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CALS to argue in Con Court that SADC changes require public participation

- Lee-Anne Bruce

CALS & the LRC will appear in the Con Court tomorrow to highlight the importance of public consultation by the state when entering into international agreements

On 30 August, the Constitutional Court will hear arguments in a matter brought by the Law Society of South Africa against the Presidency, the Minister of Justice and Constitutional Development, and the Minister of International Relations and Co-operation. CALS, represented by the LRC, will be assisting as a ‘friend of the court’ in the matter which concerns the suspension of the SADC Tribunal.

The SADC Tribunal was established in 2005 to resolve disputes involving southern African states and their citizens. In 2010, after a number of rulings against the Zimbabwean government, the Tribunal was effectively suspended. By 2014, the SADC Summit adopted and signed a new Protocol which confined the Tribunal to reviewing disputes between states only, and not between states and individual citizens. The South African Presidency was one of the signatories to this resolution.

The Law Society of South Africa therefore approached the Pretoria High Court, arguing that signing the resolution was unconstitutional because it violated the right of access to courts. CALS, admitted as a friend of the court to assist in the matter and represented by the LRC, highlighted the importance of public consultation by the state when entering into international agreements.

On 1 March 2018, the High Court handed down judgment ruling that the Presidency acted unlawfully and irrationally in signing the resolution. The Court further ordered that both the applicants and the friends of the court should have their legal costs covered by the state. This judgment now needs to be confirmed by the Constitutional Court, which will hear arguments in the matter tomorrow.

“Public participation is integral to the Constitution’s commitment to accountability and openness; it is the very definition of a participatory democracy,” says Akhona Mehlo, attorney at CALS. “It is essential in fulfilling the right to development, which is central in the SADC context.”

CALS and the LRC remain deeply concerned that the Presidency has entered into what is in effect an international treaty without first consulting the people of South Africa. While the Protocol has not yet been ratified, the signature lends support to a process that will limit access to courts for many people in the region.

Read our heads of argument in the matter here.

The matter will be heard in the Constitutional Court on 30 August from 10:00

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