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[2011] ZASCA 65
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Government of the Republic of South Africa and Others v Von Abo (283/10) [2011] ZASCA 65; (2011 (5) SA 262 (SCA); [2011] 3 All SA 261 (SCA) (4 April 2011)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 283/10
In the matter between:
The Government of the Republic of South Africa First Appellant
The President of the Republic of South Africa Second Appellant
The Minister of Foreign Affairs Third Appellant
The Minister of Trade and Industry Fourth Appellant
The Minister of Justice and Constitutional Development Fifth
Appellant
and
Crawford Lindsay von Abo Respondent
Neutral citation:
The Government of the Republic of South
Africa v Von Abo
(283/10)
[2011] ZASCA 65
(4 April 2011)
Coram:
MPATI P, CLOETE, SNYDERS AND THERON JJA AND PLASKET AJA
Heard:
28 February 2011
Delivered: 4 April 2011
Summary:
Peremption of appeal – appealability –
court obliged not to enforce order contrary to law - Diplomatic
protection –
nature of – appropriate order when violated.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from
: North Gauteng High Court (Pretoria) (Prinsloo
J sitting as court of first instance):
1 The appeal is upheld.
2 The order of the court a quo made on 29 July 2008 is set aside,
except for the declaration in para 1 and the costs order in para
7
thereof, and replaced with the following:
‘Save for prayers 1 and 7 which are granted, the application is
dismissed.’
3 The order of the court a quo made on 5 February 2010 is set aside.
JUDGMENT
SNYDERS JA (Mpati P, Cloete, Theron JJA and
Plasket AJA concurring)
[1] The respondent is a South African citizen and
a farmer from the Free State. More than fifty years ago he started
acquiring farming
land in the then Southern Rhodesia, today the
Republic of Zimbabwe. By 1995 the respondent owned a vast and
successful farming
empire in Zimbabwe.
1
After 1997 the Zimbabwean Government commenced with a program of land
reform which entailed dispossessing white farmers in Zimbabwe
of the
ownership of their land without any compensation. This policy was
applied to the respondent with the result that he lost
all his
farming interests and suffered a comprehensive and massive financial
loss. It is common cause that this loss was suffered
as a result of a
gross violation of international minimum standards. The respondent
exhausted all possible remedies available to
him in Zimbabwe against
the Zimbabwean Government, but to no avail. Hence he turned to the
appellants. At first he requested diplomatic
protection by way of
correspondence, and thereafter he sought to compel the provision of
diplomatic protection by way of an application
to the North Gauteng
High Court.
[2] The appellants collectively represent all
possible official interests in the dispute with the respondent. The
first appellant
is the South African Government. The second appellant
is the head of the national executive and exercises the executive
authority
of the Republic of South Africa together with the Cabinet.
2
The third and fourth appellants, the Minister of Foreign Affairs and
the Minister of Trade and Industry, were cited when the respondent
issued the application. The fifth appellant, the Minister of Justice
and Constitutional Development, was subsequently joined because
of an
interest in relief that was initially sought in relation to the
ratification of an international convention. For reasons
of
convenience I will refer to the appellants collectively unless
expressly distinguished.
[3] The respondent was successful in the court
below. On 29 July 2008 an order (the first order) was issued
declaring the rights
and obligations of the parties and compelling
the appellants to take steps within a prescribed period of time to
give effect to
that declaration of rights.
3
On 5 February 2010, after receiving an affidavit on the steps taken
in compliance with the first order, the court below issued
an order
(the second order) that the first and third appellants are ‘liable
to pay to the [respondent] such damages as he
may prove that he has
suffered as a result of the violation of his rights by the Government
of Zimbabwe’.
4
The court below (Prinsloo J on both occasions) granted all the
appellants leave to appeal to this court against the first order
and
the first and third appellants leave to appeal against the second
order.
[4] On 24 March 2002 the respondent addressed his
first written request for assistance to the South African
authorities. It was
addressed to the second appellant. After that
date and until January 2007, when he issued the application that
commenced this matter,
he wrote more than 50 letters to the
appellants. He also addressed requests for assistance to South
African diplomatic officials.
In addition to the requests by him
personally, various attorneys that acted on his behalf tried to
secure the intervention of the
appellants. Members of Parliament, the
South African Human Rights Commission and Grain South Africa also
took up the respondent’s
cause with the appellants. The issue
of land reform in Zimbabwe has, for at least the past decade, been
prominent in the public
domain, the media and in parliament where it
has caused lively and, at times, emotional debate.
[5] All of the requests by and on behalf of the
respondent were aimed at securing the appellants’ intervention
in the form
of diplomatic protection and assistance in order to
achieve the restoration of his rights, a fair and just settlement or
full compensation
for his loss. As part of his numerous requests, the
respondent also urged the first appellant to accede to the
International Convention
on the Settlement of Investment Disputes
(ICSID) of which Zimbabwe is a member and which aims to provide
member states and nationals
of member states with conciliation and
arbitration facilities for the settlement of disputes in order to
promote private international
investment.
