[1]
This appeal relates to a claim for diplomatic protection, i.e., action by one state against another
state in respect of an injury to the person or property of a national of the former state that has been caused by an international
delict that is attributable to the latter state. Diplomatic protection includes, in a broad sense, consular action, negotiation,
mediation, judicial and arbitral proceedings, reprisals, a retort, severance of diplomatic relations, and economic pressures.
[2]
The appellants requested the Government of the RSA to provide them with diplomatic protection against
the Government of Lesotho. The international delict on which they relied was the cancellation and revocation of five mineral leases
that had been granted by the Government of Lesotho.
[3]
The President of the RSA was advised that the Government was under no obligation to afford diplomatic
protection to the appellants; that any decision to intervene would involve a policy and not a legal decision; that the decision is
the sole prerogative of the Government; that the disputes between the appellants and the Government of Lesotho had been decided by
the Lesotho courts; that mediation or intervention by the Government would imply a lack of faith in the judicial system of a sovereign
state; and that diplomatic intervention would set an unhealthy precedent. The President in the result refused to accede to the appellants’
request and they were informed that they were not, in the circumstances of the case, entitled to diplomatic protection.
[4]
Dissatisfied with this ruling, the appellants sought to review the Government’s decision.
They also applied for a mandamus directing the Government ‘to take all steps necessary to vindicate the rights of the applicants,
including but not limited to providing diplomatic protection.’ The application was heard by Patel J in the Pretoria High Court.
He dismissed the application but granted leave to appeal to this Court.
[5]
Courts should act with restraint when dealing with allegations of unlawful conduct ascribed to sovereign
states. Unfortunately, in order to decide this case it is necessary to deal with the allegations made by the appellants to determine whether
or not Patel J was correct in dismissing their application.
[6]
This judgment holds that the appellants have no right under South African law to diplomatic protection,
especially not in respect of protection of a particular kind. Nationals have a right to request Government to consider diplomatic
protection and Government has a duty to consider it rationally. Government received the request, considered the matter properly and
decided to decline to act on rational grounds. This judgment further holds that the Government is not entitled under international
law to afford the appellants diplomatic protection under the particular circumstances of the case. Accordingly, the appeal stands
to be dismissed.
THE PARTIES
[7]
There are nine appellants but the driving force behind the litigation is the first appellant, Mr
Josias van Zyl. He and his wife are in their capacity as trustees of two trusts, the Burmilla Trust and the Josias van Zyl Family
Trust, the second and third appellants respectively. Both trusts are registered in South Africa. Mr and Mrs van Zyl are South African
citizens.
[8]
There are six corporate appellants, all companies incorporated and registered in Lesotho. The important
one is Swissbourgh Diamond Mines (Pty) Ltd. The issued shares in Swissbourgh belong to Mr van Zyl (5%), Burmilla Trust (90%) and
the family trust (5%). Swissbourgh holds 99% of the shares in the other companies and the family trust holds the remaining 1%. The
mineral leases were all held by Swissbourgh and the other appellant companies derived their interests from Swissbourgh by means of
tributary agreements (effectively sub-leases). Because of this it will not be necessary to distinguish between the appellant companies
and references to Swissbourgh will usually be in a generic sense to include a reference to all or most of the appellants. All the
directors are also South African citizens.
[9]
The respondents are, respectively, the Government of the RSA, the President, the Minister of Foreign
Affairs and, last, the Deputy Minister. It is for purposes of the judgment not important to distinguish between them and I shall
refer to them (unless the context requires otherwise) as the Government. I also do not intend to distinguish between the State and
the Government and will use the terms interchangeably.
THE HISTORY
[10]
This case has a long and convoluted history. The appellants displayed an obsessive attention to peripheral
facts and factoids and their affidavits raise speculation to the level of fact and thereafter raise argument based on the speculation. And as in the Kaunda case, this case has been complicated by the appellants’ excessive demands and the form in which the notice of motion was framed. In what follows I intend to limit myself to the salient facts. They are briefly related at this juncture to set the stage for a more
detailed discussion where and when required.
[11]
The RSA and the Kingdom of Lesotho concluded a treaty concerning the Lesotho Highlands Project on 24
October 1986. The main purpose of the project was to supply water to the Witwatersrand from a dam that had to be built in Lesotho.
Joffe J in previous proceedings between the appellants and the Government dealt with the detail of the treaty and what he said need
not be repeated. During June 1988, construction operations by the Lesotho Highlands Development Authority, a Lesotho statutory body established pursuant
to the treaty, began in the Rampai area.
