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)

Key Facts

Issues

• The court confirmed the unconstitutionality of the President's participation in suspending the Southern African Development Community Tribunal (SADC Tribunal) and signing the 2014 Protocol, which removed individual access to the Tribunal. This decision was grounded in sections 231, 232, 7, and 8 of the Constitution, emphasizing the President's obligation to act in accordance with the Bill of Rights and international law commitments.
• The court found the President's actions inconsistent with the SADC Treaty and article 26 of the Vienna Convention, which mandates States to perform treaty obligations in good faith. By signing the 2014 Protocol, the President jeopardized South Africa's adherence to its international commitments, particularly the protection of access to justice for SADC citizens.
• The President's conduct was ruled unlawful and irrational as it violated the constitutional duty to 'respect, protect, promote, and fulfill' the rights in the Bill of Rights, particularly access to justice. The court highlighted that the President's decisions undermined the rule of law and SADC Treaty obligations, contravening the principles of legality and rationality required by the Constitution.

Holdings

• The Constitutional Court of South Africa confirmed the High Court's order of constitutional invalidity regarding the President's decision to suspend the SADC Tribunal and sign the 2014 Protocol. The President's actions were declared unconstitutional, unlawful, and irrational as they undermined the Bill of Rights and international law obligations, particularly access to justice for individuals and compliance with the SADC Treaty.
• The President was mandated to pay costs to the applicants, including the costs of two counsel, for the High Court and Constitutional Court proceedings. This reflects the Court's determination that the applicants' legal challenge was justified given the constitutional and international law implications of the President's conduct.
• No costs were awarded to the Southern Africa Litigation Centre (SALC) and the Centre for Applied Legal Studies (CALS) in the High Court, as they voluntarily renounced the costs award and did not seek further costs in the Constitutional Court. Their role as amici curiae did not entitle them to financial compensation.
• The Court directed the President to withdraw his signature from the 2014 Protocol, which sought to strip the SADC Tribunal of its jurisdiction over individual disputes against states. This was deemed necessary to prevent the violation of the Constitution and the rule of law, as the Protocol's provisions were inconsistent with domestic and international legal commitments.

Remedies

• The President is directed to withdraw his signature from the 2014 Protocol.
• The President must pay costs to the applicants, including the costs of two counsel.
• 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.
• The High Court's order of constitutional invalidity is confirmed.
• The President's signature of the 2014 Protocol on the Tribunal in the Southern African Development Community is unconstitutional, unlawful and irrational.
• There will be no costs payable to the Southern Africa Litigation Centre and the Centre for Applied Legal Studies.

Legal Principles

• The court held that the President's conduct in suspending the SADC Tribunal and signing the 2014 Protocol was unconstitutional and violated the rule of law. The decision emphasized that the President must act within constitutional and legal boundaries to protect access to justice and uphold international law obligations.
• The court applied the customary international law test, determining the President's signature on the Protocol conflicted with South Africa's international law obligations. Articles 18 and 26 of the Vienna Convention, recognized as customary law, required the President to act in good faith and refrain from actions undermining treaty purposes.
• The court found the President's conduct ultra vires, as he exercised powers not granted by the Constitution. The suspension of the Tribunal and signing the Protocol were beyond his authority under sections 231 and 232, rendering them legally invalid and requiring judicial review.
• The judgment highlighted the President's failure to act in good faith. The President's conduct disregarded the spirit and purpose of the SADC Treaty, violating constitutional and international law principles of good faith and duty to protect regional human rights and justice mechanisms.

Precedent Name

• Masetlha
• Tsebe
• Albutt
• Harksen
• Doctors for Life
• Affordable Medicines
• Glenister
• Mohamed
• Geuking
• SARFU
• Fick
• S v Makwanyane

Cited Statute

• Constitution of South Africa
• Southern African Development Community Treaty
• Vienna Convention on the Law of Treaties

Judge Name

• Theron
• Mhlantla
• Dlodlo
• Mogoeng
• Cameron
• Froneman
• Khampepe
• Petse
• Goliath
• Basson

Passage Text

• [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.
• [74] 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.
• [81] 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'.