Neels Blom Writer at large
Presidents Robert Mugabe and Jacob Zuma at the 30th SADC summit in Namibia in 2010. The 2014 Protocol which Zuma signed on the Sadc Tribunal was championed by Mugabe. Yolande Snyman
Presidents Robert Mugabe and Jacob Zuma at the 30th SADC summit in Namibia in 2010. The 2014 Protocol which Zuma signed on the Sadc Tribunal was championed by Mugabe. Yolande Snyman

The Constitutional Court will hear an appeal by the state on Thursday, in which it seeks to overturn a high court ruling that declared former president Jacob Zuma’s participation in the suspension of the operations of the Southern African Development Community (Sadc) Tribunal "unlawful, irrational and unconstitutional".

The Sadc Tribunal was established to promote democracy, human rights and the rule of law, and resolve interstate disputes and those between states and individuals. SA has signed the Sadc treaty and protocols that bind it to the tribunal’s decisions.

The tribunal held that the Zimbabwean government’s policy of land reform was unlawful and ordered the Zimbabwean government to protect farms that had not been dispossessed and to pay compensation for farms that had already been dispossessed. The government failed to comply with this order.

IN 2014, ZUMA SIGNED A PROTOCOL … WHICH PRECLUDED INDIVIDUALS FROM LODGING COMPLAINTS WITH THE TRIBUNAL

In response, the Sadc summit in 2010 discussed Zimbabwe’s noncompliance and decided to suspend the operation of the tribunal — a decision supported by Zuma. This decision was made in conflict with the findings of a review conducted by the ministers of justice and attorneys-general in Sadc countries that confirmed the validity of the 2000 Protocol and that the tribunal was "properly constituted".

In 2014, Zuma signed a protocol that was championed by former Zimbabwean president Robert Mugabe, which effectively precluded individuals from lodging complaints with the tribunal, thereby limiting its jurisdiction to interstate disputes.

The high court declared the president’s participation in the suspension of the operations of the tribunal irrational and unconstitutional. Zuma was also ordered to bear all the applicants’ legal costs.

The 2015 application was brought by the Law Society of SA and supported by lobby group AfriForum.

In March 2018, the Law Society sought declaratory relief from the Pretoria high court in respect of the SA government to support a resolution to suspend the operation of the Sadc Tribunal in 2011.

MLAMBO SAID ZUMA’S SIGNATURE ON THE 2014 PROT OCOL DETRACTED FROM SADC’S STATURE

In this ruling, judge president Dunstan Mlambo said Zuma’s signature on the 2014 Protocol detracted from Sadc’s stature and had violated the organisation’s founding treaty.

The applicants now seek an order to direct President Cyril Ramaphosa to withdraw the signing of the 2014 Protocol.

In an explanatory note, the Constitutional Court said the state did not oppose the order declaring Zuma’s participation in the Sadc summit’s suspension of the tribunal unconstitutional. It was, however, appealing against the declaration of invalidity of Zuma’s signing of the 2014 Protocol — based on the fact that the signature did not bind SA and that it had no effect on whether the protocol would come into force.

The state was arguing that the challenge to the signature was premature and that the signature did not violate the Sadc Treaty or other Sadc protocols, the note said. Zuma’s action was not purposeless, irrational or in bad faith, it said. "The state therefore seeks to have the order of invalidity relating to the signature reversed," it said.

blomn@businesslive.co.za