Von Abo v President of the Republic of South Africa (CCT 67/08) [2009] ZACC 15; 2009 (10) BCLR 1052 (CC) ; 2009 (5) SA 345 (CC) (5 June 2009)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2009
>>
[2009] ZACC 15
|

|

Von Abo v President of the Republic of South Africa (CCT 67/08) [2009] ZACC 15; 2009 (10) BCLR 1052 (CC) ; 2009 (5) SA 345 (CC) (5 June 2009)

Links to summary

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 67/08
[2009] ZACC 15
CRAWFORD
LINDSAY VON ABO
Applicant
versus
PRESIDENT
OF THE REPUBLIC OF SOUTH AFRICA
Respondent
Heard
on : 26 February 2009
Decided
on : 5 June 2009
JUDGMENT
MOSENEKE
DCJ:
Introduction
Before us are
confirmatory proceedings in terms of section 172(2)(a)
1
of the Constitution read with Rule 16 of the Constitutional Court
Rules.
2
The applicant, Mr Von Abo, seeks confirmation of an order of the
North Gauteng High Court, Pretoria (High Court) made by Prinsloo
J
against the President of the Republic of South Africa. In that
Court, the President was cited, along with four other Cabinet

Ministers and the government, as a respondent. The court order
consists of declaratory and mandatory relief. However, only

paragraph 1 of the declaratory orders has been brought to this
Court for confirmation and only the President has been cited
as
respondent. The essence of the order sought to be confirmed is
that the failure of the President, as one of several government

respondents, to consider and decide properly the request of Mr Von
Abo for diplomatic protection against the violation of his
property
rights by the government of Zimbabwe, was inconsistent with the
Constitution and invalid.
3
Mr Von Abo is a South
African citizen and businessman who held various properties and
farming interests in Zimbabwe. His complaint
against the
government of South Africa flows from its alleged failure to afford
him diplomatic protection against his proprietary
interests being
“violated” by the government of Zimbabwe.
In the High Court the
applicant cited as the first respondent the government of South
Africa, together with the President as
second respondent and the
Minister for Foreign Affairs, the Minister for Trade and Industry
and the Minister for Justice and
Constitutional Development as
third, fourth and fifth respondents respectively. However, in this
Court, the applicant has
cited only the President as respondent.
This the applicant has done because, in his view, the failure by
the President to
afford him diplomatic protection constitutes “any
conduct” of the President referred to in section 172(2)(a) of the
Constitution
and therefore an order of the High Court relating to
the conduct of the President is binding only if it is confirmed by
this
Court. Implicit in the stance the applicant has adopted is
that the order of the High Court relating to the Cabinet Ministers,

