Trustees for the time being of the Burmilla Trust and Another v President of the Republic of South Africa and Another

Swissborough Diamond Mines (Pty) Ltd, controlled by Josias van Zyl, was granted mining leases in Lesotho in 1988, including the Rampai lease. The Rampai area was later affected by the Lesotho Highlands Water Project. Lesotho courts ultimately declared the Rampai lease void ab initio. Swissborough ceded its rights to the Burmilla Trust, which in 2009 instituted proceedings before the SADC Tribunal against Lesotho, alleging expropriation without compensation in breach of the SADC Treaty and international law. While the SADC claim was ripe for hearing, the SADC Summit—of which South Africa was a participant—suspended and later dismantled the SADC Tribunal, preventing the adjudication of claims by individuals against states. The appellants alleged that the President and Government of South Africa unlawfully participated in this process, violating their constitutional right of access to courts under s 34 of the Constitution. They claimed constitutional damages for the value of the Rampai lease, moral damages, and various legal costs. The respondents raised exceptions, most of which were upheld by the High Court, prompting the appeal to the Supreme Court of Appeal.

The first appellant’s appeal was upheld with costs; the second appellant’s appeal was dismissed with costs. The High Court’s order was set aside and replaced with an order dismissing the exception against the Burmilla Trust’s claims for the value of the Rampai lease and the costs of prosecuting that claim before the SADC Tribunal, while upholding the exception in respect of all other claims. The appellants were granted leave to amend their particulars of claim within 30 days.

The case is significant for clarifying the availability of constitutional damages under s 172(1)(b) as a remedy for violations of the right of access to courts arising from South Africa’s participation in international decision-making. It affirms that domestic courts may assess, for pleading purposes, the probable outcome of international tribunal proceedings and that international tribunals are not necessarily bound by domestic court decisions of member states. The judgment also delineates the limits of constitutional damages, particularly in relation to moral damages and wasted costs.