This Trade Brief examines an important amendment of the Southern African Development Community (SADC) Protocol on Trade that was approved at the 2016 SADC Summit. This amendment concerns an important provision that provides for “derogation” from tariff liberalisation commitments undertaken by Member States of the SADC Free Trade Area (FTA).

SADC is an inter-governmental organization consisting of fifteen Member States. The organization has its own legal personality, a permanent Secretariat in Gaborone, and sponsors an extensive regional integration agenda. One of SADC’s main activities centres around the implementation of the SADC FTA, based on the SADC Protocol on Trade. This instrument has not been implemented in a consistent and predictable manner. When it was originally adopted the intention was to provide for a transparent and predictable legal regime for trade in goods. However, there has never been a formal dispute between the Parties about any of the obligations, despite several complaints about violations. Private parties cannot protect their rights through judicial means.

This Protocol saw an important amendment recently; the implications of which are discussed in this paper. The aim is to gain a proper understanding of how the new “derogation” regime will function and whether more certainty and predictability regarding restrictive trade measures adopted by Member States can be expected.

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