who were respondents before it, is not susceptible to confirmation
by this Court and that, if not reversed on appeal, is without
more
binding and final.
Before I identify the
crisp issue for decision it is necessary to sketch the background
facts and course of the litigation.
Background facts and
litigation
As
managing director of certain companies and sole trustee of the Von
Abo Trust, Mr Von Abo established substantial financial
and farming
interests in Zimbabwe. This he did over the course of the last 50
years. Initially, he financed the farming activities
by applying
his own resources drawn from his South African reserves. In time
however, he funded the farming interests using
finances available
to him in Zimbabwe. He set about re-investing profits and capital
gains in his Zimbabwean interests. In
this manner he became the
beneficial owner of a “considerable farming empire” in that
country.
From about 1997, the
government of Zimbabwe devised a legislative scheme to confiscate
land owned by white farmers. This led
to wide-scale expropriation
of land and farming businesses without compensation. Many
white-owned farms were taken over by
the government or invaded by
people who claimed to be repossessing farms under government
authority. Owners of the farms,
their workers and other occupants
were forcibly evicted without due process of the law. The farming
operations stalled and
many farms were destroyed in the process.
The same fate befell Mr Von Abo’s farming interests.
Mr Von Abo was aggrieved
that his farming operations had been ruined and, what is more, that
the government of Zimbabwe had
not paid him compensation for the
expropriation or damages he had suffered. Having exhausted all
remedies available to him
in Zimbabwe, he approached the South
African government for diplomatic protection related to his invaded
land and now-compromised
commercial interests. In March 2002 he
wrote to the President requesting diplomatic protection concerning
the “violation
of his rights” in Zimbabwe. Mr Von Abo also
requested that the President and the Minister for Trade and
Industry accede
on behalf of South Africa to the International
Convention on the Settlement of Investment Disputes (ICSID), in
order that he
might, as a citizen of a party to this Convention,
pursue a claim for compensation against the Zimbabwean government
under
ICSID.
4
This would have been feasible because Zimbabwe had acceded to
ICSID and could thus be held liable under its terms. To this
end,
he requested a meeting with the President in order to discuss the
importance of the government becoming a party to ICSID
.
Dissatisfied with the
response of the government and what he termed its failure to “take
diplomatic steps . . . to protect
or fulfil [his] rights” and
without “meaningful explanation for this failure and/or refusal,”
he decided to put it on
terms, and threatened legal action. No
response was forthcoming from the government. In January 2007 and
nearly five years
after his initial request to the government for
diplomatic protection, Mr Von Abo approached the High Court. He
sought an
order declaring, amongst other
prayers, that the
failure of the government to consider and decide his application
for diplomatic protection in respect of the
violation of his rights
by the government of Zimbabwe was inconsistent with the
Constitution and invalid.
The government and the
cabinet ministers cited opposed the relief sought. They contended
that they had seriously considered
the request for diplomatic
protection and that they had taken reasonable steps to provide the
protection sought. They added
that the government of South Africa
had made several diplomatic representations on Mr Von Abo’s
plight to the government
of Zimbabwe without success but had no
means to coerce that government to heed the representations.
These averments were
deposed to by an official in the Department of Foreign Affairs.
None of the government respondents filed
an affidavit to confirm
the correctness of the answering affidavit put up on behalf of
government. This the applicant took
issue with in his replying
affidavit. In its judgment, the High Court found the omission to
be a material defect in the defence
raised by the government and
other respondents. It accordingly approached the facts on the
basis that the government and other
respondents had put up no
credible facts to controvert Mr Von Abo’s version.
The High Court
The High Court found that
the requirements necessary for a state to assert a claim for
diplomatic protection on behalf of its
citizen were present. It
found that the requirements are that the claimant must be a
national of the country from which diplomatic
protection is sought;
that there had been a violation of an international minimum
standard; and that the claimant had previously
exhausted all
available internal remedies. The High Court found that the long
drawn out responses of the government to the
applicant’s numerous
letters and requests had amounted to merely “stringing the
applicant along” and that the respondents
“never had any
serious intention to afford him proper protection.” As a result,
the Court held that the applicant did
indeed have a right to
diplomatic protection, and that the respondents had failed to take
the necessary steps to afford Mr
Von Abo diplomatic protection.
The High Court concluded that the applicant had made out a proper
case for declaratory and
mandatory relief and granted the order
sought against all respondents including the President.
For the sake of
completeness, I reproduce the order of the High Court in full:
“
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.
2. 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.
3. 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 60 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
(sixty) 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.”
Neither the government
nor any of the other respondents 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 respondents
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
respondents has availed itself of this right
of appeal. If
anything, during the hearing in this Court, counsel for the
respondent sought to tender new evidence to show
that the
government respondents were taking active steps to comply with the
order of the High Court. From the bar counsel
for the respondent
assured this Court that neither the government nor any of the other
respondents is minded to do anything
other than comply with the
order of the High Court.
Proceedings in this
Court
I
have explained earlier that Mr Von Abo has approached this Court
for an order confirming the order of the High Court but only

insofar as it relates to the conduct of the President and only in
relation to paragraph 1 of the order. He says that the order
will
be a limping one unless it is confirmed by this Court in terms of
section 172(2)(a) of the Constitution. The applicant’s

conviction that the order of the High Court is susceptible to
confirmation appears to have been emboldened by the stance of
the
High Court. In its judgment, the High Court too is of the view
that its order should be referred to this Court for confirmation.

The respondent does not agree with this characterisation and on
this basis opposes the confirmation. He contends that the
order in
issue does not relate to his conduct as President as envisaged in
section 172(2)(a) of the Constitution and thus it
is not
susceptible to confirmation.
New evidence
Before I formulate the
crisp issue to be determined, regrettably, I must stray to mention
a matter that unduly obscured, if
not side-tracked the
determination of the core question. The matter relates to the
abortive attempts on behalf of the respondent
to introduce new
evidence to the confirmatory proceedings in this Court. This
occurred in the following manner. Prior to
the hearing of 11
November 2008 the respondent attached an annexure to his written
argument. The contents of the annexure
related to diplomatic
exchanges between the governments of South Africa and Zimbabwe as
part of an effort by our government
to comply with the order of the
High Court in favour of Mr Von Abo. The respondent’s attorney
served the annexure on the
applicant’s attorney and filed it with
the Registrar of this Court. The annexure contained a claim on
behalf of the respondent
that the evidence of the diplomatic
exchanges was confidential and deserved to be protected from public
disclosure by means
of a court order. This Court issued an interim
ruling to protect the claimed confidentiality until the date of
hearing when
the parties would be heard on the confidentiality
claim.
5
However,
on
the day of the hearing, the respondent had still not brought a
formal application for the admission of the new evidence contained

