## Facts

- South Africa was a party to the SADC Treaty, which commits member states to democracy, human rights, and the rule of law, and established a regional Tribunal to interpret and apply the Treaty, including in disputes involving individuals.
- After the Tribunal ruled against Zimbabwe in land-reform litigation and ordered protective and compensatory relief, Zimbabwe refused to comply and supported steps that halted the Tribunal’s functioning.
- SADC leaders decided in 2010 to suspend the Tribunal’s operations; South Africa’s President supported the decision-making process that produced the suspension.
- In 2014, the President signed a new protocol to the Tribunal that limited its jurisdiction to inter-state disputes and excluded individual complaints, which had formed most of the Tribunal’s work.
- The Law Society of South Africa and affected Zimbabwean farmers and companies challenged (i) the President’s role in the suspension and (ii) his signature of the 2014 protocol as unconstitutional, unlawful, and irrational.
- The High Court declared both acts unconstitutional and ordered the President to withdraw his signature; the matter proceeded for confirmation in the Constitutional Court.

## Issues

1. Whether it was justiciable and ripe to review the constitutionality of the President’s signature of the 2014 protocol before parliamentary approval or ratification.
2. Whether the President’s participation in suspending the SADC Tribunal was unconstitutional, unlawful, and irrational.
3. Whether signing a protocol eliminating individual access to the Tribunal was unconstitutional, unlawful, and irrational in light of access-to-justice interests and South Africa’s constitutional and international obligations.
4. Whether constitutional rationality review applies to executive foreign-affairs and treaty-related decisions that affect constitutional rights and obligations.

## Decision

- The Constitutional Court confirmed the High Court’s declarations of invalidity.
- The Court held unconstitutional, unlawful, and irrational the President’s participation in the decision-making process leading to suspension of the Tribunal’s operations.
- The Court held unconstitutional, unlawful, and irrational the President’s signature of the 2014 protocol restricting the Tribunal to inter-state disputes.
- The Court ordered the President to withdraw South Africa’s signature from the 2014 protocol.
- The Court awarded costs against the President, including costs of two counsel, in both courts.

## Legal Principles

- Executive conduct in foreign affairs, including treaty negotiation and signature, is subject to constitutional control and judicial review when it implicates constitutional rights, values, or obligations.
- Even before domestic ratification, treaty signature has legal significance on the international plane and may be reviewed for constitutional compliance.
- The exercise of public power must be rationally related to a legitimate governmental purpose; a failure of rational connection renders the conduct unconstitutional.
- Constitutional duties to respect and give effect to rights and to act consistently with international-law commitments constrain executive action that weakens access to effective remedies through regional adjudicative bodies.
- Effective remedies for rights violations, including through regional tribunals where domestic avenues may be ineffective, are relevant to evaluating the constitutionality and rationality of executive decisions.

## Conclusion

The Court held that the President’s support for suspending the SADC Tribunal and his signature of a protocol removing individual access were unconstitutional because the actions were irrational and inconsistent with South Africa’s constitutional and international commitments, and it ordered withdrawal of the signature as necessary remedial relief.


Law Soc’y of S. Afr. v. President of the Republic of S. Afr., CCT 67/18 (S. Afr. Const. Ct. 2018)