Abstract
In the Grace Mugabe decision in which the conclusion was arrived at that Grace Mugabe was not entitled to spousal immunity by virtue of being the wife of the then incumbent foreign head of state, Vally J remarked that the late former President Mugabe would not have been entitled to immunity had he been accused of committing the assault. This article analyses this remark and its potential negative impact on South Africa's relationship with other African states. The analysis is valuable as South Africa has positioned itself as being a human rights state that strives to play a significant role in peace making in Africa and consistently has argued that removing customary international law immunity, to which foreign heads of state are entitled, may undermine these intentions. The article examines South Africa's position on personal immunity for foreign heads of state in customary international law against the backdrop of the Mugabe decision. It argues that as it currently stands South African law recognises absolute personal immunity for foreign heads of state in cases not relating to the perpetration of international crimes.
Highlights
The scenario I imagine is as follows: Kaavia James, an incumbent head of an African state, visits South Africa with her family on holiday
The analysis is valuable as South Africa has positioned itself as being a human rights state that strives to play a significant role in peace making in Africa and consistently has argued that removing customary international law immunity, to which foreign heads of state are entitled, may undermine these intentions
The opposition political parties and civil society organisations apply to the High Court in a challenge to the Minister’s decision as irrational and unconstitutional and argue that in accordance with South African law Kaavia James is not entitled to immunity before the South African courts because she caused the death of a person
Summary
The scenario I imagine is as follows: Kaavia James, an incumbent head of an African state, visits South Africa with her family on holiday. I make three arguments: (i) that current South African law recognises absolute immunity for incumbent heads of state before the national courts in criminal proceedings except for international crimes; (ii) that the applicable statute in the Mugabe decision was the DIPA and not the FSIA; and (iii) that Vally J exceeded his authority when he made that remark and applied the FSIA in this case, deciding on an issue that was not brought before the court. Before exploring these arguments, I present an overview of Vally J’s judgment in the Mugabe decision as it forms the basis of this discussion
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