5
[6] Although responses to the respondent’s
letters were generally not prompt, they were ultimately forthcoming
and sometimes,
on the face of it, even encouraging. A letter dated 22
October 2002 from the office of the third appellant concludes with
the following:
‘
Please be assured that your
request to the President has been noted and that [the] South African
Government through the High Commission
in Harare has been and will
continue to interact with the Zimbabwean Government on the protection
of the interests of South African
citizens in Zimbabwe.’
[7] The most encouraging reaction came as
responses to questions in the National Assembly. On 27 March 2002 the
third appellant
responded as follows to question 103:
‘
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 in foreign
countries.’
The response to question 127 contained the
assurance that there was constant engagement between the government
of South Africa and
that of Zimbabwe about the issue. The response
also disclosed that a Bilateral Investment Promotion and Protection
Agreement (BIPPA),
aimed at protecting the properties of South
African nationals in Zimbabwe, had been concluded by the two
countries and awaited
signature.
[8] The promises of protection and avowed constant
engagement with the Zimbabwean Government came to nothing. South
Africa did not
ratify the ICSID, BIPPA was never signed, and the
respondent’s substantial investment in Zimbabwe remained lost
to him.
6
The respondent was driven to allege in his founding affidavit that:
‘
The string of correspondence
directed at the [appellants] and other Government officials by me and
my attorneys and the obtuse,
dilatory and evasive response to that
correspondence makes plain that the [appellants] have failed to act
consistently with their
own stated policy to “ensure the safety
and security of all its citizens, their property as well as South
African owned companies
operating in foreign countries”.’
[9] The respondent, after an amendment to his
notice of motion, sought the following relief from the court below:
7
‘
1 Declaring that the failure of the [appellants]
to rationally, appropriately and in good faith consider and decide
the [respondent’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;
2 Declaring that the [respondent] has the right to
diplomatic protection from the [appellants] in respect of the
violation of his
rights by the Government of Zimbabwe;
3 Declaring that the [appellants]
have a Constitutional obligation to provide diplomatic protection to
the [respondent] in respect
of the violation of his rights by the
Government of Zimbabwe;
4 Ordering the [appellants] to
forthwith, and in any event within 30 (thirty) days of date of this
Order, take all necessary steps
to have the [respondent’s]
violation of his rights by the Government of Zimbabwe remedied;
5 Directing the [appellants] to
report by way of affidavit to this Honourable Court within 30
(thirty) days of this Order, what
steps they have taken in respect of
prayer 4 above and providing a copy of such report to the
[respondent];
6 That, in the event of the [appellants] failing to
comply effectively with either the Order in terms of prayer 4 or in
terms of
prayer 5, ordering the [appellants] jointly and severally,
(the one paying and the other to be absolved) to pay to the
[respondent]
such damages as he may prove that he has suffered as a
result of the violation of his rights by the Government of Zimbabwe;
7 Directing that [appellants],
jointly and severally (the one paying the other to be absolved) pay
the [respondent’s] costs
of this application.’
[10] On 29 July 2008 the first order was granted.
It differs from the one sought in only three respects. First, the
period within
which steps had to be taken in terms of paras 4 and 5
was increased to 60 days. Second, the prayer for damages in para 6
was, ‘subject
to effective compliance with paragraphs 4 and 5’,
postponed sine die. Third, the costs granted in terms of para 7 were
to
include the costs of two counsel.
[11] Steps were taken by
the appellants in purported compliance with the first order. On 19
October 2008 an affidavit, setting out
the steps taken, was filed by
the appellants.
8
The respondent’s attorney pursued the taxation of the costs
ordered in para 7 of the first order and the appellants paid
those
costs. The respondent, in the meantime and incorrectly, approached
the Constitutional Court for confirmation of para 1 of
the first
order in terms of s 172(2) of the Constitution.
9
The application was, for obvious reasons, only opposed by the second
appellant. It was heard on 26 February 2008 and judgment was
delivered on 5 June 2009.
10
The Constitutional Court concluded that the application was
misconceived as para 1 of the first order did not affect ‘conduct’
of the President as meant in s 172(2)(a). At no stage during this
time did the appellants seek to obtain leave to appeal the first
order. During the hearing in the Constitutional Court, counsel for
the second appellant ‘assured [the Constitutional Court]
that
neither the Government nor any of the other [appellants] is minded to
do anything other than comply with the order of the
High Court’.
