Pierre de Vos, Constitutionally Speaking
31 July 2018
Earlier this week the South Gauteng High Court held that the decision of the then Minister of International Relations and Co-operation to “recognize” Dr Grace Mugabe’s immunities and privileges in order to shield her from criminal prosecution for the alleged assault of Ms Gabriella Engels “was inconsistent with the Constitution” and thus invalid. While the judgment is not a model of clarity, it may have consequences for other heads of state and their close family members but is not likely to lead to a speedy prosecution of Dr Mugabe. Let me explain why.
After the media reported that Dr Grace Mugabe, the wife of former Zimbabwean President Robert Mugabe, had allegedly assaulted Ms Gabriella Engels, the Zimbabwean government claimed that Dr Mugabe could not be prosecuted by a South African court because she enjoyed immunity from prosecution in South Africa.
While its reasons for this claim changed over time, the Zimbabwean government eventually settled on the argument that “Mrs Mugabe” (sic) enjoyed immunity from prosecution because she had travelled to South Africa as part of an official Zimbabwean delegation to the SADC meeting.
This claim was false, and the South African government knew that it would not stand up in court. The Department of International Relations and Co-operation (DIRCO) therefore initially advanced two different reasons why Grace Mugabe enjoyed immunity from criminal prosecution in South Africa.
First, it was argued that the Minister had “granted” her immunity in terms of section 7(2) of the Diplomatic Immunities and Privileges Act because it was in the national interest of South Africa to do so. At the time Grace Mugabe was the spouse of the head of state of a neighbouring country and at prosecuting her could have strained relations between the two countries. Second, it was argued that Grace Mugabe was the spouse of the then President of Zimbabwe, Robert Mugabe, and spouses of heads of state automatically enjoyed immunity from prosecution in terms of customary international law.
However, during the oral arguments before the High Court, the Minister’s lawyer contended that the Minister was not relying on the argument that she had granted Grace Mugabe immunity in terms of South African legislation. Instead, it was argued that the Minister had merely “recognized” the existing right to immunity enjoyed by Grace Mugabe in terms of customary international law which she enjoyed because of her status as spouse of the head of state of Zimbabwe.
The High Court judgment rejected this second argument. After analyzing the legal precedent in other jurisdictions, it held that there was no customary international law rule that the spouse or other family members of a head of state automatically enjoyed immunity from prosecution in another state. In any event, the court held that even if there were such a rule, it did not apply in South Africa. The court invoked section 232 of the Constitution to do so. This section states that:
Customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.
This means that immunity from prosecution can only be granted or recognised in South Africa in terms of customary international law if the rule of customary international law is not in breach of the South African Constitution or any provision of South African legislation. In this regard the High Court suggested that section 6(a) of the Foreign States Immunities Act prevented our government from granting immunity to Grace Mugabe. Section 6(a) states 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; (b) damage to or loss of tangible property, caused by an act or ommission [sic] in the Republic.
The Act defines a foreign state to include the head of state of that foreign state. This means, argued the court, that Robert Mugabe would not have enjoyed immunity if he had perpetrated the alleged assault on Ms Engels. Consequently, his spouse could also not have enjoyed immunity because Grace Mugabe’s immunity would have derived from Robert Mugabe’s immunity, but the Act explicitly excluded this.
This finding has consequences for other heads of state. If the finding stands it would mean that heads of state could be prosecuted in South Africa if they had caused death or injury to any person inside South Africa. However, the exception would not apply to death or injury caused by acts or omissions caused by the head of state outside South Africa. So Donald Trump could not be arrested and prosecuted in South Africa for sending killer drones to a third country.
In any event, the interpretation of the Foreign States Immunities Act by the High Court may well be wrong. This is because section 2(3) of the same Act states that “the provisions of this Act shall not be construed as subjecting any foreign state to the criminal jurisdiction of the courts of the Republic”. On its face, the Act therefore excludes immunity for a head of state in civil matters but does not exclude immunity for a head of state in cases of criminal prosecution.
Given this finding (which the Minister may well choose to challenge on appeal), and given the fact that the Minister’s legal representative abandoned the claim that immunity was granted by the Minister in terms of section 7(2) of the Diplomatic Immunities and Privileges Act, the court held that Grace Mugabe does not enjoy immunity from prosecution.
We do not know what would have happened had the Minister’s lawyer not abandoned the argument based on section 7(2) of the Diplomatic Immunities and Privileges Act. This means we are none the wiser about when section 7(2) immunity can validly be granted by the Minister.
It is worth nothing that if the Minister appeals the judgment and if the Supreme Court of Appeal (SCA) agrees that the Minister abandoned her section 7(2) argument, even winning the appeal may not assist Grace Mugabe. This is because Grace Mugabe is no longer the spouse of the head of state so in terms of customary international law she has lost any immunity she might have had as the spouse of the head of state.
In any event, no matter what happens, it is not likely that Grace Mugabe will soon face prosecution in South Africa for the alleged assault on Ms Engels. The National Prosecuting Authority would first have to decide to prosecute Grace Mugabe and to issue a warrant for her arrest. In the unlikely event that she then voluntary enters South Africa, she could be arrested and charged with assault.
The alternative would be for the Zimbabwean government to extradite Grace Mugabe to South Africa. I am not sure this is likely to happen either. South Africa and Zimbabwe do not have an extradition treaty. However, South Africa is a signatory to the SADC Protocol on Extradition and this treaty (which binds South Africa and Zimbabwe) came into force in 2006.
However, article 4(e) of the treaty states that a request for extradition must be refused: “if the person whose extradition is requested has, under the law of either State Party, become immune from prosecution or punishment for any reason including lapse of time or amnesty”.
This means that if Grace Mugabe enjoys immunity in Zimbabwe because she is the spouse of the former head of state of that country, extradition would not be possible. I have been unable to determine whether this is indeed the case in Zimbabwe.
Meanwhile, unless the Minister appeals the judgment, the head of states of foreign countries should take care not to assault or kill anyone while they visit South Africa, because as the law stands after this judgment, they will not be immune from criminal prosecution if they do.