Law Society of South Africa and Others v President of the Republic of South Africa and Others

The Republic of Zimbabwe embarked on land reform that included land expropriation without compensation and removed domestic court jurisdiction over such disputes. Affected landowners, including South African citizens, approached the SADC Tribunal, which ruled against Zimbabwe. Zimbabwe failed to comply with the Tribunal's order. The SADC Summit then suspended the Tribunal's operations by not appointing new members, rendering it non-quorate. The South African President participated in this decision and later signed the 2014 Protocol on the SADC Tribunal, which removed individuals' right to bring disputes against Member States before the Tribunal. The Law Society of South Africa and six other applicants (including affected landowners) challenged the President's conduct as unconstitutional, unlawful and irrational. The High Court declared the President's conduct unconstitutional, and the matter came before the Constitutional Court for confirmation.

• Whether the application was premature before Parliamentary ratification of the Protocol
• Whether the President acted unlawfully by following an improper procedure to amend the SADC Treaty
• Whether the President's conduct was procedurally and substantively irrational
• Whether the President's signature of the Protocol was unconstitutional
• Whether the Vienna Convention on the Law of Treaties applies to South Africa as customary international law
• Whether the President violated sections 7(2) and 8(1) of the Constitution by failing to respect, protect, promote and fulfil rights in the Bill of Rights
• Whether public participation was required before signing the Protocol

1. The order of constitutional invalidity of the High Court was confirmed. 2. The President's participation in the decision to suspend the SADC Tribunal and his decision to suspend its operations were declared unconstitutional, unlawful and irrational. 3. The President's signature of the 2014 Protocol was declared unconstitutional, unlawful and irrational. 4. The President was directed to withdraw his signature from the 2014 Protocol. 5. The President was ordered to pay costs to the applicants in both the High Court and Constitutional Court, including costs of two counsel. 6. No costs were payable to the amici curiae (Southern Africa Litigation Centre and Centre for Applied Legal Studies).

The President may only exercise power under section 231(1) to negotiate and sign international agreements in a manner consistent with the Constitution, particularly the obligation under sections 7(2) and 8(1) to respect, protect, promote and fulfil rights in the Bill of Rights. The President cannot sign an agreement that removes or threatens pre-existing constitutional or treaty rights of South Africans, including the right of access to justice. The exercise of presidential power must be lawful (exercised in accordance with proper legal procedures and within the scope of conferred powers), rational (both procedurally and substantively connected to legitimate purposes), and constitutional (consistent with Bill of Rights obligations and international law commitments binding on South Africa). Major provisions of the Vienna Convention on the Law of Treaties, including articles 18 and 26, constitute customary international law binding on South Africa under section 232. A presidential signature on an international agreement creates immediate obligations and threats to rights justiciable before parliamentary ratification where the agreement threatens fundamental rights and waiting would deny substantial relief.

The Court made several non-binding observations: (1) It flagged for consideration by the Executive and Legislature a potential conflict between article 15 of the 2000 SADC Protocol (which appears to allow individual access to the Tribunal after exhausting domestic remedies, potentially even after apex court decisions) and the finality of Constitutional Court judgments, noting this issue was not raised by parties and leaving it open for another day. (2) The Court noted that while public participation is constitutionally required in legislative processes, there is no similar constitutional requirement for Executive decision-making regarding international agreements, though such consultation may be desirable. (3) The Court emphasized the importance of not straining diplomatic relations but clarified that comity and diplomatic considerations cannot justify illegal or unconstitutional compromises or be used to insulate presidential conduct from constitutional review. (4) Cameron and Froneman JJ's concurrence clarified that only sovereign States (not individual office-bearers) can directly breach international treaties, though a President's unconstitutional conduct can result in the State breaching its international obligations.

This judgment is significant for several reasons: (1) It affirms that presidential powers under section 231(1) to negotiate and sign international agreements are not unlimited but constrained by the Bill of Rights, particularly the obligation to respect, protect, promote and fulfil fundamental rights. (2) It confirms that major provisions of the Vienna Convention on the Law of Treaties constitute customary international law binding on South Africa under section 232. (3) It establishes that a presidential signature on an international agreement has immediate legal consequences (under article 18 of the Vienna Convention) even before parliamentary ratification, making challenges justiciable before the full section 231 process is complete. (4) It extends the principle of procedural rationality to the exercise of treaty-making powers. (5) It affirms South Africa's constitutional obligation to honour international law commitments, particularly where they align with Bill of Rights protections. (6) It demonstrates judicial willingness to intervene early in treaty processes where fundamental rights are threatened. (7) It reinforces that considerations of diplomatic comity cannot justify unconstitutional conduct. The case is a major statement on the intersection of international law obligations, executive power, and constitutional rights protection.