The appellants were South African citizens and Lesotho-registered companies who held mineral leases granted by the Government of Lesotho in 1988. These leases conflicted with the Lesotho Highlands Water Project (a treaty between RSA and Lesotho). The Government of Lesotho cancelled the leases in 1991 and revoked them by executive order in 1992. The Lesotho courts set aside both the cancellation and revocation as unlawful. However, after a 58-day trial, the Lesotho courts ultimately found that the main Rampai lease was void ab initio as it did not comply with Lesotho customary law requiring Chiefs' consent. The appellants exhausted appeals in Lesotho and then requested the South African Government to provide diplomatic protection against Lesotho, demanding mediation or international litigation and claiming damages exceeding R3 billion. The RSA Government considered the request but declined, citing policy reasons including respect for Lesotho's judicial system and the sensitive relationship between the two countries. The appellants sought judicial review of this refusal and a mandamus compelling the Government to provide diplomatic protection.
Appeal dismissed with costs, including costs of three counsel for the respondents.
The binding legal principles are: (1) South African citizens have a constitutional right (under s 3 of the Constitution) to request diplomatic protection from their government, but not an enforceable right to receive it. (2) Government has a corresponding constitutional duty to consider such requests and respond appropriately, rationally, and in good faith. (3) The decision whether to grant diplomatic protection and what form it should take is a non-justiciable policy decision within the executive's foreign affairs prerogative. (4) Courts may review whether Government considered a request, and may intervene if Government refuses to consider a legitimate request, acts in bad faith, or acts irrationally, but courts cannot order Government to provide a particular form of diplomatic protection or substitute their judgment for Government's policy decision. (5) Under international law, a state can only provide diplomatic protection where: (a) an international delict has been committed (not merely a breach of municipal law); (b) the victim has the nationality of the sending state; (c) local remedies have been exhausted; and (d) the continuing nationality rule is satisfied. (6) Contracts and property rights governed by municipal law do not automatically become subject to international law unless 'internationalized' by agreement or the nature of the transaction.
The Court made several non-binding observations: (1) Courts should exercise restraint when dealing with allegations of unlawful conduct by sovereign states. (2) The Court severely criticized the appellants' procedural conduct, including ignoring Uniform Rule 53, filing excessive and repetitive affidavits (the reply affidavit was inordinately long and largely valueless), making unsubstantiated allegations, and shifting legal positions. The Court suggested such abusive replying affidavits should be struck out in their entirety and attract adverse costs orders. (3) The Court noted that Mr. van Zyl's belief that "fifty per cent of all court rules are unconstitutional" was not a valid basis for ignoring procedural requirements. (4) While not deciding the point definitively, the Court expressed agreement with Patel J that draft Article 11 of the International Law Commission report (allowing diplomatic protection for shareholders in certain circumstances) does not yet reflect customary international law. (5) The Court observed that the Lesotho Court of Appeal consisted largely of retired South African judges, undermining allegations of bias. (6) The Court noted the irony that the appellants praised Lesotho courts when winning but attacked them as biased when losing. (7) The Court commented on the importance of original documentary evidence rather than reliance on annexures not confirmed in affidavits.
This case is a leading South African authority on diplomatic protection, clarifying the constitutional and international law framework following Kaunda v President of the RSA. It establishes that: (1) South African citizens have a constitutional entitlement (derived from s 3 of the Constitution regarding citizenship) to request diplomatic protection, but no enforceable right to receive it. (2) Government has a duty to consider such requests rationally and in good faith, but the decision whether and how to provide protection is a non-justiciable policy matter within executive prerogative over foreign affairs. (3) Courts may review whether Government considered a request, but cannot dictate the form of diplomatic protection or substitute their judgment for Government's foreign policy decisions. (4) International law requirements for diplomatic protection (existence of international delict, nationality, exhaustion of local remedies) remain prerequisites that limit when protection can lawfully be granted. The case demonstrates judicial restraint in matters of foreign policy while maintaining a supervisory role over procedural rationality. It also addresses the interface between municipal and international law in the South African legal system.
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