The applicant is the Minister of Foreign Affairs of the
Republic of Zimbabwe.
He through, this urgent application, applied for a
provisional order intended to protect The Food and Agriculture Organisation of
the United Nations, which I will refer to as the FAO, from a garnishee order
granted by this court against its bank ...
The applicant is the Minister of Foreign Affairs of the
Republic of Zimbabwe.
He through, this urgent application, applied for a
provisional order intended to protect The Food and Agriculture Organisation of
the United Nations, which I will refer to as the FAO, from a garnishee order
granted by this court against its bank account with the second respondent in
favour of the first respondent. He made the application in his official
capacity as the Minster responsible for foreign affairs, and thus responsible
for the Food and Agriculture Organisation with which the Republic of Zimbabwe
has existing agreements for the establishment of the Food and Agriculture
Organisation Sub- Regional office for Southern and Eastern Africa. The
agreements granted the Food and Agriculture Organisation immunity against legal
suits in the national courts of Zimbabwe.
The first respondent was an employee of the Food and
Agriculture Organisation, who, despite the Food and Agriculture Organisation's
immunity, sued it in the Labour Court which granted him an order which has now
been registered as an order of this court. The first respondent sought to
execute the order through a writ which was granted by this court. His pursuit
for remedy in Zimbabwean courts was interrupted by the applicant's application
under HC5213/14 in which this court, granted the applicant, a provisional
order, on 27 June 2014, on the following terms;
“That pending the determination of this matter the
applicant is granted the following relief;
1. The Sheriff for Zimbabwe and any deputy appointed under
his hand be and they are hereby interdicted and prohibited from in any way
enforcing or executing the writ of execution against property issued by the
Registrar of the High Court on 3rd June 2014 in Case HC3432/14 in favour of one
Michael Jenrich and against Food and Agriculture Organisation of the United
Nations.”
The first respondent thereafter circumvented the
provisional order granted on 27 June 2014.
He applied for a garnishee order against the Food and
Agriculture Organisation's bank account with the second respondent. The Sheriff,
in compliance with the garnishee order, served it on the second respondent, who,
but for this application, could have complied. The applicant, being prevailed
upon by the Food and Agriculture Organisation, made this urgent application seeking
the following order;
“That pending the determination of this matter, the
applicants are granted the following relief:
That the Sheriff for Zimbabwe and any deputy appointed
under his hand be and they are hereby prohibited and interdicted from any further
enforcement or execution of the garnishee order issued by this court on
31st December 2014 under case no. HC9895/14.”
The second respondent, though participating in these
proceedings, did not take an active part indicating that it will abide by the
court's decision The Sheriff, who is the third respondent, on being served with
this application, in a move which took the sting from the urgency of this case,
indicated that he was not proceeding with the enforcement of the garnishee
order and would abide by the decision of the court.
Counsel for the first respondent strenuously opposed the
application, while counsel for the applicant exerted a lot of energy and his
knowledge of International Law towards securing an order stopping the execution
of the garnishee order. They both filed voluminous Heads of Argument and
attached a lot of authorities on International Law on the immunity of foreign
Governments and International Organisations. They both sought sufficient time
to enable them to prepare and file Heads of Arguments leading to this case
being postponed to 11 February 2015.
On 11 February 2015, only counsel for the first respondent
appeared. Counsel for the applicant, who was then the Deputy Attorney General,
was out of the country on business. Counsel for the second respondent was also
out of the country leading to the case being postponed to 18 February 2015.
Counsel for the first respondent submitted that the
applicant had no locus standi to make this application.
She submitted that the Food and Agriculture Organisation should
have personally responded to this application and raised the courts lack of
jurisdiction due to its immunity. She criticised its having merely written to
the Registrar of this court bringing to its attention its claim for immunity.
Counsel for the applicant, in response, submitted that the
applicant has locus standi to file this application.
