The Commission for Gender Equality, represented by the Legal Resources Centre, presented submissions as a friend of the court in a matter in which the Democratic Alliance and others are challenging the granting of immunity to former First Lady of Zimbabwe Grace Mugabe, following assault charges being laid against her by Gabriella Engels. The hearing was on 0 and 11 May in the Pretoria High Court.
Can the Minister of International Relations & Cooperation grant a foreign and powerful politician immunity from prosecution and liability after that politician has been accused of assaulting a woman? The Commission for Gender Equality argued that she cannot.
Section 7(2) of the Constitution obliges the State to respect, protect, promote, and fulfil the rights in the Bill of Rights. Moreover, when interpreted in light of international law, that part of the constitution obliges the State to take reasonable steps to protect women from violence. Granting the immunity to Mugabe violates this obligation.
The Commission agrees with the Applicants’ submissions that Mugabe has no immunity as a spouse of a head of state under international law. However, to the extent that the Minister granted her immunity (which Mugabe otherwise would not have had) under s 7(2) of the Act, the decision implicates several of Engels’ rights in the Bill of Rights.
Engels, as a woman, forms part of a particularly vulnerable group of society. Women are far too often the victims of domestic assault, such as the one allegedly perpetrated by Mugabe. The Minister’s decision must be seen in this context. The State should not be reinforcing the patriarchal status quo by unlawfully protecting someone who has been accused of violating and abusing a woman.
South Africa has assumed multiple direct international obligations to ensure justice for victims of gender violence. It is obliged by international law to ensure that victims like Engels have access to effective remedies, and that alleged perpetrators like Mugabe are investigated and prosecuted. Granting Mugabe immunity means that Engels’ cannot seek justice for the violence allegedly done unto her. She has no remedy or avenue for relief. Her claim is no longer justiciable.
This clearly violates South Africa’s obligation to impose penal sanctions on those convicted of violence done to women, and to offer women who are victims of violence access to justice. It contradicts the international commitment to pursue policies which seek to eliminate all forms of violence against women. To have granted a foreign, powerful politician immunity after that politician has been accused of violently assaulting a woman is not a reasonable step to fulfil, respect, protect and promote the rights of women.
Since the end of apartheid in 1994, the South African government has been committed to developing and implementing policies and national legislation with the aim of ensuring that the rights of women are protected from all forms of violence and injustice. The CGE submitted that the Minister’s decision undermines and flouts the commitments made by the State to ensure that South African women are protected against all forms of violence.
Furthermore, the CGE argued that the Minister’s powers under section 7(2) of the Act, which enables her to grant immunity, may only be exercised “if the conferment of immunities and privileges is in the interests of the Republic.” The Commission argued that the jurisdictional fact was not met when the Minister made the decision.
What is in the interests of the Republic can only be determined with reference to the Constitution and to South Africa’s obligations in international law. It can never be in the interests of South Africa to violate the Constitution, or to act contrary to its international commitments.
But this is exactly what the Minister’s decision does: it violates her obligation, as a member of State, to respect, protect, promote and fulfil the rights in the Bill of Rights and it flouts the international law obligations which South Africa has expressly committed itself to. The CGE accordingly supported the applicant’s argument to have the decision declared inconsistent with the Constitution and set aside.
The Commission for Gender Equality was represented by Adv Lerato Zikalala at the hearing.