This was the question posed by Judge Bashir Vally yesterday following applications by the DA and AfriForum asking the court to declare the decision by the State to grant Mugabe spousal immunity as invalid and unlawful.
Yesterday’s court application came after Joburg model Gabriella Engels laid criminal charges of assault against Mugabe.
This, after an assault on her on August 10 in a Sandton hotel. Mugabe allegedly attacked Engels with an electric cord while in the presence of her sons.
The model sustained a serious injury to her forehead.
Due to the serious nature of the charges against Mugabe, the Zimbabwean Embassy in South Africa intervened three days later and asked the then minister of international relations Maite Nkoane-Mashabane to invoke diplomatic immunity for Grace Mugabe.
She was granted immunity on August 19. This irked the DA and later AfriForum.
Yesterday, advocate Anton Katz SC, acting for the DA, argued that there was no state on the continent which granted spousal immunity to wives of heads of state, including the former Zimbabwean president.
Katz said the diplomatic immunity law came into operation in South Africa in February 2002 which entitled heads of state to immunity against criminal and civil jurisdiction. "But no mention was made of spouses and family members.”
He lodged a scathing attack on Nkoana-Mashabane, saying her decision was based on the fact that the attack on Engels happened while South Africa was hosting the SADC summit.
Katz said the former minister had admitted to the former acting police commissioner Lieutenant-General Lesetja Mothiba that she did not want to strain the country's relations with Zimbabwe.
The response came after Mothiba had told the minister that the charges against Mugabe were of a serious nature and warranted prosecution.
According to Katz, Nkoana-Mashabane then told Mothiba that the arrest of Mugabe would cause chaos and the possible collapse of the SADC summit.
Judge Vally wanted to know the status of Mugabe after her husband was dethroned last year. “Does the immunity still exist,” he asked. A lawyer acting for International Relations Hilton Epstein replied he would take instructions from incumbent minister Lindiwe Sisulu.