in the annexure. The applicant’s attitude was that it would not
take the point that no formal application for admission
of the
evidence had been made but would oppose its admission on grounds of
relevance. It was argued that the evidence was
irrelevant as it
had no bearing on the possible outcome of the confirmatory
proceedings. The new evidence related to the conduct
of the
respondents after and in compliance with the order of the High
Court.
Confronted by this
difficulty, counsel for the President nonetheless requested a
postponement of the confirmation hearing in
order to bring a formal
application to tender the new evidence. The hearing was postponed
to 26 February 2009 and the respondent
was ordered to pay the
wasted costs occasioned by the postponement of the hearing and to
file the requisite application no
later than 28 November 2008. The
deadline came and went and no application to tender new evidence
was made. On 20 January
2009 the Court issued directions requiring
the parties to make representations on why this Court should not
withdraw its concession
to keep the “confidential” documents
away from public viewing.
It was only on 11
February 2009 that the respondent filed a belated application to
tender new evidence, along with a request
for condonation for his
non-compliance with the Court’s directions of 11 November 2008.
Mr Von Abo opposed the application
for condonation and for leave to
tender new evidence. He submitted that the new evidence was
irrelevant to the confirmation
proceedings. As matters turned out,
at the hearing of 26 February 2009, this Court did not reach the
application to admit
new evidence. This was so because by
direction of this Court the parties were enjoined to argue only the
narrow question whether
the High Court order was susceptible to
confirmation under section 172(2)(a) of the Constitution.
However, the wasted costs
relating to the two interlocutory applications remain undetermined.
It is thus now necessary to dispose
of the costs of the two
applications. In my view, both applications were destined to be
dismissed. During the hearing counsel
for the respondent conceded
that the respondent should be ordered to pay all the wasted costs
related to the aborted application
to introduce new evidence as
well as the related application for condonation. That concession
was properly made.
In
Van Wyk v Unitas
Hospital
this Court warned that in an application for
condonation the explanation of the delay must be full and frank and
must demonstrate
that the case of the applicant bears some prospect
of success.
6
The application for condonation was bad on both counts. It lacked
an adequate explanation for the failure of the respondent
to bring
an application for admission of fresh evidence within the
time-frames stipulated by the directions of this Court.
What is
more, the substantive application to introduce new evidence at this
late stage bore no prospects of success because,
as the applicants
correctly submitted, the new evidence in issue bore no relevance to
the confirmation proceedings. Instead
it related to events that
occurred after the High Court had made the order which is now the
subject of the present confirmation
proceedings. The new matter
was not directed at challenging the order of the High Court but
rather at displaying the steps
the government had taken to satisfy
the order. I propose to make an adverse order as to wasted costs
relating to the two interlocutory
applications against the
respondent. I have said the respondent does not resist the adverse
cost order being made. I will
make the costs order at an
appropriate stage of this judgment.
This of course means that
the new testimony which was said to be confidential was not
admitted as part of the papers in this
matter. It must follow
without more that any interim order intended to protect that
confidentiality should fall away. Again,
I will revert to this
matter when I fashion an appropriate order.
Issues
This
Court’s directions of 25 February 2009 required the parties to
argue only the following issues:
“
a) whether
the order of the High Court that the conduct of the President is
inconsistent with the Constitution and invalid,
is subject to
confirmation by this Court in terms of section 172(2)(a) of the
Constitution.
b) if this Court were
to find that the order of the High Court is not subject to
confirmation what order should this Court
make in relation to
costs.
c) if this Court were
to find that the order of the High Court is not subject to
confirmation what order should this Court
make regarding its own
order made on 4 November 2008 regarding the confidentiality of
certain documents claimed on behalf
of the respondents.”
A
t
the hearing, the sole question of substance that came up for debate
was whether the failure to provide diplomatic protection
by the
President constitutes “conduct” as envisaged in section
172(2)(a) of the Constitution. If it does, this Court is
obliged
to consider and determine the merits of the decision of the court
a
quo
in order to decide whether the
order of the High Court should be confirmed. However, if the
President’s failure does not
constitute the envisaged conduct,
that finding would be dispositive of the matter and the application
for confirmation would
be struck off the roll.
Contentions of the
parties
Before
I briefly describe the submissions of the parties, it is expedient
to set out the wording of s
ection
172(2)(a) in full:
“
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.” (My emphasis.)
The
applicant has asked this Court to confirm
the order of the High Court because it relates to the conduct of
the President. He
contended that the words “
any
conduct of the President
” in section
172(2)(a) must be accorded a generous meaning. Read widely, the
provision renders a court order relating to
“any conduct” of
the President susceptible to confirmation. He submitted that “any
conduct” so envisaged in the section
certainly includes the
conduct of the President in relation to Mr Von Abo’s request for
diplomatic protection. In another
submission the applicant says
that the mere fact that the order of the High Court has declared
the conduct of the President
unconstitutional is sufficient to
render it “conduct” for the purposes of section 172(2)(a). The
declaration of invalidity
compels confirmation of the order by this
Court so as to dispel any uncertainty.
In
addition, the applicant submitted that the line between the
concurrent jurisdiction provided for by section 172(2)(a) read
with
section 167(5) of the Constitution, and the exclusive jurisdiction
conferred by section 167(4)(e) of the Constitution
must be drawn in
the light of
Doctors for Life
.
7
There, this Court held that the nature of the conduct envisaged in
section 167(4)(e) is that which involves decisions relating
to
crucial political questions, and necessarily implicates separation
of powers issues.
8
Those decisions may only be made by this Court.
9
However, presidential conduct in terms of sections 172(2)(a) and
167(5) does not necessarily involve crucial political questions
but
must still be confirmed by this Court. Although, so the argument
goes, sections 172(2)(a) and 167(5) cannot include each
and every
action of the President, a determination on whether conduct of the
President is “conduct” for the purposes of
these sections,
should be made on a case-by-case basis. It requires a
context-sensitive enquiry.
The
respondent has urged us to refuse the application for confirmation.
Stated pithily, the respondent’s
attitude is that the failure to provide proper diplomatic
intervention in issue does not
amount to the “conduct of the
President” as envisaged in section 172(2)(a). The failure to act
found by the High Court,
in truth, is not that of the President but
of the government including certain of its ministers. The duty to
consider properly
whether to furnish diplomatic protection rests on
the government acting through the national executive which is
headed by the
President. However, the respondent exercises
executive authority together with other members of the Cabinet.
For this contention
the respondent advanced several reasons in law
and fact which, given the conclusion I reach, I need not now
re-state.
Constitutional
jurisdiction
This
Court, like other c
ourts in our land, is
a progeny of our democratic Constitution and so too is its
jurisdiction. However, unlike other courts
it occupies a special
place in our new constitutional order. It is the highest court on
all constitutional matters and is
clothed with both exclusive and
concurrent jurisdiction. It enjoys exclusive jurisdiction in
regard to specified constitutional
matters and makes the final
decision on other constitutional issues that are also within the
jurisdictions of other superior
courts and in particular, the
Supreme Court of Appeal and the High Court. The exclusive and
supervisory jurisdictions of this
Court may be properly gathered
from three constitutional provisions. They are sections 172(2)(a)
and 167(5) of the Constitution,
which regulate concurrent
jurisdiction with the High Court and the Supreme Court of Appeal,
and section 167(4) which carves
out jurisdictional exclusivity for
this Court. I look at the remit of each of the provisions with
reference to our jurisprudence.
It is
plain from the wording of
section
172(2)(a) that an order of the Supreme Court of Appeal or of the
High Court concerning the constitutional validity
of “
any
conduct of the President
” has no force
unless this Court confirms it. In reviewing the meaning of the
phrase “any conduct” this Court in
Pharmaceutical
Manufacturers
held that it must be
accorded a generous and wide meaning.
10
The Court explained that the purpose of the section is to ensure
that the highest court in constitutional matters should supervise

