von Abo Case 3106/07 January 2010

7

[14] In the event, the Constitutional Court found that the application for confirmation was

misconceived because the matter does not concern conduct of the President within the

meaning of section 172(2)(a) of the Constitution – Constitutional Court Judgment at

364I-J.

[15] In the result, the application for confirmation was struck from the roll, but some costs

orders were made against the respondents – Constitutional Court Judgment at 365E-L.

[16] The Constitutional Court also held that it was necessary to identify the particular

government minister responsible for alleged unconstitutional conduct and the Minister

for Foreign Affairs, the third respondent, was earmarked in the process. The following

is said in the Constitutional Court judgment in this regard:

“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 fulfill his constitutional obligations.” – Constitutional

Court judgment at 362C-E.

8

[17] It was this finding that inspired the applicant to seek relief only against the Government

of South Africa (first respondent) and the Minister for Foreign Affairs (third

representative) in the follow-up hearing.

[18] For present purposes, it is convenient to quote paragraphs (51) and (52) of the

Constitutional Court Judgment reported at 364E-I:

“(51) I also keep in mind that neither 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.

(52) 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

9

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.”

[19] In view of these remarks, I am of the opinion that care must be taken not to revisit the

merits of the case, for purposes of this follow-up hearing. The horse has bolted. The

crisp issue to decide, as explained above, is whether or not the respondents have

complied with paragraph 4 of the order in the main judgment. The main source of

information on which the aforesaid issue must be decided, is the report submitted by the

respondents (for present purposes, read the first and third respondents) in purported

compliance with paragraphs 4 and 5 of the order in the main judgment.

The report submitted by the respondents (“the report”)

[20] The report consists of an affidavit, running into some twelve pages, with annexures.

[21] The deponent to the affidavit names himself as “Ambassador J N K Mamabolo”. He is a

Deputy Director-General in the Department of Foreign Affairs. He states that he is duly

authorised to depose to the affidavit. This authority flows from the following:

10

“A confirmatory affidavit of the Director-General: Department of Foreign

Affairs is annexed to this affidavit. As Director-General does not have personal

knowledge of the issues raised in this affidavit, he has therefore delegated the

authority to depose to this affidavit to me.”

[22] There is a confirmatory affidavit by Ayanda Ntsaluba who identifies himself as the

Director-General of the Department of Foreign Affairs and says “I have authorised

Ambassador J N K Mamabolo, a Deputy Director-General in the Department of Foreign

Affairs to depose to the main affidavit.” He confirms the contents of Ambassador J N K

Mamabelo’s affidavit “in so far as it refers to me”. In the process he confirms the

“in this affidavit”.

[23] The Director-General does not say what the source of his authority is to delegate

authority to the Ambassador.

[24] In his affidavit, the Ambassadors says that, following the main judgment which was

handed down on 29 July 2008, (incorrectly stated by the Ambassador to have been 24

July) a meeting was held on 6 August 2008 between officials of the Department of

Foreign Affairs, the Department of Trade and Industry, the Presidency and counsel to

discuss the way forward. The Ambassador did attend the meeting but he was

“informed” by Advocate Stemmet, senior State Law Advisor also mentioned in the

11

main judgment, who represented the Department of Foreign Affairs at the meeting and

who also deposed to confirmatory affidavit, attached to the report.

[25] According to the Ambassador, counsel, at the meeting, emphasised the importance of

“order 4” which is paragraph 4 of the order made in the main judgment, and which

description I shall also adopt for the sake of convenience.

Of course, order 4, stripped to its essentials, reads that “the respondents are ordered to

forthwith take all necessary steps to have the applicant’s violation of his rights by the

government of Zimbabwe remedied”.

Order 5 (paragraph 5 of the order in the main judgment), also stripped to essentials,

provides that the respondents are directed to report by way of affidavit to this court

within sixty days what steps they have taken in respect of order 4 and to provide a copy

of such report to the applicant.

[26] Not one of the respondents, let alone the third respondent, who was singled out

particularly in the Constitutional Court judgment, as described, “reported by way of

affidavit”, as instructed in order 5.

