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[2010] ZAGPPHC 4
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Von Abo v Government of the Republic of South Africa and Others (3106/07) [2010] ZAGPPHC 4; 2010 (3) SA 269 (GNP) ; 2010 (7) BCLR 712 (GNP) (5 February 2010)

IN THE HIGH COURT OF
SOUTH AFRICA
/ES
(
NORTH
GAUTENG HIGH COURT. PRETORIA
)
Date: 05/02/2010
CASE NO: 3106/07
IN THE MATTER BETWEEN
CRAWFORD LINDSAY VON
ABO APPLICANT
AND
THE GOVERNMENT OF THE
REPUBLIC
OF SOUTH AFRICA FIRST
RESPONDENT
THE PRESIDENT OF THE
REPUBLIC
OF SOUTH AFRICA SECOND
RESPONDENT
THE MINISTER OF FOREIGN
AFFAIRS THIRD RESPONDENT
THE MINISTER OF TRADE
AND INDUSTRY FOURTH RESPONDENT
THE MINISTER OF JUSTICE
AND
CONSTITUTIONAL
DEVELOPMENT FIFTH RESPONDENT
JUDGMENT
PRINSLOO. J
[1] This judgment
concerns a hearing which flowed from certain supervisory relief which
I granted in a judgment reported as
Von
Abo
v
Government
of
the Republic of
South
Africa
&
Others
2009
2 SA 526
(TPD) ("the main judgment").
[2] Before me. Mr Hodes
SC assisted by Mr Katz appeared for the applicant and Mr De Jager SC
assisted by Mr Mphaga and Ms Sello
appeared for the respondents.
The main judgment
[3] Where this judgment
is a sequel to the main judgment, it must inevitably be read in
conjunction with that judgment. It will
be neither necessary nor
practicable to embark upon lengthy and unnecessary repetition of the
contents of that judgment. Brief
references and quotes will suffice.
[4] It is. however,
convenient to revisit the order I made in the main judgment as it is
reported at 566H-567D:
"1. It is declared
that the failure of the respondents to rationally, appropriately and
in good faith consider, decide and
deal with the applicant's
application for diplomatic protection in respect of the violation of
his rights by the Government of.
Zimbabwe is inconsistent with the
Constitution, 1996. and invalid.
It is declared that the
applicant has the right to diplomatic protection from the
respondents in respect of the violation of his
rights by the
Government of Zimbabwe.
It is declared that the
respondents have a constitutional obligation to provide diplomatic
protection to the applicant in respect
of the violation of his rights
by the Government of Zimbabwe.
4. The
respondents are ordered to forthwith, and in any event within sixty
days of the date of this order, take all necessary
steps to have
the applicant's violation of his rights by the Government of Zimbabwe
remedied.
5. The
respondents are directed to report by way of affidavit to this court
within 60 days of this order, what steps they
have taken in
respect of paragraph 4 above, and to provide a copy of such report to
the applicant.
6. The
applicant's claim for damages against the respondents, subject to
effective compliance with paragraphs 4 and 5
above, and as
formulated in the notice of motion, is postponed
sine
die.
Leave
is granted to all parties to supplement their papers prior to the
hearing of this claim for damages, if appropriate.
7. The
respondents are ordered, jointly and severally, to pay the costs of
the applicant, which will include the costs
flowing from the
employment of two counsel."
[5] The damages claim,
referred to in paragraph 6 of the order, was crafted as follows in
the notice of motion which formed the
basis of the application which
resulted in the main judgment:
"6. That, in the
event of the respondents failing to comply effectively with either
the order in terms of prayer 4 or in terms
of prayer 5, ordering the
respondents jointly and severally (the one paying and the other to be
absolved) to pay to the applicant
such damages as he may prove that
he has suffered as a result of the violation of his rights by the
Government of Zimbabwe."
[6] In purported
compliance with paragraphs 4 and 5 of the order,
supra,
the
respondents indeed reported back to this court by means of an
affidavit dated 19 October 2008. the main judgment having been
handed
down on 29 July 2008.
At that stage the
application which came before the constitutional court, to which
reference is made hereunder, had not yet been
finalised.
[7] When the
constitutional court judgment, dated 5 June 2009. was handed down,
and in view of the outcome thereof, the parties
made arrangements for
this further hearing, which inevitably had to flow from the
provisions of paragraphs 4 and 5 of my order
in the main judgment, to
take place.
