PRETORIA - The South African government did not grant diplomatic immunity to Zimbabwe's former first lady Grace Mugabe, but only recognised it after the 2017 assault charge, a lawyer representing the foreign ministry told the Pretoria High Court on Thursday.
Advocate Hilton Epstein SC argued that it was Pretoria had not conferred the diplomatic standing, but that the department of international relations and cooperation had only upheld the fact of existing immunity for then president Robert Mugabe's spouse.
"I submit the following - it is clear this was happening over a short period of time. The department of foreign affairs [international relations] department was dealing with this urgently, the conference [SADC summit] was taking place, heads of state were here and the minister was faced with the complaint and sought advice," said Epstein.
"She sought for advice from the legal advisors. She got advice from the legal advisors. Ultimately there is one factor here, it's not a discretion, it's not an opinion, it's a fact which is whether spousal immunity exists or does not exist."
He said the then international relations and cooperation Minister Maite Nkoana-Mashabane did the right thing by "recognising" Mrs Mugabe's diplomatic immunity.
"The minister recognised it for four reasons but one of them was the right reason, because she actually had it. The minister couldn't take it away by not recognising it," said Epstein.
He said that a false narrative has been spun that Pretoria had conferred diplomatic immunity on Zimbabwe's former first lady.
"They couldn't give her something she already had. Our argument is that the minister could not take away immunity, if she had it. In the Government Gazette the minister said she recognised it. The word confer is not used there," said Epstein.
The Democratic Alliance, together with AfriForum, were before the high court on Thursday, asking it to set aside a decision of the minister of international relations and cooperation to grant Robert Mugabe’s outspoken wife diplomatic immunity in the wake of her alleged physical assault of a young Johannesburg model, Gabriella Engels.
Engels, who opened assault charges against Grace Mugabe in 2017, earlier told African News Agency that she hoped Zimbabwe’s former first lady would be brought back to South Africa to face the charges.
“I hope she does come back to account. I leave everything now in God’s hands and I know that he will get us through everything,” Gabriella spoke to journalists as she walked into the packed courtroom.
Gabriella was accompanied by her mother Debbie Engels, who said she was optimistic that justice would prevail.
“I’m very optimistic. Very, very optimistic. I’m happy that the ball has started rolling and we have a good legal team that is backing us, so we are optimistic that things will go well,” she said.
Civil rights group AfriForum is now representing Gabriella in court.
Head of AfriForum’s private prosecution unit, Advocate Gerrie Nel, told African News Agency the civil rights group was confident that Mugabe's diplomatic immunity would be set aside.
“We are saying the granting of the diplomatic immunity happened as an afterthought. It was after the assault on our client Ms Gabriella Engels. We want to ensure that there is equality before the law, that there are no selective prosecutions, and that people are not sheltered from prosecution because of an afterthought of granting diplomatic immunity,” said Nel.
“We believe that … we are very confident that the diplomatic immunity will be lifted. If that happens, then certainly the NPA must do their duty and that is to ensure that the accused is brought back into the country and that there is a prosecution. Failure of which, we have said this before, we will privately prosecute – if there is no prosecution.”
Robert Mugabe, 94, ruled Zimbabwe from independence in 1980 until he stepped down last year - under immense pressure within his party Zanu PF and the Zimbabwe Defence Forces.