South Africa's Law on Foreign State Immunity: A Pandora's Box of Phantom Waivers, Red Herrings and Dark Continents

Abstract

Does South Africa still adhere to the restrictive state immunity doctrine? This is the million-rand question that arises from the Constitutional Court of South Africa’s (CCSA) decision in the case of Zimbabwe v Fick (Fick case) in which it created a new common law rule permitting the exercise of jurisdiction and the registration of judgments issued by international courts against foreign states. Crucially, the Fick Foreign State Jurisdictional rule (FFSJ rule) enables South African courts to exercise jurisdiction over foreign states irrespective of whether the judgment sought to be registered and enforced against the foreign state concerns a dispute over acta jure imperii. This article argues that the CCSA’s decision in the Fick case is seriously flawed. However, if it accurately represents South African law then it is authority for the proposition that the country no longer adheres to the restrictive state immunity doctrine.