There is no direct indication, as far as I can see, that the third respondent (or any other

respondent) personally made any effort to comply with orders 4 and 5.

12

[27] The order in the main judgment was directed at the respondents, not at Ambassador

Mamabolo or anybody else.

The abject failure on the part of the respondents, and particularly the third respondent,

to demonstrate any visible sign of even taking notice of these orders, amounts, in my

view, to contempt of court. Counsel for the applicant put it as follows in their

comprehensive heads of argument:

“It is submitted that the absence and/or failure of this respondents to be

involved personally in the discussion of options and possible actions in order to

give effect to the Court order is unacceptable and borders on the

contemptuous.”

With these sentiments I agree.

In the main judgment, at 5391-540B, I already expressed the view that the unexplained

failure on the part of any of the respondents to file personal affidavits to deal with the

complaints of the applicant amounts to a dereliction of duty and flies in the face of the

requirements of section 165(4) of the constitution which provides that organs of State,

through legislative and other measures, must assist and protect the courts to ensure the

independence, impartiality, dignity, accessibility and effectiveness of the courts.

13

[28] The failure on the part of the respondents to file affidavits, or to even explain the failure

to do so or to show any demonstrable interest in the orders, effectively, in my view,

amounts to non-compliance with the orders, more particularly orders 4 and 5.

The subject of the inadmissibility for one person to make an affidavit on behalf of

another, without the latter filing at least a verifying or supporting affidavit, was

extensively dealt with in the main judgment at 540E-543D.

Against this background, it was argued before me during this follow-up hearing on

behalf of the applicant that where the respondents had not filed an affidavit confirming

the contents of this report, the contents of the report constitutes inadmissible hearsay

and I should have no regard thereto. On behalf of the applicant reliance was placed on

Where the respondents (and nobody else) were directed to report by way of affidavit as

to the steps they had taken in respect of their duty to have the applicant’s violation of

his rights by the Government of Zimbabwe remedied, it meant that they were obliged to

report on what steps were taken since the grant of the order on 29 July 2008 and not

what they had done prior to the grant of the order (as will appear from a further analysis

of the report hereunder). Where the respondents failed to file affidavits in compliance

14

with the order, it follows, in my view, that they have not complied with their reporting

duty.

On the same subject, it was also argued on behalf of the applicant, correctly in my view,

that it was not for the Director-General of the Department of Foreign Affairs, who is not

a respondent, to authorize Ambassador Mamabolo to make any affidavit at all. It was

for the respondents, and the respondents alone, to authorize someone to make an

affidavit in respect of the report, and then only if a confirmatory affidavit by the

relevant respondent was filed of record. This is in line with the authorities quoted,

The opposing argument offered, in this regard, on behalf of the respondents, was that

the Director-General is the most senior official in the Department of the third

respondent. By virtue of his office he is intimately involved in and accountable for all

conduct of officials of the department, including Ambassadors to foreign states. He is

entitled to depose affidavits on behalf of the Minister, as the accountable officer of that

department. This entitlement does not derive from being cited as a respondent but from

his position within the department. He is in law empowered to delegate any power or

function he may have to other officials, unless he is specifically precluded thereto by

legislation. No authority in support of this proposition was submitted to me. The

Director-General, in his affidavit, did not even mention the third respondent or indicate

that she authorised him to delegate his authority, such as it may be, to the Ambassador.

15

The court order is directed against the third respondent (and other respondents). Her

complete silence and failure of involvement in these proceedings remain unexplained. I

cannot agree with the argument submitted on behalf of the respondents.

[29] Nevertheless, on the assumption that my conclusion that the report falls to be

disregarded for lack of compliance of orders 4 and 5 due to the absence of involvement

by the respondents, is wrong, I now turn to a further analysis of the report.

