Picture source: Gallo Images/Getty
In December 2017, De Rebus published an article on the service of legal process on foreign states and intergovernmental organisations (see Riaan de Jager ‘Diplomatic law: Service of process on foreign defendants’ 2017 (Dec) DR 34). In that article, the procedure that should be followed to serve legal process on foreign defendants was highlighted – this procedure is regulated by subss 13(1) or (7) of the Foreign States Immunities Act 87 of 1981 (FSIA), as well as r 5(1) of the Uniform Rules of Court (Rules). In another article I wrote, ‘Diplomatic law: Legal proceedings against a foreign diplomat in a South African court’ 2018 (Aug) DR 20, a procedure was proposed on how to institute a claim against a foreign diplomat in a South African court. In the light of recent case law in the South African Constitutional Court (CC) and the Supreme Court of the United Kingdom (UK), the views expressed, and conclusions reached in the aforesaid articles need to be reconsidered, which is the main purpose of this article. Below, a distinction will be made between service of referrals to the Commission for Conciliation, Mediation and Arbitration (CCMA) on foreign states, on the one hand, and service of such referrals on foreign diplomats, on the other.
Service of CCMA referrals on a foreign state
In the article, ‘Dismissed by a foreign diplomatic mission: Are South African locally recruited employees without an effective remedy?’ 2018 (Jan/Feb) DR 24, I wrote in the conclusion that the aforesaid provisions of the FSIA and the Rules do not apply when serving CCMA referrals on foreign defendants. This conclusion was based on a judgment of the Labour Appeal Court (LAC) in Food and Allied Workers Union obo Gaoshubelwe and Others v Pieman’s Pantry (Pty) Ltd [2016] 12 BLLR 1175 (LAC) where the LAC held at para 55 that a referral to the CCMA in terms of the Labour Relations Act 66 of 1995 (LRA) is not a process whereby legal proceedings are commenced. Although the CC was also subsequently faced with this issue in Myathaza v Johannesburg Metropolitan Bus Services (SOC) Ltd t/a Metrobus and Others 2017 (4) BCLR 473 (CC), no binding ratio decidendi emerged from the court’s decision due to the parity of votes in which none of the various judgments of the Justices secured a majority. As a result, the LAC’s judgment in the Gaoshubelwe case remained the binding precedent on this matter.
Since those judgments have been handed down, the Gaoshubelwe case reached the CC and judgment was delivered on 20 March 2018 in Food and Allied Workers’ Union obo Gaoshubelwe v Pieman’s Pantry (Pty) Ltd 2018 (5) BCLR 527 (CC).
In his majority judgment, Kollapen AJ held that the referral of a dispute to the CCMA for conciliation does constitute the service of a process commencing legal proceedings – he ruled in para 199 of the judgment as follows:
‘I believe it does an injustice to the architecture of the LRA and the CCMA to see and characterise conciliation as anything other than the commencement of legal proceedings in an independent and impartial forum. For those reasons, I would conclude on this aspect that the referral of disputes to the CCMA for conciliation constitutes the service of a process commencing legal proceedings.’
As it is now settled law that the referral of a dispute to the CCMA for conciliation constitutes the service of a process commencing legal proceedings, I submit that the service of such a referral on a foreign state must be conducted pursuant to subss 13(1) or (7) of the FSIA, as well as r 5(1) of the Rules. This in effect means that any employee, or their trade union, who intends to refer a dispute to the CCMA will pursuant to r 4(5)(a) of the Rules have to have the referral and its attachments translated into an official language of the defendant state. Thereafter, the documents in question, together with the sworn translation, if necessary, and a certified copy of the referral and the translation, must be served through the Department of International Relations and Cooperation (DIRCO) on the Ministry of Foreign Affairs of the state concerned under cover of a Note Verbale or diplomatic note. Alternatively, the CCMA could pursuant to its r 5(4) order another manner of service. Regard should also be had to s 13(2) of the FSIA, which provides that any time prescribed by the rules of court or otherwise for notice of intention to defend or oppose or entering an appearance shall begin to run two months after the date on which the process or document is received as aforesaid.
The CCMA will arguably have to take these provisions of the FSIA into consideration before notifying the parties of a conciliation, since the defendant state will in terms of international practice require sufficient time to consider the matter at its capital and decide whether or not to take measures to enter an appearance and/or to oppose the dispute.
Service of CCMA referrals on a foreign diplomat
In the article ‘Diplomatic immunity: Its nature, effects and implications’ 2018 (July) DR 26, I discuss the immunity, which foreign diplomats enjoy in terms of customary international law in great detail. It also dealt with the issue of inviolability, which such diplomats enjoy regarding their person, correspondence and property. Based on the arguments articulated in the various articles referred to above, I reached the conclusion that service of process cannot be effected on foreign diplomats personally or through the Sheriff as a result of their personal inviolability and that service should be effected on them through diplomatic channels (ie, through DIRCO).
