In the matter between:
CRAWFORD LINDSAY VON ABO Applicant
And
THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA
Respondent
In re:
The matter concerning diplomatic protection between:
CRAWFORD LINDSAY VON ABO Applicant
and
THE GOVERNMENT OF THE REPUBLIC OF
SOUTH AFRICA First Respondent
THE PRESIDENT OF THE REPUBLIC OF
SOUTH AFRICA Second Respondent
THE MINISTER OF FOREIGN AFFAIRS Third Respondent THE MINISTER OF TRADE AND INDUSTRY Fourth Respondent THE MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT Fifth Respondent ______________________________________________________________
AFFIDAVIT
______________________________________________________________
I, the undersigned,
WILHEL JACOBUS HERBST
do hereby make oath and state that:
1. I am an adult male attorney practising as a consultant to the firm of Hill McHardy and Herbst of 7 Collins Road, Aboretum, Bloemfontein. I am the Applicant’s attorney of record and have been duly authorised by the Applicant to make this affidavit on his behalf.
2. The facts contained in this affidavit are, save where otherwise indicated, within my own personal knowledge and are, to the best of my belief, true and correct.
3. Crawford Lindsay Von Abo, an adult male businessman, South African citizen by birth, is the Applicant in this application for confirmation of an order made by the Pretoria High Court (per Prinsloo J) on 29 July 2008 under Case No: 3106/2007 (“the Pretoria High Court case”).
4. The Respondent is the President of the Republic of South Africa who is cited in his official capacity as such, care of the State Attorney, Bothongo, 8th Floor, 167 Andries Street, Pretoria.
The Respondent was the Second Respondent in the Pretoria High Court case.
5. This is an application for confirmation of paragraph 1 of the order made by Prinsloo J in the Pretoria High Court case. Paragraph 1 reads:
“It is declared that the failure of the respondents to rationally, appropriately and in good faith consider, decide and deal with the applicant’s application for diplomatic protection in respect of the violation of his rights by the Government of Zimbabwe is inconsistent with the Constitution, 1996 and invalid”.
6. The Respondent’s conduct was found by the Pretoria High Court to be unconstitutional and invalid in paragraph 1 of the order.
7. Under section 167(5) of the Constitution, it is this Court that makes the final decision whether conduct of the President is constitutional and must confirm any order of invalidity made by the Supreme Court of Appeal, a High Court or a Court of similar status, before that order has any force.
8. Section 172(2)(a) of the Constitution in turn provides that any order concerning the constitutional validity of any conduct of the President has no force unless it is confirmed by this Court.
President invalid as contemplated in section 172(2)(a) of the Constitution, any person with a sufficient interest may apply to this Court to confirm that order and this Court shall deal with the matter in accordance with the Rules.
10. Rule 16 of this Court’s Rules provides for confirmation of orders by High Courts of constitutional invalidity.
11. Rule 16(4) provides that a person or organ of State entitled to do so and desirous of applying for the confirmation of an order in terms of section 172(2)(d) of the Constitution shall, within 15 days of the making of such order, lodge an application for such confirmation with the Registrar and a copy thereof with the Registrar of the Court which made the order, whereupon the matter shall be disposed of in accordance with the directions given by the Chief Justice.
12. The Applicant, it is submitted, is entitled to and is desirous of applying for the confirmation of the order made by the Pretoria High Court declaring conduct of the Respondent to be inconsistent with the Constitution and invalid.
13. Copies of the order and judgment of Prinsloo J made are annexed hereto marked “WH1” and “WH2” respectively.
in good faith, consider, decide and deal with his application for diplomatic protection in respect of the violation of his rights by the Government of Zimbabwe.
15. A full and detailed history of the violation by the Government of Zimbabwe of the Applicant’s rights is set out in the judgment of Prinsloo J.
16. It is clear that the Applicant’s property in Zimbabwe was expropriated without compensation in violation of the international minimum standard and that he complied with the requirement that he exhaust his domestic remedies in Zimbabwe.
17. The jurisdictional facts underpinning diplomatic protection were present.
18. The Applicant, being a South African national and citizen, was entitled under the Constitution, as this Court found in Kaunda and Others v President of the Republic of South Africa and Others 2005 (4) SA 235 (CC) to apply to, inter alia, the Respondent, for diplomatic protection in his dispute with the Government of Zimbabwe.
19. In paragraph [144], 5 of Kaunda, this Court stated:
to provide protection against acts which violate accepted norms of international law. The Government is obliged to consider such requests and deal with them appropriately”.
20. The Applicant requested and applied to the South African Government, and particularly the Respondent, to provide him protection against the acts of the Government of Zimbabwe which violated accepted norms of international law.
21. The Respondent was obliged to consider the Applicant’s requests for diplomatic protection and to deal with them appropriately.
22. The Respondent failed to deal with the Applicant’s requests for diplomatic protection appropriately and indeed, as was found, correctly it is submitted, by Prinsloo J, the Respondent did not rationally, appropriately and in good faith consider, decide and deal with the Applicant’s application for diplomatic protection in respect of the violation of his rights by the Government of Zimbabwe.
23. In the circumstances, it is submitted that Prinsloo J correctly declared the conduct of the Respondent to be inconsistent with the Constitution and invalid, and the Applicant is entitled to an order of confirmation by this Court of the declaration of invalidity.
Signed W.J. Herbst
________________________
WILHELM JACOBUS HERBST
I certify that the above affidavit was signed and sworn to at Bloemfontein before me on this the 5th day of AUGUST 2008
by the deponent after he declared that he knew and understood the contents of this affidavit, that he had no objection to taking the prescribed oath which he regarded as binding on his conscience, and after he uttered the words: “I swear that the contents of this affidavit are true, so help me God”.
Signed
_____________________________
COMMISSIONER OF OATHS
HESTER JOHANNA CATHARINA DU PLESSIS
Kommisaris van Ede / Commisioner of Oaths
Praktiserende Prokureur / Practising Attorney
Derdestraat 6 / 6 Third Street
Posbus 41 / P.O. Box 41
BLOEMFONTEIN