Further analysis of the report

August 2008 “with a view to discuss options and possible actions to propose to the

Department of Foreign Affairs’ principals in order to give effect to the court order”. It is

not stated who the “principals” are. According to the minute of that meeting, the

Ambassador was not present. Neither did he apologise for his absence. In fairness, it

must be observed that the minute suggests that Advocate De Wet, Chief State Law

Advisor, did discuss the main judgment with the Minister. Certain directives, possibly

flowing from the meeting with the Minister, who, of course, was not at the meeting,

were discussed. These included the following: a diplomatic note had to be sent by the

Ambassador in Harare to seek an appointment with “relevant ministers” to meet with

them as a matter of urgency; the Zimbabwean Ambassador in Pretoria had to be called

in by the Deputy Director-General: Africa “to make representations on behalf of Mr

16

Von Abo”; and a high level delegation had to be composed to travel to Zimbabwe to

meet with the relevant Zimbabwean Authorities as soon as possible.

[31] At the meeting, further resolutions were passed to implement these directives. Included

amongst these, was a decision to hold a meeting “between all departmental stake

holders” on 1 September 2008 “in order to develop the strategy for engaging the

Zimbabweans to be followed during the meetings”. It was also decided that a strategy

be developed on how to deal with similar requests from other South African land

owners whose farms were expropriated in Zimbabwe. According to the minute, the

meeting lasted for one hour and twenty minutes.

[32] On 2 September 2008 a follow-up meeting was held. Again Ambassador Mamabolo

was absent. The meeting was attended by State Law Advisors De Wet and Stemmet, the

South African Ambassador to Harare, the Chief Director: Consular Services, the

Director: Malawi, Zimbabwe, Zambia, Mozambique and Tanzania and one Mr Reed of

the Zimbabwe desk. It was reported that a meeting had been held with the Zimbabwean

Ambassador who indicated the willingness of his government to engage the South

African Government on the matter and undertook to bring the matter immediately to the

attention of the relevant Zimbabwean authorities. An Aide memoire and a diplomatic

not requesting a meeting for South African delegation with the “Zimbabwean

authorities” had also been handed over. It was decided that the South African delegation

17

had to be led by a Deputy Director-General. No explanation is given for the decision

not to involve more senior officials such as any of the respondents.

As regards strategy, the possibility of “the resurrection” of the Bilateral Investment

Promotion and Protection Treaty “although it will not have retrospective effect” and the

delisting of properties of nationals of SADC states were mooted. These subjects were

extensively dealt with in the main judgment and I do not propose revisiting a full

discussion thereon.

Significantly, it was also decided that “in order to prevent further negative publicity on

the matter” the applicant’s attorneys would be informed that the department was

attending to the matter.

[33] A confidential report of a meeting between Mr M Nkosi: Deputy Director-General:

Africa Bilateral and Ambassador K Moyo of Zimbabwe was also tabled. According to

this report, the Deputy Director-General told the Ambassador that “given the order of

the High Court regarding the expropriation without compensation of the properties in

Zimbabwe belonging to Mr Crawford Lindsay Von Abo, the Government of South

Africa is legally obliged to engage with the Government of Zimbabwe to resolve the

matter”.

18

It was recorded that the discussions took place in a cordial atmosphere and Ambassador

Moyo assured Mr Nkosi that the matter will be dealt with by the relevant authorities

and that the DFA (Department of Foreign Affairs) delegation of senior officials will be

welcomed in Zimbabwe.

[34] Significantly, and perhaps rather ominously, this confidential report concludes with the

following comment:

“As expected, Ambassador Moyo commented during the discussions that

Zimbabwe has no land problems any longer; implying that the Land Reform

Process was complete. In this regard, he says South Africa has serious land

problems which will take years to deal with.”

[34] There was also a report, in the form of a telex, dated 1 September 2008, on a meeting,

of the same date, between the Charge D’Affaires and Mr Chifamba, Zimbabwean

Divisional Head for Africa: Economics when the former handed over the diplomatic

note and Aide Memoire to the latter. Mr Chifamba undertook to forward the

documentation to the Ministry of Land Affairs of his government.

