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A tale of regional neighbours in the Concourt – again

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A tale of regional neighbours in the Concourt – again

Professor Dawid van Wyk, Independent Consultant, discusses recent developments in South African law with regard to the enforcement of international agreements and the implications for regional integration

The recent ruling of the South African Constitutional Court in National Commissioner of the SA Police Service v the Southern African Human Rights Litigation Centre (the so-called Zimbabwe Torture case, delivered on 30 October 2014) was widely reported in the media. It was the second time in hardly over a year that the highest court in South Africa had to pronounce on a matter with its roots in Zimbabwe. The other instance – Government of the Republic of Zimbabwe v Fick – where Zimbabwe preferred to ignore a ruling by the SADC Tribunal, also made headlines. Whatever the political significance of the judgments and their specific relevance for human rights law, they deal with issues about the relationship between international law and national/domestic/country law that may have implications for regional integration and the development of ‘community law’ in the SACU and SADC regions.

To recap briefly: Fick was about the enforcement of a cost order by the now-suspended SADC Tribunal. The Tribunal Protocol required member states to take all steps necessary to give effect to such orders. Significantly, the Protocol was not ‘domesticated’ or made part of South African law. South Africa had not taken any steps to provide for the enforcement of Tribunal orders either. This did not deter the Gauteng High Court, the Supreme Court of Appeal as well as the Constitutional Court from ruling that an affected individual had a right to have the order enforced. In this case, the court developed the South African common law, as it is entitled to do in terms of the Constitution, to allow enforcement of the order.

In Commissioner of SAPS the essential question was whether the South African authorities were under a duty to investigate claims of torture in a foreign country, in this event neighbouring Zimbabwe. Unlike Fick, the applicable legal rules in this case were part of South African law, either by way of ‘domestication’ of the international agreement concerned or as customary international law. As in Fick, the Constitutional Court confirmed the ruling of both the High Court and the Supreme Court of Appeal and found that South Africa had to investigate the claims.

Importantly, in both cases the Court relied squarely on its 2011 ruling in Glenister v President of the Republic of South Africa to emphasise the special place of international law in the South African legal order. In Glenister the Constitutional Court used non-domesticated international agreements, including the SADC Protocol Against Corruption, as aids in determining the required independence of the investigating unit for fighting corruption and organised crime (colloquially known as the Hawks). In 2013 Glenister prompted Gerhard Erasmus to ask: ‘Has the South African Constitutional Court chartered a new approach and could regional integration benefit?’* The answer was bound to be tentative, because Glenister, like Fick and Commissioner of SAPS, was not about trade. Yet, his analysis of Glenister led him to the conclusion that Glenister created the possibility for debate on the domestic status of regional integration agreements (like the SACU agreement and the SADC Treaty).

Did Fick and Commissioner of SAPS take the debate any further? At first blush, not much. Upon reflection, there are points to ponder:

  • The way in which the Constitutional Court persists with the infusion of international law into its jurisprudence further opens the door of opportunity. Almost by the nature of things, human rights will feature in the courts more frequently than matters of international trade. This does not mean that the principles enunciated by the courts must be confined to human rights law.

  • Glenister is an example in point and so are Fick and Commissioner of SAPS. In the case of Fick, the ruling of the court that the order of an international tribunal may be enforced in South Africa will apply to trade rulings as much as to any other. The manner in which the court in Commissioner of SAPS confirmed the ‘special place’ of international law in South African law strengthens the foundations upon which international law can be invoked in litigation. (It is noteworthy that the Constitutional Court relied on a trade-related judgment of the Supreme Court of Appeal in support of its re-statement of section 233 of the Constitution that legislation must be interpreted in the light of non-domesticated international law that is binding on the Republic: Progress Office Machines CC v SA Revenue Service [2007] ZASCA 118).

  • In any event, constitutionally guaranteed fundamental rights in South Africa – and other SACU/SADC countries – go beyond traditional rights like equality, life, dignity, fair trial and similar ‘personal’ rights. The fundamental right of access to information, to just administrative action, to a sustainable environment or of access to court may well somewhere connect to issues of trade.

  • As things stand, especially after Commissioner of SAPS, it is clear that customary international law (which does not figure prominently if at all in trade law) and directly incorporated treaties will trump a defence of non-applicability in South Africa. The problems arise around non-domesticated agreements or legislation that was passed in order to give effect to obligations imposed by international agreements. Examples of the former are the SACU Agreement and the SADC Treaty; the International Trade Administration Act and customs legislation are examples of the latter. To what extent, for example, can the SACU Agreement be used in a South African court – or one of the other SACU country courts – to assist in the interpretation of domestic legislation? The issue was recently raised in a Namibian case but the court did not find it necessary to base its decision on the point (Matador Enterprises v Minister of Trade and Industry [2014] NAHCMD 156).

  • The point goes a step further: In South Africa, as reiterated in Commissioner of SAPS, courts will have to ensure that they interpret legislation in harmony with applicable non-domesticated international law. The process of interpretation does not begin with the courts, though. Every official involved in the implementation of legislation must find the meaning of the particular law. It follows logically that such official must also look for an interpretation that is consistent with international law. The implication is that, already at the point of decision-making, relevant international law – like regional trade agreements – must be considered in exercising a discretion. Thus: in the performance of statutory functions, does applicable international law become a so-called jurisdictional fact that, when not taken into account, may lead to review by a court?

All these considerations may be more or less valuable in the promotion of a rules-based, integrated regional trade regime. The hard truth remains that it would have been much easier if the members of the regional organisations concerned, specifically SACU and SADC, gave more serious effect to the obligations that they have voluntarily accepted. One should not judge too harshly: in some instances member states do take steps in their domestic systems to fulfil their obligations, but in many instances other matters appear to be more pressing. This is particularly true with regard to dispute settlement, which in both SACU and SADC is not even a shadow of the East African Court of Justice, for example.

The final question is: do the developments in South African law with regard to the enforcement of international agreements bode well for regional integration? The answer can be yes and no. If the international law-friendly attitude of the South African judiciary is perceived in a negative light by other members of the customs or regional communities, their courts and bureaucracies may be less willing than otherwise to follow the example (it is not unusual for courts in the Southern African region to refer to South African jurisprudence). However, with regard to international law, South Africa is exceptional in the sense that its constitution explicitly commits itself to international law in a number of ways. Apart from Namibia, with a single yet powerful statement on international law, none of the other SACU member constitutions refer to international law. In principle, however, nothing prevents any of them from taking a cue from South Africa. The result may be a fresh debate about the differences, but also about the common dreams so eloquently expressed in the preambles of SACU and SADC.

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* ‘The domestic status of international agreements: has the South African Constitutional Court chartered a new approach and could regional integration benefit?’ in Du Pisani, Erasmus & Hartzenberg (eds) Monitoring regional integration in Southern Africa Yearbook 2012 tralac (2013) (also available at http://www.tralac.org/publications/article/4655-monitoring-regional-integration-in-southern-africa-yearbook-2012.html).

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