Executing Judgments of the SADC Tribunal Rendered Under its Human Rights-Related Jurisdiction by Utilising the Foreign Judgments (Registration and Enforcement) Procedure: Prospects and Challenges

Abstract

This article interrogates the unprecedented step taken by the SADC to utilise the procedure used for the registration of foreign judgments in order to make judgments of the SADC Tribunal enforceable at national level. The author of this article argues that the SADC Tribunal enforcement mechanism stands out as a first in international litigation where an inter-governmental organisation has adopted a specific avenue through which judgments should be enforced at national level. This is so given that the default rule is that judgments of an international tribunal are not executable at national level unless the domestic law of a given state so provides. This article goes further to assess whether the law of the SADC member states as it stands at the time of writing is ready to recognise and therefore, receive judgments of the SADC Tribunal for enforcement. The work is also an attempt to utilise private international law principles to address challenges in the domain of public international law-human rights. The author concludes that there are mixed results regarding this possibility. The SADC Tribunal and its judgments satisfy some but not all of the requirements that have to be met in order for a foreign judgment to be registered for enforcement. So fundamental are the deficiencies such that the author recommends, among other things, the adoption of a harmonised law at SADC level in order to bring the domestic legal states of the SADC member states to the expectations of SADC Community law on enforcement of judgments. These conclusions are arrived at fully recognising the fact that the use of the foreign judgments procedure is simply one of the many ways through which judgments of the SADC Tribunal could be enforced at national level.