11
[12] After the judgment by the Constitutional
Court the parties agreed that the matter be set down for hearing on
12 and 13 October
2009 in the high court. The purpose of another
hearing was to consider the postponed claim for damages which was
inter-twined with
the appellants’ compliance with paras 4 and 5
of the first order. The court below did not accept that the affidavit
filed
or the steps taken by the appellants pursuant to the first
order constituted compliance with that order. On 5 February 2010 it
issued the following order (the second order):
12
‘
1 It is declared that the first and third
[appellants], jointly and severally, the one paying the other to be
absolved, are liable
to pay to the [respondent] 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.
4 The [appellants], jointly and severally, are ordered
to pay the [respondent’s] costs arising from this follow-up
hearing,
including the costs of two counsel.’
[13] On 26 February 2010 the appellants applied to
the court below for leave to appeal against the first order, for
condonation
for the late filing of that application and for leave to
appeal against the second order. The appellants were granted the
relief
they sought, except in relation to the costs ordered in para 7
of the first order.
[14] In this court the respondent contended that
the appeal against the first order had been perempted. He relied on
the objective
facts that the appellants did not timeously seek leave
to appeal the first order, took steps and filed an affidavit in
purported
compliance with the first order, declared to the
Constitutional Court that they intended to comply with the first
order and paid
the costs that were ordered and taxed.
[15] If the respondent is able to show that the
appellants’ unequivocal conduct after the first order is
inconsistent with
an intention to appeal, the appeal has been
perempted.
13
The answer to this question is, however, tied up with the question
whether the first order was appealable. If it be accepted that
the
first order was appealable, the appellants’ actions following
upon the first order clearly illustrate an intention by
them not to
proceed with an appeal. The appealability of the first order was
peripherally mentioned during the confirmation proceedings
before the
Constitutional Court. The context in which it came to be raised
appears from para 13 of the judgment:
‘
Neither the government nor any of the other
[appellants] has assailed the correctness of the judgment or the
validity of the order
of the High Court by way of an appeal. The
order was made nearly ten months ago and the time within which the
[appellants] in that
court may have sought leave to appeal has long
elapsed. A party to confirmation proceedings in this court has an
automatic right
of appeal against the order sought to be confirmed.
None of the government [appellants] has availed itself of this right
of appeal.
If anything, during the hearing in this court, counsel for
the [President] sought to tender new evidence to show that the
government
[appellants] were taking active steps to comply with the
order of the High Court. From the bar counsel for the [President]
assured
this court that neither the government nor any of the other
[appellants] is minded to do anything other than comply with the
order
of the High Court.’
[16] From this excerpt it appears that the appealability of the first
order seems to have been impliedly conceded by the second
appellant’s
counsel and accepted by that court, although it was not argued or
decided. It only became necessary to decide
whether that concession
was correctly made and accepted when the appellants applied for leave
to appeal against the first order.
The court below inclined towards
the view that the first order was not appealable, without expressly
stating so. It granted leave
and said in the judgment that ‘it
is not unreasonable to argue that the [appellants] did not act, or
were not out of order,
by attempting to comply with orders 4 and 5,
that is the supervisory
mandamus
, before noting an appeal
against the main judgment, because had their efforts, in that regard,
been successful, and had they persuaded
me in the follow-up judgment
that they had complied with the supervisory
mandamus
, it would
have been the end of the matter, and it would also have redounded to
the benefit of the . . . [respondent] in the main
proceedings’.
[17] At the start of the second judgment the court below had the
following to say:
‘
Where this judgment is a
sequel to the main judgment, it must inevitably be read in
conjunction with that judgment.
. . .
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 paras 4
and 5 of my order in the main
judgment, to take place.’
14
That leave was granted is not decisive of the
issue. The complications surrounding appealability in any given
instance were recently
summarised by Lewis JA in
Health
Professions Council of South Africa v Emergency Medical Supplies and
Training CC
t/a
EMS
2010 (6) SA 469
(SCA) paras 14-19.
It is fair to say that there is no checklist of requirements. Several
considerations need to be weighed up,
including whether the relief
granted was final in its effect, definitive of the rights of the
parties, disposed of a substantial
portion of the relief claimed,
aspects of convenience, the time at which the issue is considered,
delay, expedience, prejudice,
the avoidance of piecemeal appeals and
the attainment of justice.
15
The appealability of the order was not argued in this court, hence I
am reluctant to decide the peremption point on that basis
alone.
[18] However, it matters not whether the first
order was appealable or whether the appeal had been perempted. As a
matter of logic
the second order arose from the first order and has
no independent existence separate from the first order. As the second
order
was given in consequence of the first order, and would not nor
could have been given if it was not for the first order, it follows
that if the first order is wrong in law, the second order is legally
untenable. Whether the appellants were ill-advised not to
appeal
against the first order, but rather to try and comply with it, should
not have the unacceptable result that this court is
held to a mistake
of law by one of the parties. I can put it no better than Jansen JA
in
Paddock Motors (Pty) Ltd v Igesund
1976 (3) SA 16
(A) at 23F:
‘
[I]t would create an
intolerable position if a Court were to be precluded from giving the
right decision on accepted facts, merely
because a party failed to
raise a legal point, as a result of an error of law on his part. . .
