Crawford von Abo received a Pretoria High Court order last year that
the president’s conduct was unconstitutional and invalid because former
president Thabo Mbeki and other ministers cited had failed to provide
the diplomatic assistance he had asked for.
The other ministers included foreign affairs and justice.
In terms of Section 167 of the Constitution, only the Supreme Court of
Appeal and a high court can make an order of constitutional invalidity,
and, in terms of Section 172, it is only effective if the
Constitutional Court confirms it.
Justice Kate O’Regan set the tone by expressing a concern that by
confirming the Pretoria High Court order, they could open the way for
action against the president whenever there is unhappiness.
The court began debating which conduct should be included when deciding
to issue such an order, and whether the president could be held
responsible for the actions of Cabinet members, whom he appointed and
had supervisory powers over.
They also focused on how far down in the chain of command responsibility can bounce back to the president.
The Pretoria High Court ordered that the respondents, "take all
necessary steps" to have the violation of Von Abo’s rights by the
Zimbabwe government remedied.
The court also ordered that a report be provided within 60 days showing what steps had been taken to remedy the situation.
Asked why it was so important to confirm the order against the
president, given that the respondents said they would comply, Von Abo’s
counsel Peter von Abo said: "Because the Constitution tells us that and
because there is a finding by a high court relating to that conduct."
He said the court had also said it did not want orders hanging with no effect.
Pressed on the practical benefit to Von Abo, he said there were no
further practical effects, but it is important to indicate what is
required of the president when faced with such a situation.
Also, there was a "racing certainty" that the government would apply for a condonation, and appeal the matter.
He cited an earlier judgment this week in which the court rapped the
State Attorney and president on the knuckles for not responding to
papers filed on a challenge to the "Scorpions Bills".
He said Von Abo’s situation was not of his own making.
"Ultimately, it will be important to the governance of this country. It
will stop buck-passing – even only if it is by the symbolism flowing
from this court."
Media 24/SAPAPost published in: News