NATIONAL ASSEMBLY AND THE NATIONAL COUNCIL OF PROVINCES

EXPLANATORY MEMORANDUM: RATIFICATION OF THE PROTOCOL ON THE
TRIBUNAL AND AGREEMENT AMENDING THE PROTOCOL IN THE
SOUTHERN AFRICAN DEVELOPMENT COMMUNITY (SADC)

1. PURPOSE

The purpose of this memorandum is to obtain Parliament's approval for the
Republic of South Africa to ratify the Protocol on the Tribunal and Agreement
amending the Protocol in the Southern African Development Community (the
Protocol) in terms of section 231(2) of the Constitution of the Republic of South
Africa, 1996 (Act 108 of 1996) (the Constitution).


2. THE OBJECT OF THE PROTOCOL

The object of the Protocol is to constitute the Tribunal.


3. SUMMARY

3.1 Article 9 of the Treaty Establishing the South African Development Development (SADC Treaty) establishes SADC institutions, one of which is the Tribunal.

3.2 In terms of article 16(1) of the SADC Treaty, "the Tribunal shall be constituted to ensure adherence to and proper interpretation of the provisions of this Treaty and subsidiary instruments and to adjudicate upon such disputes as may be referred to it".

3.3 Article 16(2) provides that "the composition, powers, functions, procedures and other related matters governing the Tribunal shall be prescribed in a Protocol adopted by Summit".

3.4 The SADC Legal Sector produced the Protocol which constitutes the Tribunal. The Protocol was signed by SADC Heads of State and Government at their


Summit in Windhoek, Namibia, on 7 August 2000. South Africa also signed the Protocol, which is now ready for ratification.

4. AGREEMENT AMENDING THE PROTOCOL

The object of the Agreement amending the Protocol is of a technical nature and is mainly to delete the words "States" and "State" and substituting it with the words ""Member States" and "Member State" respectively.

5. CONSTITUTIONAL IMPLICATIONS

The State Law Advisers and the International State Law Advisers indicated that no provision of the Protocol is in conflict with the domestic law of South Africa and international law respectively

6. DISCUSSION

A brief summary of the provisions of the Protocol is attached. In terms of article 23 of the Protocol, the rules annexed thereto form an integral part thereof.

7. PERSONNEL IMPLICATIONS

South African judges or judicial officers who wish to serve on the Tribunal on a full time basis have to vacate their offices since the Protocol provides that no full time member shall hold any office or employment. Therefore, the implication would be the replacement of such judges or judicial officers.

8. FINANCIAL IMPLICATIONS

There are no financial implications since the Tribunal will be funded from the regular budget of SADC.

9. RECOMMENDATION

It is recommended that Parliament approve that South Africa ratify the Protocol and Agreement amending to Protocol in terms of section 231(2) of the Constitution.
BRIEF SUMMARY OF THE IMPORTANT PROVISIONS OF THE PROTOCOL



Article 2. This article constitutes the Tribunal which is established in terms of article 9 of the Treaty.

Article 3 provides for the constitution of the Tribunal. The Tribunal shall consist of ten members - five of whom will be designated as regular members and the other five will constitute a pool from which the President of the Tribunal may invite a member to sit on the Tribunal in case of temporary absence of a regular member. The Tribunal shall be constituted by three (3) members, but the Tribunal may decide to constitute a full bench of five (5) members. The said ten members of the Tribunal shall be appointed from nationals of States who have the required qualifications or who are jurists of recognised competence.

Article 4 provides for the nomination, selection and appointment of members of the Tribunal. Each Member State may nominate a candidate for appointment as a member of the Tribunal. Members of the Tribunal shall be appointed by Summit upon recommendation by Council. Due consideration shall be given to fair gender representation in the nomination and appointment process.

Article 5 states that every member of the Tribunal shall make a solemn declaration in open session before assuming his or her duties.

Article 6 provides for a term of office for members of the Tribunal. Members shall be appointed for the term of five (5) years and may only be re-appointed for the further term of five (5) years. The Tribunal shall sit when required to consider a case, and no member shall be appointed on a full time basis. However, members of the Tribunal shall not hold any other office or employment.

Article 7 makes provision for the appointment of the President who will hold office for a period of three (3) years. Should the President not be available, members of the Tribunal shall elect an acting President.

