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2024
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[2024] ZAGPPHC 1123
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Agboraw N.O and Another v Minister of International Relations and Co-operation and Others (Leave to Appeal) (2024-096838) [2024] ZAGPPHC 1123 (1 November 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case No: 2024-096838
Reportable: No
Of interest to other
Judges: No
Revised: No
SIGNATURE
Date: 1 November 2024
In the matter between:
ENOBOT AGBORAW
N.O.
1
st
Applicant
THE AFRICAN COMMISSION OF
NUCLEAR ENERGY
2
nd
Applicant
and
THE MINISTER OF
INTERNATIONAL RELATIONS
1
st
Respondent
AND CO-OPERATION
THE DEPARTMENT OF
INTERNATIONAL RELATIONS
2
nd
Respondent
AND CO-OPERATION
THE DIRECTOR-GENERAL, THE
DEPARTMENT 3
rd
Respondent
OF INTERNATIONAL AND
CO-OPERATION
THE CHAIRPERSON, THE
AFRICAN UNION COMMISSION
4
th
Respondent
THE AFRICAN UNION
COMMISSION
5
th
Respondent
JUDGEMENT –
APPLICATION FOR LEAVE TO APPEAL
MOOKI J
1
The applicants seek leave to appeal. They
raise the following grounds:
1.1
The court erred in interpreting the Host Agreement to mean that
AFCONE has no standing in the dispute
resolution process in the Host
Agreement.
1.2
The court improperly limited its judicial discretion in deciding that
the court has no power to issue
an order subject to proceedings by a
body over which the court has no control.
1.3
No legal basis to the finding that the court has no power to grant
interim relief pending proceedings
before the AU Administrative
Tribunal.
1.4
The court misdirected its analysis. The court incorrectly framed the
challenge as a contestation of
the AU’s decision. The
applicants challenged DIRCO’s implementation of the AU’s
decision.
1.5
The court did not have proper consideration of the irreparable harm
to the to the first applicant and
the balance of convenience in
relation to the first applicant.
1.6
The first applicant has no adequate remedy in relation to reference
to the AU Administrative Tribunal.
1.7
The court failed to recognise that the relief sought in the review is
not contingent on a finding of
the lawfulness of dismissal of the
first applicant. The review is in relation to DIRCO’s violation
of section 8 of the Diplomatic
Immunities and Privileges Act and of
Article 12 of the Host Agreement.
1.8
The court erred in finding that the court is not competent to
adjudicate whether DIRCO’s decision
to issue the Notes Verbales
revoking the first applicant’s diplomatic immunities comply
with the process set out in the Diplomatic
Immunities and Privileges
Act 2001 and in Article 12(2) of the Host Agreement
2
Disputes under the Host Agreement are
disputes in relation to ‘parties’ to that agreement.
AFCONE, as found in the main
judgement, is not a ‘party’
to that agreement.
3
The court is not persuaded that it erred in
its finding regarding the making of an order that is subject to
proceedings by a body
over which the court has no control.
4
The authorities referenced by the
applicants, in relation to the grant or otherwise of interim relief
pending proceedings in another
forum, are not applicable. Those
authorities deal with proceedings within the Republic. The applicants
seek interim relief in relation
to a decision by the Conference of
State Parties, over which South African courts have no say.
5
The decision by DIRCO is manifestly in
consequence to events over which the court has no control. Those
events include the lawfulness
or otherwise of the dismissal of the
first applicant as AFCONE’s executive secretary, and the advice
to DIRCO by the chairman
of the AU Commission that the first
applicant was no longer AFCONE’s executive secretary. A finding
as to DIRCO’s conduct
is inextricably linked to a finding in
relation to events leading to DIRCO issuing the Notes Verbales. The
court has no control
over those preceding events.
6
The applicants’ contentions regarding
DIRCO and the country’s international obligations are
over-egged. There is no
suggestion that DIRCO acted in bad faith when
it issued the Notes Verbales. I am not persuaded that DIRCO can be
said to have failed
to meet its and South Africa’s obligations
in terms of their respective international obligations.
7
I am not persuaded that the appeal has
reasonable prospects of success. I am equally not persuaded that
there are compelling reasons
for granting leave to appeal as
contemplated in section 17 (1)(a)(ii) of Act 10 of 2013. The
application does not raise the question
of South Africa’s
obligations to uphold international agreements, as claimed in the
application.
8
The immunities and privileges, as found in
the main application, attach to whoever is the Executive Secretary of
AFCONE. DIRCO’s
withdrawal of those immunities and privileges
following advice to DIRCO that the first applicant had been removed
as Executive
Secretary, cannot be said to set a precedent that could
negatively impact South Africa’s international standing and
diplomatic
obligations.
9
The effect of the relief sought by the
applicants is this: the first applicant will be a bearer of
diplomatic immunities and privileges,
whilst his standing as
Executive Secretary of AFCONE is in dispute; with South African
courts being unable to have any say in the
resolution of that
dispute.
10
The
fundamental issue in this matter is the lawfulness or otherwise of
the first applicant being advised that he had been dismissed
as
Executive Secretary of AFCONE. South African courts, as found
in the main judgement, cannot resolve this question.
11
I
order as follows:
(1)
The application is dismissed.
(2)
The first applicant is ordered to pay
costs.
O
MOOKI
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION PRETORIA
Counsel for the
applicants:
A Katz SC
N Loopoo
Instructed by:
Cliffe Dekker
Hofmeyr Attorneys
Counsel for the
first to third respondents:
DT Skosana SC
MG Mamabolo
Instructed by:
The State Attorney
Date heard:
17 October 2024
Date of judgment:
1 November 2024