. ‘
16
[19] In
Paddock
the principle of the court not being bound by what is legally
untenable was applied in the narrower context of a legally wrong
concession by one of the parties during proceedings, but the
principle is equally valid in the present context. It would be
similarly
intolerable if, in the current situation, this court would
be precluded from investigating the legal soundness of the first
order,
as a result of the incorrect advice followed by the appellants
or an incorrect concession made by them.
[20] I turn to the merits of the first order. The
legal principles applicable in matters of this nature have been
authoritatively
pronounced upon by the Constitutional Court in
Kaunda
& others v President of the Republic of South Africa & others
2005 (4) SA 235
(CC) and by this court
in
Van Zyl & others v Government of
the Republic of South Africa & others
2008 (3) SA 294
(SCA). It is apparent from both these decisions that
it is important to distinguish between international law, which deals
with
the relationship between state and state, and municipal law,
which deals with the relationship between citizen and state.
17
A national in the position of the respondent has to rely on municipal
law for diplomatic protection as international law does not
recognise
a right of a national to diplomatic protection. When a state affords
its national diplomatic protection in terms of municipal
law, it then
proceeds to rely on international law in its dealings with the other
state. The focus that has been placed on diplomatic
protection from
an international perspective was summarised in
Kaunda
from which it is useful to quote:
18
‘
The nature and scope of diplomatic protection has
been the subject of investigations by the International Law
Commission. It was
requested in 1996 by the General Assembly of the
United Nations to undertake this task. Special Rapporteurs and
working groups
were involved in the investigations the outcome of
which is referred to in reports of the International Law Commission.
The report
dealing with issues relevant to the present matter is the
report published in 2000 (the ILC report). This report contains
summaries
by the Special Rapporteur, Professor Dugard, of the
relevant debates.
The term diplomatic protection is not
a precise term of art. It is defined in the Special Rapporteur’s
report as “action
taken by a State against another State in
respect of an injury to the person or property of a national caused
by an internationally
wrongful act or omission attributable to the
latter State”.
. . .
According to the Special Rapporteur’s
report, diplomatic protection includes, in a broad sense, “consular
action, negotiation,
mediation, judicial and arbitral proceedings,
reprisals, retorsion, severance of diplomatic relations, [and]
economic pressures”.’
19
[21] When a state decides to afford its national
diplomatic protection it engages the other state by means of existing
diplomatic
channels. Its successes and failures in this process are
largely dependant on the nature of the relationship between the
states
and the inclination of the other state to engage, grant and
implement requests or succumb to pressure. This superficial
description
of the structure of the subject under discussion suffices
to illustrate that diplomatic protection is not merely for the
asking,
but is a complex issue the success of which is dependant on a
multitude of variables.
[22] The question whether a national has a right
to diplomatic protection was asked and answered in
Kaunda.
Chaskalson CJ stated the legal position
to be as follows:
‘
If, as I have held, citizens
have a right to request government to provide them with diplomatic
protection, then government must
have a corresponding obligation to
consider the request and deal with it consistently with the
Constitution.’
20
It was expressly held that s 7(2) of the
Constitution should not be construed as granting citizens a positive
right to demand, or
imposing on government a positive obligation to
ensure, ‘that laws and conduct of a foreign State and its
officials meet
not only the requirements of the foreign State’s
own laws, but also the rights that our nationals have under our
Constitution’.
21
The remarks made by Harms DP in
Van Zyl
are apposite in the present instance:
22
‘
The [respondent’s] request was premised on
a “right” to diplomatic protection and not on a right to
have a request
considered. It was further based on the duty of
government to provide a particular type of diplomatic protection.
These demands
were, in the light of the Constitutional Court’s
judgment, ill-founded.’
[23] The relief sought by the respondent in the court below and
granted was an express declaration of rights and duties contrary
to
the law. The judgment by the court below contains extensive
references to the judgment in
Kaunda.
Despite those references
an incorrect conclusion was reached. One can only assume that the
broader and, with respect, less precise
views expressed in the
concurring minority judgment by Ngcobo J, extensively quoted by the
court below without distinguishing it
from what the majority held the
law to be, resulted in the incorrect approach. The judgment in the
court below contains no reference
to
Van Zyl
in which the
applicable legal principles were clearly re-stated and helpfully
explained.
[24] Paragraphs 2 and 3 of the first order are therefore contrary to
the law. The misconception evident in these paragraphs, together
with
the conclusions reached by the court below that the appellants’
responses to the respondent’s numerous demands
were not
appropriate, informed the order in paras 4 and 5. If paras 2 and 3
are to be struck out, paras 4 and 5 cannot stand, but
I will continue
to consider the legitimacy of paras 4 and 5 of the first order
independently of their relationship with paras 2
and 3.
