Revisiting the Monism and Dualism Dichotomy: What does the South African Constitution of 1996 and the Practice by the Courts tell us about the Reception of SADC Community Law (Treaty Law) in South Africa?

Abstract

The jurisprudence of the (suspended) SADC Tribunal shows that the Tribunal was prepared to utilise the principles of democracy, human rights and the rule of law contained in the Treaty of the Southern African Development Community (SADC Treaty) to ensure that SADC member states fulfil their treaty obligations. The decisions rendered by the SADC Tribunal and the participation of the South African former President in a process that halted the functioning of the Tribunal have brought interesting legal developments in the South African legal system in so far as the reception and application of SADC community law in South African municipal law is concerned. The argument presented in this article is that the recent seemingly monist approach by the courts represents a major shift from a prescribed procedure provided for in the Constitution of South Africa, 1996 (the Constitution). The practice by the courts further ignores the dualist nature of South Africa's legal system. The main question presented in this discourse is whether a departure by the courts from a constitutionally mandated procedure of domesticating SADC community law into municipal law signifies a new and settled norm which entails that South Africa now follows a hybrid system (i.e. monism and dualism) of treaty incorporation? In light of this possible legal uncertainty, I propose that South Africa adopts a harmonisation theory to address the legal gap created by the courts.