South African citizens do not enjoy an automatic right to diplomatic protection, the Pretoria High Court ruled on Wednesday.
Such a right arises neither from international law nor the South African Constitution, Judge Essop Patel said.
He dismissed an application by a mining group seeking diplomatic protection arising from the cancellation of its diamond leases by the Lesotho government in 1992.
”International law acknowledges that states have the right to protect their nationals beyond their borders, but are under no obligation to do so,” Judge Patel said in a 93-page judgement. ”Nor does the Constitution provide for such a claimable right.”
He dismissed with costs an application by Josias van Zyl and other shareholders of the Swissbourgh mining group.
They approached the court for relief in 2002 after having their diamond leases cancelled to make way for the Lesotho Highlands Water Project.
The applicants want diplomatic protection in order to pursue their claim for compensation of more than R6,5-billion in an international tribunal. The government’s failure to provide such protection violated international law and Constitutional provisions, they argued.
Judge Patel said every state has an obligation under international law to treat foreign nationals according to certain minimum standards.
Every state has the right to expect its nationals abroad to be treated similarly.
Should a host state breach the minimum standards, the state of nationality could exercise diplomatic protection.
This decision, however, is discretionary and based on the national interests of the state of nationality, Judge Patel said.
”The government has a broad and extremely wide discretion as how best to provide what diplomatic protection it can offer.
”The exercise of the discretion is invariably influenced by political and economic considerations rather than the legal merits of the particular claim. It is essentially a matter pertaining to foreign relations,” the judge said.
It is not for the courts to interfere with executive decision-making powers, he added.
”The conduct of foreign relations may be one of the rare instances where the Constitution and Bill of Rights provide no ground for an effective review.
”Even if a court may not agree with the merits of the decision or the grounds on which it was taken or its wisdom, then the basis for review lies in the principle of legality and the rule of law.”
Courts must respect the broad discretion of the executive — which has to determine foreign relations on policy considerations that may at times be sensitive, Judge Patel said.
”The courts surely cannot assume the role of a super-executive in matters which are peculiarly and exclusively within the domain of the executive.”
He also found the application lacking on other grounds — including that legal remedies for compensation under Lesotho’s laws had not been exhausted.
”The applicants are not subjects of the international law. They are neither competent to hold the sovereign kingdom of Lesotho liable in any international proceedings, nor can seek to apply international law principles in their domestic dispute with the government of Lesotho.”
Judge Patel also found ”there were no expropriations as the applicants seemed to contend”.
In fact, four of the five leases in dispute were cancelled by the applicants themselves.
The judge granted an application by the government to strike certain paragraphs from the applicants’ affidavits.
He criticised the applicants for making new allegations in their replying affidavit without giving the respondents a chance to answer, and for filing excessive documentation — some of which contained scandalous, vexatious and irrelevant matter.
Judge Patel made a punitive costs order against the applicants for abusing the legal process.
In a statement issued afterwards, Swissbourgh said the judge was wrong in his interpretation and application of the law.
”Swissbourgh’s legal advisers are … studying the judgement in detail, after which Van Zyl and the other applicants will lodge an appeal against the judgement of Judge Patel through an application directly to the chief justice of the Constitutional Court for leave to appeal.
”The applicants will further proceed to institute legal action for damages suffered against the [South African] and Lesotho governments … in the United Kingdom.” — Sapa