Van Zyl and Others v Government of the Republic of South Africa and Others

• Jurisdiction: South Africa
• Judge: Harms ADP, Heher JA, Cachalia JA, Hurt AJA and Mhlantla AJA
• Judgment Date: 20 September 2007
• Docket Number: 170/2006
• Court: Supreme Court of Appeal
• Citation: 2008 (3) SA 294 (SCA)
• Counsel: First appellant in person. SA Redelinghuys (attorney) for the second to ninth appellants. GL Grobler SC (with RJ Raath SC and M Mphaga) for the respondents.
• Date: 20 September 2007

Van Zyl and Others v Government of the Republic of South Africa and Others
2008 (3) SA 294 (SCA)

2008 (3) SA p294

Citation	2008 (3) SA 294 (SCA)
Case No	170/2006
Court	Supreme Court of Appeal
Judge	Harms ADP, Heher JA, Cachalia JA, Hurt AJA and Mhlantla AJA
Heard	August 21, 2007; August 22, 2007
Judgment	September 20, 2007
Counsel	First appellant in person.; SA Redelinghuys (attorney) for the second to ninth appellants.; GL Grobler SC (with RJ Raath SC and M Mphaga) for the respondents.

Flynote : Sleutelwoorde H

International law — Public international law — Diplomatic protection — Action by one State in respect of injury to person or property of national of that State caused by international delict attributable to another State — Various actions included in those State can take in applying diplomatic protection — Principles relevant to request for diplomatic protection set out — Person not I having 'right' to diplomatic protection, only right to have request for diplomatic protection considered — Also no duty on government to provide particular type of diplomatic protection.

International law — Public international law — Diplomatic protection — State may not bring claim for diplomatic protection before injured person has exhausted all local remedies, unless local remedies not providing effective J redress, or there is undue delay attributable to State concerned — Reason

2008 (3) SA p295

for rule is that State where violation occurs should have opportunity to A redress violation by its own means within framework of its domestic legal system — Where courts of such State finding violation to be unlawful, and government conceding such and accepting it by abiding by judgment of court, such State having redressed violation.

Headnote : Kopnota

Diplomatic protection is the action by one State against another State in respect B of an injury to the person or property of a national of the former State caused by an international delict 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. (Paragraph [1] at 297H - I.) C The following principles are relevant to a request for diplomatic protection:

1.

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.

2.

Diplomatic protection is not recognised by customary international law as a human right and cannot be enforced as such; it remains the D prerogative of the State to exercise at its discretion.

3.

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 E under our Constitution.

4.

Although there is no enforceable right to diplomatic protection, South African citizens are entitled to request South African 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. F

5.

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.

6.

The government has an obligation to consider the request and deal with it in a manner consistent with the Constitution. G

7.

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 almost impossible - to refuse. H

8.

A court cannot prescribe to government how to make diplomatic interventions for the protection of its nationals.

9.

A decision as to whether and what protection should be given is an aspect of foreign policy that is essentially the function of the executive.

10.

If government refuses to consider a legitimate request or deals with it in I bad faith or irrationally a court could require the government to deal with the matter properly. (Paragraphs [80] and [93] at 319A - B and 322B.) This does not mean that courts could substitute their opinion for that of the government or order the government to provide a particular form of diplomatic protection. There is furthermore no 'right' to diplomatic protection, only a right to have a request for diplomatic protection J

2008 (3) SA p296

A considered. There is also no duty on government to provide a particular type of diplomatic protection. (Paragraphs [51] and [52] at 309C - 310E.)

A State may not bring a claim for diplomatic protection before the injured national has exhausted all local legal remedies unless these do not provide reasonable effective redress, or there is undue delay attributable to the State B concerned. One of the reasons for the existence of the 'local remedy' rule is that it is necessary that the State where the violation occurred should have an opportunity to redress it by its own means, within the framework of its own domestic legal system. Thus where the courts of the State where the violation occurred have held a violation to be unlawful and the government of that State has conceded such unlawfulness and accepted it by abiding by the judgment of the court, then the violation has been redressed within the C framework of that State's domestic legal system. (Paragraphs [87] and [89] at 320F - G and 321B - D.)