[8] At a meeting with
representatives of both parties in chambers I enquired from both
parties whether they felt that I was seized
with the matter and. in
any event, whether I should preside over the follow-up hearing,
particularly in view of some unflattering
remarks I had made about
the conduct of the respondents during the course of the main
judgment.
Counsel from both sides
indicated that they felt I should conduct the follow-up hearing and
urged me to do so. After due reflection.
I obliged.
[9] The essence of the
enquiry which came before me in the follow-up hearing was to
establish whether or not the respondents had
effectively complied
with paragraph 4 of my order in the main judgment - at 567A.
A positive finding, from
the point of view of the respondents, would signal the end of the
matter. A negative finding would result
in declaratory relief to the
effect that the respondents were liable to compensate the applicant
for his damages. A
quantum
trial
would then come into play.
The judgment in
Von
Abo v President of the Republic of South Africa
2009
5 SA 345
(CO ("the Constitutional Court judgment")
[10] During the course
of the proceedings before me. which led up to the main judgment,
there was agreement between the parties
that an adverse finding about
the conduct of the State President, who was the second respondent in
those proceedings, would require
a certification process by the
Constitutional Court as intended by the provisions of section
172(2)(a) of the Constitution - see
the main judgment at 566A.
[11] Such an adverse
finding is contained in paragraph 1 of the order in the main judgment
- at 566H.
[12] It is convenient
to quote the text of section 172(2)(a) of the Constitution:
"The Supreme Court
of Appeal, a High Court, or a court of similar status may make an
order concerning the constitutional validity
of an Act of Parliament,
a provincial Act or
anv
conduct of the President
,
but an order of constitutional invalidity has no force unless it is
confirmed by the Constitutional Court." (Emphasis added.)
[13] The applicant
duly launched such an application before the Constitutional Court
seeking confirmation of the order contained
in paragraph 1.
supra.
[14] In the event the
Constitutional Court found that the application for confirmation
was misconceived because
the matter does not concern conduct of the President within the
meaning of section 172(2)(a) of the Constitution
- Constitutional
Court judgment at 3641-J.
[15] In the result, the
application for confirmation was struck from the roll, but some costs
orders were made against the respondents
- Constitutional Court
judgment at 365E-I.
[16] The Constitutional
Court also held that it was necessary to identify the particular
government minister responsible for alleged
unconstitutional conduct
and the Minister for Foreign Affairs, the third respondent, was
earmarked in the process. The following
is said in the Constitutional
Court judgment in this regard:
"Consequently, any
failure to consider the applicant's request for diplomatic protection
would have been the failure of the
Government of South Africa or
indeed of a specific minister, in this case the Minister for Foreign
Affairs. As I have concluded
earlier, it does not follow that a
constitutionally reprehensible failure of a minister or of the
government in a generic sense
amounts to a failure by the President
to fulfill his constitutional obligations." - Constitutional
Court judgment at 362C-E.
[17] It was this finding
that inspired the applicant to seek relief only against the
Government of South Africa (first respondent)
and the Minister for
Foreign Affairs (third respondent) in the follow-up hearing.
[18] For present
purposes, it is convenient to quote paragraphs [51] and [52] of the
Constitutional Court judgment reported at 364E-I;
"[51] I also keep
in mind that neither the government nor any of the respondents have
appealed against the decision of the
High Court. If anything, as I
have explained earlier, counsel for the government has confirmed with
this court that the government
has taken steps to comply with the
order of the High Court. It was open to the government to appeal the
decision of the High Court.
It did not do so. It has chosen to abide.
It follows that the order made by the High Court is of full force and
effect and in substance
accords with the relief which Mr Von Abo
sought before that court.
[52] The view
r
we take that the order of the High Court in relation to the President
is not susceptible to confirmation by this court does not
in any way
diminish the relief granted and consequently does not harbour any
prejudice of any type for Mr Von Abo. Put otherwise,
the government's
liability towards Mr Von Abo cannot be said to be in any way
diminished only by reason of paragraph 1 of the High
Court order not
having been confirmed by this court. It also follows that, absent any
appeal to this court, it is unnecessary to
traverse any of the
merits. Accordingly, this court expresses no view whatsoever on the
correctness or otherwise of the judgment
of the High Court. What is
clear is that the order of the High Court has not been assailed and
it stands unblemished."
