By Riaan de Jager

In a previous article, I examined the purpose of immunity, the difference between state immunity and diplomatic immunity, identified the different types of immunity, as well as the implications of each (see Riaan de Jager ‘Diplomatic immunity: Its nature, effects and implications’ 2018 (July) DR 26). In this article, I will explore the circumstances under which a plaintiff could institute legal proceedings against a defendant who enjoys immunity in terms of customary international law and the Diplomatic Immunities and Privileges Act 37 of 2001 (the Act). In addition, I will highlight the issues that need to be taken into consideration when a plaintiff is considering the possibility of launching proceedings against a defendant who enjoys immunity. Lastly, I will propose a process that could be followed in this respect.

The most important fact to be determined is what the defendant’s status is and whether they enjoy jurisdictional immunity. This information is essential to prevent anyone from falling foul of s 15(1) of the Act. Clarity could be obtained from the Directorate: Diplomatic Immunities and Privileges of the Department of International Relations and Cooperation (DIRCO) by way of a certificate issued by the Chief of State Protocol in terms of s 9(2) of the Act (De Jager (op cit)).

Residual immunity

When considering the question of immunity, a distinction should be made between acts performed as part of official duties and private actions. As indicated before, diplomatic agents and consular officers enjoy jurisdictional immunity in respect of acts or omissions performed in the course of their official functions for an unlimited period (De Jager (op cit)). In respect of acts or omissions performed outside their official functions, they enjoy immunity for the duration of their mission only, so-called ‘residual immunity’. Diplomats with residual immunity can thus be sued in our courts after they have completed their term at the mission.

One of the potential impediments a plaintiff will, however, encounter is that the respondent would most likely have left South Africa (SA) at the end of their tour of duty. Under these circumstances, they will have to be located abroad to enable service of process to be effected on them by way of edictal citation. Another issue that could potentially hamper a plaintiff’s claim is extinctive prescription, especially if the debt arose quite early in the respondent’s official term in SA, as such tours are usually for a three- or four-year period. In this article, I will further refer to the waiver of immunity by the sending State, a matter, which could also frustrate a plaintiff seeking redress.

Exceptions in terms of art 31(1) of the Vienna Convention on Diplomatic Relations

The Vienna Convention on Diplomatic Relations of 1961 has the force of law in SA pursuant to s 2(1) of the Act. Article 31(1) of the Vienna Convention on Diplomatic Relations confers jurisdictional immunity on currently serving diplomatic agents in respect of both private and official acts, except for three designated categories of private acts, namely –

‘(a) [a] real action relating to private immovable property situated in the territory of the receiving State, unless [the diplomat] holds it on behalf of the sending State for the purposes of the mission;

(b) [a]n action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State; [and]

(c) [a]n action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.’

Although art 31(1)(c) is of particular importance for purposes of this article, I should mention that the High Court had an opportunity to consider the exception referred to in art 31(1)(a) in Portion 20 of Plot 15 Athol (Pty) Ltd v Rodrigues 2001 (1) SA 1285 (W) (at 1296 C – E). In that particular case it was held that the Angolan Ambassador did not enjoy jurisdictional immunity while in his post. He had been sued for damages for having failed to pay the purchase price for a residence he had bought in his personal capacity.

The exception contained in art 31(1)(c) will apply if two conditions are satisfied that –

• the action relates to a ‘professional or commercial activity exercised by the diplomatic agent’; and
• the exercise of that activity was ‘outside his official functions’.

If the relevant acts were within the scope of the diplomat’s official functions, the inquiry ends there. The diplomat is immune from the court’s jurisdiction and will also retain immunity in respect of these acts even after their posting comes to an end. But, if they are still in the post and the relevant activity is outside their official functions, the operation of the exception will depend on whether it amounts to a professional or commercial activity that they have exercised (Reyes v Al-Malki and Another [2017] UKSC 61 at para 19).

To determine what are a diplomat’s official functions, one should start by looking at the functions of the mission to which they are attached. These are defined in art 3 of the Vienna Convention on Diplomatic Relations, but also extends to a wide variety of incidental functions that are necessary for the performance of the general functions of the mission – in sum, these are all his official functions that are performed for or on behalf of the sending State (Wokuri v Kassam [2012] ICR 1283, at paras 23 – 26; Abusabib v Taddese [2013] ICR 603 at paras 29 – 34; Baoanan v Baja 627 F Supp 2d 155 (2009) at paras 3 – 5; Swarna v Al-Awadi 622 F 3d 123 (2010) at paras 4 – 10).

If the relevant activity was outside the diplomatic agent’s official functions, the next question is whether he has exercised a ‘professional or commercial activity’. The Supreme Court of the United Kingdom in the Reyes case at para 21, inter alia, highlighted the following in this regard –

• an activity is not the same as an act. Article 31(1)(c) is concerned with the carrying on of a professional or commercial activity having some continuity and duration;
• the word ‘exercise’ of a ‘professional or commercial activity’ means practising the profession or carrying on the business – the defendant must, so to speak, set up shop;
• this is confirmed by art 42 of the Vienna
  Convention on Diplomatic Relations, which provides that a diplomatic agent ‘shall not in the receiving state practise for personal profit any professional or commercial activity’; and
• it is not inherent in that concept that the immunity ‘will enable him to exercise a distinct business activity in competition with others while sheltering him from the modes of enforcing the corresponding liabilities which are an ordinary incident of such an activity’.