He submitted that customary International Law compels him
to act on behalf of the Food and Agriculture Organisation with which Zimbabwe
entered into Agreements which granted it immunity from the jurisdiction of
Zimbabwean Courts….,.
Locus Standi
Counsel for the first respondent submitted that the Food
and Agriculture Organisation should have personally come to court to establish
its immunity and oust the court's jurisdiction. She further submitted that the
applicant does not have locus standi to file this application.
Counsel for the applicant, relying on customary
international law, submitted that the Food and Agriculture Organisation need not
have personally participated to enforce its immunity as the applicant has locus
standi to file and prosecute this application.
The issue as to how foreign nations and International
Organisations should raise their immunity before national courts has not been
clearly settled in our jurisdiction though one can take guidance from the case
of Barker McCormac (Pvt) Ltd v Government of Kenya 1983 (1) ZLR 137 (HC). In
that case McNALLY J…, while considering a chamber application, realised the
existence of possible sovereign immunity and referred the case for hearing.
WADDINGTON J…, on hearing the case, did so in the absence of the Government of
Kenya which was only represented on 24 February but the hearing continued on 3,4
and 10 March when the Government of Kenyan was not in attendance nor
represented. Commenting on why he proceeded in the absence of representation or
a claim of immunity from the Government of Kenya, WADDINGTON J…, said;
“In my view, this supine attitude would have been wrong.
The Courts, in at least two similar and recently decided cases in South Africa,
adopted anything but a supine attitude. In the Government of Bolivia case
(supra), at 939H, GOLDSTONE AJ (as he then was) is reported in the following
terms:
'Mr Southwood, who appeared for the applicant, in a helpful
argument, submitted that all the requisites entitling the applicant to the
orders sought by it were established. However, he realised that the difficulty
in the way of such relief being granted was the principle of public international
law that the courts of a country will not, by their process, make a foreign
State party to legal proceedings against its will…,.'
It is clear to me that had counsel for the applicant in
that case not raised the question, the learned ACTING JUDGE most certainly
would. There is another case brought ex parte where a similar course was
adopted. In Kaffraria Property Co (Pty) Ltd v Government of the Republic of
Zambia 1980 (2) SA 709E at 711E, EKSTEEN J is reported as saying:
'There was, therefore, no appearance for the respondent,
but Mr Kroon, who appeared on behalf of the applicant, very properly dealt with
the possible objection that the respondent may enjoy sovereign immunity against
any process in our Courts. He submitted, however, that the application related
to a purely commercial transaction and that, by virtue of the restricted view
international law took of the doctrine of sovereign immunity today, respondent
would not be entitled to claim any such immunity in the circumstances of this
case.'
Once again, therefore, it is demonstrated that a proposal
to sue a sovereign State in the Courts of another State is regarded as a very
serious matter justifying action mero motu by the Court. The reason is
explained by LORD DENNING MR in his judgment in Thai-Europe Tapioca Service Ltd
v Government of Pakistan, Ministry of Food and Agriculture, Directorate of
Agricultural Supplies Imports and Shipping Wing [1975] 3 All ER 961 at 965a-b:
'Counsel for the plaintiffs has taken us through a
fascinating study of sovereign immunity and its development. But I do not think
we need follow him today through its ramifications. The general principle is
undoubtedly that, except by consent, the courts of this country will not issue
their process so as to entertain a claim against a foreign sovereign for debt
or damages. The reason is that, if the courts here once entertained the claim,
and in consequence gave judgment against the foreign sovereign, they could be
called upon to enforce it by execution against its property here. Such
execution might imperil our relations with that country and lead to
repercussions impossible to foresee. We have quite recently had examples in our
courts where this general principle has been applied.'
'So it seems to me that the general principle must be
applied unless it comes within any of the recognised exceptions. But the
exceptions are several and they are important.'
It seems to me that it is essential that in cases of this
description, where the harmonious relations between Zimbabwe and another State
could be adversely affected by the institution of civil action in the Courts of
this jurisdiction, it is the clear duty of the Court to ensure that action is
brought against the foreign sovereign State only in the most proper of circumstances.
