The Immunity
This case stands or falls on whether or not the Food and
Agriculture Organisation has the immunity claimed by the applicant.
The issue of immunity is determined by our customary
international law.
The customary international law referred to in section
326(1) of the Constitution is the customary international law developed from
how nations of ...
The Immunity
This case stands or falls on whether or not the Food and
Agriculture Organisation has the immunity claimed by the applicant.
The issue of immunity is determined by our customary
international law.
The customary international law referred to in section
326(1) of the Constitution is the customary international law developed from
how nations of the world related with each other over the years in terms of
conventions and treaties which have become binding on participating nations.
Counsel for the applicant submitted that the Food and
Agriculture Organisation enjoys absolute immunity. Counsel for the first
respondent submitted that the Food and Agriculture Organisation, like all nations
and international organisations, only enjoys restricted immunity.
Absolute immunity protects the claimant from all suits
before the national courts of the host country. Restricted immunity, on the
other hand, only protects the claimant against suits based on acts jure
imperii. This means courts of the host nation have jurisdiction to hear the
guest nations' or international organisations' cases based on acts jure
gestionis. Acts jure imperii are, for example, Governmental public activities
such as the legislative or international transactions of a foreign Government,
while acts jure gestionis, are commercial activities by a foreign sovereign or
international organisation of a private law nature.
In the case of Barker McComarc (Pvt) Ltd v Government of
Kenya 1983 (2) ZLR 72 (SC)…, GEORGES JA…, after analysing cases from several
jurisdictions, said;
“I am completely satisfied, therefore, that the doctrine of
sovereign immunity generally applied in international law is that of
restrictive immunity. There are no decisions of courts of this country and no
legislation inconsistent with that doctrine and it should be incorporated as
part of our law.”
He, as a result, upheld the appeal allowing the appellant
to serve the Government of Kenya by substituted service.
The Supreme Court maintained the same position in the case
of ICRC v Sibanda & Anor 2004 (1) ZLR 27 (SC) where…, SANDURA JA said;
“It is, therefore, clear that the doctrine of sovereign
immunity applicable in this country is that of restrictive immunity as opposed
to absolute immunity. In other words, a foreign sovereign would enjoy immunity
from suit and legal process where the relevant act which forms the basis of the
claim is an act 'jure imperii' i.e. a sovereign or public act. On the other
hand, he would not enjoy such immunity if the act which forms the basis of the
claim is an act 'jure gestionis', i.e. an act of 'a private law character such
as a private citizen might have entered into.'
The position in South Africa is the same.
It was stated by CORBET CJ in Shiping Corporation of India
Ltd v Evdomon Corporation & Anor 1994 SA 550 (A) at 565 A-B as
follows;
'The legal position in this country regarding the doctrine
of sovereign immunity was carefully and comprehensively surveyed by the Full
Bench of the Transval Provincial Division in the case of Inter-Science Research
and Development Services (Pty) Ltd v Republica Popular de Mocambique (1980) (2)
SA 111 (supra). As this survey shows, South African Courts initially applied
the doctrine of absolute immunity, but in the Inter-Science case the court…,
decided to follow the worldwide trend and to apply the restrictive doctrine.'
In my view, an international organisation, such as the
ICRC, enjoys immunity from suit and legal process subject to the provisions of
international law and the doctrine of restrictive immunity applies to it. It
could hardly have been the intention of the legislature to grant absolute
immunity from suit and legal process to such an organisation when a foreign
sovereign did not enjoy such immunity.”…,.
The ICRC v Sibanda & Anor 2004 (1) ZLR 27 (SC) case
involved a labour dispute been an international organisation and its employees.
This case also involves a labour dispute between an international organisation
and its employee. It is therefore on all fours with the ICRC v Sibanda &
Anor 2004 (1) ZLR 27 (SC) case. The Supreme Court held that an international
organisation only enjoys restrictive immunity, and, therefore, does not have
immunity in cases of a labour nature such as the one before me.
The Supreme Court's decision in ICRC v Sibanda & Anor
2004 (1) ZLR 27 (SC) is, therefore, binding on this Court and must be followed.
A finding that the Food and Agriculture Organisation, like
all foreign sovereign States and other international organisations, only enjoys
restrictive immunity which does not include immunity against labour suits,
means the applicant's application for a provisional order cannot be granted.
In the result, I order that;
1. The applicant's application for a provisional order,
being based on an erroneous assumption that the Food and Agriculture
Organisation had absolute immunity, should be dismissed.
2. The applicant shall pay the respondents
costs.
