THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NO: 016/05
Reportable
In the matter between

Frans Edward  Prins ROOTMAN

Appellant

and

The President of the Republic of South Africa                  First respondent
The Minister of Justice and
Constitutional Development

Second respondent
The Director General of Justice

Third respondent
The South African Reserve Bank

Fourth respondent
The Commissioner of the South African
Revenue Services

Fifth respondent
The Government of the Democratic Republic
of Congo

Sixth respondent

Before:      HOWIE P and CAMERON, NUGENT, LEWIS and JAFTA JJA

Heard:
15 May 2006
Delivered:  00 May 2006

Summary: Where a foreign state does not comply with an order of a South African court the
South African government does not have a duty to intercede on behalf of the judgment
creditor to assist in ensuring compliance.

Neutral citation: This case may be cited as   Rootman v The President of
the Republic of South Africa     [2006] SCA xxx RSA

JUDGMENT
LEWIS JA

[1] Does the State have a duty to citizens to uphold the dignity of the
courts, and give effect to their orders, by taking steps to assist a creditor in
ensuring compliance by a foreign government with an order of court against
it? The appellant, Mr Frans Rootman, asks for a declaratory order that the first
and second respondents, the President of the Republic and the Minister of
Justice and Constitutional Development (to whom I shall refer together as ‘the
State’) have a constitutional duty to take all reasonable steps to assist him in
securing the execution of a money judgment of the Pretoria High Court issued
in September 2003. Rootman does not now ask for relief against any of the
other respondents originally sued by him.

[2] The court order in question was made by the Pretoria High Court on 2
September 2003 against the Government of the Democratic Republic of
Congo (‘the DRC’): it was for payment to Rootman of substantial sums of
money in terms of a contract between Rootman and the DRC. The total
amount of the claims awarded, plus interest, is in excess of $15 000 000. The
contract on which Rootman relied was entered into in 1998 by a company
known as ‘Moneyline’, represented by Rootman, and the DRC. The contract
mandated Rootman, on behalf of Moneyline, to investigate the theft and illegal
importation of cobalt from the DRC. The company was to be paid commission
on the value of cobalt recovered as a result of Rootman’s work. The contract
was subsequently changed and Rootman became a party to it, earning a fee
rather than commission for his work. The DRC persistently refused to pay
either Moneyline or Rootman despite his having traced stolen cobalt worth
many millions of dollars. Rootman, having acquired Moneyline’s claims
against the DRC, eventually sued for payment in the Pretoria High Court. The
action was defended. But in the end, after numerous postponements and
changes in the DRC’s lawyers, the order sought was granted by default.

[3] Rootman asserts that the DRC has refused, intentionally, unlawfully
and in flagrant disregard of the court’s authority, to make the payment due to
him. He has tried in vain to execute the judgment. Now he asks this court for
an order that the State take reasonable steps to assist him in ensuring

compliance with the court order. He asks also for an order that he be advised
in due course what steps the State has taken.

[4] In the court below the relief sought was of a different nature, in effect a
structural interdict, directing the President, the Minister and the Director
General of Justice to take reasonable, effective and appropriate steps to
effect compliance with the court order. Second, Rootman sought an order that
they indicate by affidavit, within three months of the date of the order, what
steps they had taken to ensure that the court order be given effect. In
essence, what Rootman sought was an order that the respondents ensure
execution of the order for payment. Botha J in the court below refused the
relief sought, finding that there was no duty on the State to ensure execution
of an order of court against the DRC. The appeal to this court lies with his
leave.

[5] Rootman argues that the State’s duty to assist him is founded on
various provisions of the Constitution.  He invokes, first, s 165(4) and (5)
which deal with judicial authority. Section 165(4) provides:
‘Organs of state, through legislative and other measures, must assist and protect the courts to
ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.’
Section 165(5) provides:
‘An order or decision issued by a court binds all persons to whom and organs of state to
which it applies.’
The argument is that the DRC has, in ignoring, indeed flouting, an order of a
South African court by refusing to make payment to Rootman, undermined the
dignity and effectiveness of the court, which the State has a duty to uphold.

[6] Second, s 34 of the Constitution, which provides that everyone ‘has the
right to have any dispute that can be resolved by the application of law
decided in a fair public hearing before a court’ is invoked as the basis for
arguing that Rootman has the right to execute the judgment granted in his
favour, a right that he has been effectively unable to exercise. The State
should vindicate this right too, it is argued. Thirdly, the provisions of the

Constitution relied upon are underpinned by s 7(2) which requires the State to
‘respect, protect, promote and fulfil the rights in the Bill of Rights’.

[7] Although Rootman has taken several steps to have the order executed
he has been largely unsuccessful. He has had property of the DRC attached
in Belgium and in Israel, and he has received the proceeds of the sale of parts
of an aircraft that was in South Africa. (Rootman contends that the purchaser
was in fact the DRC itself, represented by a front company, but nothing can
turn on this for present purposes.) If he is left with an ineffective order, he
argues, the dignity and effectiveness of the courts will be affronted, and the
State will be failing in its duty to protect his rights as a citizen.

[8] The efficacy of court orders is ordinarily ensured through execution
procedures. These are given effect by legislation, rules of court, and officers
of the court who enforce execution in respect of a debtor’s property.
Rootman’s ability to enforce the order against the DRC in his favour is
circumscribed, however, by s 14(1)(b)(ii) of the Foreign States Immunities Act
87 of 1981. The section provides that the property of a foreign state shall not
be subject to any process for the enforcement of a judgment. Section 14(3)(b)
creates an exception in respect of property ‘in use or intended for use for
commercial purposes’. Rootman has attached and has had sold in execution
the only commercial property of the DRC in South Africa – the aircraft sold in
2003.

