Summary

INTRODUCTION

[1] This appeal relates to a claim for diplomatic protection, i.e., action by one state against another state in respect of an injury to the person or property of a national of the former state that has been caused by an international delict that is attributable to the latter state. Diplomatic protection includes, in a broad sense, consular action, negotiation, mediation, judicial and arbitral proceedings, reprisals, a retort, severance of diplomatic relations, and economic pressures.[1]

[2] The appellants requested the Government of the RSA to provide them with diplomatic protection against the Government of Lesotho. The international delict on which they relied was the cancellation and revocation of five mineral leases that had been granted by the Government of Lesotho.

[3] The President of the RSA was advised that the Government was under no obligation to afford diplomatic protection to the appellants; that any decision to intervene would involve a policy and not a legal decision; that the decision is the sole prerogative of the Government; that the disputes between the appellants and the Government of Lesotho had been decided by the Lesotho courts; that mediation or intervention by the Government would imply a lack of faith in the judicial system of a sovereign state; and that diplomatic intervention would set an unhealthy precedent. The President in the result refused to accede to the appellants' request and they were informed that they were not, in the circumstances of the case, entitled to diplomatic protection.

[4] Dissatisfied with this ruling, the appellants sought to review the Government's decision. They also applied for a mandamus directing the Government `to take all steps necessary to vindicate the rights of the applicants, including but not limited to providing diplomatic protection.' The application was heard by Patel J in the Pretoria High Court. He dismissed the application but granted leave to appeal to this Court.

[5] Courts should act with restraint when dealing with allegations of unlawful conduct ascribed to sovereign states.[2] Unfortunately, in order to decide this case it is necessary to deal with the allegations made by the appellants to determine whether or not Patel J was correct in dismissing their application.

[6] This judgment holds that the appellants have no right under South African law to diplomatic protection, especially not in respect of protection of a particular kind. Nationals have a right to request Government to consider diplomatic protection and Government has a duty to consider it rationally.

Government received the request, considered the matter properly and decided to decline to act on rational grounds. This judgment further holds that the Government is not entitled under international law to afford the appellants diplomatic protection under the particular circumstances of the case.

Accordingly, the appeal stands to be dismissed.

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[1] Kaunda v President of the RSA 2004 (10) BCLR 1009 (CC), 2005 (4) SA 235 (CC) para 26-27.

[2] Swissbourgh Diamond Mines (Pty) Ltd v Government of the RSA 1999 (2) SA 279 (T) at 330D and follows. Cf.Kuwait Airways Corp v Iraqi Airways Co [2002] UKHL 19, [2002] 3 All ER 209 (HL) para 24-26.

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