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Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad

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The direct applicability of SADC Community Law in South Africa and Zimbabwe: A call for supranationality and the uniform application of SADC community law

Retselisitsoe Phooko

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. This was due to the existence of various approaches to the reception of community law into domestic law. The tension between community law and domestic law, international law and domestic 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, but there is no guidance when it comes to community law and national law. This paper will explore how the SADC Community law can be applied uniformly by South Africa, Zimbabwe and all other SADC member states. This will be done by looking at decided cases with specific reference to South Africa and Zimbabwe. In order to establish the best practices in other jurisdictions, reference will be made to the East African Court of Justice, the European Union (EU) and the European Court of Justice (ECJ). The discourse will conclude by advocating the adoption of a revised Protocol on the SADC Tribunal in order to clarify the nature of the relationship between the SADC Community law and the domestic laws of SADC member states.


Keywords: SADC Tribunal; SADC Community Law; direct applicability; supranationality.




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