Foreign courts and tribunals

Superior courts of the United States and the United Kingdom have held that the expression ‘commercial activity’ relates only to trade or business activity engaged in for personal profit. Day-to-day living services incidental to daily life were also held to fall within a diplomatic agent’s official functions – these acts are thus excluded from the exception (Tabion v Mufti (1996) 107 ILR 452 at 454 – 456; Gonzales Paredes v Vila and Nielsen 479 F Supp 2d 187 (2007), Sabbithi v Al Saleh 605 F Supp 2d 122 (2009); Montuya v Chedid 779 F Supp 2d 60 (2011); Fun v Pulgar 993 F Supp 2d 470 (2014); Reyes at para 23).

This principle is also endorsed by Eileen Denza Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, 4ed (Oxford University Press, 2016) at 251 – 253.

It is noted as well that the Republic of SA successfully argued before the New Zealand Employment Relations Authority in Komla v South African High Commissioner to New Zealand [2016] NZERA Wellington 152 (at paras 30 and 33) that the exception under art 31.1(c) does not apply to the Head of Mission who has dismissed her housekeeper. Since a contract of employment does not amount to a commercial activity for purposes of art 31.1(c), the High Commissioner was found to have enjoyed jurisdictional immunity. The tribunal struck the matter out for lack of jurisdiction. The same conclusion was reached by the Irish Employment Appeals Tribunal in Senelisiwe Buthelezi v Coy Dlamini and Thobeka Dlamini and Republic of South Africa (case no MN20/2014, 9-11-2017).

Based on the above, the purchase of goods by diplomats, obtaining medical, legal or educational services, or concluding lease agreements to hire residential accommodation will not constitute ‘commercial activities’ for purposes of art 31(1)(c). Defendants will accordingly enjoy civil and administrative jurisdictional immunity for such acts.

In the absence of any case law regarding this issue in SA, I am of the view that our courts will reach a similar conclusion. Plaintiffs will thus be unable to hold individual diplomats liable for breach of contract, where the transaction is regarded as incidental to daily life here (ie, employment disputes involving domestic servants, contracts for goods and services, lease agreements, etcetera).

Waiver of immunity

Section 8 of the Act, read with art 32(1) and 32(2) of Vienna Convention on Diplomatic Relations  or art 45 of the Vienna Convention on Consular Relations of 1963 provides that a sending State or intergovernmental organisation may waive a diplomat’s immunity. Such a waiver will be provided by the head of a mission, consular post or organisation and must be express and in writing (ss 8(2) and (3) of the Act). In practice, the diplomatic or consular mission will usually communicate the decision to waive or not to waive immunity to DIRCO by way of a diplomatic note. Such a waiver is irrevocable – as the proceedings in whatever court or courts are regarded as an indivisable whole, immunity cannot be invoked on appeal if an express waiver was given in the court a quo (Denza (op cit) at 278).

It is essential to note that, even if the sending State or intergovernmental organisation decides to waive a defendant’s jurisdictional immunity, a separate waiver will be required to give effect to the subsequent judgment (art 32(4) of Vienna Convention on Diplomatic Relations  and art 45(4) of Vienna Convention on Consular Relations). This means that the defendant’s inviolability (ie, of his person, property, residence, etcetera) would also have to be expressly waived to allow for the execution of the judgment. This could cause considerable frustration for a plaintiff who obtained a judgment in their favour but who is unable to execute it due to the defendant’s inviolability.

Possible process

The following process is proposed if a plaintiff intends to institute a claim (eg, contractual or delictual) against a defendant who might enjoy immunity:

• Step 1

Obtain a s 9(2) certificate from DIRCO to establish the nature of the defendant’s immunity (ie, full immunity, functional immunity, residual immunity, etcetera).

• Step 2

If the defendant enjoys jurisdictional immunity, establish whether one of the exceptions under art 31(1) of the Vienna Convention on Diplomatic Relations  applies.

• Step 3

If an art 31(1) exception does not apply, DIRCO could be approached to request the sending state through the diplomatic channel to expressly waive the defendant’s immunity.

• Step 4

In the event that an art 31(1) exception does not apply and/or if the sending State refuses to waive the defendant’s immunity, the matter cannot proceed as the court will lack jurisdiction. If the defendant enjoys residual immunity, the matter could proceed after their tour of duty has come to an end.

• Step 5

If the defendant does not enjoy immunity, if an exception under art 31.1 applies or if immunity is expressly waived, the matter can proceed and service of process can be effected on the defendant through DIRCO – a separate waiver for the execution of judgment will, however, be required.

It is always advisable, when instituting legal proceedings against a defendant who enjoys immunity, to consider citing the sending State as a co-defendant. In doing so, proper regard must then be had to the applicable provisions of the Foreign States Immunities Act 87 of 1981.

Riaan de Jager BLC LLB LLM (UP) Advanced Diploma (Labour Law) (RAU) is a Principal State Law Adviser (International Law), attached to the Office of the Chief State Law Adviser (International Law) at the Department of International Relations and Cooperation in Pretoria.

Mr de Jager was the instructing counsel in the Komla and Buthelezi matters.

This article was first published in De Rebus in 2018 (Aug) DR 20.