[19] In view of these
remarks, I am of the opinion that care must be taken not to revisit
the merits of the case, for purposes of
this follow-up hearing. The
horse has bolted. The crisp issue to decide, as explained above, is
whether or not the respondents
have complied with paragraph 4 of the
order in the main judgment. The main source of information on which
the aforesaid issue must
be decided, is the report submitted by the
respondents (for present purposes, read the first and third
respondents) in purported
compliance with paragraphs 4 and 5 of the
order in the main judgment.
The report submitted
by the respondents ("the report")
[20] The report consists
of an affidavit, running into some twelve pages, with annexures.
[21] The deponent to the
affidavit names himself as "Ambassador J N K Mamabolo". He
is a Deputy Director-General in the
Department of Foreign Affairs. He
states that he is duly authorised to depose to the affidavit. This
authority flows from the following:
"A confirmatory
affidavit of the Director-General: Department of Foreign Affairs is
annexed to this affidavit. As Director-General
does not have personal
knowledge of the issues raised in this affidavit, he has therefore
delegated the authority to depose to
this affidavit to me."
[22] There is a
confirmatory affidavit by Ayanda Ntsaluba who identifies himself as
the Director-General of the Department of Foreign
Affairs and says "I
have authorised Ambassador JNK Mamabolo, a Deputy Director-General in
the Department of Foreign Affairs
to depose to the main affidavit."
He confirms the contents of Ambassador JNK Mamabolo's affidavit "in
so far as it refers
to me". In the process he confirms the
Ambassador's statement,
supra,
that
he has no personal knowledge of the issues raised "in this
affidavit".
[23] The
Director-General does not say what the source of his authority is to
delegate authority to the Ambassador.
[24] In his affidavit,
the Ambassador says that, following the main judgment which was
handed down on 29 July 2008, (incorrectly
stated by the Ambassador to
have been 24 July) a meeting was held on 6 August 2008 between
officials of the Department of Foreign
Affairs, the Department of
Trade and Industry, the Presidency and counsel to discuss the way
forward. The Ambassador did not attend
the meeting but he was
"informed" by Advocate Stemmet, senior State Law"
Advisor also mentioned in the main judgment,
who represented the
Department of Foreign Affairs at the meeting and who also deposed to
a confirmatory affidavit, attached to
the report.
[25] According to the
Ambassador, counsel, at the meeting, emphasised the importance of
"order 4" which is paragraph 4
of the order made in the
main judgment, and which description I shall also adopt for the sake
of convenience.
Of course, order 4.
stripped to its essentials, reads that "the respondents are
ordered to forthwith take all necessary steps
to have the applicant's
violation of his rights by the Government of Zimbabwe remedied".
Order 5 (paragraph 5 of
the order in the main judgment), also stripped to essentials,
provides that the respondents are directed
to report by way of
affidavit to this court within sixty days what steps they have taken
in respect of order 4 and to provide a
copy of such report to the
applicant.
[26] Not one of the
respondents, let alone the third respondent, who was singled out
particularly in the Constitutional Court judgment,
as described,
"reported by way of affidavit", as instructed in order 5.
There is no direct
indication, as far as I can see, that the third respondent (or any
other respondent) personally made any effort
to comply with orders 4
and 5.
[27] The order in the
main judgment was directed at the respondents, not at Ambassador
Mamabolo or anvbodv else.
The abject failure on
the pan of the respondents, and particularly the third respondent, to
demonstrate any visible sign of even
taking notice of these orders,
amounts, in
my
view,
to contempt of court. Counsel for the applicant put it as
follows in their
comprehensive heads of argument:
"It is submitted
that the absence and/or failure of the respondents to be involved
personally in the discussion of options
and possible actions in order
to give effect to the Court order is unacceptable and borders on the
contemptuous."
With these sentiments 1
agree.
In the main judgment, at
539I-540B. I already expressed the view that the unexplained failure
on the part of any of the respondents
to file personal affidavits to
deal with the complaints of the applicant amounts to a dereliction of
duty and flies in the face
of the requirements of section 165(4) of
the Constitution which provides that organs of State, through
legislative and other measures,
must assist and protect the courts to
ensure the independence, impartiality, dignity, accessibility and
effectiveness of the courts.
[28] The failure on the
part of the respondents to file affidavits, or to even explain the
failure to do so or to show any demonstrable
interest in the orders,
effectively, in my view, amounts to non-compliance with the orders,
more particularly orders 4 and 5.
The subject of the
inadmissibility for one person to make an affidavit on behalf of
another, without the latter filing at least
a verifying or supporting
affidavit, was extensively dealt with in the main judgment at
540E-543D.