The need for caution in this field is no less pressing in Zimbabwe than it is
in the United Kingdom. I think that caution should be exercised in this case.
It was for the reason given above that, on 3 March 1983,
when argument was first addressed to the Court, I adjourned the proceedings.
The purpose of the adjournment was to enable the Registrar to obtain a
certificate from the Minister of Foreign Affairs concerning the status of the
premises in question in this case. On the papers at that time there was doubt
whether the building was in fact the High Commission of the Government, and, if
so, for how long it had been recognised by the Government of Zimbabwe as the
High Commission. It seemed to me that the recognition of a building as an
Embassy or High Commission is no less an act of State than the recognition of
the sovereign power itself. It is an act of a Government concerning its foreign
relations with another country.”…,.
It is therefore clear that the two judges who first dealt
with the Barker McCormac (Pvt) Ltd v Government of Kenya 1983 case were of the
view that in cases of immunity the court should mero motu inquire into whether
or not the sovereign State has immunity.
I am aware that the Supreme Court, in the case of Barker
McCormac 1983 (2) ZLR 72 (SC), did not conclusively deal with whether or not a
court should mero motu raise the issue of immunity, but it heard the appeal
when there was no appearance for the respondent. This confirms the duty of the
court to ensure that a sovereign State or international organization, which has
been clothed with immunity, is not improperly sued in our courts. GEORGES JA…,
said;
“In the view which I take of this matter, it is unnecessary
to rule on that issue. It can be argued that a municipal court has jurisdiction
over a claim by reason of the nature of the claim and that such jurisdiction is
barred only when the defendant raises the issue of sovereign immunity. On the
other hand, it can be argued that the jurisdiction is barred once it appears on
the record that the defendant can raise the issue of sovereign immunity and
that the court should not proceed unless satisfied that the defendant consents
or that the claim does not fall within the category of claims in regard to
which sovereign immunity can be raised.”…,.
The fact that the Supreme Court heard an unopposed appeal
suggests that it attached importance to the issue of immunity. It, itself,
confirmed the need for the court to inquire and establish the issue of immunity
once it appears on the record. It further did not say the two judges who said
that the court should mero motu raise the issue of immunity were wrong. This,
in my view, means if the Registrar had brought the Food and Agriculture
Organisation's letter to him, to the court's attention it should from there on
have mero motu inquired into whether or not the Food and Agriculture
Organisation had immunity in this case.
Counsel for the applicant relied on the advisory opinion
given by the International Court of Justice in the case of “Curamaswamy”,
officially cited as 'Difference Relating to Immunity from Legal Process of a
Special Rapporteur of the Commission on Human Rights, Advisory Opinion, I.C.J.
Reports 1999. P. 62,' for his submission, that the applicant has locus standi.
He submitted that the Government of Zimbabwe has a duty to ensure that the Food
and Agriculture Organisation's immunity is observed, as failure to do so can
expose it to proceedings in terms of customary international law.
A reading of that case, at pagess 86 to 88 paragraphs 59,
60, 61, 62 and 63, which counsel for the applicant relied on, merely stresses
the need for the host State to inform the national courts of the existence of
immunity. The case does not specifically say the State can itself institute
proceedings to claim or protect the guest nation or international organisation's
immunity. At page 86, paragraph 59, the International Court of Justice simply
said;
“The difference which has arisen between the United Nations
and Malaysia originated in the Government of Malaysia not having informed the
competent Malaysian judicial authority of the Secretary-General's finding that
Mr Cumaraswamy had spoken the words at issue in the course of the performance
of his mission and was therefore entitled to immunity from legal process…,.”
This does not, in my view, authorize the host State to do
more than inform the national courts of the guest nation of the foreign sovereign
or international organization's immunity.
