At the dawn of democratic rule in the period 1994–1998, South Africa concluded 15 bilateral investment treaties (BITs), mostly with European nations. Some of these treaties were concluded before the Constitution of 1996. The country has since concluded a total of 47 BITs, with the majority not in effect as they were not ratified per the required constitutional processes. The policy decision to enter into BITs was taken by the African National Congress (ANC) government, led by the late former state president Nelson Mandela. The BITs were seen as an important guarantee to attract foreign investment into the country. The aim was to provide added assurance that foreign investments were safe in a democratic South Africa after many years of international isolation and sanctions. The conventional wisdom at the time was that BITs would increase foreign investor appetite to invest and the country would experience rising levels of foreign direct investment (FDI) as a result. This would facilitate economic growth and the transition of the country into the global economy. South Africa concluded BITs with seven of the top ten investor countries. In October 2013 the South African government cancelled a number of BITs with these European countries invested in South Africa. These countries – namely Belgium, Luxembourg, Spain, Switzerland, Germany and the Netherlands – complained of lack of consultation by the South Africans. On 1 November 2013 the Minister of Trade and Industry published, in Government Gazette No 36995, the Promotion and Protection of Investment Bill (PPIB or Investments Bill) as the proposed primary legislative instrument for the protection of foreign investments. This created much uncertainty among many European nations as well as in the United States of America (US), who were concerned about the motivation for cancelling bilateral treaties in favour of domestic legislation. BITs had been a part of the policy instruments regulating foreign investments in the country for over 20 years. Globally these treaties have been used to regulate foreign investments in a number of areas, and to provide protection to investments such as full protection and security, guaranteed pre-establishment rights, ease of repatriation of funds, most-favoured nation, fair and equitable treatment, national treatment and efficient dispute settlement mechanisms, among other provisions. In most cases international arbitration via the International Centre for the Settlement of Investment Disputes (ICSID) and other international arbitral mediums has been a standard provision in the treaties. This has allowed foreign investors to bypass host countries’ legal systems. The latter is believed to be a significant inducement for foreign investors, guaranteeing that should a dispute arise, or if an expropriation occurs, the investor could institute an international arbitral process against the host government. International arbitration is preferred by foreign investors for the reason that, in some cases, domestic courts may lack independence from the state, and may make partial rulings that do not protect investors. Furthermore, international arbitration processes are more efficient and produce rulings faster than domestic courts, which are usually burdened with bureaucratic procedures and limited resources. In cases where delay exacerbates injury, prompt resolution of disputes is preferable. This study evaluates the Investments Bill and the rationale applied by the government of South Africa to cancel BITs with major trade and investment partners in favour of this legislation. The thesis focuses on the Investments Bill, in light of the objective provided by the Department of Trade and Industry (DTI) for its enactment to law. The Investments Bill is subjected to a constitutional analysis to determine its compliance therewith. Comparisons are also made between the Investments Bill provisions and the prevailing international law principles on foreign investments. The Investments Bill is then critically evaluated against emerging trends on FDI regulation on the African continent to determine its congruence or lack thereof with best practice recommendations at regional economic community (REC) and African Union (AU) level. The thesis concludes with a set of policy recommendations to the DTI on how to improve South African policies related to the regulation of foreign investments taking into account the national imperative as well as Southern African Development Community (SADC) and other broader African continental objectives of harmonisation of FDI regulation, including the Tripartite Free Trade Area (FTA) implementation. The timing of this thesis is significant for South Africa. It adds to various deliberations that are taking place as the Investments Bill is set to makes its way through the legislative approval processes in 2015. The Bill has been met with opposition from some segments of society. Others have expressed support – including several state departments, the ANC, the South African Communist Party (SACP) and other political formations. The summary of findings contained in the thesis will be presented to the DTI to influence policy directions of the state in terms of foreign investment regulations. Should the Bill be enacted, the Minister of Trade and Industry is required to promulgate the dispute resolution mechanism that will govern investment disputes. The findings of this study will be important to the determination of how such dispute resolution mechanisms may function. Furthermore, in 2010 Cabinet instructed the DTI to develop a model new-generation BIT Template to be utilised by South Africa, should a compelling reason arise to enter into bilateral agreements. The research results will assist policy-makers to develop policies that are consistent with and align with the overarching Africa strategy that has been heavily promoted by South Africa. The country faces a number of challenges, particularly those related to low economic growth, high levels of poverty, unemployment and record levels of inequality. The gap between the rich and poor, in terms of the Gini coefficient, was 0,67 based on the World Bank Development Research Group Report of 2010. It is reported as one of the highest in the world and is believed to have worsened since the dawn of democracy. / Public, Constitutional and International Law / LL. D. (Public, Constitutional and International Law)

