Government of the Republic of South Africa v Von Abo

The respondent, Von Abo, was a South African citizen who owned extensive farming land in Zimbabwe which he had acquired over 50 years. After 1997, the Zimbabwean Government implemented a land reform program that dispossessed white farmers of their land without compensation. Von Abo lost all his farming interests, suffering massive financial loss due to gross violations of international minimum standards. After exhausting all remedies in Zimbabwe, he requested diplomatic protection from the South African Government starting in March 2002. Between 2002 and 2007, he wrote over 50 letters to various government officials and departments requesting intervention. The Government made various promises including assurances in Parliament that they would protect South African citizens' property abroad and that a Bilateral Investment Promotion and Protection Agreement (BIPPA) was being negotiated. However, no effective action was taken - BIPPA was never signed and no meaningful diplomatic protection was provided. In January 2007, Von Abo applied to the North Gauteng High Court seeking an order compelling the Government to provide diplomatic protection.

• Whether a South African citizen has a constitutional right to diplomatic protection from the Government
• Whether a court can compel the Executive to provide diplomatic protection and prescribe the manner in which such protection should be provided
• What constitutes an appropriate response by Government to a request for diplomatic protection
• Whether the Government's failure to appropriately respond to the request for diplomatic protection constituted a breach of constitutional duty
• Whether an appeal against the first order had been perempted by the appellants' conduct
• Whether the orders made by the High Court violated the separation of powers doctrine
• Whether a structural interdict/supervisory mandamus was appropriate in the circumstances
• Whether Government could be held liable in damages for violations committed by a foreign government

The appeal was upheld. The order of the High Court dated 29 July 2008 was set aside except for: (1) the declaration in paragraph 1 that the Government's failure to rationally, appropriately and in good faith consider Von Abo's application for diplomatic protection was unconstitutional and invalid; and (2) the costs order in paragraph 7 ordering the appellants to pay Von Abo's costs including costs of two counsel. The declaratory orders that Von Abo had a right to diplomatic protection and that Government had an obligation to provide it were set aside, as were the orders compelling Government to take steps to remedy the violation and to report to the court. The order of the High Court dated 5 February 2010 (the damages order) was set aside in its entirety. Each party was to bear their own costs of the appeal.

South African citizens have a constitutional right to request diplomatic protection from the Government, and the Government has a corresponding duty to consider such requests rationally, in good faith, and to respond appropriately. However, citizens do not have a right to demand diplomatic protection, and Government does not have a duty to provide it. The decision whether to provide diplomatic protection, and in what form, is an aspect of foreign policy that falls within the Executive's domain. Courts may intervene if the Government refuses to consider a legitimate request, acts in bad faith, or responds irrationally, but courts cannot substitute their opinion for that of Government, prescribe what form diplomatic protection should take, dictate timeframes for diplomatic action, or order Government to achieve particular outcomes in relations with foreign states. Such orders would violate the separation of powers. A court cannot hold a government liable in damages under its municipal law for violations of rights committed by a foreign government in a foreign country.

The court noted that the case was an example of how a government founded on a constitutional dispensation and culture of human rights is not supposed to treat its citizens and courts. The Government's conduct throughout the proceedings was criticized for making glowing promises but providing nothing substantive, not even responses that engaged the issues. Citizens and courts are entitled to honest and open disclosure on policy, approach and action when constitutional duties are in issue. The court observed that theoretically, an appropriate response to a request for diplomatic protection could, in certain circumstances, be to do nothing. The court commented on the practical difficulties that would flow from expecting ministers personally to take diplomatic action and depose to affidavits within short timeframes, noting that the Constitution apportions powers to organs of state and their functionaries, and that ministers exercise executive powers through a multitude of functionaries. The court noted that while structural interdicts may be appropriate in some cases involving executive functions (citing Sibiya as an example), they were not appropriate in this case. The court made the rhetorical observation that it would be unrealistic to expect the President and all three ministers to each personally approach the Zimbabwean Government.

This is a leading South African case on the constitutional dimensions of diplomatic protection. It clarifies the important distinction between a right to request diplomatic protection (which exists) and a right to receive it (which does not exist). The judgment provides authoritative guidance on the limits of judicial intervention in matters of foreign policy and diplomatic relations, emphasizing respect for the separation of powers. It establishes that while all exercises of public power are subject to constitutional control (including decisions about diplomatic protection), courts cannot prescribe to the Executive how to conduct foreign relations or what outcomes to achieve in dealings with foreign states. The judgment also provides important guidance on the appropriate use of structural interdicts and supervisory mandamus orders, warning that such orders have "a tendency to blur the distinction between the Executive and the Judiciary and impact on the separation of powers" and "tend to deal with policy matters and not with the enforcement of particular rights." The case reinforces the principles established in Kaunda v President of the Republic of South Africa regarding the nature and scope of diplomatic protection in South African law. It also illustrates how government should not conduct itself in constitutional litigation - emphasizing the need for honest, open and substantive engagement with citizens and courts when constitutional duties are alleged to have been breached.