Braamfontein encroaching? An internationalist reading of the South African Constitutional Court judgment on the SADC Tribunal

Abstract

On 11 December 2018, the Constitutional Court of South Africa ruled that the President’s signature to the 2014 Protocol concerning the Southern African Development Community (SADC) Tribunal, which limits the authority of the SADC Tribunal, must be withdrawn. As the Court ventured outside the bounds of domestic law in the case, this paper reads those arguments of the Court grounded in international law from an international law perspective. In doing so, we explore the implications, contributions, and dangers that such jurisprudence might entail for general international law, and the SADC legal regime. We ask a number of questions. Is this a domestic court encroaching on international law? What are the consequences of such a move from an international law perspective? And, what does this imply for the future of the SADC Tribunal, and the functioning of this international organisation in general? Through this internationalist reading of the case, we demonstrate how the Constitutional Court’s use of international law has endangered its own decision, as its positions are not defendable within the discipline of public international law. Therefore, while we agree with the overall outcome of the case, we argue that the Constitutional Court has strewn its own path with unnecessary obstacles and traps.