International law, access to courts and non-retrogression : Law Society v President of the Republic of South Africa

Abstract

In 2014, the President of the Republic of South Africa signed a Protocol to the SADC Tribunal aimed at stripping the Tribunal of its jurisdiction to hear matters brought by individuals. This followed the President's 2010 decision not to reappoint judges to the SADC Tribunal, rendering it inoperative. In Law Society v President of the Republic of South Africa, the Constitutional Court considered an application for confirmation of the High Court's order declaring these two acts unconstitutional. The Court held that the President's conduct was irrational, unlawful and unconstitutional on three grounds. I focus particularly on the ground that the President's conduct violated or threatened to violate the Bill of Rights. The right of access to justice is guaranteed through the right of access to courts under s 34 and the right to the enforcement of the Bill of Rights under s 38 of the Constitution. In Law Society, the Court interpreted s 34 expansively, extending the domestic right of access to courts to international tribunals. The Court held that the Bill of Rights guarantees the right to access the SADC Tribunal (subject to the Tribunal's jurisdictional pre-requisites). The President was held to have breached his s 7(2) duty to respect, protect, promote and fulfil the right. The reasoning is sparse, leaving several unanswered questions. While agreeing with the overall outcome, I argue that the Court should have properly applied the constitutional scheme detailing the relationship between international and domestic law. The Court could have justified the outcome in one of two ways: either through a finding that the relevant provisions of the SADC Treaty and Protocol were self-executing (directly applicable) under s 231(4); or by applying international law indirectly in terms of s 39(1)(b) of the Constitution when interpreting the right in s 34. It did neither, seemingly applying international law directly but without explaining the basis for its approach. Further, in applying the principle of non-retrogression without clarifying its scope, content and limits, the Court missed an opportunity to illustrate to which international courts the right of access to courts applies and when (if ever) the state may take away existing access to an international court aimed at protecting human rights. The Court's approach creates a risk of rendering the constitutional scheme redundant in service of outcome-oriented application of international law.