The Southern African Development Community Tribunal (the Tribunal) is the only judicial organ of the Southern African Development Community (the SADC). Its mandate includes ensuring “adherence to and the proper interpretation of the provisions of the Southern African Development Community Treaty” (the Treaty). The decisions of the Tribunal are final and binding in the territories of member states party to a dispute before it. The responsibility to ensure that the decisions of the Tribunal are enforced lies with the Southern African Development Community Summit (the Summit). The Summit is the supreme policy-making body of the SADC. It comprises the Heads of State or Government of all SADC member states. The decisions of the Summit are binding on all member states and, upon referral from the Tribunal, it has the power to take appropriate action against a member state who refuses to honour a decision of the Tribunal. The Tribunal was established primarily to deal with disputes emanating from the SADC’s economic and political units and not with human rights. A dispute concerning allegations of human rights violations in Zimbabwe was brought before the Tribunal by farmers affected by the country’s land-reform policy. The Tribunal, through reliance on the doctrine of implied powers, and the principles and objectives of the SADC as contained in the Treaty, extended its jurisdiction. In particular, the Tribunal found that it had jurisdiction to hear cases involving human rights violations and that there had indeed been human rights violations in the case before it. It consequently ruled against Zimbabwe. This decision has been welcomed by many within the SADC region as showing the Tribunal’s commitment to interpreting the Treaty in a way that does not run counter the rights of SADC citizens. However, the Tribunal’s decision has met with resistance from Zimbabwe and has not been implemented on the ground, inter alia, that the Tribunal acted beyond its mandate. The Tribunal has on several occasions referred cases of non-compliance to the Summit for appropriate action against Zimbabwe. The Summit, however, has done nothing concrete to ensure that the Tribunal’s decisions are enforced in Zimbabwe. Instead, in an unexpected move that sent shockwaves through the SADC region and beyond, the Summit suspended the Tribunal and resolved that it should neither receive nor adjudicate any cases. During the SADC summit in August 2014, a Protocol on the Tribunal in the Southern African Development Community was adopted and signed (the 2014 Protocol). In terms of this Protocol the iii jurisdiction of the (new) Tribunal will be limited to inter-state disputes. Unfortunately, it also does not provide any transitional measures to address issues such as the manner to deal with pending cases and the enforcement of judgments. When it comes to the execution and enforcement of judgments, it can be argued that the 2014 Protocol is largely a replica of the original 2000 Tribunal Protocol. The reason for this is that the envisaged mechanisms to enforce the decisions of the new Tribunal is to a large extent similar to the previous one. Unsatisfied over the non-compliance with the decision by Zimbabwe, the litigants approached the South African courts to enforce the Tribunal’s decision in South Africa.1 The South African courts found that South Africa is obliged under the SADC Treaty to take all the necessary measures to ensure that the decisions of the Tribunal are enforced, and ruled against Zimbabwe. However, the decision is yet to be enforced. The non-compliance with the judgments and a lack of mechanisms to enforce the decisions of the Tribunal, are crucial issues as they undermine the authority of the Tribunal. This thesis explores whether the Tribunal acted within its mandate in receiving and hearing a human rights case. It further considers whether, in the absence of a human rights mandate, the Tribunal enjoys implied powers under international law to invoke the powers necessary for the fulfilment of the objectives set out in the Treaty. It also reviews the concept of state sovereignty and the extent to which it has been affected by human rights norms post-World War II; regionalism; and globalisation. An important aspect examined, is the relationship between SADC Community law and the national law of member states. The relationship between national courts and the Tribunal also receives attention. Ultimately, the discourse addresses compliance and enforcement of the Tribunal’s decisions in the context of international law. To the extent relevant, I draw on other regional (the European Court of Justice) and sub-regional (the ECOWAS Community Court of Justice, and the East African Court of Justice) courts to establish how they have dealt with human rights jurisdiction and the enforcement of their judgments. / Jurisprudence / LL. D.

