UCHENA J:
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 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 FAO with
which, the Republic of Zimbabwe has existing agreements for the establishment
of The FAO Sub- Regional office for Southern and Eastern Africa. The agreements
granted FAO immunity against legal suits in the national courts of Zimbabwe.
The first respondent was an employee of FAO who despite FAO'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 HC
5213/14 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 HC 3432/14 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 FAO'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 FAO 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 HC 9895/14.”
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. Mrs Wood for the
first respondent strenuously opposed the application, while Mr Machaya 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 Mrs Wood appeared. Mr Machaya who was then the
Deputy Attorney General was out of the Country on business. Mr Kamba for the
second respondent was also out of the country leading to the case being
postponed to 18 February 2015. Mrs Wood for the first respondent submitted that
the applicant had no locus standii to make this application. She submitted that
FAO 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. Mr Machaya in response submitted that the applicant has locus standii
to file this application. He submitted that customary International Law compels
him to act on behalf of FAO with which Zimbabwe entered into Agreements which
granted it immunity from the jurisdiction of Zimbabwean Courts. Mrs Wood also
submitted that the deponent of the applicant's founding affidavit does not have
personal knowledge of the facts she deposed to in that affidavit. Mr Machaya in
response submitted that she clearly has personal knowledge of the facts of this
case.
Founding
Affidavit
Mrs Wood's attack on the founding affidavit
is based on the need for the deponent to have personal knowledge of the
contents of his or her affidavit. The attack on Mrs Zvedi's founding affidavit
must therefore be assessed against the provisions of r 227 (4) (a) of the High
Court Rules 1971, which provides as follows;
“An
affidavit filed with a written application— (a) shall be made by the applicant
or respondent, as the case may be, or by a person who can swear to the facts or
averments set out in therein; and”—
Mrs
Zvedi in her founding affidavit's paras 1 to 3 said;
1.
“I am a legal practitioner of this honourable court, duly sworn and admitted,
and am presently employed as a Chief Law Officer in the Civil Division of the
Attorney General's Office, the legal practitioners of record of the within
named Applicant. I have been duly authorised to depose to this affidavit on
behalf of the applicant as the substantial content of the affidavit relates to
matters of law and procedure which applicant himself has little or no knowledge
of.
2.
The matters of fact which I depose to herein are, save where otherwise
indicated or the context so suggests, within my personal knowledge and belief.
3. I
have acquainted myself with the matters which I refer to herein by perusal of
all relevant files which the Civil Division has in its possession, and also by
personal inquiry with my colleagues who have knowledge of those matters”.
A
reading of these three paragraphs reveals that the deponent has three sources
of knowledge which entitles her to depose to the affidavit, her legal training
and experience, personal knowledge and knowledge acquired from reading files
held by Civil Division and inquiries held with colleagues. Rule 227 (4) (a) of
the High Court Rules 1971 simply requires the deponent to be the applicant or
respondent “or a person who can swear to the facts or averments set out in
therein.”
All Mrs Zvedi had to do to qualify was to
read files held at Civil Division on the facts relating to the FAO Agreements
and the applicable law. She then could fill in that with inquiries with
officers who had previously dealt with such cases. Armed with that information
she had every right to depose the founding affidavit. I therefore find no merit
in Mrs Wood's challenge to her capacity to depose to the founding affidavit.
There is no doubt that apart from establishing the existence of the Agreements
the rest depends on the history of the case which has been handled by Civil
Division and the law which Mrs Zvedi is expected to know or ascertain as she
said she did.
Locus
Standi
Mrs Wood for the respondent submitted that
FAO 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 standii to file this application. Mr Machaya for the applicant relying on
customary international law submitted that FAO need not have personally
participated to enforce its immunity, as the applicant has locus standii 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 (as he then was) while considering a chamber
application realised the existence of possible sovereign immunity and referred
the case for hearing. WADDINGTON J (as he then was), 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 on3,4, 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 (as he then was) at pages 141 C to 142 F 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.”(emphasis added)
It
is therefore clear that the two judges who first dealt with the Barker McCormac
case (supra) 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 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 organisation which has been clothed with immunity is not
improperly sued in our courts. GEORGES JA (as he then was) at p 82 F-H 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.” (emphasis added)
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 FAO's letter to him, to the court's attention it should from there
on have mero motu inquired into whether or not FAO had immunity in this case.
Mr Machaya 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 standii. He submitted that
the Government of Zimbabwe, has a duty to ensure that FAO'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 ps 86 to 88
paras 59, 60, 61, 62 and 63, which Mr Machaya 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 p 86, para
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 authorise 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 p 87 para60, 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 p 87 para 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”.
Mr Machaya 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 standii to make this application on behalf of FAO.
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 p 87, para 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 FAO supplied.
That anxiety might as an extreme possibility, justify its having to come to
court as a party to litigate on behalf of FAO. I appreciate that after the
court's failure to act appropriately when FAO wrote to the Registrar, and again
after applicant's earlier application in HC 5213/14, the State must have been
very anxious that it could be exposed to proceedings referred to in para 61.
That however does not change the nature of its obligation to inform the courts,
in terms of para 62 to one of litigating for FAO. 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 FAO was clothed with immunity.
I must also comment on what the Internal
Court of Justice said on p 88 para63, 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.”
Mr Machaya said if the State had not
applied to stop the execution of the garnishee order as it did, it would have
left its self, open to proceedings as FAO 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 Mr Machaya. 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,
were 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 send 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. 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 ps 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 anon appearing international legal person before the
domestic courts as a common and established practice of the State.”
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 Bakker McCormac (supra) and Curamaswamy (supra).