Against this background,
it was argued before me during this follow-up hearing on behalf of
the applicant that where the respondents
had not filed an affidavit
confirming the contents of the report, the contents of the report
constitutes inadmissible hearsay and
I should have no regard thereto.
On behalf of the applicant reliance was placed on the well-known
authorities already quoted in
the main judgment, including
Gerhardt
v
State
President & Others
1989
2 SA 499
(T) at 504F-H and
Tantoush
v
Refugee
Appeal Board & Others
2008
1 SA 232
(T) at 256D-F.
Where the respondents
(and nobody else) were directed to report by way of affidavit as to
the steps they had taken in respect of
their duty to have the
applicant's violation of his rights by the Government of Zimbabwe
remedied, it meant that they were obliged
to report on what steps
were taken since the grant of the order on 29 July 2008 and not what
they had done prior to the grant of
the order (as will appear from a
further analysis of the report hereunder). Where the respondents
failed to file affidavits in
compliance with the order, it follows,
in my view, that they have not complied with their reporting duty.
On the same subject, it
was also argued on behalf of the applicant, correctly in my view,
that it was not for the Director-General
of the Department of Foreign
Affairs, who is not a respondent, to authorise Ambassador Mamabolo to
make any affidavit at all. It
was for the respondents, and the
respondents alone, to authorise someone to make an affidavit in
respect of the report, and then
only if a confirmatory affidavit by
the relevant respondent was filed of record. This is in line with the
authorities quoted,
supra.
The opposing argument
offered, in this regard, on behalf of the respondents, was that the
Director-General is the most senior official
in the Department of the
third respondent. By virtue of his office he is intimately involved
in and accountable for all conduct
of officials of the department,
including Ambassadors to foreign states. He is entitled to depose to
affidavits on behalf of the
Minister, as the accountable officer of
that department. This entitlement does not derive from being cited as
a respondent but
from his position within the department. He is in
law empowered to delegate any power or function he may have to other
officials,
unless he is specifically precluded thereto by
legislation. No authority in support of this proposition was
submitted to me. The
Director-General, in his affidavit, did not even
mention the third respondent or indicate that she authorised him to
delegate his
authority, such as it may be, to the Ambassador. The
court order is directed against the third respondent (and other
respondents).
Her complete silence and failure of involvement in
these proceedings remain unexplained. I cannot agree with the
argument submitted
on behalf of the respondents.
[29] Nevertheless, on
the assumption that my conclusion that the report falls to be
disregarded for lack of compliance of orders
4 and 5 due to the
absence of involvement by the respondents, is wrong. I now turn to a
further analysis of the report.
Further analysis of
the report
[30] Following the first
meeting of 6 August 2008.
supra,
there
was another meeting on 27 August 2008 "with a view to discuss
options and possible actions to propose to the Department
of Foreign
Affairs' principals in order to give effect to the court order".
It is not stated who the "principals"
are. According to the
minute of that meeting, the Ambassador was not present. Neither did
he apologise for his absence. In fairness,
it must be observed that
the minute suggests that Advocate De Wet, Chief State Law Advisor,
did discuss the main judgment with
the Minister. Certain directives,
possibly flowing from the meeting with the Minister, who. of course,
was not at the meeting,
were discussed. These included the following:
a diplomatic note had to be sent by the Ambassador in Harare to seek
an appointment
with "relevant ministers" to meet with them
as a matter of urgency; the Zimbabwean Ambassador in Pretoria had to
be called
in by the Deputy Director-General: Africa "to make
representations on behalf of Mr Von Abo"; and a high level
delegation
had to be composed to travel to Zimbabwe to meet with the
relevant Zimbabwean authorities as soon as possible.
I repeat my view that
these disclosures are irrelevant for purposes of deciding whether
orders 4 and 5 were effectively complied
with.
In any event, no BIPPA
had been signed by the time this affidavit was deposed to. The
controversial article 11 is also alluded to
in the affidavit of Mr
Williams. There is reference to disagreement between the two
governments about the wording of article
11.
The
last word, evidently, came from Zimbabwe which proposed that article
1
1
should
exclude investments relating to agricultural land made before the
entry of the proposed agreement. Of course, this whole
debate is
irrelevant and academical for present purposes, because the proposed
South African wording,
supra,
and
the proposed Zimbabwean wording both excluded any hope of diplomatic
protection for the applicant. The events covered in the
affidavit,
such as they are. are irrelevant because they pre-date orders 4 and
5.