[35] It appears from this telex that Mr Chifamba made some outspoken comments about the

Von Abo case. He said that in the absence of a Bilateral Investment Agreement

(BIPPA, discussed fully in the main judgment) there was no legal framework in

existence to address these complaints. He said the applicant, Mr Von Abo’s, interaction

19

with the Government of Zimbabwe “and his involvement in politics” played a role in

the fact that all his properties were acquired in terms of the Land Reform Process. He

said Mr Von Abo was a multiple farm owner and Zimbabwean legislation allows only

one farm per individual. He also relied on the, in my view somewhat jaded, arguments

about the colonial excesses of the past and said that any serious amendments to the

Land Reform Process would “not only be untenable but indeed unthinkable”. He said,

however, that Zimbabwe “realises the predicament of the South African Government as

a result of the Von Abo case and would assist where possible”.

[37] This telex, created by Mr Geerlings, First Secretary Political of the Department of

Foreign Affairs in Harare (he is obviously a South African official) was addressed to a

number of Foreign Affairs officials including Ambassador Mamabolo, State Law

Advisors De Wet and Stemmet and some others. The addressees do not include any of

the respondents. This telex concludes with the following, in my view somewhat

despondent, comment:

“It became evident during the meeting that the Von Abo case has created some

embarrassment to the Zimbabwean Government. It is, however, very unlikely

that the Zimbabwean Government will take any steps in favour of Mr Von Abo.

The best that the South African Government could hope for is that the

Zimbabwean Government would give its co-operation in making it easier to

convince the judge that indeed enough diplomatic protection was given to Von

Abo but that the Zimbabwean Government did not want to respond to these

20

pleas as it is convinced about the merits of its own Land Reform Process.”

(Emphasis added.)

[38] This comment, in what I will describe as “the Geerlings telex of 1 September 2008”,

represents, in my view, the typical approach adopted by the relatively junior South

African officials (the respondents never got involved) in their purported efforts to afford

diplomatic protection to the applicant: the applicant’s case, and that of other South

African farmers who met the same fate, was “raised” or “discussed” with the

Zimbabwean officials at cordial meetings or in even more cordial diplomatic notes but,

when resistance was encountered from Zimbabwe, nothing whatsoever was done to

counter that resistance or to employ any of the internationally recognized diplomatic

measures already identified in the main judgment. See from example the main judgment

at 545I-J.

In this regard I take the liberty to revisit, for easy reference, what was said there:

“[63] Legal scholars commonly use the term ‘diplomatic protection’ to

embrace consular action, negotiation, mediation, judicial and arbitral

proceedings, reprisals, restoration, severance of diplomatic relations,

economic pressure and, in the final resort the use of force – Dugard

‘First Report on Diplomatic Protection’ (March 2000) ILCA – CN

4/506 p15 para 43.”

21

[39] In the main judgment I already expressed serious reservations and displeasure at the

lacklustre conduct of the respondents when it came to considering the applicant’s

request for diplomatic protection. I concluded that they did not act in good faith. See for

example the remarks at 539E-G, 540D-E, 550C-E, 554C-E, 562A-F and order 1 at

566H-I.

[40] Regrettably, matters did not improve despite the main judgment and the supervisory

officials saddled with the task, their efforts remained unconvincing. They never went

beyond raising the issue in diplomatic notes or at cordial meetings. No pressure was

brought to bear on the Zimbabwean Government to bring about diplomatic protection

for the applicant. This is in stark contrast with the more vigorous and effective approach

adopted by the embassies of other foreign nationals threatened by the same land reform

program. See for example the reference in the main judgment to the “Dutch example” at

538F-H and the evidence of the German businessman, Mr Pabst, referred to at 557I-

558E.

ICSID tribunal, in the ensuing arbitration, awarded considerable amounts in damages to

Mr Funnekotter and other Dutch nationals. By agreement between the parties, a copy of

this ICSID judgment was presented to me after the follow-up proceedings were

22

concluded. As stated in the main judgment, the case was conducted as ICSID case no

ARB/05/6 and it was concluded in April 2009.

