BACKGROUND AND SUMMARY
On 30 July 2018, the High Court of South Africa, Gauteng Division, Pretoria (the “Court”), declared that the decision taken by the Minister of International Relations and Cooperation (the “Minister”) to confer immunity and privileges on Dr Grace Mugabe (“Mugabe”) as the spouse of the then President of Zimbabwe, Robert Mugabe, was inconsistent with the Constitution of the Republic of South Africa, 1996 (the “Constitution”).
On 13 August 2017, Mugabe travelled to South Africa during the Ordinary Summit of the Heads of State of the Southern African Development Community (the “SADC Summit”) and allegedly assaulted 3 (three) South African women including Ms. Gabriella Engels (“Engels”), who subsequently laid a criminal charge of assault with intent to cause grievous bodily harm.
Thereafter, the Embassy of Zimbabwe (the “Embassy”) forwarded a note verbale to the Department of International Relations and Cooperation (the “Department”) wherein it indicated that Mugabe travelled to South Africa on a diplomatic Zimbabwean passport and, accordingly, it wished to invoke diplomatic immunity for Mugabe in respect of the case opened against her and requested protection from authorities in South Africa against arrest and prosecution.
A second note verbale was forwarded by the Embassy to the Department wherein it indicated that it wished to withdraw its first note verbale and stated that Mugabe travelled to South Africa as part of the Advance Team of the Official Delegation to the SADC Summit and persisted with its request for her protection from authorities in South Africa against arrest and prosecution.
Notably, the second note verbale directs that Mugabe was in South Africa on official duties.
Subsequently, on 20 August 2017, the Minister, relying on section 7(2) of the Diplomatic Immunities and Privileges Act No. 37 of 2001 (“DIPA”) and customary international law, conferred upon Mugabe the privilege of diplomatic immunity from criminal prosecution.
This prompted the Democratic Alliance to launch an application wherein it challenged the decision of the Minister on the grounds that it is unconstitutional and unlawful and asked for a declarator to that effect, for the decision to be reviewed and set aside and for a costs order against the Minister.
The Minister contended that Mugabe automatically qualified for immunity from prosecution by virtue of her status as a spouse of a head of state and, furthermore, that it was in the national interests of South Africa that such immunity be conferred on Mugabe in terms of section 7(2) of DIPA. Further, the Minister put forward an argument that the matter had become moot as Robert Mugabe was no longer the President of Zimbabwe and, as such, the matter should be dealt with by the Director of Public Prosecutions in the event Mugabe returns to South Africa.
The issues before the Court were two-fold:
- did Mugabe enjoy immunity (specifically, immunity rationae personae) for the alleged unlawful act perpetrated against Engels by virtue of being a spouse of a head of state?
- If not, was the decision of the Minister to confer or grant immunity to Mugabe constitutional and lawful?
At the outset, the Court noted that the South African position is that the executive is constrained by the Constitution and national legislation enacted in accordance with the Constitution.
Accordingly, and in terms of the Constitution, the executive can only grant immunity rationae personae to an official from a foreign state if such immunity is derived from one of the following:
- a customary norm that is consistent with the prescripts of the Constitution; or
- the prescripts of an international treaty which is compliant with the Constitution; or
- national legislation which is constitutionally compliant.
Having regard to customary international law, the Court concluded that there is no customary norm to the effect that the spouse of a head of state enjoys immunity from prosecution for the offence Mugabe is alleged to have committed and, more specifically, the Court found no evidence of this being a general practice accepted as law by a majority of states.
Further, the Court had regard to the Foreign States Immunities Act No. 87 of 1981 (“FSI”), which is the national legislation that deals specifically with the issue of heads of states immunity. In terms of section 6(a) thereof, a foreign state shall not be immune from the jurisdiction of the courts of South Africa in proceedings relating to, inter alia, the death or injury of a person. Accordingly, it was noted by the Court that the Former President of Zimbabwe, Robert Mugabe, would not have enjoyed immunity rationae personae had he been accused of perpetrating the alleged assault on Engels, as such immunity has been specifically excluded by the FSI.
Accordingly, the Court found that even if the Minister had been correct that customary international law extends immunity to the spouse of the head of state, such “derivate immunity” cannot exist if the primary immunity is non-existent.
Finally, the Court addressed the mootness of the matter and explained that this was an administrative act, and administrative acts remain in force until set aside by a competent court even if such act was illegal or improper. The Court found that it was both well-placed and duty-bound to make a determination on the issues before it. The Court held that leaving the matter for the criminal court, in the event that Mugabe is prosecuted, is an inefficient use of scarce judicial resources. Further, the Court held that there is no guarantee that, in the event of the prosecution of Mugabe proceeding, that it would occur in the High Court, which is the court competent to review and set aside the decision of the Minister, which would result in the delay of the criminal proceedings pending the determination in the High Court on the issue before the Court. As such, the Court found that the issue is not moot and the request to defer the matter to another court was declined.
The Court recognised that the Minister committed an error of law, which was fundamental and fatal to her decision and, accordingly, concluded that Mugabe is not immune from the jurisdiction of South African courts and the Minister’s decision was unconstitutional and unlawful and, as such, the Court ordered that the decision is reviewed and set aside and, furthermore, that the Minister pay the costs of the application.
Immunity from prosecution in terms of customary international law may only be granted in instances where customary international law is consistent with the Constitution and national legislation.
Immunity rationae personae does not extend to acts committed by foreign heads of state relating to, inter alia, the death or injury of a person.
Written by Sean Buskin and supervised by Kerry Theunissen, 7 February 2019