Johannesburg — THE Constitutional Court has declined to confirm a high court order that former president Thabo Mbeki intervene on behalf of a local businessman whose farms were seized by the Zimbabwean government 12 years ago.

Crawford von Abo should not have approached the Constitutional Court because the conduct he complained about did not concern SA's president, Deputy Chief Justice Dikgang Moseneke said on Friday.

Diplomatic protection was the responsibility of the government as a whole, or of the foreign affairs minister, and not of the president, said Moseneke.

"Consequently, any failure to consider (Von Abo's) request for diplomatic protection would have been the failure of the government of SA or of a specific minister, in this case the minister of foreign affairs," he said.

But the Constitutional Court said the view that it takes does not diminish the relief granted to Von Abo by the North Gauteng High Court in Pretoria last year.

The high court ruled that the failure of the government to deal with Von Abo's application for diplomatic protection to remedy the violation of his rights in Zimbabwe was inconsistent with the constitution, and invalid.

Von Abo's farms were seized by Zimbabwean government in 1997. In 2002 he wrote to Mbeki requesting diplomatic protection in Zimbabwe.

The high court gave Mbeki and two other ministers 60 days to take steps to remedy the violation of Von Abo's violation of his rights. Von Abo then went to the Constitutional Court for an order confirming the decision of the high court, insofar as it related to the conduct of Mbeki.

Moseneke said it did not follow that a constitutionally reprehensible failure of a minister or of the government in a generic sense amounted to a failure by the president to fulfil his constitutional obligations. It was important for claimants to identify the exact entity, state organ or minister whose conduct was being impugned.

"Increasingly, practitioners and litigants cite and sue the president and the government in litigation as generic representatives of a state organ, or minister or other state functionary.

This practice is unhelpful and often leads not only to imprecise pleading, but also to difficulties in identifying appropriate state officials to respond to the claims made," he said.