von Abo Case Summary

/SGIN THE HIGH COURT OF SOUTH AFRICA(TRANSVAAL PROVINCIAL DIVISION) DATE:CASE NO: 3106/2007     In the matter between: CRAWFORD LINDSAY VON ABO                                     APPLICANT  And   THE GOVERNMENT OF THEREPUBLIC OF SOUTH AFRICA                                        1^ST RESPONDENT  THE PRESIDENT OF THE REPUBLICOF SOUTH AFRICA                                                                        2^ND RESPONDENT THE MINISTER OF FOREIGN AFFAIRS                          3^RD RESPONDENT  THE MINISTER OF TRADEAND INDUSTRY                                                                  4^TH RESPONDENT  THE MINISTER OF JUSTICEAND CONSTITUTIONAL DEVELOPMENT                                   5^TH RESPONDENT

JUDGEMENTPRINSLOO, J [1]      This matter came before me as a special opposed application. Mr Hodes SC, assisted by Mr Katz and Mr du Plessis, appeared for the applicant. Mr Mtshaulana SC, at times assisted by Mr Sello, appeared for the respondents. Brief Synopsis[2]      The applicant is a 75 year old South African citizen. He hails from Bothaville in the Freestate, where he was born on 6 April 1933. He still lives in Bothaville. [3]      More than fifty years ago, in 1954 or 1955, the applicant began to obtain farming interests, including farming land property, in the Republic of Zimbabwe (then Southern Rhodesia, later Rhodesia and now Zimbabwe, as it will be referred to throughout for the sake of convenience).           For reasons of commercial expediency, the applicant, from time to time, floated private companies and procured the registration of the farming properties into the name of these farming companies, for his ultimate benefit. In 1985 he also arranged for the registration of a trust (known as the Von Abo Trust – “the Trust”), which he also employed in the same manner as the private companies aforesaid. At present the applicant is the sole beneficiary of this Trust with the right to appoint, in his sole discretion, further or other beneficiaries out of the group consisting of direct descendents born in legal wedlock of, or legally adopted by, the applicant. [4]      The final control of all decisions of and actions by the relevant private companies and the Trust at all times vested in the applicant by virtue of the fact that he is, and always has been, the managing director of the companies and the trustee of the Trust.[5]      Over the years, the applicant increased his financial and farming interests in Zimbabwe, accordingly also his involvement in farming activities of the different companies and the Trust. [6]      The applicant initially found it necessary to finance the activities in Zimbabwe by applying his own South African resources. Within a relatively short period he was, however, able to continue with the farming activities in Zimbabwe by using financial support available in Zimbabwe. He consistently over the past fifty years re-invested all profits and capital gains from the Zimbabwean activities, in Zimbabwe. This enabled him to reach the point, as referred to in greater detail below, of being the beneficial owner of a considerable farming empire in Zimbabwe. [7]      The development of the applicant’s Zimbabwean involvement obviously required not only financial ability, but also substantial personal sacrifice, business acumen, the ability to persist in correct decision taking, and unmitigated hard work. [8]      Beginning in 1997, (but, as history shows, in more accelerated fashion since 2000) the government of Zimbabwe violated the applicant’s rights by destroying his property interests in a number of farms in Zimbabwe, or contributing to their destruction. This destruction of property rights was achieved as part of an overall scheme and/or policy of the  Zimbabwean government to expropriate land owned by white farmers. The scheme and/or policy continues to this day in Zimbabwe, notwithstanding international condemnation and the fact that the expropriation of property rights in the manner perpetrated by the Zimbabwean government is a clear violation of international law, and, for that matter, South African Law. [9]        No compensation of any sort was paid. This action by the government of Zimbabwe constituted expropriation without the payment of compensation, which action did not comply with the international minimum standard, which standard is to be afforded to all persons, citizens and aliens (foreign nationals) alike. [10]      It is common cause that the applicant has attempted, without success, to protect his rights in Zimbabwe and the rights of the entities under his control, or at least to ameliorate the violation of such rights. [11]      Those attempts failed and there was (and is) no effective recourse available to the applicant and countless others in Zimbabwe. This is not disputed. The applicant has exhausted all remedies available in Zimbabwe. This is not disputed. [12]      As a national and citizen of the republic of South Africa, the applicant directed correspondence to the first respondent as represented by the second respondent (the president) and a number of different ministers  and officials, which correspondence brought to the first respondent’s attention the applicant’s plight and that of other South Africans similarly situated in Zimbabwe. The cumbersome and futile journey travelled by the applicant in this process, is detailed in the correspondence forming part of the papers. [13]      It appears that the applicant embarked on these written appeals to government when it was plain that his efforts to persuade the Zimbabwean authorities to leave his property alone were unsuccessful. He described in graphic detail how he attempted, through litigation, to protect his interests with the assistance of the Zimbabwean courts. These efforts failed dismally, there were broken promises, court orders were ignored and eviction notices came flooding in, thick and fast. [14]      Already in march 2002, the applicant wrote to the second respondent in his capacity as Head of State, requesting diplomatic protection concerning the violation of his rights in Zimbabwe. [15]      The protection envisaged consisted of diplomatic assistance in the furtherance of the protection of the applicant’s rights vis-à-vis the State of Zimbabwe. [16]      Early on in the correspondence, the applicant also requested the second respondent or the fourth respondent to become party to the International Convention on the Settlement of Investment Disputes             (ICSID), in order that the applicant might pursue a compensation claim against the government of Zimbabwe pursuant to the ICSID complaint mechanism, and requested a meeting with the second respondent in order to convince the latter on ICSID’s importance from both a practical and legal perspective.             I pause to point out that part of the relief initially sought before me by the applicant, was a mandamus directing the respondents to take up membership of ICSID. Apart from the fact whether it was open to me  to grant mandatory relief of this nature, Mr Mtshaulana strongly argued, by referring to the rules of ICSID, that such an order, if granted, may turn out to be a brutum fulmen, because Zimbabwe would have to consent to take part in such dispute resolution proceedings. It was argued that there was no guarantee that such a consent would be forthcoming. This state of affairs, or perhaps other practical considerations, prompted the applicant, towards the end of proceedings before me, to abandon the prayer for this special mandatory relief and only to pursue prayers for more general declaratory, mandatory and supervisory relief.             An initial prayer for the reviewing and setting aside of the failure of the respondents to consider and decide the applicant’s application for diplomatic protection was also abandoned.  [17]      The cumbersome correspondence journey, supra, came to Nought. Eventually, the applicant placed the respondents on terms. They did not respond. This prompted the applicant to launch this application.  ……………….. [161]    I make the following order: 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 a report to the applicant. 6.         The applicant’s claim for damages against the respondents, subject to effective compliance with paragraph 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 hearing of this claim for damages, if appropriate. 7.         The respondents are ordered, jointly and severally, to pay costs of the applicant, which will include the costs flowing from the employment of two counsel.