Luke M Tembani and Others v President of the Republic of South Africa and Another

The appellants were private individuals and companies, many of them South African citizens, who had lost farms in Zimbabwe as a result of Zimbabwe’s land reform programme involving expropriation without compensation. Their claims for compensation were upheld by the SADC Tribunal, which found Zimbabwe in breach of the SADC Treaty. Zimbabwe failed to comply. Subsequently, the SADC Summit, with the participation of South Africa’s President, suspended the Tribunal by not reappointing its judges and later adopted the 2014 SADC Protocol abolishing individual access to the Tribunal. The Law Society of South Africa successfully challenged the South African President’s conduct as unconstitutional, a declaration confirmed by the Constitutional Court. Following this, the appellants instituted delictual claims for damages against the President and the Government of South Africa, alleging that their unconstitutional conduct caused the appellants’ loss of an effective remedy. The respondents raised exceptions to the particulars of claim, which the High Court largely upheld on causation grounds. The appellants appealed to the Supreme Court of Appeal.

The appeal was upheld with costs, including the costs of two counsel. The cross-appeal was struck from the roll with costs. The High Court’s order was set aside and replaced with an order dismissing the defendants’ exception to the plaintiffs’ second amended particulars of claim, with costs including those of two counsel.

The case is significant for reinforcing limits on the use of exception proceedings in South African civil procedure, particularly in cases involving novel delictual claims and constitutional development of the common law. It affirms that courts should be slow to dismiss such claims without a full factual record and underscores the obligation under section 39(2) of the Constitution to develop the common law in line with constitutional values.