[9] Rootman, as I have said, no longer asks the State to ensure execution
of the order in his favour: he requests no more than a declaratory order that
the State has a duty to take steps to assist him in achieving compliance with
the court order. The duty to him, Rootman argues, is based on what he
contends are four incontrovertible propositions. The flagrant refusal by the
DRC to comply with an order of a South African court erodes the rule of law.
Second, the rule of law requires the State to assist a citizen to enforce his or
her rights. Third, the right of every citizen to have a dispute determined by a
court (s 34 of the Constitution) entails that the State must ensure the

effectiveness of court orders. And fourth, s 165(4), set out earlier, requires
that the State take measures to ensure the efficacy of the courts.

[10] Rootman contends that it is insufficient for the State merely to pass
legislation and put mechanisms in place for ensuring compliance with court
orders: it must take other measures, as envisaged in s 165(4). No submission
was made, however, as to what other measures the State must take in so far
as the rights of ordinary commercial creditors are concerned. It was not
argued that the State should do more, in order to give effect to its duties to
citizens under the Constitution, to ensure the dignity and effectiveness of the
courts, than create the court structures, procedures and mechanisms for
enforcement that already exist. There does not appear to me to be any reason
why a citizen who enters into a commercial contract with a foreign state
should be treated differently, and preferentially, especially given the
provisions of the Foreign States Immunities Act.

[11] The argument for the State is that the Constitution, including the Bill of
Rights, does not have extra-territorial effect. This is so even in so far as
citizens are concerned. In Kaunda v President of the RSA1 the court held that
the Constitution does not bind anyone outside South Africa. Chaskalson CJ
said:2
‘[T]he Constitution provides the framework for the governance of South Africa. In that respect
it is territorially bound and has no application beyond our borders.’
Further:3
‘The bearers of the rights [under the Bill of Rights] are people in South Africa.’
That case was concerned with the rights of South African citizens elsewhere
in Africa. Chaskalson CJ continued:4
‘There may be special circumstances where the laws of a State are applicable to nationals
beyond the State’s borders, but only if the application of the law does not interfere with the
sovereignty of other States.’
A fortiori the laws of South Africa do not, as a general rule, bind persons
outside of the country’s borders.

1 2004 (10) BCLR 1009 (CC).
2 Para 36.
3 Para 37.
4 Para 44.

[12] In my view the essential difficulty with Rootman’s case is that the DRC,
as a debtor outside the border of the country, is not bound by the South
African Constitution. The fact that it submitted to the jurisdiction of the court in
a commercial matter does not impose on the DRC a constitutional duty to
respect the dignity of the courts. It is not bound, outside of South Africa, to
respect the rule of law either. And if the DRC has no duty, how can the court
be asked to order the State to request that it comply with one? Rootman
recognizes that the DRC is bound neither by the South African Constitution
nor by the rule of law in South Africa. Hence he does not ask for direct relief
against it. He nonetheless argues that the evasion by the DRC of its
commercial debt undermines the rule of law in such a way as to oblige the
State to intercede on his behalf. The flaw in the argument is that the DRC’s
evasive conduct is no more damaging to the rule of law than is non-
compliance with a court order by any other commercial debtor, in respect of
whom, as pointed out (para 10), it is not claimed that the State has failed in its
duties.

[13] At most, the State can engage in diplomatic negotiation with the DRC
through diplomatic channels but it cannot be ordered to do so. Courts are
reluctant in any event to interfere with diplomatic engagement: see Kaunda
where Chaskalson CJ said5 that a decision as to whether protection should be
given to a South African citizen outside the Republic is
‘an aspect of foreign policy which is essentially the function of the executive. The timing of
representations if they are to be made, the language in which they should be couched, and
the sanctions (if any) which should follow if such representations are rejected are matters with
which courts are ill-equipped to deal. The best way to secure relief for the national in whose
interest the action is taken may be to engage in delicate and sensitive negotiations in which
diplomats are better placed to make decisions than judges, and which could be harmed by
court proceedings and the attendant publicity.’

[15] Counsel for Rootman conceded that his request for an order that the
State take reasonable steps to assist him in obtaining compliance with the

5 Para 77. See also the judgment of Ngcobo J in Kaunda para 172.

court order would be met simply by the State’s writing a letter, or making a
telephone call, to the President of the DRC, or other appropriate person
representing it, requesting compliance with the order. In my view, this court
should not make any order requesting the State or any other person simply to
request a debtor to comply with a court order. Courts should not make orders
where it is known that they cannot be enforced. Relief must be effective.6

[14] For these reasons I consider that this court should not make the order
sought by Rootman, and the appeal must fail. As to costs, Rootman argues
that should the appeal fail, a costs order should not be made against him
since he has been seeking to vindicate a constitutional right. It is by now trite
that where a litigant does ask for the enforcement of a constitutional right, but
does not succeed, he or she should not be visited with a costs order. In my
view, however, Rootman was attempting to enforce a commercial contract
and costs should follow the result.

[16] The appeal is dismissed with costs including those occasioned by the
use of two counsel.

C H Lewis
Judge of Appeal

Concur:
Howie P
Cameron JA
Nugent JA
Jafta JA

6 Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) para 69 and Minister of Home
Affairs v NIKRO 2005 (3) SA 280 (CC) para 74.