At page 87 paragraph 60, the International Court of Justice
said;
“This means that the Secretary–General has the authority
and responsibility to inform the Government of a member State of his finding,
and, where appropriate, to request it to act accordingly, and, in particular,
to request it to bring his findings to the knowledge of the local courts if
acts of an agent have given, or may give, rise to court proceedings.”
Again, this paragraph places on the host State the duty to
inform the local courts and not to itself be part of the litigation.
At page 87 paragraph 61, the International Court of Justice
said;
“The Governmental authorities of a party to the General
Convention are therefore under an obligation to convey such information to the
national courts concerned, since a proper application of the Convention by them
is dependent on such information. Failure to comply with this obligation, among
others, could give rise to the institution of proceedings under Art VIII, s 30,
of the General Convention.”
Counsel for the applicant heavily relied on the possible
proceedings against the Government of Zimbabwe and the courts' apparent failure
to deal with the issue of immunity in limine litis, as the basis for the
applicant's locus standi to make this application on behalf of the Food and
Agriculture Organisation.
This, though possible, does not change the nature of the State's
responsibility, according to this case, which remains that of informing the
local courts of the existence of immunity.
At page 87, paragraph 62, the International Court of
Justice said;
“The Court concludes that the Government of Malaysia had an
obligation, under Article 105 of the Charter and under the General Convention,
to inform its courts of the position taken by the Secretary General. According
to a well-established rule of international law, the conduct of any organ of a
State must be regarded as an act of that State.”…,.
There is no doubt that at customary international law, the
acts of the courts are deemed to be the acts of their State. I also accept that
the Government of Zimbabwe is genuinely worried about the court's failure to
timeously act on the information it and the Food and Agriculture Organisation
supplied. That anxiety might, as an extreme possibility, justify its having to
come to court as a party to litigate on behalf of the Food and Agriculture
Organisation. I appreciate that after the court's failure to act appropriately
when the Food and Agriculture Organisation wrote to the Registrar, and again
after the applicant's earlier application in HC5213/14, the State must have been
very anxious that it could be exposed to proceedings referred to... That,
however, does not change the nature of its obligation to inform the courts…, to
one of litigating for the Food and Agriculture Organisation. In my view, the
applicant could have informed the courts at an appropriate higher level, to
cause them to take over their responsibility of carefully ascertaining, in
limine litis, whether or not the Food and Agriculture Organisation was clothed
with immunity.
I must also comment on what the Internal Court of Justice
said on page 88 paragraph 63, about the responsibility of the national courts.
It said;
“By necessary implication, questions of immunity are
therefore preliminary issues which must be expeditiously decided in limine
litis. This is a generally recognised principle of procedural law, and Malaysia
was under an obligation to respect it. The Malaysia courts did not rule in
limine litis on the immunity of the Special Rapporteur…,. As indicated above,
the conduct of an organ of a State - even an organ independent of the executive
power - must be regarded as an act of the State. Consequently, Malaysia did not
act in accordance with its obligations under international law.”
Counsel for the applicant said if the State had not applied
to stop the execution of the garnishee order as it did, it would have left
itself open to proceedings as the Food and Agriculture Organisation has
absolute immunity against execution.
It is accepted that the State can, in terms of
international law, be proceeded against for the acts of its organs, including
those of the judiciary - even though the judiciary enjoys independence from
executive power. This may, in exceptional circumstances not mentioned in this
case, warrant the State's involvement in litigation on behalf of sovereign
nations and international organisations. The courts should therefore, mero motu,
act expeditiously to determine immunity issues in limine litis. That would take
away the State's anxiety for the nation to act appropriately in terms of customary
international law. The possibility of the State making applications on behalf
of foreign Governments and international organisations to plead their immunity
was commented on by GUIDO DEN DEKKER, at pages 17 to 18 of the Hague Justice
Journal Volume 31 Number 2/2008, referred to by counsel for the applicant. GUIDO
DEN DEKKER was commenting on the possibility of the State making applications
such as the one the applicant made in this case. His comments were based on the
case of Mothers of Srebrenica et al. v State of the Netherlands and United
Nations, 10 July 2008, where a District Court of The Hague heard an application
by the State in which it claimed immunity for the United Nations which had,
instead of appearing before the court, sent a letter to the UN representative
of the Netherlands invoking its immunity. The State forwarded the letter to the
District Court which, in spite of that letter granted leave to proceed in
default of appearance against the UN. This prompted the State to intervene,
which the District Court allowed. GUIDO DEN DEKKER commented that the State
felt compelled to intervene due to previous failure by the court to assess, as
a preliminary matter, the (scope of) immunity of an international legal person.
