PRIMARY FUNCTION AND JURISDICTION

The Primary function of the Tribunal is to ensure the adherence to law in the interpretation and application of the Treaty. Its general jurisdiction is to adjudicate as well as to give advisory opinions upon all matters which may be referred to it under the Treaty and Protocols, all subsidiary instruments adopted within the framework of the community, acts of Institutions of the Community, and all matters specifically provided for in any other agreements that Member States may conclude amongst themselves or within the Community and which confer jurisdiction on the Tribunal. Such matters include those itemized and elaborated upon below:

PRELIMINARY RULINGS

The Tribunal has jurisdiction to give preliminary rulings in proceedings of any kind and between any parties, before the Courts or Tribunal of Member States. However, the Tribunal shall not have jurisdiction but may rule on a question of interpretation, application or validity of the provisions in issue if the question is referred to it by a court or Tribunal of a Member State for a preliminary ruling in accordance with the provisions of the Protocol on Tribunal and the Rules of Procedures thereof.

REFERENCES BY MEMBER STATES.

The Tribunal has power to hear a matter brought by Member States against one another and between natural or legal persons and Member States.

The Tribunal can however not hear a matter brought by a natural or legal person against -the Member State unless he or she has exhausted all available remedies or is unable to proceed under the domestic jurisdiction.

DISPUTES BETWEEN MEMBER STATES AND COMMUNITY

The Tribunal shall have exclusive jurisdiction over all disputes between the Member
States and the Community. Reference of such disputes to the Tribunal could be by the Member State concerned or by the competent institution or organ of the community.

DISPUTES BETWEEN NATURAL OR LEGAL PERSONS AND COMMUNITY

The Tribunal shall have exclusive jurisdiction over all disputes between natural or legal persons and the community. Reference of such disputes to the Tribunal may be by the natural or legal person concerned or by the competent institution or organ of the community.

DISPUTES BETWEEN COMMUNITY AND STAFF.

The Tribunal also has exclusive jurisdiction to hear disputes between the community and its staff (employees) that arise from the application and interpretation of the staff rules and regulations of the Secretariat or the Terms and Conditions of employment of the staff (employees).

POWER TO GIVE ADVISORY OPINIONS

The Tribunal further has power to give advisory opinions at the request by the Summit or by the Council.

APPLICABLE LAW

The Tribunal shall apply the Treaty, this Protocol and other Protocols that form part of the Treaty, all subsidiary instruments adopted by the Summit, by the Council or by any other institution or organ of the community pursuant to the Treaty or Protocols, and develop its own community jurisprudence having regard to applicable Treaties, general principles and Rules of Public international law and any rules and principles of the law of Member States.

DECISIONS OF THE TRIBUNAL

The Tribunal shall deliver its decisions in writing and pronounced in open court and must deliver a reasoned judgment which, subject to the provisions of the rules as to review, shall be final and binding. The Tribunal shall also deliver rulings. Decisions of the Tribunal shall be taken by a majority.

ENFORCEMENT AND EXECUTION

The enforcement of a decision of the Tribunal shall be governed by the law and rules of civil procedure for the registration and enforcement of foreign judgments inforce in the territory of the Member State in which the judgement is to be enforced.

Member States and Institutions of the community shall take forthwith all measures necessary to ensure execution of decisions of the Tribunal.

Any failure by a Member State to comply with a decisions of the Tribunal may be referred to the Tribunal by any party concerned and if the Tribunal establishes the existence of such failure, it shall report its findings to the Summit so that the latter should take appropriate action.

REPRESENTATION

The States and institutions of the community shall be represented by an agent appointed for each case. The agent may be assisted by an advisor.

Other parties shall be represented by an agent or other person before a court of a state. The agents, advisors and representatives shall be governed by the rules of procedure laid down in this Protocol.

RULES OF TRIBUNAL

The Rules of Procedure of the Tribunal which elaborate, amongst other things, how parties can access the Tribunal were authorized by the Heads of State or Government of SADC Member States through the Protocol on Tribunal Windhoek on 7th day of August 2000. These may be obtained from the Registry of the Tribunal on the payment of a modest fee, otherwise they are on this website.