The state has a constitutional obligation to provide diplomatic protection

Some good news for property owners who feel threatened by moves to dilute their rights in property comes from the findings of the Pretoria High Court in the case brought against the government by Free State farmer Crawford von Abo.

The Court was highly critical of the failure of government to afford diplomatic protection against the violation of the property rights of Von Abo whose farms in Zimbabwe were expropriated without compensation by the regime there.

The Court complained that officials "have done absolutely nothing to assist the applicant [Von Abo] despite diligent and continued requests for diplomatic protection...No explanation whatsoever has been forthcoming for this tardy and lacklustre behaviour."

The relief granted to Von Abo was an order declaring that the state has a constitutional obligation to provide diplomatic protection and that its failure to do so in the case is inconsistent with the Constitution and accordingly invalid. The government has been given 60 working days to report back to the Court on what it will do to remedy the situation.

Possible avenues open to it are to bring diplomatic pressure to bear, invoke the International Convention on the Settlement of Investment Disputes, conclude, with retrospective effect, a Bilateral Investment Promotion and Protection Agreement with Zimbabwe that makes provision for payment of proper compensation by Zimbabwe to Von Abo and other aggrieved parties, "hundreds of other white commercial farmers" who find themselves in the same position.

"The feeble excuse offered from time to time... that the South Africans are dependant on the whims and time frames of the Zimbabweans is nonsense... [the officials] were simply stringing [Von Abo] along and never had any serious intention to afford him proper protection... [this is] little more than quiet acquiescence in the conduct of their Zimbabwean counterparts and their 'war veteran' thugs... For six years or more, and in the face of a stream of urgent requests from many sources they did absolutely nothing to bring about relief..."

The charge of "quiet acquiescence" in expropriation without compensation is a particularly chilling one. While there may be some popular sympathy in some circles in South Africa for this brand of conduct it has done most ordinary Zimbabweans no favours and is clearly inconsistent with both the letter and the spirit of the South African Constitution which guarantees individuals their property rights. 

It is the duty of government to respect and protect such rights, hence the trenchant language chosen by the learned judge. The notion that all so-called "white owned land" in Southern Africa has been stolen from "blacks" is both false and dangerous. False because an argument to this effect before the World Court by Liberia and Ethiopia had to be abandoned in the South West Africa mandate case in the face of overwhelming evidence to the contrary and dangerous because it is used as justification for the illegal "re-possession" of supposedly stolen land.

In all the circumstances it is to be hoped that the government will accept the decision and take urgent steps to comply with it. An application for leave to appeal against it will be construed in some quarters as a further indication of the bad faith with which the Court complains the matter has been dealt with thus far.

This article first appeared in the Centre for Constitutional Rights' publication Conswatch Volume 2, Issue 21, July 31 2008