This Williams affidavit,
in my view, does nothing to enhance the case of the respondents. If
anything, given the disclosure of earlier
BIPPA's which came to
nought, it fortifies conclusions expressed in the main judgment that
the government failed to respond appropriately
to the plight of its
citizens and never showed any real intention to comply with their
constitutional obligations in this regard
- see for example the
remarks in the main judgment at 562C-E.
Conclusionarv remarks
about the report and related matters
[55] For the reasons I
have mentioned, I find that the respondents have failed to comply
with orders 4 and 5.
[56] In the first place,
such failure flows from the fact that the respondents, and
particularly the third respondent, exhibited
no interest whatsoever
in attempting to comply with the orders of this court. Her conduct
borders on the contemptuous. Her conduct
corresponds with the lack of
interest exhibited by all respondents in the main proceedings. Her
conduct also flies in the face
of section 165(4) of the Constitution
- see the main judgment at 539I-540A.
[57] Where the
respondents, against whom orders 4 and 5 were directed, took no part
in the proceedings, and failed to report by
affidavit as they were
instructed to do, and where no proper basis was laid for the
"authority" ultimately passed on
to Ambassador Mamabolo to
deal with the matter, the report falls to be disregarded for that
reason alone, and in view of the relevant
authorities as dealt with
in the main judgment - at 540F-543D.
[58] In the second
place, and on the assumption that my conclusions about the
disqualification of the report are wrong. I find that
on a proper
consideration of the report, such as the one I conducted, orders 4
and 5 were still not complied with:
1. In an Aide
Memoire. Ambassador Mamabolo and his team expressed the intention "to
adhere to the court order and to
provide Mr Von Abo with diplomatic
protection as requested by him". They did absolutely nothing of
this sort. The high-water
mark of their efforts, at the meeting
between the delegations, was that they "requested that the
Zimbabwean Government should
assist where representations are made by
the South African Embassy on behalf of South African farmers who are
victims of illegal
land occupation". There is no indication that
this "request", such as it was. would ever yield any form
of protection
for the applicant.
2. There are no signs
whatsoever of the respondents, through their junior delegation,
contemplating the employment of any of the
recognised diplomatic
measures, which could have brought about diplomatic protection. These
measures were mentioned earlier in
this judgment and also listed in
the main judgment at 545I-J.
There is no explanation
for the abject failure to employ these recognised measures, or any
other effective measures which may have
brought about protection for
the applicant.
3. In the celebrated
words of the learned chief justice in
Kaunda,
at
262D.
this court was entitled to require the government to deal
with the matter
properly
.
The respondents failed to do so.
4. In their
comprehensive heads of argument, counsel for the respondents made the
following submission:
"In the premises it
is submitted that the respondents have fully complied with the
supervisory order. As stated in
Kaunda
(their emphasis) they have exercised such diplomatic measures as they
deemed, in their prerogative, were appropriate. The fact
that such
measures did not yield the desired result, we submit, does not
detract from the fact that they discharged their constitutional

obligation and consequently fully complied with the court's order."
For the reasons
mentioned. I disagree. On this argument offered by the respondents,
if I understand it correctly, it would mean
that a government, which
has the prerogative to decide on the nature of the diplomatic
interventions to be made, can opt for the
most ineffective and weak
measures, which have no prospect of achieving the desired result, and
still insist that their feeble
efforts pass constitutional muster
because they have the prerogative to decide what measures to adopt.
To use the present example,
the best the Mamabolo delegation did was
to "request that the Zimbabwean Government should assist where
representations are
made by the South African Embassy on behalf of
South African farmers who are victims of illegal land occupation".
This was
a hopeless request with no prospect of inviting any
protection for the applicant. The same feeble attitude emerges from
the Geerlings
telex of 1 September 2008 that "the best that the
South African Government could hope for is that the Zimbabwean
Government
would give its co-operation in making it easier to
convince the judge that indeed enough diplomatic protection was given
to Von
Abo, but that the Zimbabwean Government did not want to
respond to these pleas as it is convinced about the merits of its own
Land
Reform Process."
To argue that these
measures comply with the court order because it is the prerogative of
the government to decide what measures
to adopt, is untenable. It
does not pass the test as expressed in
Kaunda,
Mohamed
and
Fose
supra.
The
task must be performed
properly
.