declarations of constitutional invalidity against the conduct of
the President who as Head of State and head of the national

executive is the highest organ of the state. The Court warned that
this purpose would be defeated if the constitutional validity
of
the conduct of the President in that case could be characterised as
not falling within the bounds of section 172(2)(a).
11
I must
instantly add that in that case this Court was called upon to
decide whether to confirm an order of the High Court that
had
declared invalid a proclamation by the President to bring into
force an Act of Parliament. The Act concerned had provided
that it
would come into operation on a date to be determined by the
President. The national legislation concerned required
the
President to take the positive step of issuing a proclamation.
Clearly, only the President could exercise the power specially

conferred on him by legislation. In other words, the President did
not exercise executive authority together with other members
of the
Cabinet. It is that conduct which the Court considered to be
susceptible to confirmation. It must be said that whilst
Pharmaceutical Manufacturers
considered the conduct of the President to be a proper subject for
confirmation in that case, it does not furnish the answer
to the
crisp question of which conduct of the President, if any, is not
susceptible to confirmation under section 172(2)(a).
Another
provisi
on of the Constitution that
regulates confirmation by this Court of orders relating to “
conduct
of the President
” is section 167(5).
It provides that:
“
The
Constitutional Court makes the final decision whether an Act of
Parliament, a Provincial Act
or
conduct
of the President
is constitutional,
and must confirm any order of invalidity made by the Supreme Court
of Appeal, a High Court, or a court of
similar status, before that
order has any force.” (My emphasis.)
In
substance the provisions of sections
172(2)(a) and 167(5) serve separate but complementary purposes.
Both sections map out
the respective areas of jurisdiction of the
Supreme Court of Appeal and the High Court, on the one hand, and of
this Court,
on the other. They may be said to be two sides of the
same coin. Put differently, section 172(2)(a) forms part of a
collection
of provisions that confer constitutional jurisdiction on
the Supreme Court of Appeal and High Courts subject to the express

oversight of this Court in relation to orders on the constitutional
validity of national and provincial legislation and conduct
of the
President. On the other hand, section 167(5) delineates the power
of this Court in relation to the same class of orders
of
constitutional invalidity made by the Supreme Court of Appeal and
the High Court. This suggests that the “conduct of
the
President” envisaged in the two provisions ordinarily bear the
same meaning. In other words, if particular conduct of
the
President is liable to be confirmed under the one provision,
ordinarily it should also be so under the other provision.
Both
provisions serve the vital purpose of ensuring that orders of
invalidity directed at the appropriate class of the President’s

conduct have no force unless confirmed by this Court. This
complementary relationship between these two provisions was

recognised by this Court in
Doctors
for Life
.
12
In that case we held that through sections 167(5) and 172(2)(a),
the Constitution contemplates that disputes on whether provincial

or national legislation or conduct of the President is
constitutional will be considered in the first instance by the High

