It is not wrong for a sovereign state such as Zimbabwe to nationalise the property of its own nationals and South Africa could not interfere, the Pretoria High Court heard on Wednesday.

Counsel for the South African government, Patric Mtshaulane SC, argued that an application by Free State farmer Crawford von Abo to force the government to take steps to compensate him for the millions he lost when his Zimbabwean farms were seized should be dismissed.

Von Abo accused the government of ignoring his repeated requests for diplomatic protection and is seeking a court order to establish his right to such protection.

He also wants the court to order the South African government to become a party to the International Convention on the Settlement of Investment Disputes (ICSID), so that he could pursue a compensation claim against the Zimbabwean government through international arbitration.

R80-million in compensation

Should the South African government fail to comply, he wants more than R80-million as compensation for his losses.

Mtshaulane argued that the properties confiscated belonged to Zimbabwean entities, which had no claim for diplomatic protection from the South African government.

He argued that the conclusion of international agreements was the prerogative of the Executive and the court could not force South Africa to become a party to ICSID.

He said there were other means, such as the Bilateral Investment Treaty, through which the dispute could be resolved.

Mtshaulane argued that even if the government was forced to join ICSID, Von Abo would still have to obtain Zimbabwe's consent to the arbitration, which was clearly not forthcoming.

Such a court order would therefore be an academic exercise, he added.

Mtshaulane denied that the government had ignored Von Abo's requests for protection, although he conceded that the diplomatic steps that were taken "did not yield the desired results".

"The applicant was arrested, charged and imprisoned (in Zimbabwe). In respect of these wrongs, The Republic of South Africa acted promptly... The applicant cannot seek diplomatic protection in order to pursue a damages claim," he added.

The application continues before Judge Bill Prinsloo.