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[2015] ZAGPPHC 465
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T.A.E.N v E.N (41999/15) [2015] ZAGPPHC 465 (26 June 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE
HIGH
COURT
OF
SOUTH
AFRICA
(GAUTENG
DIVISION,
PRETORIA)
CASE
NO: 41999/15
IN
THE
MATTER BETWEEN
T. A. E.
N.
Applicant
and
E.
N.
Respondent
JUDGMENT
LEGODI J
[1] The issue argued before me is whether this court has jurisdiction
to entertain an application in terms of Rule 43 brought on
an urgent
basis, by Mrs T. A. E.N., a foreign national who is married to the
respondent an Ugandian employed in South Africa allegedly
as a
diplomat serving at the African Development Bank. Their marriage was
concluded on 26 August 2010 at Kampala, Uganda. The applicant
is
asking for maintenance, guardianship of the minor children and other
related reliefs thereto pending finalization of the divorce
proceedings.
[2] The respondent is opposing the application and has raised a point
in limine. That is, this court does not have jurisdiction
to
entertain the application, in particular, that this court does not
have jurisdiction over the respondent as he enjoys immunity
from
civil jurisdiction by the South African Courts.
[3] In his supplementary affidavit the issue is raised as follows:
"2.2 I attach
hereto
as
"EN1"
a
copy
of
my
Passer
which contains
my temporary
resident permit that clearly indicates that
same
i
s
issued and must be read with the Provisions of section 9(1)
of the Act.
2.3
I
also
attach
hereto
as
"EN2' my certificate of identity,
the
reserve
side of
which
a
l
so
indicates
that such certificate
was
i
ssued
in
terms
of
the Act.
2.4
I
also
refer
to
Article
31 of
the
Vienna
Convention
which
states
that
the
Diplomatic
agent
shall
enjoy
civil
immunity
from
the jurisdiction
of
the receiving
sate
(sic),
the
receiving
state
in
this
case
being
South
Africa. These
proceedings
as
brought by the Applicant
do not form part of
any of the
exceptions
as
contained
in
this
article,
therefor
I
submit
that
I
have diplomatic
immunity
from
these
kind
of
proceedings and
that
this Honourable Court
does not have Jurisdiction
to
entertain this application.
2.5
Article 29 of the
same
Vienna Convention further
states
that the person of
a
diplomatic agent shall be inviolable. I submit that
the current application
serves
to
violate
my
status
and
I
am
not
prepared
to
waive
such
status
though institution and defending civil
cases
that enjoy immunity in
terms
of
the
above
2.6
On this premise I make the submission that based on the
provisions of the Act, this
Honourable
Court
does
not
have
the
Jurisdiction
to
hear
this
matter".
[4]
Section 9
of
the
Diplomatic Immunities and Privileges Act 31 of 2001
deals with
the keeping of Register of Persons entitled to immunities or
privileges. It provides as follows:
"9
Register
of persons entitled
to
immunities or
privileges
(1)
The Minister
must
keep
a
register
in
which
there
must
be
registered
the names of all the
persons who enjoy-
(a)
immunity
from
the civil and criminal jurisdiction
of the courts of
the Republic;
or
(b)
immunities and privileges in accordance with the Conventions
or in terms of any agreement contemplated in section
7.
(2)
The Minister must cause
a
complete list of all persons
on the
register to be published
on the
Website
of the Department
of Foreign Affairs, and must cause
the
list
to
be updated
as
frequently
as
may be
necessary, and made
publicly available.
(3)
If
any
question
arises
as
to
whether
or
not
any
person
enjoys
any
immunity
or privilege
under
this
Act
or
the
Conventions,
a
certificate under the hand
or issued
under
the authority
of the
Director-General stating any fact relating to that question, is prima
facie evidence of that Act".
[5] The section clearly does not deal with conferring of immunities
or privileges,
section 7
of the Act does, and subsection (2) thereof
provides as follows:
"The Minister
may
in
any
particular
case
if
it
is
not
expedient
to
enter
into
an
agreement
as
contemplated in subsection (1) and if the
conferment of immunities and
privileges
is
in
the
interest
of
the
Republic,
confer
such
immunities
and privileges
on
a
person
or organisations
as
may be specified
by the notice in the
Gazette".
[6] What the respondent is suggesting is that he enjoys immunity from
civil jurisdiction of the courts of the Republic of South
Africa and
that such immunities have been conferred on him purportedly by the
Minister. Subsection (3) of
section 9
quoted above is therefore
applicable. For this purpose, the applicant in her replying affidavit
annexed a certificate issued on
the 23 June 2015 by the Department of
International Relations and Cooperation and it reads:
"I,
the
undersigned
Ambassador
NN
Losi-Tutu,
Chief
of
State
Protocol
in
the Department
of
International
Relations
and
Cooperation
and
as
such
duly authorised by the Director-General
of the Department of International
Relations and
Cooperation,
hereby
state
the
following
facts
relating
to
the
status
of
Mr E.N.,
(date
of
birth:
[……….])
who
is
the
holder
of
Passport number
[………]
and diplomatic Id number
[………].