The remedy afforded to an aggrieved individual whose fundamental
rights have been impaired (in this case by his government) must
be an
effective one. It did not happen in the present case.
5. The "efforts"
of the South African delegation, such as they are, are also not in
compliance with the declared policy
of the South African Government,
as repeatedly expressed in assurances to Parliament by the third
respondent, from 2002 onwards.
For example, in a written reply to
Parliament she said the following in March 2002:
"The South African
Government would continue to ensure the safety and security of all
its citizens, their property as well
as South African owned companies
operating in foreign countries."
- Record volume 6 p522.
See also the discussion on the subject in the main judgment at
538D-539E.
6. I am also of the view
that the respondents, had they wished to do so. could have taken
advantage of the judgment by the Southern
African Development
Community (SADC) tribunal in Windhoek as fortification for effective
diplomatic interventions on behalf of
the applicant. The judgment,
reported as SADC (T) case no 2/2007. was handed to me for
consideration during the follow-up proceedings.
It was a case between
seventy nine farmers (including farming companies) and the Republic
of Zimbabwe as respondent. The court
consisted of five members
presided over by Mr Justice PILLAY. The members included Justices
MTAMBO and MONDLANE and members Dr
Kambovo and Dr Tshosa.
Already in October 2007
some of the applicants filed an application with the tribunal
challenging the acquisition by the respondent
of their agricultural
land in Zimbabwe. They also applied for. and were granted, interim
relief on 13 December 2007 pending the
determination of the main
case. In terms of the interim order the Republic of Zimbabwe was
restrained from taking any steps or
permit any steps to be taken
directly or indirectly to evict the applicants from the peaceful
residence and beneficial use of their
properties. Subsequently,
seventy seven other persons applied to intervene in the proceedings.
As far as I can make out some of
them are South African citizens.
According to the final judgment, the applicants were, in essence,
challenging the compulsory acquisition
of their agricultural lands by
the respondent. The acquisitions
were
carried
out under the Land Reform Program undertaken by the respondent.
Some of the conclusions
arrived at by the tribunal are the following:
"(a) by unanimity,
the Tribunal has jurisdiction to entertain the application;
(b) by unanimity, the
applicants have been denied access to the courts in Zimbabwe;
(c) by a majority of 4
to 1. the applicants have been discriminated against on the ground of
race, and
(d) by unanimity, fair
compensation is payable to the applicants for their lands
compulsorily acquired by the respondent."
The tribunal, by
unanimity, then ordered the respondent to take all necessary measures
to protect the possession, occupation and
ownership of the lands of
all the applicants except three of them who had already been evicted
from their lands and to take all
appropriate measures to ensure that
no action is taken to evict these applicants or interfere with their
peaceful occupation and
use of their farms. In respect of the three
that had been evicted the respondent was ordered to pay compensation
on or before 30
June 2009, which was long before the follow-up
proceedings came before me in October 2009. As I pointed out. it also
appears from
the minute of the meeting of the two delegations in
Harare in September 2008 that these proceedings were taken note of.
The copy
of the judgment of the tribunal handed to me is undated, but
it is clear, for the reasons mentioned, that the final order must
have been handed down before June 2009 (the date when compensation
had to be paid to those evicted) and well before the matter came

before me for purposes of the follow-up proceedings. Although this
may be somewhat of a peripheral issue, I am of the view that
diligent
government ministers, in the position of the respondents facing the
task to comply with orders 4 and 5, could also have
relied on the
judgment of the tribunal to fortify their efforts to employ effective
diplomatic interventions on behalf of the applicant.
They failed to
do so.
[59] In all the
circumstances I have come to the conclusion that the respondents have
failed to effectively comply with orders 4
and 5, so that the
applicant's claim for damages, as contemplated in order 6 (main
judgment at 567B-C) must come into play.
Constitutional
damages
[60] It was held in the
main judgment (more particularly, at 560C-566I) that the respondents
had acted unconstitutionally and, in
the process, had violated the
applicant's right to diplomatic protection as entrenched in the
Constitution.
[61] On behalf of the
applicant it was argued before me. during the follow-up proceedings,
that the applicant is entitled to be
compensated for this breach of
his constitutional right and that, in the circumstances of this case,
payment of damages, as compensation,
would be the appropriate relief
to be granted.