In this case FAO 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 FAO which had send 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 HC 5213/14 which was granted. It is my
view that a State may in such circumstances be allowed to litigate. Its locus
standii being rooted in the danger to which it will have been exposed.
Mrs Wood submitted that FAO should have
come to court to enforce its immunity. Mr Machaya submitted that would amount
to FAO 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 standii to file this application.
Mrs Wood, prompted by the applicant's
application to amend the order sought submitted that a litigant who is not a
holder of the right in issue has no locus standii, to apply for a declaratory
order. This will, if, necessary be dealt with when I consider the applicant's
application for the amendment. Even if a finding that applicant does not have
locus standii, were to be made, that does not mean that I have to for that
reason, dismiss this application as I have a duty to mero motu determine FAO's
immunity, in limine litis, as was done in the first Barker McCormac case
(supra).The issue of immunity is already before me. I must determine it on the
facts and law which has already been placed and argued before me.
The
Status of the FAO Agreements
Mrs Wood for the respondent submitted that
even if the applicant could come to court to enforce FAO's immunity it was not
entitled to do so in this case because the Agreements between Zimbabwe and FAO
are not yet binding on Zimbabwe as they do not have the force of Law as they
have not yet been domesticated. Mr Machaya for the applicant submitted that an
Agreement becomes binding on being approved by Parliament and can be enforced
before its domestication by being incorporated into Zimbabwean law. He further
submitted that such agreements are binding in terms of, customary International
law which was made part of our law by s 326 of the Constitution. Section 326 of
the Constitution provides as follows;
“(1) Customary international law is part of
the law of Zimbabwe, unless it is inconsistent with this Constitution or an Act
of Parliament.
(2) When interpreting legislation, every
court and tribunal must adopt any reasonable interpretation of the legislation
that is consistent with customary international law applicable in Zimbabwe, in
preference to an alternative interpretation inconsistent with that law.”
Section 326 (1) clearly states that
customary international law is part of the law of Zimbabwe. It can only be
excluded if it is not consistent with the Constitution or an Act of Parliament.
Subsection (2) is important as it requires courts to reasonably, interpret local
statutes with an inclination towards making them consistent with customary
international law as opposed to in a manner inconsistent with customary
international law.”
A reading of s 326 of the Constitution
together with the courts' dicta in the three Barker McCormac cases, confirms
that customary international law is part of our law. What remains to be
determined is whether or not FAO's Agreements with the Republic of Zimbabwe had
become binding and enforceable at the time these proceedings were
instituted.
Mr Machaya relied on the interpretation of
s 327 (2) (a) of the Constitution to prove that they had become binding at the
time these proceedings were instituted. Mrs Wood relied on the same section but
inseparably including subs (2) (b) for her submission that the Agreements could
only become binding on Zimbabwe when they were domesticated. She further
submitted that at the time of the applicant's application FAO had not been
granted immunity in terms of s 7 of The Privileges and Immunities Act [Chapter
3:03] which only granted FAO immunity through the Government Gazette of 25
January 2015. On the other hand Mr Machaya submitted that FAO's Agreements with
the Republic of Zimbabwe became binding on Zimbabwe on 23 July 1996 when the
Parliament of Zimbabwe approved them.
A literal interpretation of s327 (2) (a)
and (b) of the Constitution, as well as an interpretation required by s 326 (2)
supports Mr Machaya's submission. Section 327 (2) (a) and (b) of the
Constitution provides as follows;
“An international treaty which has been
concluded or executed by the President or under the President's authority— (a)
does not bind Zimbabwe until it has been approved by Parliament; and (b) does
not form part of the law of Zimbabwe unless it has been incorporated into the
law through an Act of Parliament---------”
Section 327 (2) (a) of the Constitution,
can only mean that the agreement by the President or under his authority becomes
binding on its being approved by Parliament. It need not be domesticated for it
to be binding on Zimbabwe. The only impediment to its attaining binding status
is its approval by Parliament. Mrs Wood's attempt to link the Agreements'
binding effect after their approval by Parliament to the domestication of the
law by incorporation through an Act of Parliament is a result of inseparably
linking s 327 (2) (a) and (b) which is not consistent with the literal meaning
of the words used and has the effect of excluding customary international law
contrary to the provisions of s 326 (2) of the Constitution. Section 327 (2)
(a) standing alone gives the Agreements a binding effect even if they have not
yet been incorporated into Zimbabwean law. Mrs Wood submitted that the
Agreements could not be enforced before their being partly domesticated by the
Government Gazette of 25 January 2015. That cannot be a correct statement of
the law as it suggests that courts can only enforce laws. Courts can enforce
agreements and laws. Mr Machaya was therefore correct when he said FAO's
Agreements became enforceable on 23 July 1996 when they were approved by
Parliament. I therefore find that the agreements became binding on Zimbabwe on
23 July 1996. This case does not therefore only, depend on the Privileges and
Immunities Act which granted FAO immunity on 25 January 2015. The issue of
immunity was determinable from 23 July 1996 when the Agreements became binding
on Zimbabwe.
The Immunity
This case stands or falls on whether or not
FAO 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 s 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. Mr Machaya for the applicant submitted that FAO enjoys absolute
immunity. Mrs Wood for the respondent submitted that FAO 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) at p 79 G-H Georges JA (as he then
was), 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 at ps 31 D to32 A 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 world- wide 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.” (Emphasis added)
The ICRC case (supra) 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 case (supra). 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 (supra), is therefore
binding on this Court and must be followed. A finding that FAO 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 FAO had absolute
immunity should be dismissed.
2 The applicant shall pay the respondents
costs.
Attorney General's Civil Division, legal
practitioners for the applicant Messers Ventuirus & Samukange, first
respondent's legal practitioners Second Respondent Represented by Mr Kamba from
Its Legal Department
