SA farmer loses Zim land-grab case

The Supreme Court of Appeal on Monday overturned certain parts of a North Gauteng High Court order granted against the South African government et al in favour of Crawford von Abo, a farmer whose land in Zimbabwe was the subject of invasions.

“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.” (Concourt)

The judgement handed down by Judge S Snyders contains the following order :

“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.”

North Gauteng High Court order
On July 29 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.

The order reads as follows :

“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.”

Paragraphs 1 and 7 (in bold) are still of full force and effect.

On February 5 2010 , after receiving an affidavit on the steps taken in compliance with the first order, the court 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”.

The order reads :

“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.”

This has been set aside in full.

Constitutional Court
In order to give a comprehensive legal background to this matter we include a copy of the decision of the Concourt on an application for confirmation brought by Von Abo against the president of the Republic of South Africa only in terms of section 172(2)(a)1 of the Constitution read with Rule 16 of the Constitutional Court Rules.

The reason for the application is that section 172(2)(a) states that : “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.”

Accordingly to confirm paragraph 1 of his North Gauteng High Court order this application was brought in the Concourt.

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 section 172(2)(a).

SCA decision
Quoting from case law the learned judge said : “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.

“A national in the position of the respondent (Von Abo) 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.

“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 dependent 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 dependent on a multitude of variables.

“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.

“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.

“Paragraphs 2 and 3 of the first order are therefore contrary to the law.”

With Judge Snyders were Mpati, Cloete, Theron and Plasket.