[25] I will not, at this stage, consider the appropriateness of the
appellants’ responses, but assume, for present purposes,
that
the court below was correct in the following conclusion:
‘
In my view, and for all the
reasons mentioned, the government, in the present instance, failed to
respond appropriately and dealt
with the matter in bad faith and
irrationally. For six years or more, and in the face of a stream of
urgent requests from many
sources, they did absolutely nothing to
bring about relief for the applicant and hundreds of other white
commercial farmers in
the same position. Their “assistance”,
such as it is, was limited to empty promises. They exhibited neither
the will
nor the ability to do anything constructive to bring their
northern neighbour to book. They paid no regard, of any consequence,
to the plight of valuable citizens such as the fifth generation
applicant with a 50 year track record in Zimbabwe, and other
hardworking
white commercial farmers making a substantial
contribution to the GDP in Zimbabwe and providing thousands of people
with work in
that country.’
23
[26] Para 4 of the first order is extraordinary.
It orders the appellants to remedy the violation of the respondent’s
rights
perpetrated by the Zimbabwean Government. The ordinary
grammatical meaning of this order is that the appellants were
expected to
restore, within 60 days of the order, all the
respondent’s losses in Zimbabwe. The order ignores several
vital considerations.
First, that on a practical level it is
unrealistic to expect any government, the wheels of which sometimes
turn even more slowly
than the wheels of justice, to act so
expeditiously. Second, it ignores the fact that the nature and
essence of diplomatic protection
is a process the result of which is
necessarily dependant on the responses of another state, which is not
bound by the order. Third,
it ignores the factual situation in
Zimbabwe, widely published in the international media during the past
decade and included in
the respondent’s papers, that the action
taken in Zimbabwe accorded fully with Zimbabwean governmental policy
and extensive
international pressure hardly brought any change.
[27] Compliance with the order was impossible.
Assuming that it was a legitimate order, it set an impossible task
for the appellants,
and dare I say it, for any government in the
world. The appellants’ efforts were doomed to failure. They
were to report,
in compliance with para 5 of the order, on the steps
taken ‘in respect of paragraph 4’. That meant a report on
the
steps taken to achieve the restoration of the respondent’s
property to him. Such an outcome could not realistically have been
expected.
[28] I return to the question whether the orders contained in paras 4
and 5 of the first order are legally tenable. Again, no new
legal
ground needs to be canvassed. In paras 77 to 81 of
Kaunda
Chaskalson CJ said:
‘
A decision as to whether protection should be
given, and if so, what, is an aspect of foreign policy which is
essentially the function
of the Executive. The timing of
representations if they are to be made, the language in which they
should be couched, and the sanctions
(if any) which should follow if
such representations are rejected are matters with which courts are
ill-equipped to deal. The best
way to secure relief for the national
in whose interest the action is taken may be to engage in delicate
and sensitive negotiations
in which diplomats are better placed to
make decisions than Judges, and which could be harmed by court
proceedings and the attendant
publicity.
This does not mean that South African courts have no
jurisdiction to deal with issues concerned with diplomatic
protection. The
exercise of all public power is subject to
constitutional control. Thus even decisions by the President to grant
a pardon or to
appoint a commission of inquiry are justiciable. This
also applies to an allegation that government has failed to respond
appropriately
to a request for diplomatic protection.
For instance, if the decision were to be irrational, a
court could intervene. This does not mean that courts would
substitute their
opinion for that of the government or order the
government to provide a particular form of diplomatic protection.
“
Rationality . . . is a minimum threshold
requirement applicable to the exercise of all public power by members
of the Executive
and other functionaries. Action that fails to pass
this threshold is inconsistent with the requirements of our
Constitution and
therefore unlawful. The setting of this standard
does not mean that the courts can or should substitute their opinions
as to what
is appropriate for the opinions of those in whom the power
has been vested. As long as the purpose sought to be achieved by the
exercise of public power is within the authority of the functionary,
and as long as the functionary’s decision, viewed objectively,
is rational, a court cannot interfere with the decision simply
because it disagrees with it or considers that the power was
exercised
inappropriately.”
If government refuses to consider a legitimate request,
or deals with it in bad faith or irrationally, a court could require
government
to deal with the matter properly. Rationality and bad
faith are illustrations of grounds on which a court may be persuaded
to review
a decision. There may possibly be other grounds as well and
these illustrations should not be understood as a closed list.
What needs to be stressed, however,
in the light of some of the submissions made to us in this case, is
that government has a broad
discretion in such matters which must be
respected by our courts.’