[62] In my view, a
consideration of the following words by the then learned Chief
Justice. CENTLIVRES, in
Minister
of the Interior & Another
v
Harris
& Others
1952
4
SA
769
(AD) at 780H-781B would be appropriate:
"... in other words
the individual concerned whose right was guaranteed by the
Constitution would be left in the position of
possessing a right
which would be of no value whatsoever. To call the rights entrenched
in the Constitution constitutional guarantees
and at the same time to
deny to the holder of those rights any remedy in law would be to
reduce the safeguards enshrined in section
152 to nothing. There can
to my mind be no doubt that the authors of the Constitution intended
that those rights should be enforceable
by the Courts of Law. They
would never have intended to confer a right without a remedy. The
remedy is. indeed, part and parcel
of the right.
Vbi
ins, ibi remedium
...
In
Dixon
v
Harrison.
[1823] EngR 161
;
124 E.R. 958
at p964, it
was stated that the greatest absurdity imaginable in law is:
'that a man hath a right
to a thing for which the law gives him no remedy: which is in truth
as great an absurdity, as to say. the
having of right, in law. and
having no right, are in effect the same'."
[63] The translation of
ubi
ius, ibi remedium.
offered
by Hiemstra and Gonin.
Trilingual
Dictionary
2
nd
edition p294 is: "Where there is a right, there is a remedy."
[64] In
MEC,
Department of Welfare, Eastern Cape v Kate
[2006] ZASCA 49
;
2006
4 SA 478
(SCA) the following is said at489G-491B:
"Fose
v Minister of Safety and Security
[1997] ZACC 6
;
[1997
(3) SA 786
(CC)]
recognised
that, in principle, monetary damages are capable of being awarded for
a constitutional breach
.
In that case ACKERMANN. J made the following general, but important,
observation in the context of the interim Constitution:
'I have no doubt that
this Court has a particular duty to ensure that, within the bounds of
the Constitution, effective relief be
granted for the infringement of
any of the rights entrenched in it. In our context, an appropriate
remedy must mean an effective
remedy, for without effective remedies
for breach, the values underlying and the right entrenched in the
Constitution cannot properly
be upheld or enhanced. Particularly in
a country where so few have the means to enforce their rights through
the Courts, it is
essential that, on those occasions when the legal
process does establish that an infringement of an entrenched right
has occurred,
it be effectively vindicated. The Courts have a
particular responsibility in this regard and are obliged to "forge
new tools"
and ■ shape innovative remedies, if needs be.
to achieve this goal.'
Earlier, the learned
judge said the following (
my
note
:
at paragraph [60] of the report):
'
It
seems to me that there is no reason in principle whv further
"appropriate relief should not include an award of damages
where
such an award is necessary to protect and enforce chapter 3 rights
.
Such awards are made to compensate persons who have suffered loss as
a result of the breach of a statutory right if, on a proper

construction of the statute in question, it was the Legislature's
intention that such damages should be payable,
and
it would be strange if damages could not be claimed for, at least,
loss occasioned bv the breach of a right vested in the claimant
bv
the'supreme law. When it would be appropriate to do so. and what the
measure of damages should be will depend on the circumstances
of each
case and the particular right which has been infringed
.'
[24] Monetary damages
for a constitutional breach have since been awarded by this Court,
and endorsed by the Constitutional Court
in
Modderfonlein
Squatters. Greater Benoni City Council
v
Modderklip
Boerdery (Pry) Ltd (Agri South Africa and Legal Resources Centre,
amici curiae); President of the Republic of South Africa
& Others
v
Modderklip
Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, amici curiae)
[
mv
note
:
the references are 2004 6'SA 40 (SCA) and
2005 5 SA 3
(CC).] In the
decision of this Court HARMS. JA said the following: 'Courts should
not be overawed by practical problems. They should
"attempt to
synchronise the real world with the ideal construct of a
constitutional world"
and
they have a duty to mould an order that will provide effective relief
to those affected by a constitutional breach
.
1
(
My
note
:
at paragraph [42]).
[25]
In
Fose
the
Constitutional Court emphasised that it was 'not required to answer
the question ... whether an action for damages in the nature
of
constitutional damages exists in law, nor whether an order for the
payment of damages qualifies as appropriate relief ... in
respect of
a threat to or infringement of anv of the rights in chapter 3' but
was concerned only with the much narrower task of
deciding whether an
award of damages was appropriate in relation to the particular breach
that was there in issue
.
Similarly,
in this case, we are not called upon to answer those questions
broadlv and in the abstract - and I do not do so - but
onlv to decide
whether the particular breach that is now in issue is deserving of
relief in the form of the monetary damages that
are now claimed.
