The Constitutional Court on Friday declined to confirm an order that would have made President Jacob Zuma responsible for a farmer’s struggle to get diplomatic protection while the Zimbabwe government seized his land.
The case relates to South African businessman Crawford von Abo’s bid to get a Pretoria High Court judgement confirmed that the president be held responsible for the government’s failure to give him diplomatic protection during Zimbabwe’s controversial land seizure programme.
Von Abo, a South African citizen, had lost farms and assets during the Zimbabwe government’s policy of seizing land from white farmers to redistribute among black Zimbabweans.
Like many other land owners, he was not compensated for these losses and so, after exhausting his legal options in Zimbabwe, turned to the South African government for diplomatic protection.
From 2002 he tried to get the South African government to intervene.
He eventually took the government of South Africa, the president, the minister for foreign affairs (now international relations), the minister for trade and industry and the minister for justice and constitutional development to court, arguing diplomatic protection was his constitutional right and he was not getting it.
He won the case in the High Court in Pretoria and asked the Constitutional Court to confirm it, so that it would have force.
There were several delays as the government tried to show the Constitutional Court it was taking steps to address Von Abo’s concerns, and it had been trying to secure diplomatic protection for him.
The Constitutional Court ruled that because the government had not asked for leave to appeal the Pretoria court’s ruling, and that it had been trying to show how it was complying with the judgement that it must assist Von Abo, it would not make a confirmation ruling on the government’s conduct because it was trying to comply with its obligations.
The question then was whether the president could be held responsible for his Cabinet ministers’ actions.
The judges felt that ”in essence diplomatic protection was the responsibility of the government as a whole, and not of the President alone”.
In terms of the Constitution, the president has executive authority which he exercises with other Cabinet members. He assigns them their powers and they work collaboratively.
There may be cases where the president’s conduct is ”susceptible to the jurisdiction of the High Court and the Supreme Court of Appeal”, but the Constitutional Court did not believe this was one.
Constitutional provisions made it plain that Cabinet ministers are accountable independently and collectively to Parliament for the powers and performance.
They were not ”mere vassals” for the president, and had duties and responsibilities.
The judgement, written by Justice Dikgang Moseneke, said: ”Relevant here, in my opinion, is the collaborative nature of the national executive function, on the one hand, and the individual accountability of every minister in the Cabinet, on the other.”
The court found that making the president accountable for all the Cabinet functions, was to misconstrue the true nature of the Cabinet.
Moseneke said: ”As I have concluded earlier, it does not follow that a constitutionally reprehensible failure of a minister or of the government in a generic sense amounts to a failure by the president to fulfil his constitutional obligations.”
The court said it was also reluctant to have to confirm every court finding against a Cabinet minister or government official before it would have standing as this would blur the functions of other courts and bog its own court down. — Sapa