Grace Mu­gabe’s pros­e­cu­tion im­mu­nity an abuse of law – DA lawyer

Weekend Argus (Saturday Edition) - - NEWS - BALD­WIN NDABA

THE de­ci­sion by for­mer in­ter­na­tional re­la­tions and co-op­er­a­tion min­is­ter Maite Nkoana-Masha­bane to grant for­mer Zim­bab­wean first lady Grace Mu­gabe im­mu­nity against pros­e­cu­tion was an abuse of law.

Nkoana- Masha­bane made a de­ci­sion which was legally and or­di­nar­ily sup­posed to be made by judges in South African courts.

This was the hard-hit­ting ar­gu­ment of DA’s le­gal coun­sel ad­vo­cate An­ton Katz SC, dur­ing the sec­ond day of the hear­ing of the ap­pli­ca­tion by the DA and AfriFo­rum to set aside the spousal im­mu­nity granted to Mu­gabe on Au­gust 19 last year.

Yes­ter­day, Ad­vo­cate Hil­ton Ep­stein SC – coun­sel for the Depart­ment of In­ter­na­tional Re­la­tions – told the court Mu­gabe’s im­mu­nity had since ceased to ex­ist be­cause her hus­band, for­mer pres­i­dent Robert Mu­gabe, was re­moved from of­fice last year.

The depart­ment said any le­gal ac­tion based on events which took place in a ho­tel in Sand­ton, Joburg, dur­ing which Grace Mu­gabe al­legedly as­saulted Gabriella En­gels “was moot”.

Mu­gabe al­legedly ac­costed En­gels while she was in the com­pany of Mu­gabe’s teenage sons in the ho­tel and as­saulted her while the sons fled the scene on Au­gust 10, 2017.

En­gels laid crim­i­nal charges against her on the same day, but three days later the Zim­bab­wean Em­bassy ap­proached Nkoana- Masha­bane to in­voke diplo­matic im­mu­nity.

The court ear­lier heard that Nkoana-Masha­bane only “con­ferred the im­mu­nity” six days later af­ter the then-act­ing po­lice com­mis­sioner Lieu­tenant-Gen­eral Le­setja Moth­iba had in­formed her that there was a prima fa­cie case against Mu­gabe, war­rant­ing her pros­e­cu­tion.

At the time of the al­leged at­tack Mu­gabe, orig­i­nally from Benoni in Gaut­eng, was ac­com­pa­ny­ing her hus­band to the SADC sum­mit in the coun­try.

Ac­cord­ing to ev­i­dence heard in court, Nkoana-Masha­bane took a de­ci­sion to grant spousal im­mu­nity to Mu­gabe be­cause the po­lice were on the verge of ar­rest­ing her for as­sault with ag­gra­vat­ing cir­cum­stances.

Nkoana-Masha­bane ap­par­ently told Moth­iba she did not want to strain South Africa’s re­la­tions with Zim­babwe and other African states. She also did not want the SADC sum­mit to col­lapse and de­scend into chaos.

Katz said the min­is­ter’s de­ci­sion “was wrong”.

“The po­lice should have charged Grace Mu­gabe and hauled her be­fore a court of law. It should have then be the re­spon­si­bil­ity of the Zim­bab­wean Em­bassy to ap­proach the court and to in­voke Grace’s spousal im­mu­nity.

“It would then be up to the judges to make a de­ci­sion if Grace had in­deed such an im­mu­nity.

“If the judges find that Grace had qual­i­fied for im­mu­nity, the court would then ap­proach the min­is­ter (of for­eign af­fairs) to con­fer the im­mu­nity,” Katz said.

Ad­vo­cate Eti­enne Labus- chagne, act­ing for AfriFo­rum, also lam­basted the for­mer min­is­ter’s de­ci­sion, say­ing she had acted con­trary to in­ter­na­tional law.

Labuschagne said the For­eign Heads of State Im­mu­nity Act does not grant im­mu­nity against heads of state who have com­mit­ted crim­i­nal acts which caused a death or se­ri­ous in­jury of a per­son.

Like Katz, Labuschagne’s ar­gued the state acted in the in­ter­est of Grace rather than its own cit­i­zen – En­gels – whose rights had been vi­o­lated through the al­leged as­sault.

Judge Bashier Vally re­served judg­ment.

Grace Mu­gabe

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