The Right to Diplomatic Protection, the Von Abo Decision, and One Big Can of Worms: Eroding the Clarity of Kaunda

• Jurisdiction: South Africa
• Citation: (2009) 20 Stell LR 14
• Date: 27 May 2019
• Pages: 14-30
• Published date: 27 May 2019

14

THE RIGHT TO DIPLOMATIC PROTECTION,

THE VON ABO DECISION, AND ONE BIG CAN

OF WORMS: ERODING THE CLARITY OF

KAUNDA

Dire Tladi

BLC LL B LL M Ph D

Legal Advisor to the South African Permanent Mission to the United Nations

Extraordinary Professor, Public Law, University of Stellenbosch*

1 Statement of the issues

On 29 July 20 08, Judge Prinsloo of the Pretoria High Cour t handed down

judgement i n the case of Von Abo v Government of the RSA (hereafter Von

Abo).1 The judgment was well received in the South African media, even

earning Judge P rinsloo an award as Legalbrief Newsmaker of the month.2

Certainly one of the reasons for the attention received by the case was that

it concerned the situation in Zimbabwe and, as a consequence, placed South

Africa’s policy regarding Zimbabwe in the spotlight. It is of particular interest

that judgement was handed down in the midst of political talks between the main

political parties in Zimbabwe. But, from an international and constitutional law



protection and more generally, the discretion of states in the conduct of foreign

affairs. Can the state be compelled by a court to perform certain international

acts impacting on foreig n relations and under what circumstances?

For a long time these questions – li nked as they were to the act of st ate

doctrine – were cloudier than a British su mmer. When the Constitutional

Court handed down its judgment in Kaunda v the President of the Republic

of South Africa (hereaft er Kaunda),3 I felt that the issues had become clearer.4

* This paper expresses the pe rsonal vi ews of th e author. Nothing i n this paper is to be attribut ed to the

Depart ment of Foreign Affair s or the Government of t he Republic of South Afr ica.

1 [2008] JOL 22219 (T).

2 Leon “Von Ab o Ru ling exposes empty pr omises on Zimbabwe” Busine ss Day (11-08-2008) http://

www.business day.co.za/Articles/Tark Article.aspx?I D=3290752 (acces sed 12-11-2008); “Gover nment

didn’t pro tect FS farmer” News24 (29-07-2008) ht tp://www.news24.com/ News24/South_A frica/

Politics/0,,2-7-12_2366259,00.ht ml (accessed 30-07-2008); Pr etorius “La ndmark wi n for far mer: Cour t

says man who lost land, bus iness in Zim is entitled to SA Gover nment Protectio n” Pretoria News (30-07-

2008) http://www.pretorianews.co.za/index.php?fSect ionId=1703&fSearch=1&fQuery=%93Landmark+

win+for+farmer%3A+Court+says+man+who+lost+land%2C+business+in+Zim+is+entitled+to+SA+Go

vernment+P rotection%94 (accesse d 08-11-2008).

3 2005 4 SA 235 (CC). A similar questio n was raised in Van Zyl v the Gove rnment of the Repub lic of South

Africa 2008 3 SA 294.

4 The author’s favourable views of Kaunda are set out in Tladi & Dlagnekova “The Act of State Doct rine in

South Afric a: Has Kaunda sett led a vexing question?” 20 07 SA Public Law 444. For criticis m of Kaunda

see eg O livier “Diploma tic Protect ion – Rig ht or Priv ilege?” 2005 SAYIL 238; Woolma n “Application”

in Woolman, Roux & Bishop (eds) C onstitutiona l Law of Sou th Africa (200 6) 31-114 et seq. Woolma n’s

critique of Kaunda is fo cused less on the question of diplomat ic protection and more on the extr aterrito-

rial applicat ion of the Bill of Rights.

(2009) 20 Stell LR 14

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However, in light of Kaunda and the progress it represented, it was with some

disquiet that I read the Von Abo judgement. The decision relies heavily on

Kaunda and yet reaches conclusions (and gives an order) that is appare ntly at

odds with that judgement. It i s this paradox t hat this paper s eeks to explore.

Given the sensitivity of the issues involved, it is also appropriate to emphasise

that this paper is not about the correctness of the land policies in Zimbabwe

or South Af rica’s policy towards Zi mbabwe. The quest ion is simply whether

Von Abo is consistent wit h Kaunda. Over and above my admiration for the

decision in Kaunda, this case w ill be used a s a benchmark against which to

evaluate Von Abo because, as a decision handed down by the Constitutional

Court, it constitutes the cu rrent law on the mat ter – this is t rue especially of

the majority judgement. In ad dition, in the course of the analysis, it is impos-

sible to ignore the (laud able) objectives of those seeking to develop a right to

diplomatic protect ion.

The next section commences w ith a very brief overview of the facts in Von

Abo and the order given by the Court. In doing so, a few remarks are made

about t he adequacy of the govern ment’s response to Mr Von Ab o’s request

for diplomatic protection and the presentation of ev idence to the Court. This

brief overview of the fact s and order in Von Abo is followed by an exposition

of the Ka unda judgment in the context of the right to diplomatic protection.

Thereafter an analysis is provided of the decision of the High Cour t in Von

Abo in the context of the Kaund a judgement. A few words about the laudable

objectives behi nd the promotion of a right to diplomatic protection are then

followed by some concluding remarks.

2 The facts and order in Von Abo

The judgement handed down by Prinsloo J in Von Abo is, with respect,

incorrect on a nu mber of levels. But it is appropriate to begi n by highlighting

that the decision was correct in one respect: in light of the fa cts before him,

            . However, the

reasoning of the judgment, and esp ecially the order granted, is problematic.

It may al so be added i n passing that the same can be said of t he tone of the

judgement, which could lead one, rightly or wrongly, to su spect that it was a

protest agai nst government policies towards Zimbabwe – policies which are

pejoratively termed as “quiet diplomacy”. For example, the Court states that

the government’s “feeble efforts, if any, amounted to little more than acquies-

cence in the conduct of their Zimbabwean counterparts and their ‘war veteran’

th ug s”.5         

they did not show the will “to do anything construct ive to bring their northern

neighbour to book .”6 But this aspect of the judgement is beyond the scope of

this comment.

5 Von Abo v Government of the RS A [2008] JOL 22219 (T) para 112.

6 Para 143.

 

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