High Court Sets Aside Decision of The Department of International Relations and Co-operation to Grant Grace Mugabe Diplomatic Immunity

1 August 2018|In Competition Briefs eBriefs

In this edition:

  • High Court Sets Aside Decision of The Department of International Relations and Co-operation to Grant Grace Mugabe Diplomatic Immunity

High Court Sets Aside Decision Of The Department Of International Relations And Co-operation To Grant Grace Mugabe Diplomatic Immunity

In May this year, the matter involving the alleged assault of Ms Gabriella Engels by the former First Lady of Zimbabwe, Mrs Grace Mugabe, and the conferral of diplomatic immunity by the Minister of the Department of International Relations and Co-operation (“the Minister”) on Mrs Mugabe was heard before the Honourable Judge Bashier Vally in the North Gauteng High Court.

Freedom Under Law NPC (“FUL”), represented by Nortons Inc., applied for and was granted permission to be admitted to the matter as a friend of the Court, amicus curiae, with the purpose of assisting the Court in reaching its decision.  FUL submitted that the decision of the Minister was unconstitutional, as it failed to appreciate that section 232 of Constitution provides that any customary international law that is inconsistent with the Constitution is invalid.  FUL argued further that the Minister’s decision offended sections 7, 8, 9, 10 and 12(1)(c) of the Constitution and for that reason, whether it was based on a rule of customary international law or not, it remained unlawful and unconstitutional.

The Minister argued that Mrs Mugabe automatically qualified for immunity from prosecution by virtue of her status as a spouse of a head of state and that it was in the national interest that immunity be conferred upon her.

Two pertinent issues that emerged from the facts were the following:

  1. Whether Mrs Mugabe enjoyed immunity for the alleged unlawful act perpetrated against Ms Engels by virtue of being a spouse of a head of state; and
  2. If not, whether the decision of the Minister to confer or grant immunity to Mrs Mugabe was constitutional and lawful.

In the event that the answer to the first question was in the affirmative, the dispute would no longer be in question and the matter would end there.  If not, then the second issue would call for an answer.  If Mrs Mugabe automatically enjoyed immunity from prosecution in terms of customary international law, then there would be no need to “confer” it upon her.

Judge Vally concluded that there was no customary norm to the effect that the spouse of a head of state enjoys immunity from prosecution for the offence Mrs Mugabe committed against Ms Engels.  Furthermore, customary law of spousal immunity has not been incorporated into our domestic law, as it is inconsistent with the prescripts of our Constitution.

Section 6(a) of the Foreign States Immunities Act provides that:

“A foreign state shall not be immune from the jurisdiction of the courts of the Republic in proceedings relating to –
(a) the death or injury of any person;”

It is clear from section 6(a) that Mrs Mugabe would not have enjoyed any such “derivative immunity”, because her spouse, former President Robert Mugabe, would not be shielded by immunity as a head of state in the circumstances.  Accordingly, derivative immunity cannot exist if the primary immunity is non-existent.

Judge Vally’s judgment stated that, by “recognising” the said immunity, the Minister committed an error of law.  That error was fundamental and fatal.  Mrs Mugabe was not immune from the jurisdiction of our courts and the Minister’s decision to “recognise” or “confer” immunity on her was unconstitutional and unlawful.

The Court declared the Minister’s decision to be inconsistent with the Constitution and set it aside. The judgment also noted that our Courts’ power to administer justice in the matter is not constrained by any procedural bar.  In other words, Mrs Mugabe could now be prosecuted for the assault on Ms Engels.

Nortons Inc. acted for Freedom Under Law.