Democratic Alliance v Minister of International Relations and Co-operation and Others; Engels and Another v Minister of International Relations and Co-operation and Others,  ZAGPPHC 534
Court: High Court of South Africa (Gauteng Provincial Division, Pretoria)
Date of judgment: 30 July 2018
On 30 July 2018, the High Court of South Africa (Gauteng Provincial Division, Pretoria) (the High Court) declared that the decision taken by the Minister of International Relations and Co-operation (the Minister) to confer immunities and privileges on Dr Grace 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). Accordingly, the decision was reviewed and set aside.
On 13 August 2017, the then First Lady of Zimbabwe, Dr Grace Mugabe, travelled to South Africa during the Ordinary Summit of the Heads of State of the Southern African Development Community (SADC). On the same day, Dr Mugabe is alleged to have assaulted three young South African women at a hotel in Johannesburg, including Ms Gabriella Engels who subsequently laid a criminal charge of assault with intent to cause grievous bodily harm against Dr Mugabe.
The alleged assault garnered widespread public exposure. The South African Police Services (SAPS) made attempts to contact Dr Mugabe, including through her legal representatives, in the hope that she would present herself to SAPS officers. However, on 15 August 2017, Dr Mugabe left South Africa.
A note verbale sent by the Embassy of Zimbabwe (the Embassy) to the Department of International Relations and Co-operation (the Department) indicated that Dr Mugabe travelled to South Africa on a diplomatic Zimbabwean passport, and that “[t]he Embassy wishes to invoke diplomatic immunity for [Dr Mugabe] in a case opened against her at the Sandton Police Station and requests protection from authorities in South Africa against arrest and prosecution.” Later that day, the Embassy forwarded another note verbale to the Department, indicating that it wished to withdraw the first one. The second note verbale stated that: “[Dr Mugabe] travelled to South Africa on 13 August on flight SA29 as part of the Advance Team of the Official Delegation … to the [SADC] Summit from 11 to 20 August 2017”, and persisted with its call for the “necessary protection from arrest and prosecution” for Dr Mugabe. Of particular relevance, the difference between the first and the second is that, in the latter, the Embassy claimed that Dr Mugabe was visiting South Africa on official duties.
On 16 August 2017, the Department informed the Embassy that the request for diplomatic immunity for Dr Mugabe was receiving due consideration by the South African government. The Department also wrote to the Acting National Commissioner of SAPS (Acting National Commissioner), informing him that as the Embassy had invoked diplomatic immunity protection in favour of Dr Mugabe, the Department was considering all legal issues “in consideration of the conferral of diplomatic immunity as invoked”, and sought certain information from the Acting National Commissioner about the allegations against Dr Mugabe.
On 18 August 2017, the Acting National Commissioner responded, and indicated that a prima facie case existed against Dr Mugabe, but that the investigation was still incomplete and the Director of Public Prosecutions had not made a decision on whether a prosecution would be instituted.
On 19 August 2017, the Department informed the Embassy that “after considering all the relevant facts and circumstances”, the Department had decided to “confer immunities on the First Lady, Dr Grace Mugabe”. Simultaneously, it alerted the Acting National Commissioner to the Minister’s decision to confer on Dr Mugabe the privilege of diplomatic immunity from criminal prosecution in terms of section 7(2) of the Diplomatic Immunities and Privileges Act, 2001 (DIPA). In light of this, SAPS ceased to investigate the allegations against Dr Mugabe.
On 20 August 2017, the Minister published the decision in the Government Gazette. The decision was conveyed in a Minister’s Minute (the Minute), as well as a Government Notice (the Notice). Both indicated that the Minister relied on her powers derived from section 7(2) of DIPA, and that the immunities and privileges conferred upon Dr Mugabe were in terms of international law.
