This is an application for condonation for the late filing
of an appeal against a decision of the High Court in Case No. HC232/15,
dismissing an application for the stay of execution of a garnishee order issued
in Case No. HC 9895/14 on 31 December 2014.
The decision appealed against was handed down on 11 March
2015.
The applicant, the Minister of Home Affairs, filed his
initial notice of appeal timeously on 16 March 2015. However, at the hearing of
the matter on 24 November 2015, his counsel noted a fatal defect in the
notice of appeal relative to the failure to appeal against the whole judgment
of the court a quo. The appeal was accordingly struck off the roll by consent,
with the Court indicating that the matter would be heard by a full panel of
five judges as and when the matter was set down for re-hearing. Thereafter, for
various reasons connected with the administration of the applicant's legal
practitioners, the present chamber application was only filed on 22 January
2016.
The first respondent, a former employee of the Food and
Agriculture Organisation (the FAO), is opposed to the grant of condonation. The
second respondent, the Standard Chartered Bank, has indicated, through its
counsel that it will abide by the decision of the Court.
The first issue to consider is the explanation proffered by
the applicant for the delay in filing this application.
The explanation given, as set out in the applicant's
founding and answering affidavits, is not entirely satisfactory, particularly
as to why the draft chamber application was left pending in the Attorney-General's
Office for almost six weeks and then for a further ten days or more after the
officer handling the matter returned from vacation leave. Be that as it may, I
do not consider the length of the delay to be inordinate in light of the fact
that it ran concurrently with the Christmas vacation of approximately six weeks
duration.
As regards the first respondent's objection to the
applicant's locus standi in relation to the relief that he seeks, it is clear
that the draft order, insofar as it pertains to the stay of execution of the
garnishee order issued by the High Court on 31 December 2014, has
been overtaken by events, to wit, by the fact that the second respondent has
already paid out the amount payable to the first respondent in terms of the
garnishee order. The only viable relief that remains is the declaratur
affirming the immunity of the Food and Agriculture Organisation from every form
of legal process and from execution.
While I accept that the Food and Agriculture Organisation
is not a party to these proceedings, notwithstanding that it probably enjoys
full legal personality and capacity to sue in Municipal Courts, I cannot
discount the right of the host State to take up cudgels on behalf of foreign States
and international organisations that are located in the host country in terms
of international agreements and domestic statutory arrangements.
I accordingly take the view that the applicant has
sufficient legal interest and locus standi in the present matter.
As regards the merits of the matter, the common law and
constitutional position before the advent of the new Constitution, in May 2013,
was fairly clear. Any treaty, convention or international agreement executed by
the Government could only be binding after approval by Parliament and would not
form part of the Municipal law unless it was domesticated by incorporation or
transformation. International custom enjoyed even less cognisance and could
only be domestically applied to the extent that it was not inconsistent with
statute or judicial precedent. However, the present Constitution has
significantly modified this position. In terms of section 326(2) of the
Constitution, the courts are enjoined to interpret legislation in a manner that
is consistent with international customary law. In similar vein, section 327(6)
requires the adoption of an interpretation that is consistent with any treaty
or convention that is binding on Zimbabwe.
It is common cause that the Food and Agriculture
Organisation Headquarters Agreement with the Government as well as the
Convention on the Privileges and Immunities of Specialised Agencies of the
United Nations are both binding on Zimbabwe. Both instruments embody elements
of international customary norms on immunity and both confer upon the Food and
Agriculture Organisation complete immunity from suit, legal process and
execution. This must, in my view, carry significant implications for the scope
and application of the immunities that are accorded to the Food and Agriculture
Organisation and other similar bodies not only under the Privileges and
Immunities Act [Chapter 3:03] and other related legislation but also under the
common law.
In the final analysis, I am satisfied that the applicant
has a strong case to argue on appeal, even if his prospects of success are not
entirely unassailable. Moreover, I take heed of the fact that the outcome of
the appeal is a matter of significant importance not only for the Specialised
Agencies of the United Nations but also from the perspective of developing our
jurisprudence on the subject under consideration. I also note that at the
aborted hearing of this matter, on 24 November 2015, this Court had
provisionally agreed to it being ventilated before a full bench of five judges.
As for costs, the applicant has agreed to tender the costs
of this application on a party to party scale. The application is accordingly
granted in terms of the draft order as amended as follows:
1. The delay by the applicant in filing his notice of
appeal in time be and is hereby condoned.
2. The applicant be and is hereby granted an extension of
time in which to appeal.
3. The applicant shall file his notice of appeal within 5
days from the date of this order.
4. The applicant shall bear the costs of this
application on the ordinary scale.