24
[29] In paras 4 and 5 of the first order the court
below prescribed to the appellants, as representing the Executive,
the result
their diplomatic protection should achieve for the
respondent, the time frame within which to do so and appointed itself
the overseer
of the Executive. The order violates the legal
principles laid down in
Kaunda
and the form of the order illustrates some pitfalls that were
illustrated in
Modderfontein Squatters,
Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd (Agri SA
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)
2004 (6) SA 40
(SCA), namely:
25
‘
As mentioned, the Court below
granted, in terms of s 38 and s 172(1), a declaratory order and a
mandamus
in the form of a “structural interdict” (ie an order
where the court exercises some form of supervisory jurisdiction
over
the relevant organ of state). . . Structural interdicts . . . have a
tendency to blur the distinction between the Executive
and the
Judiciary and impact on the separation of powers. They tend to deal
with policy matters and not with the enforcement of
particular
rights.’
This is not to conclude that a structural
interdict is never appropriate where the exercise of executive
functions is concerned,
but in this case it served to encroach on the
functions of the Executive.
26
[30] Paras 4 and 5 of the first order are legally
untenable in and of themselves. As the court below was not entitled
to make the
order contained in paras 4 and 5 of the first order, the
appellants’ subsequent actions cannot be measured by the
standard
set in those orders and the second order could and should
not have resulted. The inter-connectedness of the orders is also
evident
from the following paragraph in the second judgment by the
court below:
‘
It was held in the main
judgment (more particularly at 560C-566I) that the [appellants] had
acted unconstitutionally and, in the
process, had violated the
[respondent’s] right to diplomatic protection as entrenched in
the Constitution.’
27
[31] The second order is without legal foundation,
not only because of its inter-connectedness to the first order, but
also because
of its substance. In terms of the second order the
appellants are ordered to pay damages for a breach or violation of
rights committed
by the Zimbabwean Government, akin to the field of
vicarious liability and not for their own breach or violation of the
respondent’s
rights.
28
The factual situation does not give rise to vicarious liability and
such liability does not arise in a constitutional law context.
It is
therefore a completely foreign concept that one state would attract
liability in terms of its municipal law (because that
is the only law
that the respondent could enforce against the appellants) viz-a-viz
its own national for the wrongs of another
state, committed by that
state in another country viz-a-viz the same individual. The only
breach that could legally have occurred
in the present case is that
the appellants failed to comply with their duty viz-a-viz the
respondent to act appropriately to his
request for diplomatic
protection.
[32] It is apparent from the judgment that the
second order was the consequence of an investigation into what an
appropriate remedy
would be in the circumstances of the breach.
Section 38 of the Constitution empowers a court to grant appropriate
relief when it
concludes that a breach of rights under the Bill of
Rights has been established.
29
In
Fose v Minister of Safety and
Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC),
30
and several other decisions that followed,
31
the principles and requirements for an appropriate remedy to be
effective have been explored. It states that a monetary award of
damages for a constitutional breach could in appropriate
circumstances be made.
[33] The constitutional breach in this case, if
there was one, could only have been a failure to have responded
appropriately to
the respondent’s request for diplomatic
protection. Theoretically, an appropriate response in certain
circumstances could
be to do nothing. In order to decide on an
appropriate remedy, the nature of the breach must also be considered.
This brings the
issue of causation into focus. The result of the
breach of the constitutional duty properly to consider a request for
diplomatic
protection and respond to it appropriately is not the
factual cause of the loss suffered. This is particularly true on the
facts
of this case. From annexures to the founding affidavit and the
affidavits filed by the appellants pursuant to the first order the
facts speak clearly of a firm attitude by the Zimbabwean Government
in defiance of all pressure that the land reform policy implemented
in Zimbabwe is ongoing and irreversible.
32
[34] I turn to the finding of the court below in
relation to the affidavits filed pursuant to para 5 of the second
order. The court
below perceived the purpose of what it called the
‘follow-up’ hearing to be as follows:
‘
The essence of the enquiry
which came before me in the follow-up hearing was to establish
whether or not the [appellants] had effectively
complied with para 4
of my order in the main judgment – at 567A.
A positive finding, from the point of
view of the [appellants], would signal the end of the matter. A
negative finding would result
in declaratory relief to the effect
that the [appellants] were liable to compensate the [respondent] for
his damages.’
33
[35] I have already dealt with the illogical
conclusion contained in the last sentence of the extract. The court
below held that
the affidavits filed on behalf of the appellants,
regardless of their content, did not constitute compliance with the
second order
as they were not deposed to by any of the appellants
personally. It further held that paras 4 and 5 of the first order
were directed
at the appellants personally.
[36] The conclusion by the court below that the
appellants had to have personally taken steps and deposed to
affidavits, unrealistically
and naïvely ignores that diplomatic
actions involve complex and sensitive relationships conducted through
an extensive hierarchy
according to a particular protocol which, if
breached, could result in failure even before the substance is
considered. It was
also unrealistic to have expected the appellants
to comply personally with the second order within the short time
frame of 60 days
without taking account of relevant facts like other
pressing matters of state, that may have made it impossible for them
to comply
personally with the order. This does not mean that
ministers of government departments can never be ordered to
personally see to
compliance with court orders by their departments.
