n South African Journal on Human Rights - South African nationals abroad and their right to diplomatic protection - lessons from the 'mercenaries case'

Volume 22, Issue 3
  • ISSN : 0258-7203



The South African Constitutional Court's judgment in the 'mercenaries case' (<i>Kaunda v President of the Republic of South Africa</i>) is critically considered, particularly its conclusion in respect of the so-called right to diplomatic protection. The majority decision does little more than underline that a South African citizen is entitled to write a letter or in some other manner ask his or her government for assistance. To the extent that this 'right' has any meaning, it appears to lie in the correlative obligation placed on the state once it has received its national's request. However, the obligation imposed on the state is - by the Court's low-level rationality test - watered down to the point of being virtually meaningless in the context of diplomatic protection claims. The Court's approach shows undue deference to the executive in the realm of foreign relations and means that judges will have little reason to look critically and astutely at decisions to refuse diplomatic protection. There is more to support in the minority judgment delivered in the case which suggests (albeit not as strongly as it could) that there may be a duty on the government to do what it reasonably can within the confines of international law to protect the rights of nationals as they are guaranteed in the Constitution of the Republic of South Africa, 1996, even when such nationals are abroad.

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