[41] Of course, as already explained, the South African officials had to make do without the

direct intervention of the respondents themselves. The latter, as senior ministers and

members of the Executive, are far more influential and would, on the probabilities, have

been able to exert more pressure and employ the recognised diplomatic measures,

inexplicable failure to get involved in these proceedings constitutes non-compliance

with orders 4 and 5.

[42] Mr De Jager, in his able and enthusiastic address on behalf of the respondents,

reminded me that a court cannot tell the government how to make diplomatic

[43] In the light of these authorities, Mr De Jager’s submission is, technically speaking,

correct. However, order 4 of the main judgment was not designed to tell the government

how to take the diplomatic interventions. It was designed to direct the government to

deal with the matter properly and in good faith.

23

This subject was dealt with, at some length, in the main judgment, and, more

particularly, at 561B-566A.

I do not propose revisiting the whole debate, but it may be convenient to remember the

following remarks from Kaunda at 262D-E:

“[80] If government refuses to consider a legitimate request, or deal with it in

bad faith or irrationally, a court could require government to deal with

the matter properly…”

This is what order 4 was intended to achieve. As already stated, the main enquiry in

these follow-up proceedings is to determine whether or not order 4 was complied with.

[44] Also relevant to this enquiry, in my view, are the principles defining “appropriate

relief” as intended by the provisions of section 38 of the Constitution – see the remarks

921G that the appropriate relief granted to vindicate the infringement of an entrenched

right must be effective relief to ensure that the breach is effectively vindicated.

24

[45] Against this background, it is necessary to continue with the analysis of the report to

pursue the enquiry as to whether or not order 4 has been effectively complied with.

Further analysis of the report

[46] The Aide Memoire, referred to in the Geerlings telex of 1 September 2008, and which

was handed over to Mr Chifamba from the Zimbabwean Foreign Ministry, was attached

to that telex.

At the foot thereof the following acknowledgement is contained:

“The South African Government intends to give effect to the Court order. It is

foreseen that, amongst others, the following interventions will be made with the

Zimbabwean authorities:

be requested;

the relevant Zimbabwean authorities;

Department of Foreign Affairs.

The aim of these interventions will be to adhere to the court order and to

provide Mr Von Abo with diplomatic protection as requested by him.”

25

Despite these good intentions expressed, it has always been common cause that the

applicant has received absolutely no relief in the form of diplomatic protection.

[47] In another telex from Harare, this time created by the South African Ambassador, Mr

Makalima, and dated 22 September 2008, the possibility was mooted of calling for an

extension of the sixty day period contained in order 5. The following was stated at the

foot of this telex:

“While it may be true that the formation of the new government could impact

on the speed with which the Government of Zimbabwe responds to our request

for a high level meeting to discuss the Von Abo case, it bears noting that the

envisaged discussions are meant to take place at the level of senior officials

rather than political heads of government ministries. It is on this account that

the Mission feels strongly that the South African Government should be

insistent on its request for a meeting with the Zimbabwean officials. It is the

Mission’s guess that the judge in this case would be unlikely to entertain a

request for postponement on the grounds that the Zimbabwean Government is

currently undergoing reconfiguration.”

No request for postponement was submitted. During argument before me, Mr De Jager

indicated that the respondents were no longer relying on the need for a postponement.

He indicated, if I understood him correctly, that an extension of the sixty day period

would have made no difference.

26

[48] Attached to the Ambassador’s affidavit as annexure “H”, is “President’s Minute no

648” dated 30 October 2006 containing the then State President’s approval for an

attached draft Promotion and Reciprocal Protection of Investments Agreement

(“BIPPA”) to be entered into with Zimbabwe. The draft BIPPA is attached.

Article 11 thereof reads as follows:

“This agreement shall apply to all investments, whether made before or after

the date of entry into force of this agreement, but shall not apply to any dispute

which arose before entry into the force of this agreement.”

It is common cause that the BIPPA was never signed. It is also clear, that the BIPPA, if

signed in 2006, would not have assisted the applicant whose dispute with the

Zimbabwean authorities had by then long since arisen.

These details with regard to the BIPPA were never disclosed during the proceedings

leading up to the main judgment. Failure to do so remains unexplained. The issue of,

535B-540E.

