In December 2018, the South African Constitutional Court ruled that the participation of the South African President in the decision to abolish the Southern African Development Community (SADC) Tribunal was unconstitutional, unlawful and irrational. The same finding applies to his signature of the subsequent SADC Protocol which provides for a new Tribunal, but without the power to hear individual applications.

This working paper discusses the judgement by the South African Constitutional Court regarding South Africa’s involvement in the process resulting in the demise of the original SADC Tribunal, as well as some of the implications.

The most immediate challenge with regard to bringing SADC closer to a rules-based arrangement lies with the Member States. They should comply with the obligations accepted as part of SADC membership. Dispute settlement should be practised; it is not an offence to the dignity of another sovereign state. It is, in fact, a confirmation of sovereignty to honour international legal obligations freely entered into.

A fundamental question confronts sovereign states when they enter into regional integration arrangements: How far are they prepared to travel on the road of integration? There should be legal certainty regarding the scope and depth of their undertaking, the implementation of obligations, and the relationship between regional and domestic legal spheres. SADC has not addressed these basic issues with sufficient precision.

The judgment by the South African Constitutional Court can also be viewed as an indictment of SADC. Some SADC citizens have decided to take recourse to domestic courts. In SADC this is an unconventional step. Hopefully it will inspire a new and inclusive discourse about SADC and its operations.

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