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 South African landowners affected by Zimbabwe’s land reform programme, challenged the conduct of the President of South Africa in relation to the Southern African Development Community (SADC) Tribunal. Zimbabwe had expropriated land without compensation and removed the jurisdiction of its domestic courts, leaving the SADC Tribunal as the only forum for affected individuals. After the Tribunal ruled against Zimbabwe, SADC Heads of State, including South Africa’s President, decided not to reappoint Tribunal members, effectively suspending its operations. The President also signed the 2014 SADC Protocol, which removed the Tribunal’s jurisdiction over disputes brought by individuals against states. The applicants argued that the President’s participation in suspending the Tribunal and signing the Protocol was unconstitutional, unlawful, and irrational, as it removed access to justice and undermined the rule of law.

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

This case is a leading authority on the constitutional limits of presidential power in the conduct of international relations. It affirms that executive action in negotiating and signing international agreements is reviewable for constitutionality, legality, and rationality, even before parliamentary ratification. The judgment strongly reinforces the centrality of access to justice, the rule of law, and human rights in South Africa’s foreign policy and regional commitments, and underscores South Africa’s constitutional responsibility to uphold international legal obligations.