The Commission for Gender Equality says the move by SA to grant diplomatic immunity to Zimbabwe’s former first lady Grace Mugabe after her alleged assault on a young woman in Johannesburg in 2017 violated the country’s obligation to punish those convicted of violence against women.
The commission was making submissions in the High Court in Pretoria on Thursday in an application brought by the DA and others to set aside the minister’s decision.
The granting of diplomatic immunity to Mugabe meant that the National Prosecuting Authority could not attend to the case opened by Gabriella Engels‚ the woman allegedly assaulted by Mugabe at a hotel in Sandton in August 2017.
AfriForum‚ which is also a party to the application‚ is assisting Engels in launching a private prosecution against Mugabe.
Lerato Zikalala‚ for the commission‚ said the Constitution obliged the state to take reasonable steps to protect women. She said Engels‚ as a woman‚ formed part of a vulnerable group of society. Women were far too often the victims of domestic assault‚ such as the one that was allegedly perpetrated by Mugabe. Zikalala said that SA had assumed international obligations to ensure justice for victims of gender violence‚ to ensure that victims of violence had access to effective remedies and that alleged perpetrators like Mugabe were investigated and prosecuted.
Zikalala said that in line with these international obligations‚ SA should not be protecting alleged perpetrators.
Granting Mugabe diplomatic immunity meant that Engels did not have access to effective remedies, she said.
“This is inconsistent with our international law obligations‚” Zikalala said.
Earlier, counsel for Engels and AfriForum‚ Etienne Labuschagne‚ addressed the court’s concern about whether there was such a thing as spousal diplomatic immunity in international law.
The court questioned whether‚ if such immunity existed‚ it had not lapsed as a result of the changed political and diplomatic circumstances in Zimbabwe‚ as Grace Mugabe was no longer the spouse of a sitting head of state.
Labuschagne said that Engels had asked the court to declare that she was not barred from pursuing a prosecution against Grace Mugabe.
“The question of whether Grace Mugabe enjoys any immunity is a live issue‚” Labuschagne said.
In the criminal proceedings that AfriForum sought to pursue in a private prosecution of Mugabe‚ the issue of whether she had diplomatic immunity should not arise in the prosecution stage, he said.
“The question of immunity should not be a live question before that court.
“Mootness‚ as far as Ms Engels is concerned‚ is totally absent‚” Labuschagne said.
The minister’s decision also fell to be set aside as it was an exercise of power she did not have, he said.
Immunity had been granted after the assault‚ and the kind of immunity the minister granted to Mugabe could not be conferred retrospectively, Labuschagne said.
“What happened is that the assault took place on August 13. A week later‚ the minister granted Dr Mugabe immunity from prosecution‚” he said.
Labuschagne said Engels had rights to have her matter brought to court as her interests were not considered when immunity was granted to her alleged attacker.