Van Zyl and Others v Government of the Republic of South Africa and Others (20320/02) [2005] ZAGPHC 70; [2005] 4 All SA 96 (T); 2005 (11) BCLR 1106 (T) (20 July 2005)

Van Zyl and Others v Government of the Republic of South Africa and Others (20320/02) [2005] ZAGPHC 70; [2005] 4 All SA 96 (T); 2005 (11) BCLR 1106 (T) (20 July 2005)

The court held that diplomatic protection is a discretionary right of the State under international law and not an enforceable right of individuals or companies. The applicants, being companies incorporated in Lesotho, are not South African nationals for purposes of diplomatic protection, and their shareholders do...

Source-derived case information.

Citation
[2005] ZAGPHC 70
Parties
Applicant: Josias van Zyl; Applicant: Gail van Zyl N.N.O.; Applicant: Burmilla Trust No. TMP 4027; Applicant: Josias van Zyl Family Trust No. TMP 4028; Applicant: Swissborough Diamond Mines (Pty) Ltd; Applicant: Patiseng Diamonds (Pty) Ltd; Applicant: Motete Diamonds (Pty) Ltd; Applicant: Rampai Diamonds (Pty) Ltd; Applicant: Matsoku Diamonds (Pty) Ltd; Applicant: Orange Diamonds (Pty) Ltd; Respondent: Government of the Republic of South Africa; Respondent: President of the Republic of South Africa; Respondent: Minister of Foreign Affairs of the Republic of South Africa; Respondent: Deputy Minister of Foreign Affairs of the Republic of South Africa
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
20 July 2005
Case Number
20320/02
Procedural Posture
Review Application / Judgment After Hearing on Merits and Application to Strike Out
Outcome
Application dismissed. Application to strike out upheld. Costs awarded against applicants on attorney and own client scale.
Judges
E M Patel
Legal Topics
Diplomatic Protection, Review of Executive Action, Expropriation Without Compensation, Legitimate Expectation, Exhaustion of Local Remedies, International Minimum Standard
Constitutional Law Administrative Law Civil Procedure Diplomatic Protection Review of Executive Action Expropriation Without Compensation Legitimate Expectation Exhaustion of Local Remedies +1 more

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Summary, issues, holding and outcome

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Parties

Josias van Zyl

Applicant

Gail van Zyl N.N.O.

Applicant

Burmilla Trust No. TMP 4027

Applicant

Josias van Zyl Family Trust No. TMP 4028

Applicant

Swissborough Diamond Mines (Pty) Ltd

Applicant

Patiseng Diamonds (Pty) Ltd

Applicant

Motete Diamonds (Pty) Ltd

Applicant

Rampai Diamonds (Pty) Ltd

Applicant

Matsoku Diamonds (Pty) Ltd

Applicant

Orange Diamonds (Pty) Ltd

Applicant

Government of the Republic of South Africa

Respondent

President of the Republic of South Africa

Respondent

Minister of Foreign Affairs of the Republic of South Africa

Respondent

Deputy Minister of Foreign Affairs of the Republic of South Africa

Respondent

Procedural Posture

Review Application / Judgment After Hearing on Merits and Application to Strike Out

Legal Issues

  1. 1 Whether the South African government is under a constitutional or international law obligation to afford diplomatic protection to the applicants in their dispute with the Government of Lesotho.
  2. 2 Whether the decisions of the respondents refusing diplomatic protection are reviewable and, if so, on what grounds.
  3. 3 Whether the applicants, as shareholders and trustees, have standing to claim diplomatic protection for companies incorporated in Lesotho.

Ratio Decidendi

The court held that diplomatic protection is a discretionary right of the State under international law and not an enforceable right of individuals or companies. The applicants, being companies incorporated in Lesotho, are not South African nationals for purposes of diplomatic protection, and their shareholders do not acquire such rights by virtue of shareholding. The applicants failed to exhaust local remedies in Lesotho, and no international delict was established. The decisions of the respondents refusing diplomatic protection were informed by policy considerations and were neither arbitrary nor irrational. The court found no basis for a legitimate expectation to diplomatic protection....

Court Disposition

Application dismissed. Application to strike out upheld. Costs awarded against applicants on attorney and own client scale.

Orders

  • The respondents’ application to amend their application to strike out is granted and the respondents pay the costs tendered occasioned by the amendment.
  • The respondents’ application to strike out is upheld and the applicants are jointly and severally, the one paying the others to be absolved, ordered to pay the costs thereof on an attorney and own client scale including the costs consequent upon the employment of three counsel.