The hearing went extremely well. We were before three High Court Judges, including the Judge President. Our advocate, Jeremy Gauntlett QC SC, gave the main argument. There were also three other advocates arguing against President Zuma. They were acting for the Law Society of South Africa, who initiated the case, and other human rights organisations. Another advocate argued for President Zuma.
It was argued that President Zuma, by signing the Protocol which took away the rights of Southern African Development Community (SADC) citizens to go to the SADC Tribunal on human rights issues, was not acting consistently with his constitutional duties.
Advocate Gauntlett said that the President carries with him the Constitution of South Africa at all times. Conduct inconsistent with the Constitution was invalid.
He also argued that the SADC Tribunal’s existence was an integral part of the SADC Treaty.
He went on to say that President Zuma acted in an irrational manner by not then going through the necessary steps to ratify his action through Parliament – and that there was no legitimate government objective in President Zuma’s action.
It was argued that President Zuma’s signature – in removing access to the Tribunal for individual SADC citizens – ignored the vested rights of the 277 million citizens and was done in bad faith.
It was pointed out that President Zuma had ignored the SADC Ministers of Justice and Attorneys-General recommendations, as well as the World Trade Institute Advisors (WTIA) report.
Instead of taking steps against the perpetrator (Zimbabwe) he had taken steps against both the Judges and the victims of the perpetrator.
Advocate Gauntlett said “it was the jewel in the crown; the engine; the heart beat of the Tribunal to deal with human rights issues.”
When SADC created the Tribunal, which was officially established in August 2005, it was created for human rights. This was the heart of it. There was also a Constitutional obligation to protect and advance human rights.
There was no explanation as to why the compensation case of Zimbabwean farmers Jarrett et al had not been allowed to continue. Zimbabwe violated the SADC Treaty so it is irrational that that this should not have been addressed. The closing of courts is contrary to international law and the SADC Treaty.
President Zuma operated at the highest level and had a Constitutional obligation to protect and advance human rights but did the opposite, also failing in his democratic obligations for a participatory process in lawmaking.
If you take courts away, it is also contrary to the Constitution.
It was confirmed that Constitutional obligations are not trumped by comity (the need to act together with other states like Zimbabwe).
All arguments went well and they were completed in a single day, with excellent engagement from the Judges. We should be given a judgment in the next three weeks.
Many thanks again for your prayers and thank you to our amazing legal team, especially advocates Willie Spies, Jeremy Gauntlett and Frank Pelser.Post published in: Featured