[12]
Shortly thereafter, on 4 August 1988, the Government of Lesotho and Swissbourgh entered into five mining
leases. One of these leases covered the Rampai area in the basin of the proposed dam. The terms of the Rampai lease are typical.
The lease was entered into in Lesotho in terms of s 6 and 15 of the Lesotho Mining Rights Act, 1967. The Commissioner of Mines represented
the Basotho Nation and Mr van Zyl represented Swissbourgh. Swissbourgh obtained the sole right to prospect for and mine and dispose
of precious stones within the Rampai area for a period of ten years with a right of renewal for a further five years. Swissbourgh
had to pay the Government of Lesotho a yearly rental of R13 600 (R100 per square kilometre) and a royalty of 14% on the value of
the stones recovered. The agreement contained an arbitration clause. The lease had to be registered in terms of the Mining Rights
Act, which happened soon thereafter. (For purposes of the rest of the judgment a distinction will be drawn between the Rampai lease
and the other four because of subsequent events.)
[13]
The Authority proceeded with its work on the dam project until July 1991 when Swissbourgh obtained an
interim interdict against the Authority preventing it from performing any work within the Rampai area. The rule was subsequently
discharged by agreement but the final determination of the application was kept in abeyance pending settlement negotiations.
[14]
Faced with the consequences of a grant of competing rights to Swissbourgh and the Authority as well as
a breach of its treaty obligations, the Government of Lesotho took a number of steps which the Lesotho courts in due course found
were unlawful. These acts form the crux of the appellants’ complaints against the Government of Lesotho.
[15]
The first step was the cancellation by the Commissioner of Mines of all the mining leases. This enabled
the Authority to rely on the cancellation of the Rampai lease as a defence to the interdict application. (The other leases did not
affect the construction activities.) However, on 20 November 1991, the court, at the behest of Swissbourgh, on an interim basis set
aside the cancellation of the mining leases by the Commissioner. It also issued an interim interdict preventing the Authority from
proceeding with its dam construction activities within the Rampai area. One may assume that this order must have had a devastating
effect on the construction activities of the Authority.
[16]
In another attempt to undo the mining leases the governing Military Council issued the ‘Revocation
of Specified Mining Leases Order’ of 20 March 1992. This executive order revoked the five mining leases of Swissbourgh; provided
that no person would be entitled to compensation for loss or damage as a result of the cancellation; and prohibited the institution
of any legal proceedings, including arbitration proceedings, resulting from or in connection with the order or the cancellation of
the leases.
[17]
Another application to court followed immediately, this time for an order setting aside the revocation
order and for another interim interdict. Swissbourgh was successful and Cullinan CJ in his judgment of September 1994 had some harsh words about the actions of the Government
of Lesotho, especially for the disrespect for the Constitution and the negation of the rule of law.
[18]
The subsequent appeal was not successful. During January 1995 the Court of Appeal held that the revocation
order was in conflict with the provisions of the Lesotho Human Rights Act and consequently void. The appeal against the interim interdict, however, succeeded on the ground that Cullinan CJ had not exercised a proper discretion.
The balance of convenience, the court found, did not favour Swissbourgh and that an award of damages would compensate Swissbourgh
adequately. Swissbourgh was given time to do exploratory work in the Rampai area to quantify its damages.
[19]
During March 1995, the Government of Lesotho and the Authority conceded that the cancellation of the
mining leases by the Commissioner had been invalid. The Authority nevertheless lodged a counter-application for a declaration that
the Rampai lease had been void ab initio because the required formalities had not been followed. The court consequently set the cancellation
aside and referred the validity issue for oral evidence. This led to a 58-day trial before the Chief Justice, Mr Justice Kheola.
[20]
Kheola CJ found against Swissbourgh on 28 April 1999, holding that the Rampai lease was void ab initio.
Swissbourgh appealed to the Court of Appeal but the appeal was dismissed on 6 October 2000. The reasons are fairly basic. According to Lesotho customary law all land belongs to the Basotho Nation; this principle is entrenched
in the Lesotho Constitution; any grant of rights in relation to land required the consent of the relevant Chiefs; since its promulgation
the Lesotho Mining Rights Act, 1967 (under which the mineral leases were granted) required the Chiefs’ consent for the grant
of mineral rights; and the evidence established that no consent had been sought or granted. The Rampai lease was accordingly void.
[21]
Less than three weeks later the appellants made the initial request for diplomatic protection, which
led to these proceedings.
