MTN Group Limited and Others v East Asian Consortium BV and Others
Case: Freedom Phuthuma Nhleko v East Asian Consortium BV and Five Others CCT 119-2025; MTN Group Limited and Others v East Asian Consortium BV and Two Others CCT 121-2025; and Irene Charnley v East Asian Consortium BV and Five Others CCT 124-2025
Court: Constitutional Court of South Africa
Date of hearing: 31 August and 1 September 2026
Status: Ongoing
Last updated: 29 August 2026
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Case overview: The case is an appeal of a commercial dispute in which the East Asian Consortium (“EAC”), the respondent, alleges that the appellants, which are companies forming part of the MTN Group Limited and their then directors, Mr Nhleko and Ms Charnley, unlawfully induced the Iranian government and its representatives to replace EAC with an MTN company in a consortium that was granted the license to operate mobile communications services in Iran.
EAC alleges that, through bribery and corruption, it was deprived of the benefits of the licence, causing it to suffer damages of $4.2 billion plus interest.
The MTN parties have all raised a defence relating to the Foreign Act of State doctrine (“FAOS”), amongst others.
FAOS is a common law principle which holds that, to respect the sovereignty of other states and protect comity among states, domestic courts should not pass judgment on the lawfulness of the conduct of a foreign state.
The High Court found that FAOS prevented it from founding jurisdiction and dismissed the action.
The Supreme Court of Appeal held that although FAOS is a part of South African law, it needed to be developed to align with South Africa’s constitutional order. The majority found that FAOS should be interpreted as requiring a weighing exercise between factors calling for judicial restraint, such as respect for sovereignty, and factors calling for adjudication, such as the need to consider grave allegations of corruption by South African entities and their directors, which are fundamental to constitutional values and the rule of law. The minority, while agreeing that FAOS forms part of the common law, preferred an interpretation of FAOS as a set of rules with limited exceptions.
Open Secrets NPC (“Open Secrets”), represented by Power Law Africa, successfully applied to be admitted as an amicus curiae in the various appeals before the Constitutional Court.
Open Secrets is intervening on the narrow point of the proper interpretation of FAOS in our constitutional dispensation. It argues that allegations of corruption, and particularly grand corruption, justify limiting FAOS and enabling courts to proceed with adjudication. This is so because of the egregiousness of grand corruption and its impacts on human rights; the firm duty on States under international law to combat corruption, including where that conduct occurs in the extraterritorial operations of its nationals; and emergent developments in international human rights law, specifically business and human rights law which seek to address global governance gaps as a result of powerful multinational corporations.
Open Secrets was admitted as amicus curiae on 5 August 2026 and filed its written submissions on 13 August 2026. It will make brief oral submissions during the hearing.
Open Secrets is represented by S’lindile Khumalo and Wendy Trott from Power Law AFrica, with Advocates Bonita Meyersfeld and Seadimo Tlale on brief.
