The Government of the Republic of South Africa v Von Abo

The respondent, a South African citizen and farmer, owned extensive farming interests in Zimbabwe through companies and a trust. Following Zimbabwe’s land reform programme after 1997, his farms were expropriated without compensation, causing massive financial loss in violation of international minimum standards. After exhausting remedies in Zimbabwe, he repeatedly requested the South African Government to afford him diplomatic protection, including engagement with Zimbabwe and accession to international investment-protection mechanisms. Dissatisfied with the government’s responses, he approached the North Gauteng High Court seeking declaratory and mandatory relief compelling diplomatic protection and, failing that, damages. The High Court granted orders declaring a right to diplomatic protection, compelling the government to act, and later declaring the government liable for damages. The government appealed to the Supreme Court of Appeal.

The appeal was upheld. The High Court orders of 29 July 2008 and 5 February 2010 were set aside, except for the initial declaratory paragraph and costs order preserved by the SCA. The application was otherwise dismissed, and the damages order was entirely set aside.

This case is a leading Supreme Court of Appeal authority on diplomatic protection in South African law. It confirms and applies the Constitutional Court’s decision in Kaunda, clarifying that citizens do not have a substantive right to diplomatic protection or to a particular form of foreign-policy action. It also underscores that courts may not compel the executive to achieve outcomes in foreign relations that depend on another sovereign state, and that appellate courts must not enforce legally incorrect orders even where procedural obstacles such as peremption are raised.