The matter opened at the Pretoria High Court yesterday with Gabriella’s lawyers arguing that Grace’s immunity was granted illegally.
Grace last year caused a storm after she reportedly assaulted Gabriella after finding her partying with her two sons Robert Jnr and Bellarmine Chatunga in a hotel room.
The former First Lady was granted diplomatic immunity by then South African International Relations minister Maite Nkoana-Mashabane sparking outrage with the opposition Democratic Alliance (DA) approaching the courts to have the decision reversed.
Two rights groups, AfriForum and the South African Commission for Gender Equality have joined in the proceedings as friends of the court, arguing Nkoana-Mashabane’s decision was illegal.
But the Pretoria High Court was reportedly in a legal dilemma given that Robert Mugabe is no longer leader of Zimbabwe.
Judge Basheer Waglay asked whether the case was not moot (irrelevant) as Mugabe no longer qualified for diplomatic immunity. The DA‚ which launched the application‚ disagreed. It also argued that a decision‚ such as that taken by the minister granting diplomatic immunity‚ was binding in law until set aside by a court.
Engels and AfriForum’s lawyer‚ Etienne Labuschagne SC‚ said the model’s rights were not considered when the immunity was granted.
Labuschagne said Engels sought the court to declare that she was not barred from pursuing a private prosecution against Grace.
“The question of whether Grace Mugabe enjoys immunity is a live issue. The question of immunity should not be a live question before that court. Mootness‚ as far as Engels is concerned‚ is totally absent‚” Labuschagne said, adding the minister’s decision should be set aside.
He said immunity was granted after the assault‚ and the kind of immunity the minister granted to Mugabe could not be conferred retrospectively.
“What happened is that the assault took place on August 13. A week later‚ the minister granted Grace immunity from prosecution‚” he said.
Anton Katz SC‚ for the DA‚ said granting diplomatic immunity for the entourage accompanying a Head of State remained an uncertain matter.
“The Constitution obliges the State to respect‚ protect‚ promote‚ and fulfil the rights in the Bill of Rights and when interpreted in light of international law‚ that obliges the State to take reasonable steps to protect women from violence. Granting the immunity to Grace violates this obligation‚” the Legal Resources Centre and the commission said in a statement ahead of yesterday’s court hearing.”
The commission further argued that as a spouse of a Head of State Grace did not qualify for immunity and Nkoana-Mashabane’s decision violated several of Engels’ rights.
Engels‚ it was argued, as a woman‚ forms part of a particularly vulnerable group of society and the South African government was off-side by seeking to entrench existing patriarchal tendencies “by unlawfully protecting someone who has been accused of violating and abusing a woman”.
The hearing continues today.