Of State Immunity, Phantom Waivers and Dark Continents: The Curious Case of Zimbabwe v Mr. Fick

Abstract

Following the Constitutional Court of South Africa’s (CCSA) ruling in the case of Zimbabwe v Fick and Others (the Fick case), it is now in doubt whether South Africa adheres to the restrictive State immunity doctrine. In the Fick case, the CCSA dismissed Zimbabwe’s plea of State immunity on the erroneous basis that Southern African Development Community (SADC) States had expressly waived their immunity over the registration and enforcement of judgments issued by the SADC Tribunal. The CCSA also created a new law enabling South Africa to register and enforce judgments issued by international courts against foreign States, irrespective of whether the disputes concerned acta jure imperii or acta jure gestionis. This article argues that the CCSA’s ruling and its consideration of the issue of foreign State immunity are flawed and constitute a threat to (i) the security of foreign States’ property, interests and investments in South Africa; (ii) intra-SADC trade relations; (iii) the effective resolution of disputes arising under SADC’s investment law and the SADC Protocol on Finance and Investment; and (iv) the development of coherent principles on SADC law on State immunity.