Courts, which are given the power to declare such laws or conduct
invalid, subject to confirmation by this Court.
13
This
does not however mean that every dispute about the conduct of the
President falls within the jurisdiction of the High Court
or the
S
upreme Court of Appeal. The first
prominent exclusion is found in the provisions of section
167(4)(e), which expressly confers
exclusive jurisdiction by
providing that, only this Court may—
“
decide
that Parliament or the
President has
failed to fulfil a constitutional obligation
”.
(My emphasis.)
The
Constitution distinguishes disputes related to the “
conduct
of the President”
from those where he
has “
failed to fulfil a constitutional
obligation
”. In
SARFU
14
this Court pointed out that the words “fulfil a constitutional
obligation” must be given a narrow meaning in order to avoid
any
conflict with the power given to the High Court and the Supreme
Court of Appeal on all questions concerning the constitutional

validity of conduct of the President. There the Court recognised
that it would be difficult to determine what that narrow
meaning
should be in each case. This Court in
Doctors
for Life
,
15
and previously the Supreme Court of Appeal in
King
v Attorneys’ Fidelity Fund
,
16
resorted to a narrow construction of section 167(4)(e) in order not
to constrict the powers of lower courts to test legislation
and the
conduct of the President for constitutional compliance.
It
seems
plain to me that where the conduct
of the President does not pass muster as a “constitutional
obligation” envisaged in section
167(4)(e), ordinarily it would
be susceptible to the jurisdiction of the Supreme Court of Appeal
or the High Court. That jurisdiction
is conferred by the
Constitution through the provisions of section 167(5) read with
section 172(2)(a) and must be given full
effect.
In
Doctors for Life
,
Ngcobo J,
writing for the Court, observed that the word “obligation”
connotes a duty specifically imposed by the Constitution on

parliament to perform specified conduct.
17
It seems to me that by parity of reasoning the same consideration
applies to an “obligation” relating to the President.
The main
thrust of these decisions seems to be that section 167(4)(e) which
provides for the exclusive jurisdiction of the
Constitutional Court
should be construed restrictively in order to give full recognition
to the power of the Supreme Court
of Appeal and the High Court to
determine whether conduct of the President is constitutionally
valid. On the other hand, the
Constitution does contemplate that
certain duties are pointedly reserved for the President. This
class of obligations is derived
from the Constitution itself or
from legislation. It includes specified duties that the President
as Head of State and head
of the national executive must fulfil.
18
It
however remains a complex question
whether a specific power exercised by the President under the
Constitution or other law amounts
to a “constitutional
obligation” which only this Court may decide. It is neither
prudent nor pressing to describe what
amounts to a constitutional
obligation under section 167(4)(e) any more so than I have done.
Even so, ready examples of constitutional
obligations specifically
entrusted to the President may be found in section 84(2) of the
Constitution.
19
Many of the powers and obligations in section 84(2) vest in the
President as Head of State and head of the national executive.

These duties may correctly be described as functions the
Constitution requires him or her to perform. Ordinarily they would

be matters that have important political consequences and which
call for a measure of comity between the judicial and executive

branches of the state. Some of the obligations do relate to
decisions on crucial political questions, referred to in
Doctors
for Life
20
and necessarily implicate separation of powers issues. Moreover,
the decisions to be tested for constitutional compliance
are those
of the highest office of the Head of State and the head of the
national executive. And for that reason the Constitution
provides
that disputes of that order must be decided by this Court only.
I need
say nothing more about exclusive jurisdiction of this Court because
none of the parties in this case contended that this
is a matter
which falls within the exclusive power of this Court under section
167(4)(e). Both accepted that the High Court
had jurisdiction to
deal with the matter in terms of section 172(2)(a) and section
167(5). That approach to this matter is
the correct one. That
simply means that the residual question is whether the dispute over
the alleged failure to deal with
the applicant’s requests for
diplomatic protection against the violation of his property rights
by the Zimbabwean government
can properly be characterised as
relating to conduct of the President under section 172(2)(a).
In
order to answer this question, it is
expedient to describe briefly the nature of the executive authority
envisaged by the Constitution.
It vests in the President the
executive authority which he or she must exercise together with
other members of the Cabinet.
21
These powers include implementing national legislation, developing
and implementing national policy, co-ordinating functions
of state
departments, and preparing and initiating legislation. And more
significantly for the present case, section 85(2)(e)
22
requires the President, acting together with Cabinet, to perform
any other executive function provided for in the Constitution
or in
national legislation. In my view, the exercise of all of these
powers under section 85 does not necessarily constitute
an
“obligation” as used in section 167(4)(e).
The
re
may be appropriate instances where conduct of the President
constitutes “conduct” that is susceptible to the jurisdiction

of the High Court and the Supreme Court of Appeal under sections
172(2)(a) and 167(5). However, it is important to keep in
mind the
provisions of sections 91(1) and (2)
23
and 92(1) and (2).
24
In terms of these provisions the Cabinet is made up of the
President, the Deputy President and Ministers who are all appointed

by the President. He assigns to them their powers and functions.
Once the powers and functions have been assigned, the Deputy

