Does Grace Mugabe have diplomatic immunity or not? Experts weigh in
'Nations won't prosecute family members of heads of state because of the PR outcome. Prosecuting would result in a cascade of political problems'
Zimbabwe first lady Grace Mugabe still hopes for diplomatic immunity as pressure grows for her to be charged with assault.
Legal and professional opinion agreed on the irregularity of Mugabe's claims for diplomatic immunity on an assault charge.
Former state prosecutor Gerrie Nel and lobby group AfriForum stepped in to support the complainant, 20-year-old model Gabriella Engels, and her family.
Nel, who heads AfriForum's private prosecution wing, said he would take Engels's case if the National Prosecuting Authority did not.
AfriForum CEO Kallie Kriel said Mugabe offered Engels to "come up with a figure" to make the case go away.
Police confirmed on Wednesday that the Zimbabwean government indicated it wanted to invoke diplomatic immunity.
Police spokesman Brigadier Vishnu Naidoo said: "The investigations have been finalised, but we have received a Note Verbal indicating that the suspect in this case has made an application to invoke diplomatic immunity."
On Thursday Police Minister Fikile Mbalula said she hadn't been arrested due to her status.
Hennie Strydom, a University of Johannesburg international law expert, said the law on diplomatic immunity was "clear. Simply, she isn't covered by diplomatic immunity."
Phephelaphi Dube, director of the Centre for Constitutional Rights, said: "Representatives of the state who are participating in an international conference can also receive immunity for the duration of the stay or meeting. But the agreement or decision to grant immunity must be published in the Government Gazette." Mugabe would not ordinarily enjoy immunity, she said.
She said other international conventions could overrule the South African law's interpretation of diplomatic immunity.
"Nonetheless, there is a discrepancy between the Vienna Conventions [dealing with immunity of diplomats] and the Diplomatic Immunities Privileges Act," she said. "So arguably, had South Africa intended for spouses of heads of state to be covered by immunity similar to that of heads of state, then the Diplomatic Immunities and Privileges Act would have carried such a provision. As such, we are of the view that the Diplomatic Immunities and Privileges Act will still apply."
Grace Mugabe managed to evade arrest and prosecution in Hong Kong after a similar incident in 2009 when she was granted immunity.
Justin Papka, who wrote an academic paper examining the 2009 incident in detail, published by the University of Kent in the UK, argued that diplomatic immunity traditionally granted to heads of state could be extended to their spouses under international common law.
On Thursday he told The Times: "Nations won't prosecute family members of heads of state because of the PR outcome. Prosecuting would result in a cascade of political problems." He said the claims for diplomatic immunity would only apply "if South Africa accepts that they will apply".