per article 15, “over disputes between States and between natural or legal persons and States.” Therefore the First Protocol allows access to any person to institute proceedings before the Tribunal. The Amended Treaty places an international law obligation on South Africa to ensure that its citizens have access to the Tribunal and that its decisions are enforced. In terms of section 231 of the Constitution, South Africa can ratify, accede to and domesticate international agreements. The Amending Agreement, which amended the Treaty to include the Tribunal Protocol (Amended Treaty), binds South Africa. ![]() ![]() Due to the insufficient number of ratifying parties, the Treaty was amended to remove the ratification requirement. The Tribunal Protocol regulates the composition, powers, functions, procedures and other related matters of the Tribunal. ![]() The SADC Tribunal (Tribunal) was created to properly adjudicate matters brought before it as well as ensure adherence to and proper interpretation of the Treaty. Article 4(c) of the Treaty binds Member States to act in accordance with human rights, democratic and rule of law principles. South Africa joined SADC by acceeding to the Treaty in 1994. SADC was established in terms of the SADC Treaty to allow Southern African Countries to, inter alia, respect, protect and promote human rights, democracy and the rule of law. The relevance of the judgment’s finding that Zuma’s actions were unlawful, irrational and thus unconstitutional concludes the brief. Such actions are then considered in light of South Africa’s Constitutional as well as international law obligations. The brief goes on to outline the submissions of the parties including the justification of the Executive for its actions. This brief considers the context surrounding the importance and purpose of SADC and the actions of the South African Executive in relation to the SADC Tribunal. The case is of significance given that the rights of South African citizens to access justice at the SADC Tribunal are implicated. On 1 March 2018, the Regional Hight Court, Pretoria (High Court) handed down judgment in an application brought by the Law Society of South Africa (LSSA) and members of the Tembani community in Zimbabwe to declare the suspension of the Southern African Development Community (SADC) Tribunal and the signing of the SADC Summit Protocol 2014, by former President Jacob Zuma (Zuma), to be unconstitutional. Individuals' rights to access to justice and effective remedies for human rights violations are excluded, in contravention of international law. The case considered the jurisdictional limitations imposed on the Southern African Development Community Tribunal.
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