President and Ministers are responsible for the executive powers
and functions assigned to them. These provisions make plain
that
members of the Cabinet are accountable independently and
collectively to Parliament for the exercise of their powers and

performance of their functions. For good measure, section 92(3) of
the Constitution restates the obvious which is that, when
they
exercise the powers assigned to them, members of the Cabinet must
act in accordance with the Constitution.
25
This is significant because once Cabinet ministers are assigned
powers and functions by the President they are not mere vassals
of
the President. They bear the duty and the responsibility to fulfil
the duties and functions so assigned which in practice
take the
form of political and executive leadership of specified state
departments. The Constitution makes the point that
besides the
duty to account to the head of the national executive, cabinet
ministers bear the responsibility to report and
account to
Parliament on how they execute their executive duties.
Relevant
here, in my opinion, is the collaborative nature of the national
executive function, on the one hand, and the individual

accountability of every Minister in the Cabinet, on the other. The
President is head of Cabinet. Thus, where a national executive

function is impugned or where the conduct of a Minister is
challenged, it may be said, loosely speaking, that the conduct of

the President as head of the national executive is in issue.
However, to categorise all national executive functions at cabinet

level as “conduct of the President” for the purposes of
sections 167(5) and 172(2)(a), by mere virtue of the fact that
the
President is head of the national executive, is to misconstrue the
true nature of the national executive function envisaged
by Chapter
5 of the Constitution. It may well be that the President has some
residual authority as head of the national executive,
but the
primary responsibility lies with the government, and with the
Ministers to whom a specific task has been assigned in
accordance
with sections 91 and 92 of the Constitution.
It
seems to me
, therefore, that it is
impermissible to hold that when the conduct of the government as
represented by the national executive
or of one or more members of
the Cabinet, is impugned on the ground that it is inconsistent with
the Constitution and thus
invalid, that dispute relates to the
conduct of the President and therefore that the ensuing order of
constitutional invalidity
must be confirmed by this Court on the
ground that it relates to the conduct of the President. If that
were so, it would mean
that in theory every order against the
government or a member of the Cabinet must be confirmed before it
has any force or effect.
As I have demonstrated earlier, that
would defeat the scheme of Chapter 5 of the Constitution; it would
blur the careful jurisdictional
lines between this Court and other
superior courts drawn by Chapter 8 of the Constitution; and would
lead to an unwarranted
increase of confirmation proceedings in this
Court.
It is
now convenient to return to the context
of the present case. It is clear that the government of South
Africa
was the first and main respondent in the High Court
proceedings, and that diplomatic protection could have been
considered
by any of the Ministers empowered by the President to do
so under section 92 of the Constitution. This being a matter which
relates to the foreign relations of the Republic, it is clear from
the papers that the Department of Foreign Affairs was seized
with
the matter and that each time correspondence was sent to the
President, it was forwarded to that Department for its attention.

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 fulfil his constitutional obligations.
In addition, on a reading
of the correspondence between the applicant and the Office of the
Presidency, it is clear that the
latter’s response indicated that
Mr Von Abo’s concerns had been forwarded to the Ministry for
Foreign Affairs. Moreover,
much of the remaining correspondence
brought before this Court as evidence of the applicant’s attempts
to secure diplomatic
protection was directed by Mr Von Abo to
certain executive officials, namely the South African High
Commissioner in Zimbabwe
and the Minister for Foreign Affairs.
Moreover, the responses to his various requests were authored by
these executive officials.
In
Kaunda
26
the majority held that the provision of diplomatic protection at
the request of a citizen whose rights are violated in and
by a
foreign state is a matter which forms part of the executive
function of government. Thus, it is up to the government
to decide
whether protection should be given, and if so, what form the
diplomatic intervention should take. This Court stated
that “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.”
27
This duty and function to give proper consideration to a
legitimate request for diplomatic intervention by government is one

carried out in terms of section 85(2) read together with section
92(1) of the Constitution which makes it clear that the Minister

concerned bears the constitutional responsibility to execute the
assigned powers and functions. Thus, any failure of the national

executive or one of its members to discharge its obligations must
be remedied accordingly and a court is entitled to require
the
government or the Minister concerned to fulfil its constitutional
responsibilities. It would, however, be inappropriate
to attribute
the conduct of the government or of a member of the Cabinet to the
President, for no reason other than that he
or she is the head of
the national executive. The primary responsibility rests upon the
appropriate member of the cabinet,
and although the President may
bear residual responsibility, it cannot be said that where the
primary obligation is not fulfilled
by the cabinet member, that
that failure constitutes “conduct of the President” within the
meaning of section 172(2)(a).
There is an additional
consideration. In
Liebenberg
28
this Court foreshadowed the difficulties associated with imprecise
and open-ended citing of the President in litigation. It
observed
that when declaring conduct of the President unconstitutional it is
necessary to indicate precisely which conduct
is attributable to
the President, and falls foul of the Constitution.
29
This requirement is important for at least two reasons. One
important reason is that a concisely worded order would disclose