Article 8 provides for the resignation by the President and members of the Tribunal.
However, members can only be dismissed in accordance with the rules of the Tribunal.
A member who has vacated office shall continue to hear and to complete his or her
part heard cases.

Article 9 provides for circumstances under which a member may be disqualified to hear a case or recuse himself/herself. Members shall not participate in any activities which might interfere with the proper exercise of their duties. A member shall not hear a case in which he or she previously participated as an agent, a representative, or an advisor or as a member of a Tribunal or in any other capacity.



Article 10 grants members of the Tribunal immunity from legal proceedings in respect of anything said or done by them in their judicial capacity, such immunity continues even after vacation of office by members of the Tribunal.

Article 11 empowers Council to determine terms and conditions of service, salaries and benefits of members of the Tribunal.

Article 12 provides for the appointment of the Registrar of the Tribunal and other staff.
Council shall determine terms and conditions of service, salaries and benefits of the
Registrar and other staff on recommendations of the Tribunal.

Article 13 provides that Council shall designate a place as seat of the Tribunal. However, the Tribunal may sit and exercise its functions anywhere within the Region if it considers it desirable.

Article 14 provides for matters over which the Tribunal shall have jurisdiction. Such matters should relate to the interpretation and application of the Treaty; interpretation, application and validity of protocols, subsidiary instruments and acts of the institutions of SADC and also matters specifically provided for in bilateral agreements which States might have concluded among themselves and which confer jurisdiction on the Tribunal.

Article 15 provides for the scope of jurisdiction of the Tribunal. The Tribunal shall have jurisdiction over disputes between States and between natural or legal persons and States. However, natural or legal persons may only approach the Tribunal after they have exhausted all available domestic remedies or if they are unable to proceed under their domestic jurisdiction. The consent of the other party when referring a matter to the Tribunal is not required.

Article 16 entitles the Tribunal to give preliminary rulings on proceedings which are pending in the courts of tribunals of States. However, the Tribunal does not have original jurisdiction on matters referred to it for preliminary ruling.

In terms of Article 17, the Tribunal shall, subject to Article 14, have exclusive jurisdiction over all disputes between States and the Community.

Article 18 extends the exclusive jurisdiction of the Tribunal, subject to Article 14, over all disputes between the natural or legal persons and the Community (SADC). The exclusive jurisdiction of the Tribunal also applies to disputes between the Community and its staff with regard to conditions of employment (Article 19).

In terms of Article 20, the Summit or the Council may request advisory opinions from the Tribunal.

In terms of Article 21, the Tribunal shall apply the Treaty, the Protocol and other Protocols that form part of the Treaty, all subsidiary instruments adopted by Summit, Council or other institution of the Community. The Tribunal shall develop its own jurisprudence and any rules and principles of the law of States.
Article 22 provides for the languages in which the Tribunal shall work, viz English, Portuguese and French. However, Council may decide that any other language be used by the Tribunal.

Article 23 provides that the Rules of Procedure of the Tribunal shall form part of the Protocol.

In terms of Article 24, decisions of the Tribunal shall be in writing and delivered in an open court, they shall be taken by a majority and they shall be final and binding.

Article 25 enables the Tribunal to give decisions in default on matters over which it has jurisdiction. Such a decision may be rescinded upon application to the Tribunal by a party against whom it was made.

In terms of Article 26, a party may make an application for review of a decision to the Tribunal on the basis of new facts which came to light and which might have an influence in the decision of the Tribunal.

In terms of Article 27, any party shall be legally represented before the Tribunal.

Article 28 provides that the Tribunal or the President may suspend proceedings before the Tribunal and make other interim measures if necessary.

Article 29 provides that each party shall be responsible for its, his or her own legal costs, unless the Tribunal otherwise decides.

In terms of Article 30, any party may apply to be joined as a party in the proceedings before the Tribunal.

In terms of Article 31, the rules of Procedure of the Tribunal may prescribe fees payable by parties other than States and granting of legal aid within the limits agreed to by the Community.

Article 32 provides that the law and rules of civil procedure for the registration and enforcement of foreign judgments applicable in a State in which the judgment is to be enforced, shall govern enforcement of judgements of the Tribunal. Member States arid the Community shall ensure that the measures are in place for the execution of decisions of the Tribunal. Should a state fail to comply with a decision, any party concerned may refer the matter to the Tribunal. Should the Tribunal be satisfied that there has been non-compliance, a report will be made to the Summit to take appropriate action.