I submit that this view should also be reconsidered in the light of a judgment handed down by the UK Supreme Court on 18 October 2017 in Reyes v Al-Malki and Another [2017] UKSC 61. The relevant facts of this case are the following: Ms Reyes, a Philippine national, was employed by Mr and Mrs Al-Malki as a domestic servant in their residence in London between 19 January and 14 March 2011. Her duties were to clean, to help in the kitchen at mealtimes and to look after the children. At the time, Mr Al-Malki was a member of the diplomatic staff of the Embassy of Saudi Arabia in London. Ms Reyes alleged that during her employment, the Al-Malkis maltreated her by requiring her to work excessive hours, failing to give her proper accommodation, confiscating her passport and preventing her from leaving the house or communicating with others. Ms Reyes began proceedings in the UK Employment Tribunal in June 2011, alleging direct and indirect race discrimination, unlawful deduction from wages and failure to pay her the national minimum wage. The main issues on the appeal before the UK Supreme Court concerned the effect of art 31(1)(c) of the Vienna Convention on Diplomatic Relations of 1961 (Convention), which contains an exception to the immunity of a diplomat from civil jurisdiction where the proceedings relate to ‘any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions.’
One of the questions that arose for determination in the Reyes case was whether the claim form was validly served on the Al-Malkis. A number of modes of service were attempted, but the only one, which was relied on is service by post to their private residence in accordance with r 61(1)(a) of the Employment Tribunal Rules of Procedure. The Al-Malkis argued that the rule cannot authorise service on a diplomatic agent because this would violate their person contrary to art 29 of the Convention and their residence contrary to art 30.
The Supreme Court, per Lord Sumption (with whom Lord Neuberger concurred), held in para 16 of its judgment as follows:
‘The person of a diplomatic agent is violated if an agent of the receiving state or acting on the authority of the receiving state detains him, impedes his movement or subjects him to any personal restriction or indignity. It is arguable that personal service on a diplomatic agent would do that, although it is not an argument that needs to be considered here. Premises are violated if an agent of the state enters them without consent or impedes access to or from the premises or normal use of them: See article 22 relating to the premises of a mission, which is applied by analogy to a diplomatic agent’s private residence under article 30(1). The delivery by post of a claim form does not do any of these things. It simply serves to give notice to the defendant that proceedings have been brought against him, so that he can defend his interests, for example by raising his immunity if he has any. The mere conveying of information, however unwelcome, by post to the defendant, is not a violation of the premises to which the letter is delivered. It is not a trespass. It does not affront his dignity or affect his right to enter or leave or use his home. It does of course start time running for subsequent procedural steps and may lead to a default if no action is taken. But so far as this is objectionable, it can only be because there is a relevant immunity from jurisdiction. It is not because the proceedings were brought to the diplomatic agent’s attention by post. Otherwise the same objection would apply to any mode of service which starts time running, including service through diplomatic channels as proposed by the Secretary of State.’
The court thus held that the service of process on diplomatic agents by way of registered post does not infringe their personal inviolability, nor that of their residence. I submit that the reasoning of the court in the Reyes case is a correct interpretation of current diplomatic law and that the South African courts will most likely follow this judgment and come to a similar conclusion.
It is noted that r 5(1)(c) of the Rules for the Conduct of Proceedings before the Commission for Conciliation, Mediation and Arbitration specifically provides for the service of documents by e-mailing a copy thereof to the person’s e-mail address. It is worth noting that the CCMA Rules were amended with effect from 1 April 2015 to incorporate some of the provisions of Chapter III, Part 2 the Electronic Communications and Transactions Act 25 of 2002. Furthermore, the Uniform Rules of Court were also amended on 27 July 2012 to include r 4A, which now allows for service by facsimile, registered post and e-mail.
Although the court in the Reyes case did not specifically address the issue of service of process by way of e-mail, I submit that the reasoning of the court regarding service by registered post will similarly apply to service by e-mail – the conveying of information by e-mail is not a violation of the premises to which the correspondence is delivered. It is also not a trespass and does not affront a diplomat’s dignity or affect his right to enter or leave or use his home.
Conclusion
In light of the aforesaid, I am of the view that the service of CCMA referrals, which has been held to constitute ‘legal process’, must now be served on foreign states pursuant to subss 13(1) or 13(7) of FSIA and that such referrals can now validly be served on diplomats by way of registered post and e-mail, since such manner of service will not infringe the inviolability they enjoy.
Riaan de Jager BLC LLB LLM (UP) Advanced Diploma (Labour Law) (UJ) is a legal adviser at the Union for the Local Employees in Missions Accredited to South Africa (ULEMASA) and a former 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.
This article was first published in De Rebus in 2019 (July) DR 10.
