'Govt didn't protect FS farmer'

2008-07-29 18:06

Pretoria - The High Court on Tuesday criticised the government for failing to afford a Free State farmer diplomatic protection against the violation of his property rights in Zimbabwe.

Judge Bill Prinsloo said: "Over all these years the respondents have done absolutely nothing to assist the applicant, despite diligent and continued requests for diplomatic protection.

"No explanation whatsoever has been forthcoming for this tardy and lacklustre behaviour."

Prinsloo granted an order declaring that President Thabo Mbeki and the Ministers of Foreign Affairs, Trade and Industry and Justice had a constitutional obligation to provide diplomatic protection to Free State farmer Crawford von Abo.

He ruled that the government's failure to deal with Von Abo's application for diplomatic protection was inconsistent with the Constitution and invalid.

The judge ordered the government to take all necessary steps to have the violation of Von Abo's rights in Zimbabwe remedied and to report back to the court what steps had been taken within the next 60 days.

Compensation by the errant state

This could include diplomatic pressure on the Zimbabwean government to restore Von Abo's 14 farms and property, such as cattle and farming equipment, and pay him compensation for his losses, which he suffered when that country started to expropriate white-owned farms.

The judge said another form of diplomatic protection could be to help Von Abo go the International Convention on the Settlement of Investment Disputes route and get a proper hearing in front of an international arbitration tribunal.

Another possibility might be for the government to enter into a Bilateral Investment Promotion and Protection Agreement (BIPPA) with retrospective effect, containing a clause providing for compensation by the errant state to the aggrieved party.

Prinsloo said it was common cause that the much-vaunted BIPPA, on which the government placed so much emphasis, was never signed and that no one ever saw it.

Von Abo's R60m damages claim against the government was postponed indefinitely, pending the outcome of the diplomatic steps to be taken.

The judge criticised the respondents for not filing personal affidavits to deal with Von Abo's complaints, which he said amounted to "a shocking dereliction of duty".

Empty promises

Although Von Abo had for years literally begged various government officials to come to his aid after he lost all of his farms in Zimbabwe, the government's response amounted to empty promises.

He said it was not in issue that the expropriation of Von Abo's farms was effected without compensation, a clear violation of the international minimum standard, which gave rise to state responsibility.

"The BIPPA, already promised to Parliament by the foreign minister in 2003, has remained nothing but a phantom on the horizon. The prospective contracting parties have been looking at their calendars for a suitable date for more than five years without success.

The judge added: "The feeble excuse offered from time to time in the opposing papers that the South Africans are dependant on the whims and time frames of the Zimbabweans is nonsense."

South Africa was a powerful country, and there was no reason why it could not employ any of the internationally recognised diplomatic measures to protect its nationals.

Government dealt in bad faith

"I regret to say that it is difficult to resist the conclusion that the respondents were simply stringing the applicant along, an never had any serious intention to afford him proper protection," Prinsloo said.

"Their feeble efforts, if any, amounted little to little more than quiet acquiescence in the conduct of their Zimbabwean counterparts and their 'war veteran' thugs."

The judge said the government, in the present instance, dealt with the matter in bad faith.

"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 for the applicant and hundreds of other white commercial farmers in the same position," Prinsloo said.

The DA's spokesperson for foreign affairs, Tony Leon, has welcomed the ruling.

It would probably see the South African President compelled to take action to ensure that the property of SA citizens in Zimbabwe was protected from reckless seizure by the Zanu-PF regime, he said.

"Over the past eight years President [Thabo] Mbeki has done everything in his power to protect the brutal dictatorship of Robert Mugabe, and in his single-minded pursuit of this goal he has been more than willing to sacrifice the rights of ordinary South Africans.

"This court judgment is confirmation that the president has failed to ensure the protection of the people that he was elected to serve," Leon said.

- SAPA