Browsing by Author "Scholtz, Werner"

Now showing 1 - 2 of 2
  • Thumbnail Image
    Item
    Open Access
    Legal analysis of the challenges and prospects of the SADC Tribunal
    (2014) Majatame, James; Scholtz, Werner
    The primary purpose of the Tribunal is to ensure adherence to and the proper interpretation of the provisions of the SADC Treaty and its subsidiary instruments and to adjudicate upon such disputes as may be referred to it. It has been pronounced by the Treaty that the Protocol to the Tribunal is an integral part of the Treaty and this distinguishes the Tribunal as playing a significant role within the region. The basis of the Tribunal’s jurisdiction lies in both the Treaty and the Protocol respectively. Article 32 of the SADC Treaty permits reference to the SADC Tribunal of '…any dispute arising from the interpretation, application or validity of Protocols or other subsidiary instruments made under this Treaty, which cannot be settled amicably’. More so, Article 16(1) of the SADC Treaty states that the Tribunal shall be constituted to ensure observance of and the appropriate interpretation of the SADC Treaty and other subsidiary instruments and to decide upon such matters as may be referred to it. Furthermore, Article 14 of the SADC Tribunal Protocol gives the SADC Tribunal jurisdiction over 'all disputes and all applications referred to it in accordance with the Treaty and this Protocol which relate to various SADC instruments. In terms of Article 15 the Tribunal has jurisdiction over legal and natural persons and member states and Article 15(2) subsequently contains an exhaustion of local remedies rule, in regard to natural persons. The Tribunal also functions as a labour tribunal. More so, it has an appellate function in relation, for instance, to the trade panels established in terms of Article 31(b) of the SADC Protocol on Trade. The Tribunal also plays a role of advisory function as stipulated in Article 20 of the Tribunal Protocol. In more general terms it is conspicuous that the SADC Tribunal is expected to serve as a key institution in the SADC legal and institutional integration process. On the 18th of August 2005, The Summit of Heads of State which is the Supreme Policy Institution of SADC, pursuant to Article 4(4) of the Protocol on the Tribunal, appointed the members of the Tribunal during its Summit of Heads of State and Government held in Gaborone, Botswana.48 On 18 November 2005 the Tribunal was inaugurated and the judges were sworn in. The Tribunal received its first cases in 2007 among which most of them were related to labour disputes. The Campbell case was the first matter brought before the Tribunal which dealt with issues of human rights, democracy and the rule of law. The Tribunal ruled against Zimbabwe in this matter and ordered Zimbabwe to, among other things, compensate the applicants for their confiscated farms. Zimbabwe refused to comply with the decision of the Tribunal. The Tribunal referred the matter to the Summit of the Heads of States and Governments for them to impose appropriate sanctions on Zimbabwe. The summit responded by a de facto suspension of the Tribunal. The suspension of the Tribunal and the refusal of Zimbabwe to enforce the Tribunal decisions indicate that the Tribunal is plagued by various problems, especially in relation to the enforcement of its decisions. Nevertheless, it is clear that the Tribunal is pivotal for the pursuit of sub-regional integration of SADC members as it constitutes an integral part of the Treaty. Therefore, the de facto suspension of the Tribunal may have a negative effect on the goals of SADC to '…promote sustainable and equitable economic growth and socioeconomic development that will ensure poverty alleviation with the ultimate objective of its eradication, enhance the standard and quality of life of the people of Southern Africa and support the socially disadvantaged through regional integration.’ Hence, it is the primary objective of this dissertation to conduct an analysis of the various aspects of the Tribunal and its decision in the Campbell case in order to generate recommendations for the strengthening of this judicial institution of SADC pursuant to regional integration.
  • Thumbnail Image
    Item
    Open Access
    Legal analysis on the relationship between the AU/AEC and RECs : Africa lost in a "spaghetti bowl" of legal relations?
    (2014) Kolbeck, Barbara; Scholtz, Werner
    In Africa, the regional trade agreements (RTAs) are commonly known as regional economic communities (RECs). Currently, fourteen regional economic communities operate on the African continent. However, in the quest for a more systematic approach to promoting "a strong and united Africa", only eight RECs were officially recognised and designated to serve as the essential building blocks towards the formation of the African Economic Community (AEC). Africa's continental community AEC is envisioned as the overall objective of the African regional integration process in the Abuja Treaty. The concept of the pursuit of sustainable development through RECs is not doubted in Africa. The Abuja Treaty proposed a gradual step-by-step approach where RECs play an important role during the first stages, but then have to lead "somehow" to one big coherent continental regional economic organisation – the overall goal of the African Economic Community. Neither the Abuja Treaty nor the Constitutive Act of the African Union (CAAU) includes concise provisions on how to establish the continental AEC. The relations between the different integration players, such as the AU, AEC and RECs, that exist now or should exist in the near future, are not defined legally. Until these "relational issues" are resolved, it seems difficult and even impossible to accelerate Africa's economic integration on the way towards the AEC. Thus, it is crucial for an accelerated integration process to discuss the scarce existing legal framework with its significant lacunas and develop solutions that allow filling in the legal blanks through the adoption of new treaties and amendments as well as protocols. The African continent with its multiple and overlapping RECs still looks like a "spaghetti bowl" instead of a "cannelloni". Thus, the question of rationalisation is still without definite answer.