The belated disclosure of an unsigned and ineffectual draft BIPPA so long after the

event is in any case an exercise in futility. It can have no bearing on the duty resting on

the respondents to bring about effective compliance with orders 4 and 5. What is of

27

relevance is what was done by the respondents after the orders were issued, in order to

bring about diplomatic protection for the applicant and to remedy the unconstitutional

conduct of the respondents as was found in the main judgment.

[49] Annexure “I” to the Ambassadors affidavit is the minute of the long awaited meeting

between the two government delegations. It took place in Harare on 26 September

2008. The South African delegation was led by Ambassador Mamabolo. The rest of his

delegation consisted of Ambassador Makalima, Chief Director Consular Service

Naidoo, State Law Advisors De Wet and Stemmet, Director of Southern Africa Makaya

and First Secretary Geerlings.

The Zimbabwean delegation was led by Mr Chifamba, Acting Secretary for Foreign

Affairs and a host of deputy divisional heads, desk officers, a consular officer, deputy

directors, a legal advisor and representatives from the President’s office.

[50] According to the minute, Mr Chifamba acknowledged that the South African Embassy

had pursued “the matters relating to South African farmers in Zimbabwe” since 2000,

and undertook “to avail copies of relevant correspondence to South Africa”. No such

correspondence was in evidence before me, and, if it was, it would have been irrelevant

for reasons already mentioned. Mr Chifamba “explained the political and socioeconomic

context in which the Land Reform Program was implemented and

underscored that the Land Reform Program was ongoing and irreversible”.

28

[51] Ambassador Mamabolo “emphasised the need for the South African Government to

comply with the court order, in respect of Mr Von Abo. He added that the meeting

should also address issues relation to all affected South African farmers in Zimbabwe.

The meeting should in this respect also agree on the way to handle these matters in

future. He emphasised the interconnection between the South African and Zimbabwean

economies and South Africa’s commitment to contribute to a sustainable economic

recovery for Zimbabwe. In this respect, he emphasised the urgency of signing the

Bilateral Investment Promotion and Protection Agreement (BIPPA).”

[52] For the sake of brevity, I shall attempt to summarise the rest of the minute. In total, it

runs into three pages containing thirteen paragraphs. The Zimbabwean delegation

briefed the meeting on Zimbabwe’s policy and legal framework with regard to the Land

Reform Program. The South African delegation “explored the possible remedies

available under Zimbabwean Legislation in the Von Abo matter”. The Zimbabwean

delegation indicated that the law provides for compensation for improvements on land

and equipment acquired. This whole issue was fully canvassed in the main judgment.

There it was held that the applicant had exhausted all possible remedies available to him

in Zimbabwe with no success at all. The magnitude of the applicant’s losses was

illustrated in the main judgment. A nebulous suggestion of possible “compensation for

improvements” could not, under any circumstances, represent effective diplomatic

protection for the applicant.

29

The meeting noted the decision of the 2008 SADC summit on operational questions

relating to the SADC tribunal. There was a suggestion that prosecution of former

owners of commercial farms would be stayed pending finalisation of the case before the

SADC tribunal. Further reference to this event will be made hereunder.

Possible remedies available to nationals of other countries under the International

Convention for the Settlement of Investment Disputes (ICSID) and BIPPA’s were not

available in the case of South Africa as South Africa was not a party to ICSID and

BIPPA had not yet been signed. This whole issue was canvassed fully in the main

judgment. The dereliction of duty on the part of the respondents in this regard

contributed to the finding that they had acted unconstitutionally.

Details relating to other South African farmers who suffered the same fate as the

applicant were exchanged.

Rather cryptically, “the meeting noted that there were legal processes in place to deal

with illegal farm occupations”. The Zimbabwean side further noted that affected

farmers should act within the legal provisions. Then follows, as far as I can gather, the

high-water mark of the South African delegation’s efforts to comply with order 4 and to

achieve diplomatic protection for the applicant:

30

“The South African side requested that the Zimbabwean Government should

assist where representations are made by the South African Embassy on behalf

of South African farmers who are the victims of illegal land occupation.”

