2010 04 07 – Separation of powers – (Free State farmer Crawford von Abo)
http://www.businessday.co.za/articles/Content.aspx?id=105480
…PAUL HOFFMAN: Separation of powers
PUBLISHED: 2010/04/07 07:17:51 AM
THE recent decision of the Gauteng North High Court in what could be called a preliminary sequel to the long-running campaign by Free State farmer Crawford von Abo to obtain redress following the illegal seizure of his farms in Zimbabwe by the Mugabe regime raises a number of interesting points.
Having lost his farms without compensation because of the illegal land-grabbing policies of the regime in Zimbabwe, Von Abo approached the South African authorities for diplomatic assistance to help him assert his property rights in Zimbabwe. His entreaties fell on deaf ears.
The high court, in an earlier judgment, ruled in his favour, declaring that he is entitled to the diplomatic assistance he seeks and ordering the government to report back to it within 60 days on assistance rendered. It is not clear whether the government chose not to understand the import of the order granted against it or genuinely misconstrued it.
The net effect, either way, is that instead of the government reporting on diplomatic assistance for Von Abo since the granting of the order (actually a virtually negligible effort involving a cup of tea with junior officials in Zimbabwe) the court, to its considerable chagrin, was treated to an essentially irrelevant exposition of the history of the matter prior to the granting of the supervision order.
Von Abo remains without any meaningful diplomatic assistance, without his seized properties and without any compensation for the lot that has befallen him by reason of his ill-fated investments in Zimbabwe coupled with the disappearance of the rule of law in that unfortunate country.
This round of the litigation is a “preliminary sequel” to the granting of the declaration of rights which the entitlement to diplomatic immunity involved and the supervision order which has not been successfully followed up by the government, in that the lack of progress reflected in the government’s report to the court is being used as a basis for arguing that Von Abo is entitled to constitutional damages. These damages must still be proved and will be in an amount to be determined at a later hearing.
This is because his property rights in Zimbabwe have not been accorded the protection which the constitution requires the state to give them in section 7(2) of the bill of rights, read with section 25. The court found that Von Abo is entitled to move on to a damages hearing in due course.
At that hearing he will seek to establish the amount to which he is entitled as a consequence of the failure of the government to render him effective diplomatic protection. It is likely the government will take the decision on appeal. It will be able to invoke the doctrine of the separation of powers in arguing that the court went too far in referring the matter to a hearing on the quantum of damages that Von Abo is able to establish.
This is because the intricacies of diplomatic protection are a matter of government policy, which is best left to the government of the day, and not a matter of law upon which any court should rule. It is one thing to afford diplomatic protection to citizens who have been the victims of plundering regimes in neighbouring states.
It is quite another to do so to such good effect that the rights of the citizen are vindicated to the extent that they would have been had expropriation without compensation occurred in SA rather than abroad.
While Von Abo could rely on the provision in the bill of rights that prohibits laws which “permit arbitrary deprivation of property” at home, his case is based upon the failure of the government to give him effective diplomatic protection such as has been afforded to the citizens of other countries who have found themselves in the same boat as Von Abo with their investments in farms in Zimbabwe.
The Constitutional Court has been accused of an excess of timidity in an earlier matter in which diplomatic protection was sought by a band of South African citizens arrested in Zimbabwe on their way to participate, perhaps unwittingly, in a coup in Equatorial Guinea.
In that case the then chief justice, Arthur Chaskalson, warned against the judiciary trespassing on the turf of the executive by prescribing the form that diplomatic protection should take.
Chaskalson pointed out, correctly , that the executive is often far better placed than any judge to ascertain how the extension of diplomatic protection should be effected in any given case and what its limits may be in the circumstances then prevailing.
There is a tone of frustration about the Von Abo judgment that reflects the learned judge’s displeasure at the lack of progress made by the Department of International Relations and Co-operation in its puny efforts on behalf of Von Abo.
Accusations of contempt of the court order and conduct bordering on contempt on the part of the minister pepper the judgment. These criticisms, which are expressed in trenchant terms, seem to be well made.
Relying upon the submissions made by counsel for Von Abo and a close analysis of the lack of activity on the part of the respondents, the court invokes its authority in unmistakably irritated language. The constitution requires organs of state, which include the department, to assist and protect the dignity and effectiveness of the courts.
Moreover, the constitution declares that: “An order or decision issued by a court binds all persons to whom, and organs of state to which, it applies”.
When a supervision order such as that made by Judge Prinsloo at an early stage in the proceedings is treated as cavalierly as his was treated in this case, the alarm bells attached to the tension lines between the executive and judicial branches of government start ringing.
How much better it would have been if the respondents’ report to the court was couched in terms which made it clear to any reader that the organs of state involved in its compilations were attentive to the binding nature of the order made, and to the need to uphold the effectiveness of the courts in the way in which they responded to it.
The alternative of an appeal against the order itself was not pursued by any of the respondents in the matter, so the supervision order remains binding upon them.The type of “lawfare” in which Von Abo is engaged in the pursuit of his lost economic interests in Zimbabwe tends to bring the judiciary and executive into conflict.
It is preferable that this conflict, which is an inevitable consequence of the separation of powers, should take place in a context in which orders of court which are not on appeal are actually treated as binding by organs of state which act in a manner which shows that they respect and protect both the dignity and effectiveness of the courts.
Zimbabwean President Robert Mugabe always elicits the loudest cheer of approval when he attends official functions in SA.
The policy of “quiet diplomacy” by SA, according to which kid-glove treatment is extended towards his lawless excesses in his home country, has its price.The Von Abo litigation is part of the price.
– Hoffman is director of the Institute for Accountability in Southern Africa.______________________________________________