Mugabe was granted immunity by former international relations and co-operation minister Maite Nkoana-Mashabane last year, after Joburg model Gabriella Engels opened a case of assault with intent to do grievous bodily harm against her.
This enabled Mugabe to return to Harare, Zimbabwe, and escape prosecution.
Engels was allegedly assaulted with an extension cord in a Sandton hotel after Mugabe found her in the room with her sons last August.
But on Monday, Judge Bashier Vally set aside the decision, saying it was unlawful and unconstitutional.
“I conclude that Dr Mugabe is not immune from the jurisdiction of our courts and the minister’s decision to ‘recognise’ or ‘confer’ immunity upon her was unconstitutional and unlawful,” read Vally’s judgment.
He said the decision was reviewed and set aside. The minister was also ordered to pay the costs of the application.
AfriForum chief executive Kallie Kriel said the civil rights organisation was elated.
“It means that there will be justice for Miss Gabriella Engels, who is the victim in this case. From the start, we said that diplomatic immunity granted to Mrs Mugabe was unlawful,” Kriel said.
He said Mugabe simply got away for political reasons.
“Now that it has been set aside, we can ensure that there is equality before the law.
“The police will now have to further investigate this and the NPA (National Prosecuting Authority) can then prosecute.
“We also said to Miss Engels that we will assist her. Even if the NPA decides not to prosecute, we will have the ability to go the route of a private prosecution with advocate Gerrie Nel,” Kriel pointed out.
He said there were international treaties that can be relied upon to ensure that Mugabe returns to South Africa to face charges.
“The Mugabes have a house in Sandton that’s worth more than R40million. So, they will have a house that they cannot visit, if she is going to stay away. We are confident that there will be ways to get her (back) into the country.
“If she is confident that she is not guilty, well, she has the same rights as any other accused person. We are happy with the fact that she will be able to give her side of the story and let the law take its course,” Kriel added.
NPA South Gauteng spokesperson Phindi Mjonondwane said they would not comment, as the case was with the police.
National police spokesperson Brigadier Vishnu Naidoo said the police would study the judgment.
“However, with regard to the investigation into the alleged assault of Gabriella Engels, that docket was not closed. Due processes will follow,” Naidoo said.
AfriForum and Engels’s legal representative Willie Spies said the judgment paved the way for the prosecution steps to be instituted against Mugabe.
“AfriForum believes that the NPA should act in this regard, but if not advocate Gerrie Nel and AfriForum’s private prosecution unit are ready to privately prosecute Mugabe,” Spies said.
Minister of International Relations and Co-operation Lindiwe Sisulu said she had noted the judgment, adding that the department would study it and comment later, if necessary.
The DA’s federal council chairperson James Selfe said they took the matter to court, because there was a “very important principle at stake”.
“Nobody is above the law in South Africa,” he added.@smashaba