5. It should further be observed that the Court gave a judicial consideration to the application filed by Delta
International Investments S.A. &Mr and Mrs AGL de Lang without transmitting it to South Africa, nor even
informing this State that an application had been lodged against it. The adoption by the Court of a judicial
decision under such circumstances amounts to a violation of the adversarial principle ( Audiatur et altera
pars ), which principle must apply at any stage of the proceedings. This breach of fairness and equality of
arms is all the more remarkable given that the application lodged by Delta International Investments S.A.
&Mr and Mrs AGL de Lang was, upon receipt, publicized on the website of the Court.
6. Failure to transmit the application to South Africa also deprived that State of the possibility to accept the
jurisdiction of the Court by way of forum prorogatum (on this question, see my separate opinion in the case
concerning Michelot Yogogombaye v. Republic of Senegal ).
1 The French text of the last sentence of paragraph 39 of the Yogogombaye Judgment , which is the
authoritative one, refers to the examination of the applications ( pour que la Cour puisse connaitre de telles
requetes ) and not to the hearing of the cases as it is mentioned in the English text ( conditions under which
the Court could hear such cases ).

2

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