LSSA praises courts for Mugabe immunity ruling
Publish date: 06 August 2018
Issue Number: 785
Diary: IBA Legalbrief Africa
The Law Society of SA has praised the judiciary for continuing to uphold the Constitution and rule of law, writes Legalbrief. It has welcomed the judgment in the matter of Democratic Alliance v The Minister of International Relations and Co-operation and Others relating to the withdrawal of the immunity granted to Grace Mugabe. Co-chairpersons Mvuzo Notyesi and Ettienne Barnard also called on the department to introduce measures to ensure it minimised the risks of such errors in the future. The court noted: ‘Here the executive is constrained by the Constitution and by national legislation enacted in accordance with the Constitution. 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 (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. 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. That is our law.' Says the LSSA statement: 'As stated by the court, "by recognising" the said immunity the Minister committed an error of law. The error is fundamental and fatal. This is not the first time our government ignored our Constitution, legislation and the rights of SA citizens ... This was the same excuse used in the matter relating to the President of Sudan, Omar al-Bashir's attendance at the African Union Summit in Johannesburg in 2015. In this case, too, our courts had to call the government to heel,' said Notyesi and Barnard.