It only means that it was not appropriate in this matter, as
appropriate and
relevant facts and considerations were not explored.
[37] In the judgment on the misconceived confirmation proceedings
before the Constitutional Court para 50 the following appears:
‘
The Constitution carefully apportions powers,
duties and obligations to organs of State and its functionaries. It
imposes a duty
on all who exercise public power to be responsive and
accountable and to act in accordance with the law. This implies that
a claimant,
who seeks to vindicate a constitutional right by
impugning the conduct of a State functionary, must identify the
functionary and
its impugned conduct with reasonable precision.
Courts too, in making orders, have to formulate orders with
appropriate precision.’
I find it appropriate to apply the essence of what is stated in that
paragraph in the current context. The appellants exercise
executive
powers as the respective heads of their departments by means of a
multitude of functionaries. It would have been necessary
for the
court to state with ‘reasonable precision’ if it required
the ministers to comply with its order personally.
The order that was
issued by the court below is indiscriminate. It is addressed to all
the appellants in their official capacities
without any indication
that it was expected of one or all of them to respond personally. The
inappropriateness of the expectation
is further illustrated when its
logical conclusion is tested by posing the rhetorical question
whether all the appellants, the
President and all three ministers,
were each supposed to approach the Zimbabwean Government in person
and make affidavits.
[38] This requirement of the first order as interpreted by the court
below is another violation of the separation of powers discussed
in
paras 28 and 29 above, as it prescribes to the Executive which
functionary is required to act.
[39] In view of the conclusions reached, it is only necessary to
express a view on the nature of the appellants’ response
to the
respondent’s request for diplomatic protection and their
answering affidavit delivered in this application, insofar
as it is
relevant to the costs order made against the appellants in para 7 of
the first order. In the time leading up to the application
the
appellants seem to have promised the respondent diplomatic
protection. The answering affidavit painted with a broad brush.
Irrespective of the source of the evidence it consists of general
allegations and conclusions of fact. The court was not entrusted
with
the content of the government’s policy or specific steps taken
by particular officials in terms of recognised procedures
and
protocols. In short, the court was not put in a position to assess
the reasonableness or appropriateness of what was done or
not done by
the appellants. The frustration that the court and certainly the
respondent was left with, was that he was given glowing
promises, but
received nothing, not even a response that engaged the issues. The
respondent and the court were entitled to an honest
and open
disclosure on policy, approach and action. The manner in which the
opposition to the confirmation matter was conducted
in the
Constitutional Court was criticised by that court. That criticism was
applicable to the appellants’ conduct throughout
the
proceedings. This case is an example of how a government, founded on
a constitutional dispensation and a culture of human rights,
is not
supposed to treat its citizens and its courts. The government’s
conduct in
Van Zyl
is in stark contrast to the current matter.
[40] The appellants’ response to the respondent was
inappropriate. For that reason they were rightly ordered to pay the
respondent’s costs and leave to appeal that costs order was
rightly refused. Still, it was for the court to find an appropriate
way to ensure compliance with the constitutional duty to consider the
request for diplomatic protection appropriately, whilst respecting
the separation of powers and recognised legal principles.
[41] In view of the appellants’ success in this court it is not
appropriate to order them to pay the costs on appeal. It
is, however,
appropriate to adopt the usual approach in matters involving the
enforcement of constitutional rights and not order
the respondent to
pay the appellants’ costs. The appellants, in my view rightly,
did not insist on costs.
[42] I need to make some final remarks on para 1 of the first order.
In view of the conclusion that I have arrived at that the
appellants’
response does not conform to what is demanded of them in terms of the
Constitution, that part of the first order
should stand, albeit that
it is of theoretical value only.
[43] I make the following order:
1 The appeal is upheld.
2 The order of the court a quo made on 29 July 2008 is set aside,
except for the declaration in para 1 and the costs order in para
7
thereof, and replaced with the following:
‘Save for prayers 1 and 7 which are granted, the application is
dismissed.’
3 The order of the court a quo made on 5 February 2010 is set aside.
_________________
S SNYDERS
Judge of Appeal
APPEARANCES:
For
appellant: PJJ de Jager SC (with him M Mphaga & M Sello)
Instructed by The State Attorney, Pretoria,
The State Attorney, Bloemfontein.
For
respondent: P Hodes SC (with him A Katz SC & M du Plessis)
Instructed by Ernst J V Penzhorn Attorneys, Pretoria,
Hill,
McHardy & Herbst Inc., Bloemfontein.
1
All of the respondent’s farming interests in Zimbabwe were
acquired and developed in various companies and a trust that
were
registered legal entities in Zimbabwe. The respondent controlled
these legal entities. As the farms in Zimbabwe were not
held by the
respondent in private ownership, it was an issue between the parties
in the court below whether the respondent had
any standing to
approach the South African Government for diplomatic protection.