the character of the conduct of the President in issue and thereby
indicate whether the court concerned was properly clothed
with
jurisdiction to resolve the dispute. Also the President, as
respondent is entitled to know which conduct has offended
in order
to decide whether to appeal or to correct the constitutionally
recalcitrant conduct in issue.
The High Court, in its
judgment, regrettably does not specify the conduct of the President
it found to be inconsistent with
his constitutional obligations.
We will do well to keep in mind the actual finding of the High
Court that it was in fact confronted
with conduct of the government
and not of the President. The passage below is one of several that
consistently decry the conduct
of the government:
“
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 the 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.”
30
This and other findings
against the government are followed through in the order the High
Court made. Its order does not single
out the offending conduct on
the part of the President in particular. The order we are called
upon to confirm does not even
refer to the President. It does no
more than make a declaration that “the failure of the
respondents” is inconsistent
with the Constitution. It must be
added that the President is one of five respondents, the others
being the government and
three other cabinet ministers.
In
light of the above, I find that the applicant ha
s
approached this Court erroneously. The portion of the order of the
High Court that declares the conduct of the respondents
to be
invalid does not concern
the conduct of the President within
the meaning of section 172(2)(a) of the Constitution and is
therefore not subject to confirmation,
despite the fact that he was
cited
as a party to the proceedings. At
this stage, it is in order to restate the importance of claimants
in litigation identifying
the exact entity, state organ or Minister
whose conduct is being impugned. Increasingly practitioners and
litigants cite and
sue the President and the government in
litigation as generic representatives of a state organ, or Minister
or other state
functionary. This practice is unhelpful and often
leads not only to imprecise pleading, but also to difficulties in
identifying
appropriate state officials to respond to the claims
made.
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 also
keep in mind that n
either 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.
The
view 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.
I have
made it clear that in this matter we do not reach the merits of the
dispute which was before the High Court. The import
of the
conclusions that we reach is that the application for confirmation
is misconceived
because it does not
concern conduct of the President within the meaning of section
172(2)(a) of the Constitution. In the circumstances,
the order of
the High Court does not need to be confirmed by this Court. It
embodies no competent claim and should therefore
not have come to
this Court in the first instance. In the event, the application
for the confirmation of the order of the
High Court stands to be
struck off the roll.
Costs
The
applicant came to this Court in the honest belief that
he
was required by the provisions of section 172(2)(a) of the
Constitution to submit the order of the High Court for
confirmation.
As I have intimated earlier, the High Court held the
same belief. I have found that the application for confirmation
must
fail. The application has raised matters of considerable
constitutional importance. Mr Von Abo came to this Court only
because
he thought that the step was necessary before he could
properly vindicate the final order of the High Court in his favour.

In any event, this was constitutional litigation against the
government and ordinarily an order of costs against the applicant

would be plainly inappropriate. This Court has consistently
eschewed burdening with costs unsuccessful litigants who honestly

sought to vindicate their constitutional rights against the
government. The proper course to adopt here is to make no order
as
to costs.
In
relation to the two interlocutory applications the respondent
properly conceded that he is liable to pay all the wasted costs

which must include the cost of two counsel.
O
rder
The following order is
made:
The
application by the applicant in terms of section 172(2)(a) of the
Constitution and Rule 16 of the Rules of this Court for

confirmation of paragraph 1 of the order issued by the North
Gauteng High Court, Pretoria, under case number 3106/2007, on
29
July 2008, to the extent that it refers to the President, is struck
off the roll.
No order as to costs is
made in relation to the application for confirmation.
The respondent is ordered
to pay the costs of the applicant occasioned by the applications
for leave to adduce new evidence
and for condonation of the late
filing of the application to adduce new evidence.
The interim order of this
Court that annexures to the respondent’s written submission shall
not be made accessible to the
public is set aside.
The respondent is also
ordered to pay all costs occasioned by the application to declare
certain evidentiary material confidential
and inaccessible to the
public.
The costs orders in
paragraph (c) and (e) above shall include costs consequent upon the
employment of two counsel.
Langa CJ, Cameron J,
Mokgoro J, Ngcobo J, Nkabinde J, O’Regan J, Sachs J, Skweyiya J,
Van der Westhuizen J and Yacoob J concur
in the judgment of
Moseneke DCJ.
Counsel
for the Applicant: Advocate P Hodes SC, Advocate A Katz and
Advocate M Du Plessis instructed by Hill, McHardy and Herbst.
Counsel for the
Respondent: Advocate PJJ De Jager SC, Advocate P Mphaga and
Advocate M Sello instructed by the State Attorney,
Pretoria.
1
S
ection 172(2)(a) states:
“
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.”
2
Rule 16 provides
as follows:
“
1.
The
Registrar of a court which has made an order of constitutional
invalidity as contemplated in section 172 of the Constitution

shall, within 15 days of such order, lodge with the Registrar of
the Court a copy of such order.
2.
A
person or organ of state entitled to do so and desirous of
appealing against such an order in terms of section 172(2)(d)
of
the Constitution shall, within 15 days of the making of such an
order, lodge a notice of appeal with the Registrar and
a copy
thereof with the Registrar of the Court which made the order,
whereupon the matter shall be disposed of in accordance
with the
directions given by the Chief Justice.
3. The
appellant shall in such notice of appeal set forth clearly the
grounds on which the appeal is brought, indicating
which findings
of fact and/or law are appealed against and the order it is
contended ought to have been made.
4. A
person or organ of state entitled to do so or desirous of
applying for the confirmation of an order in terms of section

