Of Grace and Immunity

Posted: 17th Aug 2017 by James Grant in Criminal Law
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Grace Mugabe’s only possible claim to diplomatic immunity is to the immunity of a special envoy or representative of another state. This is recognised under s 4 (2) of the Diplomatic Immunities and Privileges Act 37 Of 2001 (the”Act”), as follows:
“A special envoy or representative from another state, government or organisation is immune from the criminal and civil jurisdiction of the courts of the Republic, and enjoys such privileges as-
(a) a special envoy or representative enjoys in accordance with the rules of customary international law;
(b) are provided for in any agreement entered into with a state, government or organisation whereby immunities and privileges are conferred upon such special envoy or representative; or
(c) may be conferred on him or her by virtue of section 7 (2).”
Of course, this will require that Mrs Mugabe was indeed, in fact, in South Africa in some form of representative role. This may be the source of an interminable argument. However, there is another requirement or two for a claim to diplomatic immunity which, if we lived in a country in which being rich and powerful was not itself an immunity, ought quickly to resolve this matter into an active prosecution.
Section 4(3) of the Act makes it clear that the Minister of Foreign Affairs must recognise – by publication in the Government Gazette – the special envoy or representative to enjoy the immunity referred to above (in s 4(2)), as follows:
“The Minister must by notice in the Gazette recognise a special envoy or representative for the purposes of subsection (2).”
So was Grace Mugabe’s name published in the Government Gazette? No. The name Grace Mugabe, or anyone by the name “Mugabe” does not appear in the Government Gazette – at least for the past 8 editions – covering two months.Its is possible that it could have been published before this – but I doubt that.
A further problem to a claim to diplomatic immunity from the criminal laws of South Africa is that a current list of all people enjoying this status is supposed to be maintained by the Minister of Foreign Affairs and published on the Website of Foreign Affairs (s 9(1) and 9(2) of the Act. Is there such a list? All I can say is I could not find one and certainly not one listing Grace Mugabe as enjoying diplomatic immunity.
There is a provision which purports to settle all uncertainty, in section 9(3) of the Act, which says:
“(3) If any question arises as to whether or not any person enjoys any immunity or privilege under this Act or the Conventions, a certificate under the hand or issued under the authority of the Director-General stating any fact relating to that question, is prima facie evidence of that fact.”
One may wonder whether this clause is an attempt to settle the question of whether someone enjoys the status or not. But, on closer analysis, I don’t think it is, and I don’t think it could possibly be.
Immunity is a legal status, not a fact. This clause gives the D-G the right to assist in resolving “the question” by stating any fact relating to that question. So, for instance, the D-G may issue a certificate saying that Mrs Mugabe was indeed here in a representative capacity – as a matter of fact. Even then, this certificate is only “prima facie” evidence of that fact – which may be disproved.
In any event, and more importantly, the section does not give the D-G the right to pronounce on the ultimate question of law – whether someone actually does enjoy immunity. As I understand it, not only was Grace Mugabe not, in fact, in SA in any representative capacity, but, probably more importantly, as a matter of law, she did not enjoy immunity because it had not been granted or recognised under the Act.

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