The only response was another reference to the “fact” that “compensation for acquired

equipment is also available to affected farmers”.

It was then resolved the issue of affected South African farmers in Zimbabwe “would

also in future be discussed within the framework on the Joint Permanent Commission

between the two countries”.

Then there was yet another agreement noted about the importance and necessity of the

The meeting also noted “the provisions of article 5 of the power sharing agreement

signed on 15 September 2008 between the political parties of Zimbabwe as it relates to

the land reform program in Zimbabwe”. Nothing further was mentioned about this

power sharing agreement and the document was not in evidence during the proceedings

before me.

The minute ends on this rather endearing note:

31

“The South African delegation thanked the Zimbabwean Government for the

warm hospitality and cordial manner in which the discussions were conducted.”

[53] Annexure “K” is yet another telex, this time from Mr Ndou, former High Commissioner

of South Africa in Harare, and now the Ambassador in Tripoli. It is dated 26 September

Director-General Ntsaluba.

This appears to be an account of Ambassador Ndou’s recollections of meetings and

other contacts which purportedly took place over the years between South African

officials (notably the High Commissioner) and Zimbabwean officials with regard to the

plight of South African farmers following the land invasions.

For reasons mentioned, I consider this to be totally irrelevant because it deals with

terms of order 4 and order 5.

Moreover, it is nothing more than a vague recollection. It concludes with the following

words:

“This report was compiled from the High Commissioner’s recollection of

events during his tenure in Zimbabwe from June 1999 to June 2005. The report

might not be in chronological order but it reflects events as they happened.

32

The Business Unit should feel free to consult the High Commissioner to seek

further clarity and any specific detail regarding the matter.”

There are also no supporting documents such as minutes of meetings and the like

attached to this vague account.

I fail to see how this document can be of any meaningful assistance for purposes of

deciding the issue at hand.

[54] The final annexure to the Ambassador’s affidavit which may require some comment is

an affidavit by one Randall Williams, Director: Legal-International Trade and

Investment at the Department of Trade and Industry. He says he is responsible for

negotiating Bilateral Investment Treaties (BITs).

also refers to an earlier draft BIPPA dated December 2003 under the blessing of

President’s Minute 514.

None of these were disclosed during the main proceedings before me.

33

I repeat my view that these disclosures are irrelevant for purposes of deciding whether

orders 4 and 5 were effectively complied with.

In any event, no BIPPA had been signed by the time this affidavit was deposed to. The

controversial article 11 is also alluded to in the affidavit of Mr Williams. There is

reference to disagreement between the two governments about the wording of article

11. The last word, evidently, came from Zimbabwe which proposed that article 11

should exclude investments relating to agricultural land made before the entry of the

proposed agreement. Of course, this whole debate is irrelevant and academical for

Zimbabwean wording both excluded any hope of diplomatic protection for applicant.

The events covered in the affidavit, such as they are, are irrelevant because they predate

orders 4 and 5.

This Williams affidavit, in my view, does nothing to enhance the case of the

respondents. If anything, given the disclosure of earlier BIPPA’s which came to naught,

it fortifies conclusions expressed in the main judgment that the government failed to

respond appropriately to the plight of its citizens and never showed any real intention to

comply with their constitutional obligations in this regard – see for example the remarks

in the main judgment at 562C-E.

Conclusionary remarks about the report and related matters

34

[55] For the reasons I have mentioned, I find that the respondents have failed to comply with

orders 4 and 5.

[56] In the first place, such failure flows from the fact that the respondents, and particularly

the third respondent, exhibited no interest whatsoever in attempting to comply with the

orders of this court. Her conduct borders on the contemptuous. Her conduct corresponds

with the lack of interest exhibited by all respondents in the main proceedings. Her

conduct also flies in the face of section 165(4) of the Constitution – see the main

judgment at 539I-540A.