According
to the Department's
records,
Mr N.
as
an
AFDB
(African Development
Bank) diplomat,
enjoys functional immunity
and
privileges in
the
Republic of South Africa
in terms of
Section
9(3)
of
the Diplomatic Immunities and Privileges Act
2001
(Act No.
37
of
2001)".
[Underlining is my own emphasis].
[7] The attorney for the respondent in a way conceded that
"functional immunity" which the respondent enjoys in terms
of the certificate issued in terms of section 9(3), does not confer
immunity from civil jurisdiction of this court, inasmuch as
the
applicant's case of action does not arise from the respondent's
actions in the performance of his duties as senior country
economist
for the African Development Bank.
[8] The attorney for the respondent took a swipe at the reliability
of the certificate in that the passport number recorded in
the
certificate differs from the passport number appearing on annexure
"EN2" to the respondent's supplementary affidavit.
Annexure
"EN2" is "certificate of identity" issued to the
respondent by the Department of International Relations
and
Cooperation. The passport number is indicated as 8008286 expiring on
31 December 2015 whilst on the certificate issued in terms
of section
9(3), the passport number is indicated as […….] and
expiry date is not reflected. However, in both documents,
the
diplomatic identity number is indicated as [……].
[9] In my view, the passport document alone will not indicate the
extent of the immunity or privilege conferred to any person,
but
registration of conferment of any such immunity or privileges enjoyed
by any person, is what gives guidance to the question
whether or not
the respondent enjoys any immunity or privilege.
[10] The document issued in terms in terms of section 9(3) is
prima
facie
evidence of that fact. Therefore, the onus is
on the respondent to show on a balance of probability that such a
certificate
cannot be relied upon and I am not satisfied that the
applicant has succeeded in showing that no reliance can be placed on
the
certificate.
[11] The diplomatic number appearing on the certificate is the same
as the one appearing on annexure "EN2". Different
passport
numbers appearing on these documents bearing the same diplomatic
identity number coupled with the issuing of the certificate
in terms
of section 9(3), in my view, make such difference immaterial.
[12] I do not find it necessary to deal in detail with the provisions
of the Vienna Convention referred to in paragraphs 2.4 and
2.5 of the
respondent's supplementary affidavit quoted in paragraph 3 of this
judgment. It suffices to mention that in paragraph
2.6 of the supplementary affidavit, the respondent seems to be
relying heavily on the provisions of the Act, than on the provisions
of the Convention. In any event, I do not think that Articles 31 and
29 advance the respondent's contention. Article 31 grants
immunity to
diplomatic agent, not only from criminal jurisdiction, but also from
civil and administrative jurisdiction. Diplomatic
agent in terms of
Article 1(e) means the head of the mission. In terms of Article 1 (c)
members of the diplomatic staff are the
members of the staff of the
mission having diplomatic rank.
[13] The question of immunity has arisen in this matter and one is
guided by the legislative framework and in particular section
9 of
the Act. The certificate issued on 23 June 2015 gives clarity as to
the nature and extent of the immunity or privilege granted
to the
respondent. No other immunity or privilege can be inferred from the
facts of the case. A point in
limine
is destined to fail.
[14] I decided to deal with the point in
limine
as I came to the conclusion that the matter is urgent.
Minor children aged 5 and 3 years respectively are involved here.
This court
is the upper guardian of all minors. The last time the
applicant saw her children was on 6 February 2015 and according to
her,
that was when the respondent caused her to leave for Tunisia and
allegedly caused her VISA for a stay in South Africa to be cancelled.
The applicant and the children were to join her in Tunisia during
March 2015. She returned to South Africa on 10 March 2015 and
all
efforts to reconnect with the children upon her return were allegedly
frustrated by the respondent. To date she has not seen
the minor
children and the only contact she made was by phone and every time
she talks to the children they cry, wanting to see
her or enquiring
when she will be returning home. All of this should be of great
concern to this court and irrespective of the
delay by the applicant
since she returned in March 2015, the court must step in to protect
the interests of the two minor children.
The applicant has never
worked and as I said, is asking for maintenance. She is in a foreign
country with no financial resources
and is dependent on the
generosity of other people. It was on all of the above that I found
the matter to be urgent.
[15] Consequently, the point in
limine
is hereby dismissed with costs.
________________
M F
LEGODI
JUDGE
OF THE HIGH COURT
JUDGMENT RESERVED ON: 24 JUNE 2015
For
the
Applicant:
ADV JJ SCHERMAN
Instructed
by:
GEYSER VAN ROOYEN ATTORNEYS
383 Farenden Street Arcadia, PRETORIA
REF: CA GEYSER/ADP/NSE1/001
For
the
Responden
t:
ADV.
Instructed
by:
MB TSHABANGU INC.
Office
404
Ancore
Centre
Robert
Sobukwe
Street Sunnyside,
PRETORIA
REF: MB/c/100413/15
JUDGMENT HANDED DOWN: 26
JUNE 2015