Whether relief in that form is appropriate in a particular case must
necessarily be determined casuistic-ally,
with due regard to. among
other things, the nature and relative importance of the rights that
are in issue, the alternative remedies
that might be available to
assert and vindicate them, and the consequences of the breach for the
claimant concerned
."
(Emphasis added.)
[65] In
Kate,
an
appropriate award of damages was made. In the present case, the
nature of the damages sustained by the applicant was illustrated
in
the main judgment. Through the. as yet unexplained, failure of the
respondents to assist him properly, the applicant lost the
fruits of
the hard work of a lifetime. Had the respondents properly performed
their constitutional duty of awarding diplomatic
protection to the
applicant, when they were first approached to do so almost a decade
ago. these damages would not have been sustained.
I cannot see how any
relief, other than a damages award, can be "appropriate relief
as explained in
Fose,
Kate
and
other authorities, and as intended by the provisions of the
Constitution, notably, perhaps, the provisions of section 38 thereof.

I see no alternative relief: this court cannot, for lack of
jurisdiction, for example order the reinstatement of the applicant
on
his properties.
The nature and
importance of the rights of the applicant that were infringed and
that are in issue, were illustrated in the main
judgment. The same
applies to the consequences of the breach on the part of the
respondents for the applicant concerned.
A damages award, would,
in my view, be in line with the principles laid down by the learned
judge of appeal in the above quoted
passage to be found in
Kate,
at
490G-491B.
[66] It remains for me
to deal with the argument presented on behalf of the respondents in
opposing the notion of a damages award.
By way of illustration, 1
quote the following extract from the heads of argument offered by
counsel for the respondents:
"A temporary
neglect to assist Mr Von Abo as was found by this honourable court,
does not create any causal link between what
the Zimbabwean
Government did and the fact that Mr Von Abo had yet not received
redress in any material form. Diplomacy is an ongoing
process and it
is for the respondents now to assist Mr Von Abo as far as they can. A
finding that the respondents failed to perform
their constitutional
responsibility in regard to diplomatic assistance to Mr Von Abo. as
the court found
incasu.
does
not and cannot automatically give rise to damages especially not in
the event where it is clear that whatever they may have
done in the
past up until this moment would not have persuaded the Zimbabwean
Government to abandon or reverse their execution
of the Land Reform
Program."
[67] I cannot agree with
these submissions. The internationally recognised forms of diplomatic
intervention,
supra,
have
been designed to force offending states to tow the line. There is no
room for an argument that diplomatic intervention becomes
toothless,
simply because the offending state exhibits no intention ever to
co-operate. It is precisely under those circumstances
when the
recognised interventions,
supra,
come
into play: the strength of the intervention, as illustrated, depends
on the level of resistance.
South Africa is the
power house of the region. It is common knowledge that Zimbabwe is
dependent on South Africa for almost every
conceivable form of aid
and assistance. I see no reason why the respondents cannot apply the
necessary pressure, under these circumstances,
to assist their
valuable and long suffering citizens, such as the applicant. In
breach of their constitutional duties, the respondents
have refrained
from affording such assistance for almost a decade. To date, they
have brought about no meaningful assistance for
the applicant
whatsoever. This state of affairs may well continue into the future.
The time has arrived for this court to afford
the applicant
appropriate and effective relief as illustrated in
Fose,
Kale
and
other judgments.
The order
[68] I make the
following order:
1. It is declared that
the first and third respondents, jointly and severally, the one
paying the other to be absolved, are liable
to pay to the applicant
such damages as he may prove that he has suffered as a result of the
violation of his rights by the Government
of Zimbabwe.
2. The question of the
quantum
of
the damages is referred to oral evidence.
3. The usual rules will
apply with regard to discovery, expert evidence and the holding of a
pre-trial conference.
The respondents, jointly and
severally, are ordered to pay the applicant's costs arising from
this follow-up hearing, including
the costs of two counsel.
W R C PRINSLOO
JUDGE OF THE NORTH
GAUTENG HIGH COURT
3106-2007
HEARD ON: 12 and 13
October 2009
FOR THE APPLICANT: P
Hodes SC assisted by A Katz
INSTRUCTED
BY: W J Herbst c/o E J V Penzhorn
FOR
THE RESPONDENTS: P J J de Jager SC assisted by M Mphaga and M Sello
INSTRUCTED BY: The State Attorney