The Direct Applicability of SADC Community Law in South Africa and Zimbabwe: A Call for Supranationality and the Uniform Application of SADC Community Law

  • Tshidi Phooko University of South Africa
Keywords: SADC Tribunal, SADC Community Law, direct applicability, supranationality

Abstract

The Southern African Development Community Tribunal (SADC Tribunal) became operational in 1992 and delivered several judgments against Zimbabwe. Some of those decisions are yet to be enforced. The attempt to enforce them contributed to the demise of the SADC Tribunal. The tension between community law and domestic law, international law and national law, and community law and international law is as old as the hills. The monist and dualist theories of international law assist in attempting to clarify the nature of the relationship between international law and municipal law. However, there is no guidance when it comes to community law and national law. This paper will explore on how SADC Community law can be applied uniformly by South Africa and Zimbabwe including all other SADC member states. This will be done through decided cases with specific reference to South Africa and Zimbabwe. In order to learn best practices from other jurisdictions, the paper will to the extent relevant, make reference to the East African Court of Justice, the European Union (EU) and the European Court of Justice (ECJ). The discourse will conclude by making a proposal for the adoption of a revised Protocol on the SADC Tribunal that will assist in clarifying the nature of the relationship between SADC Community law and national laws of SADC member states.

Author Biography

Tshidi Phooko, University of South Africa
Senior Lecture, Department of Jurisprudence

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Published
2018-03-27
Section
Articles