That issue was not pursued by the appellants
in this court and is
consequently not addressed in this judgment. For purposes of this
judgment it is accepted that the respondent
had a direct interest in
the relevant farming land in Zimbabwe.
2
Sections 83, 84, 85 and 92 of the Constitution.
3
The judgment has been reported as
Von Abo v Government of the
Republic of South Africa & others
2009 (2) SA 526
(T).
4
The judgment has been reported as
Von
Abo v Government of the Republic of South Africa & others
2010
(3) SA 269
(GNP).
5
ICSID is an international convention entered into
force on 14 October 1966 and which Zimbabwe ratified on 20 May 1994.
South Africa
has not ratified the ICSID.
6
BIPPA was seemingly not signed due to a
substantial change in attitude by the Zimbabwean officials that
negotiated the agreement.
7
The amendment effected involved the deletion of a
prayer for a mandatory interdict to force the appellants to take
steps to ratify
the ICSID and to report to the court within thirty
days of such order on the steps taken in compliance thereof.
8
The fact that the affidavit was not filed within
sixty days of the date of the first order was never regarded as
significant.
9
Section 172(2)(a): ‘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 any conduct of the President, but an order of
constitutional
invalidity has no force unless it is confirmed by the
Constitutional Court.’
10
The judgment is reported as
Von Abo v
President of the Republic of South Africa
2009 (5) SA 345
(CC).
11
Ibid
para 13.
12
The date of the order as reported is incorrect.
13
Standard Bank v Estate van Rhyn
1925 AD 266
at 268;
Gentiruco
AG v Firestone SA (Pty) Ltd
1972 (1) SA 589
(A) at 600A-D;
Natal
Rugby Union v Gould
[1998] ZASCA 62
;
1999 (1) SA 432
(SCA) at 443F.
14
Paras 3 and 7.
15
Zweni v Minister of Law and Order
1993 (1) SA 523
(A) at 532I-533A;
Moch
v Nedtravel (Pty) Ltd t/a American Express Travel Service
1996 (3) SA 1
(A) at 10F-11C;
National
Director of Public Prosecutions v King
2010
(2) SACR 146
(SCA);
2010 (7) BCLR 656
(SCA) paras 46 and 50-51.
16
See also at 19B and
Van
Rensburg v Van Rensburg & andere
1963 (1) SA 505
(A) at 510A.
17
Van Zyl
para 60.
18
Paras 25-27.
19
Kaunda
makes
reference to the
Report of the
International Law Commission on the work of its 52
nd
session,
1 May to 9 June and 10 July
to 18 August (2000) A/55/10 (ICL report).
20
Kaunda
para 67.
21
Kaunda
para 44.
22
Van Zyl
para 52.
23
Para 143.
24
See also
Doctors for
Life International v Speaker of the National Assembly & others
[2006] ZACC 11
;
2006 (6) SA 416
(CC) paras 37-38;
Glenister
v President of the Republic of South Africa & others
[2008] ZACC 19
;
2009 (1) SA 287
(CC) paras 33 -35.
25
Para 39.
26
Sibiya & others v Director of Public
Prosecutions, Johannesburg, & others
[2005] ZACC 6
;
2005 (5) SA 315
(CC) is an example where a supervisory interdict was
used.
27
Para 60.
28
Liability that one person attracts for the delict
committed by another by reason of the relationship between them, for
example
employer and employee. See
Minister
of Safety and Security v F
(592/09)
[2011] ZASCA 3
(22 February 2011) for a discussion on the nature,
history and application of vicarious liability.
29
The relevant part of s
38 of the Constitution
reads: ‘Anyone listed in this section has the right to
approach a competent court, alleging that
a right in the Bill or
Rights has been infringed or threatened, and the court may grant
appropriate relief, including a declaration
of rights.’
30
Para 60.
31
Minister of Health & others v Treatment Action Campaign &
others (No 1)
[2002] ZACC 16
;
2002 (5) SA 703
(CC);
Modderfontein Squatters,
Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd (Agri SA
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)
2004 (6) SA 40
(SCA);
MEC, Department of Welfare, Eastern Cape v Kate
[2006] ZASCA 49
;
2006
(4) SA 478
(SCA).
32
An attitude expressed by Zimbabwean Ambassador Moyo and Mr Chifamba,
Zimbabwean Divisional Head for Africa: Economics, at different
meetings with South African delegations. The annexures to the
founding affidavit were: Human Rights Watch
Fast Track Land
Reform in Zimbabwe
March 2002, Vol 14, No 1(A), New York; Human
Rights Watch
Under a Shadow: Civil and Political Rights in
Zimbabwe,
June 6, 2003; Amnesty International Report 2002; US
Department of State
Country Reports on Human Rights Practices
2002, 2003, 2004 and 2005.
33
Para 9.