The Southern African Development Community (SADC) is a regional economic community established by Treaty in 1992 and comprising fifteen southern African countries. The Tribunal, SADC’s judicial organ, is situated in Windhoek, Namibia and became operational in 2005. The Tribunal enjoys a wide mandate to hear and determine disputes between states, states and SADC, and between natural and legal persons and states or SADC. It is mandated to develop its own jurisprudence having regard to applicable treaties, general rules and principles of public international law, and principles and rules of law of member states. Being new in the field, the Tribunal has not as yet developed a significant jurisprudence although it has delivered a number of judgments some of which are referred to in the study. The Tribunal is expected to develop its own jurisprudence having regard to the jurisprudence developed by other international courts involved in the judicial settlement of disputes. The study offers a comparative review and analysis of the jurisprudence of two selected courts: the International Court of Justice (ICJ) and the Court of Justice of the European Union (ECJ). The focus is on four selected areas considered crucial to the functioning of the Tribunal and the selected courts. The study discusses the parties with access to the Tribunal and compares this with access to the ICJ and ECJ. The jurisdiction of the Tribunal is contrasted with that of the two selected courts. The sources of law available to the Tribunal are discussed and contrasted to those of the two courts. Lastly, the enforcement of law in SADC is contrasted to what applies in relation to the selected courts. In each selected area, similarities and differences between the Tribunal and the two courts are noted and critically evaluated. Further, rules and principles developed by the two selected courts are explored in depth with a view to identifying those which could be of use to the Tribunal. Recommendations are made on rules and principles which could be of use to the Tribunal and on possible improvements to the SADC treaty regime. / Constitutional, International and Indigenous Law / LL.D.

The Southern African Development Community (SADC) is a regional economic community established by Treaty in 1992 and comprising fifteen southern African countries. The Tribunal, SADC’s judicial organ, is situated in Windhoek, Namibia and became operational in 2005. The Tribunal enjoys a wide mandate to hear and determine disputes between states, states and SADC, and between natural and legal persons and states or SADC. It is mandated to develop its own jurisprudence having regard to applicable treaties, general rules and principles of public international law, and principles and rules of law of member states. Being new in the field, the Tribunal has not as yet developed a significant jurisprudence although it has delivered a number of judgments some of which are referred to in the study. The Tribunal is expected to develop its own jurisprudence having regard to the jurisprudence developed by other international courts involved in the judicial settlement of disputes. The study offers a comparative review and analysis of the jurisprudence of two selected courts: the International Court of Justice (ICJ) and the Court of Justice of the European Union (ECJ). The focus is on four selected areas considered crucial to the functioning of the Tribunal and the selected courts. The study discusses the parties with access to the Tribunal and compares this with access to the ICJ and ECJ. The jurisdiction of the Tribunal is contrasted with that of the two selected courts. The sources of law available to the Tribunal are discussed and contrasted to those of the two courts. Lastly, the enforcement of law in SADC is contrasted to what applies in relation to the selected courts. In each selected area, similarities and differences between the Tribunal and the two courts are noted and critically evaluated. Further, rules and principles developed by the two selected courts are explored in depth with a view to identifying those which could be of use to the Tribunal. Recommendations are made on rules and principles which could be of use to the Tribunal and on possible improvements to the SADC treaty regime. / Constitutional, International and Indigenous Law / LL.D.