Grace Mugabe. Picture: SUPPLIED
Grace Mugabe. Picture: SUPPLIED

Former Zimbabwean First Lady Grace Mugabe can no longer use diplomatic immunity as protection from possible prosecution for assault, following a High Court judgment which set aside immunity granted to her last year.

But that does not mean she will face charges related to her alleged "extension cord attack" on 20-year-old model Gabriella Engels any time soon – as the National Prosecuting Authority (NPA) says it’s yet to decide whether Mugabe  has a case to answer.

"We have actually not seen the docket in this case, so we have no way of knowing what the evidence (against Grace Mugabe) actually is," NPA spokesperson Phindi Mjonondwane told Business Day.

"As a result, we have not even made a decision about whether she should be prosecuted. It’s only when we have the docket that we can make that decision."

She referred all further queries to the police.

National Police spokesperson Brigadier Vishnu Naidoo confirmed that the Engels investigation docket was still open and "due processes will follow".

Th High Court in Johannesburg on Monday found that the decision to give Mugabe immunity after she allegedly assaulted an SA citizen, was "unconstitutional and unlawful" and set the decision aside. Two separate applications were brought by the DA and AfriForum.

James Selfe, chairman of the DA’s federal council, has been unambiguous on the matter and said an arrest warrant must be issued following the judgment.

Mugabe was protected from prosecution after she allegedly assaulted Gabriella Engels with an electrical cord in a Sandton hotel, after diplomatic immunity was invoked by Zimbabwe. Her immunity was then recognised by former International Relations and Cooperation minister Maite Nkoana-Mashabane.

The department on Monday said it was studying the judgment. Naidoo said the same.

Naidoo added that the Grace Mugabe docket would now follow due processes.

In his judgment in Monday, Judge Bashier Vally said even former president Robert Mugabe would not have been immune from prosecution in terms of the Foreign States Immunity Act.

The act makes it clear that foreign states’ immunity did not extend to proceedings in SA relating to the death or injury of a person.

Vally said that even if Grace Mugabe at the time had "derivative immunity" by being the spouse of Zimbabwe’s former president, she would not have been covered as the primary immunity did not exist.

In a letter signed by Dirco’s director-general to the the acting police commissioner informing him of the decision, it is stated that Nkoana-Mashabane had conferred immunity on Mugabe, and that it allowed for her to do so if it was "in the interest of the Republic.

Vally said he did not believe the issue of setting the decision aside was moot as an administrative decision was in effect until it was set aside by a court.

The judge said Nkoana-Mashabane’s decision to "recognise immunity" was an error in law that was "fundamental and fatal".

Selfe, reacting to the judgment,said it was a great day for the rule of law "and shows that nobody is above in the law".

"In just the same way the South African government did in the [Omar]  al-Bashir  matter, the South African government chose to put the politics of expediency above the rule of law," Selfe said.

Selfe said a warrant of arrest must be reissued for Mugabe, and that the DA expected government to work with all relevant stakeholders to ensure that she returns to SA and has her day in court to answer for her actions.

Willie Spies, AfriForum’s attorney, said if the minister, who is now Lindiwe Sisulu, did not appeal against the judgment, the immunity was set aside and the door was open for Mugabe to be prosecuted.

He said if the NPA  decided not to prosecute, Afriforum would look at privately prosecuting her.