172(2)(d) of the Constitution shall, within 15 days of the making
of such order, lodge an application for such confirmation
with
the Registrar and a copy thereof with the Registrar of the Court
which made the order, whereupon the matter shall
be disposed of
in accordance with directions given by the Chief Justice.
5. If
no notice or application as contemplated in subrules (2) and (4),
respectively, has been lodged within the time prescribed,
the
matter of the confirmation of the order of invalidity shall be
disposed of in accordance with directions given by the
Chief
Justice.”
3
Von Abo v Government of the Republic of South Africa
2009 (2)
SA 526
(T) at para 161.
4
ICSID was entered into force on 14 October 1966. Zimbabwe deposited
its ratification of ICSID on 20 May 1994.
5
A similar ruling was adopted in
Independent Newspapers (Pty) Ltd
v Minister for Intelligence Services; Freedom of Expression
Institute In re: Masetlha v President
of the Republic of South
Africa and Another
[2008] ZACC 6
;
2008 (5) SA 31
(CC);
2008 (8)
BCLR 771
(CC).
6
Van Wyk v Unitas Hospital and Another (Open Democratic Advice
Centre as Amicus Curiae)
[2007] ZACC 24
;
2008 (2) SA 472
(CC);
2008 (4) BCLR 442
(CC) at paras 20 and 22.
7
Doctors for Life International v Speaker of the National Assembly
and Others
[2006] ZACC 11
;
2006 (6) SA 416
(CC);
2006 (12) BCLR
1399
(CC).
8
Id at paras 21 and 24.
9
Id.
10
Pharmaceutical Manufacturers Association of SA and Another: In Re
Ex Parte President of the Republic of South Africa and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) at para
56
.
11
Id.
12
Above n 7.
13
Id at para 23.
14
President of the Republic of South Africa and Others v South
African Rugby Football Union and Others
[1998] ZACC 21
;
1999 (2)
SA 14
(CC);
1999 (2) BCLR 175
(CC) at para 25.
15
Above n 7 at para 19.
16
King and Others v Attorneys’ Fidelity Fund Board of Control and
Another
2006 (1) SA 474
(SCA);
2006 (4) BCLR 462
(SCA) at para
23.
17
Above n 7 at paras 25-6.
18
See section 84(1) of the Constitution which provides that:
“
The
President has the powers entrusted by the Constitution and
legislation, including those necessary to perform the functions
of
Head of State and head of the national executive.”
19
Section 84(2) of the Constitution provides as follows:
“
The
President is responsible for—
(a) assenting
to and signing Bills;
(b) referring
a Bill back to the National Assembly for reconsideration of the
Bill’s constitutionality;
(c) referring
a Bill to the Constitutional Court for a decision on the Bill’s
constitutionality;
(d) summoning
the National Assembly, the National Council of Provinces or
Parliament to an extraordinary sitting to conduct
special
business;
(e) making
any appointments that the Constitution or legislation requires
the President to make, other than as head of
the national
executive;
(f) appointing
commissions of enquiry;
(g) calling
a national referendum in terms of an Act of Parliament;
(h) receiving
and recognising foreign diplomatic and consular representatives;
(i) appointing
ambassadors, plenipotentiaries, and diplomatic and consular
representatives;
(j) pardoning
or reprieving offenders and remitting any fines, penalties or
forfeitures; and
(k) conferring
honours.”
20
Above n 7 at para 24.
21
Section 85 of the Constitution provides that:
“
(1) The
executive authority of the Republic is vested in the President.
(2) The President
exercises the executive authority together with the other members
of the Cabinet.”
22
Section 85(2)(e) provides that “the President exercises the
executive authority, together with the other members of the Cabinet

by performing any other executive function provided for in the
Constitution or in national legislation.”
23
These provisions state the following:
“
(1) The
Cabinet consists of the President, as head of the Cabinet, a
Deputy President and Ministers.
(2) The President
appoints the Deputy President and Ministers, assigns their powers
and functions, and may dismiss them.”
24
These provisions state the following:
“
(1) The
Deputy President and Ministers are responsible for the powers and
functions of the executive assigned to them by
the President.
(2) Members of the
Cabinet are accountable collectively and individually to
Parliament for the exercise of their powers
and the performance
of their functions.”
25
Section 92(3) provides:
“
Members
of the Cabinet must—
(a) act
in accordance with the Constitution; and
(b) provide Parliament
with full and regular reports concerning matters under their
control.”
26
Kaunda and Others v President of the Republic of South Africa and
Others
[2004] ZACC 5
;
2005 (4) SA 235
(CC);
2004 (10) BCLR 1009
(CC).
27
Id at para 80.
28
Minister
of Home Affairs v Liebenberg
[2001] ZACC 3
;
2002 (1) SA 33
(CC);
2001 (11) BCLR 1168.
29
Id at para 15.
30
Above n 3 at para 143.