[22]
It is convenient to mention two intervening matters. The first relates to the other four leases that
were not involved in the Rampai appeal. Faced with the revocation order, which denied it access to court, Swissbourgh decided to
regard the Government of Lesotho’s denial of the validity of these leases as a repudiation of contract and to accept the repudiation,
thereby bringing to an end any contractual relationship between the parties. (Notably, probably for tactical reasons, Swissbourgh
did not cancel the Rampai lease.) On 25 October 1993, Swissbourgh instituted action claiming R 930m damages. There was an additional
claim of R 15m in respect of physical damage to plant and equipment.
[23]
On 16 September 1994, Swissbourgh ceded its rights in respect of the pending action and the contractual
and delictual damages claims to Burmilla Trust. Although the rights were valued at R2 637m, the consideration was a mere R1 000.
Burmilla Trust has not yet been substituted as plaintiff and the action has not been pursued. Another action relating to the same
or similar causes of action was instituted during May 1996 by Swissbourgh. This action is also in limbo.
[24]
Two years later Swissbourgh entered into another cession agreement with Burmilla Trust in amplification
of the first one. It ceded all Swissbourgh’s claims against the Government of Lesotho in the event of a declaration that any
of the mining leases were invalid.
[25]
The second set of intervening facts concerns the adoption of legislation by the Government of Lesotho
to place matters on a proper legal footing and to comply with its national and, coincidentally, its international obligations especially
in relation to the treaty with the RSA. The Lesotho Act 5 of 1995, which came into effect on 16 August 1995, provided for the expropriation
by the Authority of mineral rights for purposes of the water project. Thus far the Authority had been entitled to take ‘land’
and pay compensation but the initial legislation did not deal with mineral rights and did not have adequate compensation provisions.
This Act, however, provided for full compensation, properly determined, in respect of any such expropriation to a person in whose
favour a ‘duly granted and executed mineral right’ was registered. Pursuant to this Act, the Authority purported to expropriate
the Rampai lease on 17 August 1995 but in the light of the Rampai judgment expropriation was unnecessary because there was nothing
to expropriate.
[26]
On the same day another piece of legislation was promulgated, namely Lesotho Act 6 of 1995. It validated
certain dam construction activities of the Authority ‘subject to any accrued or vested right to damages’. Again, as a
result of the Rampai judgment Swissbourgh had no accrued or vested rights, at least not in relation to the Rampai lease.
THE REQUEST FOR DIPLOMATIC PROTECTION
[27]
The first request for diplomatic protection was made per letter of 25 October 2000 to the Department
of Foreign Affairs. It relied on the unlawful revocation of the mineral leases during 1992 and the destruction and confiscation of
assets by the Government of Lesotho. The appellants also complained about corruption ‘at the highest level’ in the Government of Lesotho. In addition they
alleged that Swissbourgh had suffered a miscarriage of justice at the hand of the Lesotho courts. The appellants further said that
they had ‘no faith in the independence and impartiality’ of the Lesotho courts and they ‘rejected’ the Rampai judgment because the judges were ‘specially appointed’ and their analysis
of the evidence and their findings were ‘one-sided and manifested bias.’
[28]
The next letter of consequence was dated 8 December 2000. Before dealing with its terms it is necessary
to contextualise it. During 1993, Swissbourgh instituted action against the Government of the RSA for damages suffered as a result
of the loss of their leases. The particulars of this action (and a related action against a local statutory body) need not be mentioned
– they are to be found in the judgment of Joffe J. In summary, Swissbourgh alleged that the Government of the RSA interfered
unlawfully with its mining rights, which caused it to suffer damages of R 945m. Swissbourgh, in addition, claimed R 507,8m from the
statutory body on similar grounds. The unlawful interference, according to the particulars of claim, was done with the improper motive
of obtaining an unlawful advantage for the joint water supply venture. The defendants in that case allegedly ‘procured’
(followed by ten alternatives) the unlawful interference with Swissbourgh’s rights by the Government of Lesotho.
[29]
The conspiracy issue also formed part of the case before Kheola CJ and was the main reason for the length
of the trial. He found that the allegations were without any merit and made a special costs order against Swissbourgh. The Court
of Appeal did not consider the merits of the issue because it became irrelevant in the light of the finding that the Rampai lease
was invalid.
[30]
During 1995, Mr van Zyl approached the RSA Government with settlement proposals. This elicited a letter
from the State Attorney written on the instructions of the Minister of Water Affairs (under whose jurisdiction the dam project fell),
dated 15 May 1995. It is necessary to quote from the letter: 3/136
•
‘The Minister is in principle not averse to endeavours aimed at settling legitimate claims against the Government.’