[57] Where the respondents, against whom orders 4 and 5 were directed, took no part in the

proceedings, and failed to report by affidavit as they were instructed to do, and where

no proper basis was laid for the “authority” ultimately passed on to Ambassador

Mamabolo to deal with the matter, the report falls to be disregarded for that reason

alone, and in view of the relevant authorities as dealt with in the main judgment – at

540A-543D.

[58] In the second place, and on the assumption that my conclusions about the

disqualification of the report are wrong, I find that on a proper consideration of the

report, such as the one I conducted, orders 4 and 5 were still not complied with:

35

1. In an Aide Memoire, Ambassador Mamabolo and his team expressed the

intention “to adhere to the court order and to provide Mr Von Abo with

diplomatic protection as requested by him”. They did absolutely nothing of this

sort. The high-water mark of their efforts, at the meeting between the

delegations, was that they “requested that the Zimbabwean Government should

assist where representations are made by the South African Embassy on behalf

of South African farmers who are victims of illegal land occupation”. There is

no indication that this “request”, such as it was, would ever yield any form of

protection for the applicant.

2. There are no signs whatsoever of the respondents, through their junior

delegation, contemplating the employment of any of the recognised diplomatic

measures, which could have brought about diplomatic protection. These

measures were mentioned earlier in this judgment and also listed in the main

judgment at 545I-J.

There is no explanation for the abject failure to employ these recognized

measures, or any other effective measures which may have brought about

protection for the applicant.

36

court was entitled to require the government to deal with the matter properly.

The respondents failed to do so.

4. In their comprehensive heads of argument, counsel for the respondents made

the following submission:

“In the premises it is submitted that the respondent have fully complied

with the supervisory order. As stated in Kaunda (their emphasis) they

have exercised such diplomatic measures as they deemed, in their

prerogative, were appropriate. The fact that such measures did not

yield the desired result, we submit, does not detract from the fact that

they discharged their constitutional obligation and consequently fully

complied with the court’s order.”

For the reasons mentioned, I disagree. On this argument offered by the

respondents, if I understand correctly, it would mean that a government, which

has the prerogative to decide on the nature of the diplomatic interventions to be

made, can opt for the most ineffective and weak measures, which have no

prospect of achieving the desired result, and still insist that their feeble efforts

pass constitutional muster because they have the prerogative to decide what

measures to adopt. To use the present example, the best the Mamabolo

delegation did was to “request that the Zimbabwean Government should assist

37

where representations are made by the South African Embassy on behalf of

South African farmers who are victims of illegal land occupation”. This was a

hopeless request with no prospect of inviting any protection for the applicant.

The same feeble attitude emerges from the Geerlings telex of 1 September 2008

that “the best of the South African Government could hope for is that the

Zimbabwean Government would give its co-operation in making it easier to

convince the judge that indeed enough diplomatic protection was given to Von

Abo, but that the Zimbabwean Government did not want to respond to these

pleas as it is convinced about the merits of its own Land Reform Process.”

To argue that these measures comply with the court order because it is the

prerogative of the government to decide what measures to adopt, is untenable.

It does not pass the test as expressed in Kaunda, Mohamed and Fose supra.

Dixon v Harrison, 124 E.R. 958 at p964, it was stated that the greatest absurdity

[63] The translation of ubi ius, ibi remedium, offered by Hiemstra and Gonin, Trilingual

MEC, Department of Welfare, Eastern Cape v Kate 2006 4 SA 478 (SCA) the

“Fose v Minister of Safety and Security [1997 (3) SA 786 (CC)] recognised

(Pty) Ltd (Agri SA and Legal Resources Centre, amici curiae) [my note: the

[25] In Fose the Constitutional Court emphasised that it was ‘not required to

[65] In Kate, an appropriate award of damages was made. In the present case, the nature of

explained in Fose, Kate and other authorities, and as intended by the provisions of theConstitution, notably, perhaps, the provisions of section 38 thereof. I see no alternative

learned judge of appeal in the above quoted passage to be found in Kate, at 490G-491B.

diplomatic assistance to Mr Von Abo, as the court found in casu, does not and

diplomatic intervention, supra, have been designed to force offending states to tow the

precisely under those circumstances when the recognised interventions, supra, come