South African High Court and Zim Land Acquisition-Case Note

The North Gauteng High Court, Pretoria held in the matter of Von Abo v. Govt of the Republic of South Africa, et al 3106/07 decided 5/2/2010, that the Government and President of South Africa and the Ministers of Foreign Affairs, Trade and Industry and Justice and Constitutional Development are jointly and severally liable to pay the applicant Von Abo damages. These damages were for losses suffered as a result of the violation of his rights by the Government of Zimbabwe when they acquired his land.

This decision is a sequel to the main judgment decided in 2009. The main judgment provided that the Respondents, Government of SA and others, failed to protect the rights of a SA citizen in violation of the Constitution. Diplomatic protection for Von Abo was expected- was a constitutional right. In the main judgment the court ordered Respondents to remedy the Von Abo rights violation and report back to the court within 60 days of the main judgment what steps were taken to remedy the Von Abo situtation . Paragraph 4 and 5 of the main judgment are as follows:

4. The respondents are ordered to forthwith, an din any event within sixty days of the date of this order, take all necessary steps to have the applicant’s violation of his rights by the Government of Zimbabwe remedied.

5. The respondents are directed to report by way of affidavit to this court within 60 days of this order, what steps they have taken in respect of paragraph 4 above, and to provide a copy of such report to the applicant.

This case concerns only the court ordered report and nothing else. There was the matter of suing the President and the Government that had to be cleared up by the Constitutional Court. It was finally decided that the Government of South Africa and the Minister of Foreign Affairs were only obligated to comply with paragraph 5. No report was ever made by affidavit, as ordered by paragraph 5. Instead, one report was provided but found lacking by the court because it was signed not by the Respondent, but by someone on Respondents behalf. Clearly unacceptable to the court.

A report was not provided by the Minister of Foreign Affairs, as ordered, but by the Deputy Director-General in the Dept of Foreign Affairs. The court calls the failure of Respondents to comply with a court order contempt of court and in violation of the Constitution. Specifically, section 165(4) which provides that the organs of State must assist and protect the courts to ensure their effectiveness.

The court points out that respondents failed to file affidavits or explain their failure to file. The court also took issue with the fact that the one report that was provided was not by a Respondent but someone designated by the Minister of Foreign Affairs.

The court next turns to analysis of the report itself which is meant to explain what actions were taken by Respondents to remedy the situation of Von Abo. The report states that requests were made to the Zim Government to assist when the SA Embassy asks regarding SA farmers who are victims of illegal land occupation. The court concludes that this is not dealing with the matter properly. Furthermore, the court states that the Government of SA could have used the South African Development Community (SADC) Tribunal judgment to fortify their efforts in Zimbabwe. This did not happen.

The report provided by the Deputy Director-General states that they could not do more since Zimbabwe could not be stopped from its policy of land acquisition. The Von Abo court did not find this persuasive. The court explained that Respondents could apply diplomatic pressure and did not. In fact, Respondents were in the unique position of funding the Government of Zimbabwe so were perfectly situated to make efforts to change the situation at least for South African farmers. No help was provided.

This is just a case note and I am no expert on SA law...AT ALL. But I will try to follow all of these cases as they make their wasy through the SA court system. I have no real comment to make other than I enjoy the law when it is applied by the judiciary. It can be so beautiful. This case is political but the legal aspects appear narrow enough so that the court can hammer its point repeatedly and it is so beautiful to watch. It may be meaningless, I cannot say. But this court opinion is out there and that is all that can be done for now.