•
‘The manner in which you have conducted the pursuit of your interests as you perceive them, has, however, created the firm impression
that you set out to coerce the Republic of South Africa to meet a claim which you may or may not have against the Government of the
Kingdom of Lesotho and the Lesotho Highlands Development Authority. This you set out to do inter alia by calling upon the international community to take up your perceived cause against the Government of the Republic of South Africa,
by widely publicizing allegations of immoral collusion and improper conduct on the part of the Government and by making similar allegations
in respect of the present Government in your recent correspondence to the Minister.’
•
‘You have indeed succeeded in creating a situation where you have offended the dignity of the Republic of South Africa, not only under
the previous Government, but also under the present one. The dispute is thus no longer a simple commercial dispute. Settlement of
the actions with you may amount to an acknowledgement of the veracity of your allegations and may compromise the credibility of the
present Government, not only in its international relations with the Kingdom of Lesotho, but also with the other states and international
institutions whose assistance you sought to muster.’
•
‘As long as you persist in your allegations of improper collusion between the Government of the Republic of South Africa and the independent
and sovereign Kingdom of Lesotho, no advances of settlement can be entertained.’
•
‘Should you withdraw the actions as well as the offensive allegations against the Government of the Republic of South Africa unreservedly
and publicly, my Government may find itself in a position where it may consider attempts to facilitate mediation of the various disputes
between yourself and the Government of the Kingdom of Lesotho and the Lesotho Highlands Development Authority.’
•
‘As matters presently stand this is, however, impossible without prejudicing the dignity of the Government of the Republic of South
Africa and its credibility in the international community.’
[31]
The appellants rejected the suggestion that they withdraw the allegations; instead, as mentioned, they
proceeded to conduct a lengthy trial in order to prove the allegations of collusion and they harassed the Government in the local
litigation as appears from the judgment of Joffe J. During July 1999 (shortly after the judgment of Kheola CJ), Mr van Zyl went yet
further: he submitted a voluminous request for an inspection by the World Bank (a financier of the scheme) alleging that the Bank,
the RSA Government, the Government of Lesotho and the Authority were involved in the ‘patently unlawful acts’ surrounding
the water project and the leases.
[32]
Having lost the Rampai appeal the appellants in the mentioned letter of 8 December 2001, rather cynically
relied on the promises contained in the State Attorney’s letter; they withdrew the South African actions and the allegations
‘in respect of the ANC government’s involvement’ in an unlawful conspiracy; and they released a press statement
apologising to Government.
[33]
The next letter of importance, dated 15 December 2000, argued the existence of a ‘right to diplomatic
protection’ under the Constitution at length (an assertion repeated in later correspondence) and submitted that ‘the
State is under a constitutional obligation to provide diplomatic protection to its citizens’. The letter also requested the
Government to ‘act in terms of its undertaking’ contained in the letter of the State Attorney.
[34]
The appellants insisted that Government should provide them with diplomatic protection by mediating the
dispute and convincing the Government of Lesotho to pay a ‘settlement’ amount of R 85,4m with interest within a given
period. Otherwise Government had to institute legal proceedings against the Government of Lesotho in an international court or arbitration
tribunal for payment of some R1 812,5m with interest on the appellants’ behalf.
[35]
In spite of its refusal to grant the request, the Government sent a Note Verbale to the Government of
Lesotho, informing that government of the complaint. The Government of Lesotho did not respond but its view appears forcefully from
a letter dated 19 November 2001, by its attorneys to Swissbourgh in response to a parallel paper campaign against the Government
of Lesotho. It rejected the allegations in no uncertain terms, stating that a number of premises of the arguments put forward were,
to the knowledge of the claimants, fundamentally flawed; that the attacks on the judiciary were scurrilous; and that there was no
prospect of any settlement. (A copy of the letter is annexed to this judgment.) This six page letter drew a reply of 138 pages from
Mr van Zyl. The Government of Lesotho responded by reiterating that it would not submit to any form of arbitration, international
or otherwise.
THE COURT APPLICATION
[36]
Review applications, in the ordinary course of events, have to be brought under Uniform rule 53 (unless
covered by the Promotion of Administrative Justice Act 3 of 2000 – PAJA). This one was not, and the failure to follow the rule
caused much aggravation.
[37]
The founding affidavit of Mr van Zyl set out the nature of the application under a separate heading.