Cases Considered

Annotations

Reported cases D

Southern African cases

Attorney-General of Lesotho and Another v Swissbourgh Diamond Mines (Pty) Ltd and Others 1997 (8) BCLR 1122 (LesCA): referred to

Bowman NO v De Souza Roldao1988 (4) SA 326 (T): referred to

Director of Hospital Services v Mistry1979 (1) SA 626 (A): referred to E

Jicama 17 (Pty) Ltd v West Coast District Municipality2006 (1) SA 116 (C): dictum in para [12] applied

Kaunda and Others v President of the Republic of South Africa and Others2005 (4) SA 235 (CC) (2004 (10) BCLR 1009): applied

Minister of Environmental Affairs and Tourism and Others v Phambili Fisheries (Pty) Ltd; Minister of Environmental Affairs and Tourism and Others v Bato Star Fishing (Pty) Ltd2003 (6) SA 407 (SCA) ([2003] 2 All SA 616): dictum in para [80] applied F

Ondombo Beleggings (Edms) Bpk v Minister of Mineral and Energy Affairs1991 (4) SA 718 (A): compared

Swissbourgh Diamond Mines (Pty) Ltd and Others v Government of the Republic of South Africa and Others1999 (2) SA 279 (T): applied G

Van Zyl and Others v Government of RSA and Others 2005 (11) BCLR 1106 (T): confirmed on appeal.

Foreign cases

Agrotexim v Greece [1996] 21 ECRR 250 (ECHR): referred to

Amco-Asia Corp v Republic of Indonesia (1985) 24 ILM 1022 (ICSID): H referred to

Attorney-General v Swissbourgh Diamond Mines (Pty) Ltd 1995 - 6 Lesotho LR 173: referred toAgrotexim v Greece [1996] 21 ECRR 250 (ECHR): referred to

Barcelona Traction, Light and Power Co Ltd (Belgium v Spain), The 1970 ICJ Rep 3: considered.

Case concerning Ahmadou Sadio Diallo (Republic of Guinea v Democratic I Republic of the Congo) Preliminary Objections 2007 ICJ Rep 103: considered

Interhandel Case (Switzerland v United States) 1959 ICJ Rep 6: dictum at 27 applied

Kuwait Airways Corp v Iraqi Airways Co[2002] 3 All ER 209 (HL) ([2002] J UKHL 19): compared

2008 (3) SA p297

Loewen v USA (2003) 42 ILM 811 (ICSID case No ARB (AF)/98/3): A referred to

Mavrommatis Palestine Concessions [1924] PCIJ (ser A) No 2: considered

Nottebohm case (Liechtenstein v Guatemala) (1955) 22 ILR 349 (ICJ): compared

Panevezys-Saldutoskis Railway Case (Estonia v Lithuania) [1939] PCIJ (ser A/B) No 76: referred to B

R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No 2)[1999] 1 All ER 577 (HL): referred to

R v Westminster City Council, Ex parte Ermakov[1996] 2 All ER 302 (CA): referred to

Revere Copper and Brass Inc v Overseas Private Investment Corp(1978) 56 ILR 258: referred to C

Serbian and Brazilian Loans Case [1929] PCIJ (ser A) No 20/21: referred to

Shufeldt Claim (United States of America v Guatemala) 2 RIAA 1080: compared

Standard Oil Co Tanker (1926) 2 RIAA 781: referred to.

Swissbourgh Diamond Mines (Pty) Ltd v Lesotho Highlands Development Authority 2000 Lesotho LR 432 (CA): referred to. D

Unreported cases

International Marine Transport SA v MV Le Cong and Guangzhou Ocean Shipping Co (SCA case No 080/2005, 23 November 2005): compared.

Case Information

Appeal from a decision in the Transvaal Provincial Division (Patel J) E reported as Van Zyl and Others v Government of RSA and Others 2005 (11) BCLR 1106 (T). The facts appear from the judgment of Harms ADP.

First appellant in person.

SA Redelinghuys (attorney) for the second to ninth appellants.

GL Grobler SC (with RJ Raath SC and M Mphaga) for the respondents.

Cur adv vult.

Postea (September 20). G

Judgment

Harms ADP:

Introduction

[1] This appeal relates to a claim for diplomatic protection, ie action by one State against another State in respect of an injury to the person or H 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...