He, at pagess 17 to 18, said;
“The District Court can be followed in its interpretation
that 'under the UN Charter, the State has bound itself to warrant, as much as
possible, the immunity laid down in the Charter, irrespective of how far it
extends' and that 'pleading the immunity (of the UN) in proceedings before a
national court of law at least falls within the bounds of possibility.'
It seems to be a matter of policy of the State, in each
case, to decide whether or not it will intervene in court proceedings. To my
knowledge, there are not yet sufficient examples in Dutch case law to consider
invoking immunity in defence of a non-appearing international legal person
before the domestic courts as a common and established practice of the State.”
GUIDO DEN DEKKER's article, though not backed by my own
reading of the District Court's judgment, which was not made available, has a
persuasive effect.
It points to situations when the State may be left with no
option besides having to litigate to ensure that the courts determine, in limine
litis, the scope of the foreign sovereign's immunity. It can be driven to such
a possibility by the courts failure or delay in playing their part as clearly
spelt out in Barker McCormac (Pvt) Ltd v Government of Kenya 1983 (1) ZLR 137
(HC) and “Curamaswamy”, officially cited as 'Difference Relating to Immunity
from Legal Process of a Special Rapporteur of the Commission on Human Rights,
Advisory Opinion, I.C.J. Reports 1999. P. 62.'
In this case, the Food and Agriculture Organisation wrote
to the Registrar of this court when an application to register the judgment of
the Labour court was made. It seems this was not brought to the attention of
the court which registered the order. While the Registrar had the letter, an
application for a writ of execution was made and granted. The Sheriff was
thereafter informed of the immunity to which he responded to the effect that he
would proceed with execution if he was not stopped by a court order. The
applicant, being prevailed upon by the Food and Agriculture Organisation, which
had sent it two notices in which it sought the enforcement of its immunity, and
faced by the extreme urgency to protect its reputation, and guard against its
exposure to proceedings against it in terms of customary international law,
made its first application for a provisional order in HC5213/14 which was
granted.
It is my view that a State may, in such circumstances, be
allowed to litigate. Its locus standi being rooted in the danger to which it
will have been exposed.
Counsel for the first respondent submitted that the Food
and Agriculture Organisation should have come to court to enforce its immunity.
Counsel for the applicant submitted that would amount to the
Food and Agriculture Organisation waiving its immunity.
I do not agree.
A litigant who pleads immunity, or the court's lack of
jurisdiction, does not waive his immunity nor clothe the court with the
jurisdiction he says it does not have, but enforces his immunity or stresses
the court's lack of jurisdiction.
I am therefore of the view that subject to international
customary law, and, in appropriate circumstances, a sovereign State or an international
organisation can come to court to enforce its immunity. This view draws support
from the case of Rahimotoola v Nizan of Hyderabad (1958) AC 379 @ 418; (1957) 3
ALL ER 441 @ 461 where LORD DENNING, commenting on the need for sovereign States
to come to court, said;
“It is more in keeping with the dignity of a foreign
sovereign to submit himself to the rule of law than to claim to be above it,
and his independence is better ensured by accepting the decisions of courts of
acknowledged impartiality than by arbitrarily rejecting their jurisdiction.”
In view of the above, I am persuaded that the
applicant has locus standi to file this application.