He relied on a violation of the appellants’ rights by the cancellation of the mining leases without payment of compensation
(and nothing more). This, he said, constituted an expropriation that did not comply with minimum international standards. The Government
of Lesotho was accordingly obliged to pay the appellants some R 3 089m damages.
[38]
Mr van Zyl proceeded to say, as foreshadowed in the correspondence, that the appellants have ‘a
constitutional right to diplomatic protection’ and that the Government has ‘a corresponding obligation to provide such
protection’; the issue (he said) was the failure of Government to exercise its power in a constitutionally permissible manner;
the decision was irrational because it was based on a wrong understanding of its legal obligation; and that the merits of the disputes
with the Government of Lesotho were not directly in issue.
[39]
Then followed 70 pages of ‘history and background’ interspersed with legal argument. Two
aspects need to be noted. The first concerns the Lesotho courts. After alleging that the appellants had exhausted their local remedies,
Mr van Zyl proceeded to state (contrary to the line taken in the preceding correspondence) that the application was not ‘a
reflection on the integrity of any of the judges in the Courts of Lesotho’ or on those courts. The second is a one-liner based
on the State Attorney’s letter of 15 May 1995: this letter allegedly gave the appellants a legitimate expectation that the
Government would afford them diplomatic protection should they withdraw their South African litigation, something they had now done.
[40]
Attached to the founding affidavit are about 850 pages of exhibits. The allegations contained in these
annexures were not confirmed in the founding affidavit and are therefore not evidence. Mr van Zyl and his legal advisers knew that
it is not open to a party merely to annex documentation to an affidavit and during argument use its contents to establish a new case.
A party is obliged to identify those parts on which it intends to rely and must give an indication of the case it seeks to make out
on the strength thereof. The fact that the appellants again have ignored the procedural rules dealt with by Joffe J is probably due to Mr van Zyl’s
belief, as he said during argument, that fifty per cent of all court rules are unconstitutional and can be ignored.
[41]
The main affidavit in answer was by the Deputy Minister, Mr Aziz Pahad. It dealt in 91 pages with the
appellants’ right to diplomatic protection and with the decision of Government in response to the request. He added that Mr
van Zyl had failed to disclose five material facts. These facts, according to the deponent, went to the heart of the application.
[42]
This elicited a replying affidavit of about 550 pages and annexures of some 1700 pages. The main ‘justification’
proffered was that Mr van Zyl indeed had disclosed the five material facts in the founding affidavit. In other words, this mass of
material was required to underpin five common cause facts. One illustration should suffice. Mr Pahad alleged that the cession of
Swissbourgh’s claims to Burmilla Trust was material and had not been stated in the founding affidavit. Mr van Zyl took Mr Pahad to task
because, he pointed out, the fact of the cession appeared from a note on two of the annexures to the founding affidavit. Instead
of admitting the cession and giving the reference, Mr van Zyl now sought to traverse new ground. In addition, Mr van Zyl resurrected
the conspiracy case in the reply because, he said, of the Government’s allegations concerning his failure to disclose material
facts. He also attacked the Government’s decision on new grounds.
[43]
The Government applied for the striking out of major parts of the reply as either new matter or as otherwise
objectionable, namely being scandalous, vexatious, irrelevant or inadmissible.
THE PROCEEDINGS IN THE TPD
[44]
During the hearing before Patel J, the appellants were represented by three counsel. Patel J granted
the Government’s striking out application and dismissed the appellants’ application. His judgment dealt in great detail
with all the legal issues raised. As will appear in the course of this judgment, I agree in general terms with his reasoning but
I do not find it necessary to decide all the issues he did.
[45]
It is convenient to deal at this stage with the application to strike out. Both sides filed lengthy heads
dealing with each and every finding made by Patel J. The learned judge, it should be noted, took great pains to analyse the complaint.
I do not think that a court of appeal could reasonably be asked to redo an exercise concerning an interlocutory matter, especially
in the circumstances of this case. Schutz JA once made these pointed remarks:
‘There is one other matter that I am compelled to mention – replying affidavits. In the great majority of cases the replying
affidavit should be by far the shortest. But in practice it is very often by far the longest – and the most valueless. It was
so in these reviews. The respondents, who were the applicants below, filed replying affidavits of inordinate length. Being forced
to wade through their almost endless repetition when the pleading of the case is all but over brings about irritation, not persuasion.
It is time that the courts declare war on unnecessarily prolix replying affidavits and upon those who inflate them.’
