South Africa: SADC Tribunal As Forum For Adjudication Of Disputes

Most are familiar with the existence of the Southern African Development Community (SADC) of which South Africa is a member. Probably a lesser known fact is that one of the institutions established by SADC is the SADC Tribunal, a function of which is to adjudicate upon certain disputes referred to it.

SADC is an international organisation for the economic integration of its member countries. South Africa became a member in 1992. The member states of SADC are Angola, Botswana, Congo, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe.

The Declaration and Treaty of SADC was signed on behalf of the member states in Windhoek, Namibia on 17 August 1992. In terms of Article 16 of the Treaty, the function of the Tribunal is to ensure adherence to and the proper interpretation of the provisions of the Treaty and subsidiary instruments and to adjudicate upon disputes referred to it. The decisions of the Tribunal are final and finding.

The scope of jurisdiction of the Tribunal is limited. Article 15 of the Protocol on Tribunal and the Rules of Procedure Thereof (the Protocol) stipulates that the Tribunal has jurisdiction over disputes between member states, and between natural or legal persons and members states. This Article prohibits a natural or legal person from bringing an action against a member state unless that person has exhausted all available remedies under the applicable domestic jurisdiction or is unable to do so in that particular jurisdiction. In addition the Tribunal does not have jurisdiction over disputes between natural or legal persons from the same or different member state. It is the function of the courts in the applicable jurisdictions to adjudicate upon such disputes.

Section 231 (2) of the Constitution of the Republic of South Africa, 1996 determines that an international agreement such as the Treaty is binding on the state only after it has been approved by resolution in the National Assembly and the National Council of Provinces (save for certain exceptions relating to agreements of a technical, administrative or executive nature). According to Section 231(4) of the Constitution, such agreement only becomes law in South Africa when it has been enacted by Parliament, unless it contains self-execution provisions, in which event the particular agreement shall have the force of law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.

South Africa has ratified the Treaty and the Protocol but neither has been enacted into law. Neither the Treaty nor the Protocol contain any self-executing provisions and because they have not yet been enacted by the national legislature, do not yet have legal force of law in South Africa.

In the recent unreported judgement of Preller J in the Transvaal Provision Division of the High Court, Nello Quagliani v The President of the Republic of South Africa; Steven Mark Van Rooyen and Another v The President of the Republic of South Africa, Case Number: 959/2004, it was held that the Extradition Agreement between the Republic of South Africa and the United States of America signed on 16 December 1999 does not have the force of law in this country as the requirements of Section 231 of the Constitution regarding enactment have not been complied with.

In the matter Mike Campbell (Pvt) Ltd v Republic of Zimbabwe, Tribunal Case Number: SADCT 2/07, the applicant challenged the acquisition by the Government of Zimbabwe of certain farm land owned by the applicant in Zimbabwe before the Tribunal.

The matter involves a dispute between natural persons and a member state and accordingly the Tribunal ruled that it had jurisdiction to adjudicate upon the matter. Article 14(a) of the Protocol confers jurisdiction upon the Tribunal to determine disputes relating to the interpretation and application of the Treaty. The relevant provision of the Treaty (which presumably has force of law in Zimbabwe) that fell to be interpreted was Article 4, which requires member states to act in accordance with certain principles, including giving recognition to human rights, democracy and the rule of law. Given that the matter involves the applicant's right to property, it involves an interpretation of principle of human rights.

Pending resolution of the main issue, in which the applicant contends that the government's actions amount to unlawful expropriation and the government contends that local remedies were not exhausted, the Tribunal granted interim relief to the applicants protecting them from eviction from the land concerned and allowing them to reside on and make beneficial use of the land, which is operated as a commercial farming venture. In ruling upon the application for interim relief, the Tribunal held that the criteria used in the applicable municipal jurisdiction relevant to granting such relief ought to be applied. The criteria for an interim interdict under Zimbabwean law, is similar to that required under South African law, namely that an applicant must show that it seeks to protect a prima facie right, such right will be infringed, there is no alternative remedy and that an interdict would be the appropriate relief.

The main matter is scheduled for hearing on 16 July 2008. At the time of going to print the outcome of that hearing had not yet been established. The final determination of this matter by the Tribunal would likely provide an indication of the effectiveness of the Tribunal, and whether it serves the laudable purpose for which it was founded.

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