Legal analysis of the challenges and prospects of the SADC Tribunal

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dc.contributor.advisorScholtz, Werneren_ZA
dc.contributor.authorMajatame, Jamesen_ZA
dc.date.accessioned2015-05-27T04:07:27Z
dc.date.available2015-05-27T04:07:27Z
dc.date.issued2014en_ZA
dc.descriptionIncludes bibliographical references.en_ZA
dc.description.abstractThe 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.en_ZA
dc.identifier.apacitationMajatame, J. (2014). <i>Legal analysis of the challenges and prospects of the SADC Tribunal</i>. (Thesis). University of Cape Town ,Faculty of Law ,Department of Commercial Law. Retrieved from http://hdl.handle.net/11427/12906en_ZA
dc.identifier.chicagocitationMajatame, James. <i>"Legal analysis of the challenges and prospects of the SADC Tribunal."</i> Thesis., University of Cape Town ,Faculty of Law ,Department of Commercial Law, 2014. http://hdl.handle.net/11427/12906en_ZA
dc.identifier.citationMajatame, J. 2014. Legal analysis of the challenges and prospects of the SADC Tribunal. University of Cape Town.en_ZA
dc.identifier.ris TY - Thesis / Dissertation AU - Majatame, James AB - 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. DA - 2014 DB - OpenUCT DP - University of Cape Town LK - https://open.uct.ac.za PB - University of Cape Town PY - 2014 T1 - Legal analysis of the challenges and prospects of the SADC Tribunal TI - Legal analysis of the challenges and prospects of the SADC Tribunal UR - http://hdl.handle.net/11427/12906 ER - en_ZA
dc.identifier.urihttp://hdl.handle.net/11427/12906
dc.identifier.vancouvercitationMajatame J. Legal analysis of the challenges and prospects of the SADC Tribunal. [Thesis]. University of Cape Town ,Faculty of Law ,Department of Commercial Law, 2014 [cited yyyy month dd]. Available from: http://hdl.handle.net/11427/12906en_ZA
dc.language.isoengen_ZA
dc.publisher.departmentDepartment of Commercial Lawen_ZA
dc.publisher.facultyFaculty of Lawen_ZA
dc.publisher.institutionUniversity of Cape Town
dc.subject.otherInternational Trade Lawen_ZA
dc.titleLegal analysis of the challenges and prospects of the SADC Tribunalen_ZA
dc.typeMaster Thesis
dc.type.qualificationlevelMasters
dc.type.qualificationnameLLMen_ZA
uct.type.filetypeText
uct.type.filetypeImage
uct.type.publicationResearchen_ZA
uct.type.resourceThesisen_ZA
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