Grace Mugabe judgment brings ‘exciting legal scenarios’
It's no certainty that the NPA will prosecute her and South Africa could even see its first ever private international prosecution, a legal strategist says.
Grace Mugabe addresses a church interface rally at Rufaro Stadium in Harare, Zimbabwe, 5 November 2017. Picture: EPA-EFE/AARON UFUMELI
The ball is now in the National Prosecuting Authority’s (NPA) court on whether former Zimbabwean first lady Grace Mugabe would face criminal charges if she were to set foot in SA again – but neither they, nor the department of International Relations (Dirco) could be drawn to comment yesterday.
In a scathing judgment in the High Court in Johannesburg yesterday, last year’s decision by Dirco’s ex-minister Maite Nkoane-Mashabane to grant Mugabe diplomatic immunity from prosecution after being charged for assaulting SA model Gabriella Engels, was described by Judge Shabier Vally as “a fundamental and fatal legal error”.
Grace allegedly assaulted Engels with an extension cord at a Sandton hotel on August 13 2017, leading to Engels suffering facial and mental scars.
In delivering his 33-page judgment, Judge Vally found the minister’s decision to be inconsistent with the constitution and ordered it be reviewed and set aside. The minister was ordered to pay the costs of applicants in both cases, as well as legal fees.
“That the minister has the power to confer immunity on Dr Mugabe is neither doubtful or debatable,” Judge Vally said. “Section 7(2) of Dipa (Diplomatic Immunities and Privileges Act) empowers her to do so. She, however, has to exercise this power in a manner that is constitutional and lawful.
“There is no doubt that after careful and anxious consideration of the matter, she came to the conclusion that it was in the national interest of South Africa that Dr Mugabe be clothed with immunity.
“I conclude that Dr Mugabe is not immune from the jurisdiction of our courts. The minister’s decision to ‘recognise’ or ‘confer’ immunity upon her was unconstitutional and unlawful.”
Richard Chemaly, a legal strategist, said the judgment removes the procedural barrier that is immunity from the equation, but doesn’t compel the NPA to reinstate charges against Mugabe.
“While there may be a moral compulsion for the NPA to charge Grace, there is no explicit legal one,” he said.
He believes however, that failure to reinstate charges could lead to two legally “exciting” scenarios.
“Either the applicants will go to court again to request a ruling that the decision not to prosecute be reviewed and set aside, or we may see SA’s first ever private international prosecution.”
AfriForum CEO Kallie Kriel, whose organisation has been offering legal and counselling support to Engels, said he was “delighted at the judgment”, and confirmed Chemaly’s view.
“She got away because of political reasons. The police and the NPA must now prosecute.
“We have told Gabriella that we will assist her if the NPA decide not to prosecute. We can go the route of private prosecution with advocate Gerrie Nel.”
“This ruling sends a message that nobody is above the law, even if their surname is Mugabe,” said Kriel.
The Mugabes, he said, “have a house in SA, which is worth over R40 million. If she does not come, then she will not visit the house”.
Dirco – now headed by Lindiwe Sisulu – said it would study the judgment and decide on a course of action. The NPA could not be reached for comment.