[46]
A reply in this form is an abuse of the court process and instead of wasting judicial time in analysing
it sentence by sentence and paragraph by paragraph such affidavits should not only give rise to adverse costs orders but should be
struck out as a whole. Since I am of the view that Patel J should have taken that route mero motuI am not going to deal with those few instances where he quoted a wrong paragraph number (one of the grounds, as I understood from
what Mr van Zyl volunteered during argument, that led to a complaint to the Judicial Services Commission against the late judge)
or erred. I shall nevertheless have regard to the reply to the extent that it contains relevant and admissible material that impacts
on the merits of the case.
THE HEARING IN THE SCA
[47]
It is unfortunately necessary to say something (but not all) about the appeal hearing. Mr Redelinghuys,
an attorney with the right of appearance, appeared for all appellants excepting Mr van Zyl. Mr Redelinghuys knows the case because
he was Swissbourgh’s attorney in Lesotho. Mr van Zyl argued in person but chose to follow Mr Redelinghuys.
[48]
The heads of argument filed by the appellants ran to 530 pages. A few days before the hearing, without
explanation, another set of 325 pages was filed. After a short and well prepared introductory argument, Mr Redelinghuys proceeded to deal with the additional heads. His main point
was that the appellants had suffered a denial of justice at the hands of the Lesotho courts. The nub of the argument was that ‘national
legal systems can be judged objectively for acts and omissions of its courts with respect to aliens’ and that ‘a state
incurs international responsibility if it administers justice to aliens in a fundamentally unfair way’. He relied on art 10
of the Universal Declaration of Human Rights, which provides that
‘everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination
of his rights and obligations and of any criminal charge against him.’
[49]
Mr Redelinghuys was asked on what basis could he argue this point since it did not form part of the case
set out in the founding affidavit – indeed, the case of the appellants was, as mentioned, that the application was no reflection
on the Lesotho courts – nor was it the case in the high court or in the main heads of argument. He sought in response to rely
on unsupported allegations made against the judiciary in the attached correspondence to which he added ex cathedraallegations. It was pointed out to Mr Redelinghuys that he, as an officer of the court, could not make submissions that do not have
an evidential basis. Mr Redelinghuys subsequently retracted and abandoned the point.
[50]
This gave Mr van Zyl the opportunity to attack this Court for having already decided the case; to lecture
the Court about justice; and to renew the attack on the Lesotho judiciary. Those courts, he said, were not only biased, they were manipulated. Mr van Zyl was given more than one opportunity to identify the
passages in the record where the allegation of a denial of justice had been made. He did not. I do not wish to belabour the point.
Although the failure of justice was raised in the preceding correspondence, the appellants deliberately chose to omit it as a cause
of complaint from the founding affidavit and, apart from a generalised statement, also from the replying affidavit. The appellants
are not entitled in this manner to resurrect an abandoned case.
THE REVIEW
[51]
The approach to Government and the Government’s response occurred before the Constitutional Court
delivered the Kaundajudgment, which brought some clarity on the issue of the right to diplomatic protection. For purposes of this case the following principles
there set out are relevant:
•
Traditional international law acknowledges that states have the right to protect their nationals beyond their borders but they are
under no obligation to do so (para 23).
•
Diplomatic protection is not recognised by customary international law as a human right and cannot be enforced as such and it remains
the prerogative of the state to exercise it at its discretion (para 29).
•
It would be inconsistent with the principle of state sovereignty for South Africa to assume an obligation that entitles its nationals
to demand, and obliges it to take action to ensure, that laws and conduct of a foreign state and its officials meet not only the
requirements of the foreign state’s own laws, but also the rights that our nationals have under our Constitution (para 44).
•
Although there is no enforceable right to diplomatic protection, South African citizens are entitled to request South Africa for protection
under international law against wrongful acts of a foreign state and the citizen is entitled to have the request considered and responded
to appropriately (para 60).
•
The entitlement to request diplomatic protection flows from citizenship and is part of the constitutional guarantee given by s 3 of
the Constitution, which provides that all citizens are equally entitled to the rights, privileges and benefits of citizenship (para
67, 178, 188, 236).
•
The government has an obligation to consider the request and deal with it consistently with the Constitution ( para 67, 192).
•
There may be a duty on government, consistent with its obligations under international law, to take action to protect one of its citizens
against a gross abuse of international human rights norms. A request to the government for assistance in such circumstances where
the evidence is clear would be difficult, and in extreme cases possibly impossible to refuse (para 69, cf 242).
.RTF of original document