Judgment of the High Court
According to the Minister, Dr Mugabe automatically qualified for immunity from prosecution by virtue of her status as a spouse of a head of state. Furthermore, the Minister was of the view that it was in the national interests of South Africa that such immunity be conferred on Dr Mugabe in terms of section 7(2) of DIPA. The issues before the High Court were therefore two-fold: (i) did Dr Mugabe enjoy immunity – specifically, personal immunity (or immunity rationae personae) – for the alleged unlawful acts by virtue of being a spouse of a head of state; and (ii) if not, was the decision of the Minister to confer or grant immunity to Dr Mugabe constitutional and lawful? In light of the conclusion reached by the High Court on (i), it was unnecessary for the High Court to conduct an analysis of (ii).
The High 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, 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: (i) a customary norm that is consonant with the prescripts of the Constitution; or (ii) the prescripts of an international treaty which is constitutionally compliant; or (iii) national legislation which is constitutionally compliant. As noted by the High Court, a decision to grant immunity to a foreign state official that does not fall into one of the three categories will not withstand the test of legality, rationality or reasonableness.
Firstly, with regard to customary international law, the High Court reached the conclusion that there is no customary norm to the effect that the spouse of a head of state enjoys immunity from prosecution for the offence that Dr Mugabe is alleged to have committed. In particular, the High Court could not find evidence of this being a general practice accepted as law by a majority of states.
Secondly, the High Court had regard to the Foreign States Immunities Act, 1981 (FSI), which is the national legislation that speaks specifically to the issue of head of state immunity. In terms of section 6(a) of the FSA: “A foreign state shall not be immune from the jurisdiction of the courts of the Republic in proceedings relating to … the death or injury of any person”. As such, the High Court noted that in terms of section 6(a) of the FSI, former President Mugabe would not himself have enjoyed the immunity rationae personae had he been the one accused of perpetrating the alleged assault on Ms Engels, for such immunity has specifically been excluded by the FSI. Accordingly, even if the Minister were correct that customary international law provided immunity to the spouse of a head of state, this “derivative immunity” cannot exist if the primary immunity is non-existent. In sum, the High Court concluded that as former President Mugabe would not have enjoyed such immunity, neither could his spouse.
Lastly, the High Court addressed the Minister’s contention that the matter had become moot as former President Mugabe was no longer the head of state, and that the High Court should leave the matter to be dealt with by the Director of Public Prosecutions if Dr Mugabe returned to South Africa and sought to rely on the Minute that conferred immunities and privileges on her. However, as explained by the High Court, Dr Mugabe would still be entitled to rely on the Minute as 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 High Court noted further that, following the proceedings before it, it was both well-placed and duty-bound to make a determination on the issues before it. As explained by the High Court:
In these circumstances leaving the matter for the criminal court, should Dr Mugabe be prosecuted, would be a most inefficient use of scarce judicial resources. It has to be deprecated. Further, should the prosecution of Dr Mugabe proceed there is no guarantee that it would occur in the High Court, which is the court competent to review and set aside the decision of the Minister. In which case the criminal proceedings would be delayed pending a determination in the High Court on the very issue that this Court could have and should have made a determination on in the first place. In a word, the issue is not moot and the invitation to defer the matter to another court is declined.
In conclusion, the High Court held that by recognising the said immunity, the Minister committed an error of law that was fundamental and fatal to the decision taken by the Minister, and therefore the decision stood to be reviewed and set aside. As stated by the High Court: “I conclude that Dr Mugabe is not immune from the jurisdiction of our courts and the Minister’s decision to ‘recognise’ or ‘confer’ immunity upon her was unconstitutional and unlawful. The Notice therefore stands to be set aside so that our courts’ power to administer justice in the matter is not constrained by any procedural bar.”
Order of the High Court
The order of the High Court read as follows:
“1. It is declared that the decision of the Minister of 19 August 2017, in terms of s 7(2) of the Diplomatic Immunities and Privileges Act 37 of 2001 to recognise Dr Grace Mugabe immunities and privileges as published in the Minister’s Minute in the Government Gazette of 20 August 2017, No 41056 Notice 850 (the decision) is inconsistent with the Constitution of the Republic of South Africa, Act 108 of 1996.
- The decision is reviewed and set aside.
- The Minister is to pay the costs of the applicants in both cases which costs are to include those occasioned by the employment of two counsel.
- The Minister is to pay the costs of one counsel for each of the amici.”
The full judgment is accessible here.
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