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

The applicants, including the Law Society of South Africa and several individuals and companies who were landowners in Zimbabwe, challenged the conduct of the President of South Africa in relation to the Southern African Development Community (SADC) Tribunal. Following adverse decisions by the SADC Tribunal against Zimbabwe concerning land expropriation without compensation, the SADC Summit resolved to suspend the Tribunal by not appointing or reappointing its members. South Africa, through its President, participated in this decision. The President also signed the 2014 Protocol on the SADC Tribunal, which removed the Tribunal’s jurisdiction over disputes brought by individuals against member states. The applicants argued that these actions deprived individuals of access to justice and were unconstitutional, unlawful and irrational. The High Court declared the President’s conduct unconstitutional, and the matter came before the Constitutional Court for confirmation.

The Constitutional Court confirmed the High Court’s order declaring the President’s participation in the suspension of the SADC Tribunal and his signing of the 2014 Protocol unconstitutional, unlawful and irrational. The President was directed to withdraw his signature from the Protocol and ordered to pay the applicants’ costs, including the costs of two counsel.

This case is significant for affirming constitutional limits on presidential power in the sphere of international relations. It underscores that the President’s conduct in negotiating and signing international agreements is subject to constitutional scrutiny, particularly where access to justice, the rule of law, and human rights are threatened. The judgment strengthens accountability of the executive and clarifies that international law actions cannot undermine foundational constitutional values.