FIRST Lady Grace Mugabe faces the risk of prosecution in spite of her diplomatic immunity, as South Africa’s Foreign States Immunities Act of 87 of 1981 states that if “death or injury” is committed, criminal prosecution can be done, court papers show.

AfriForum, on behalf of aggrieved South African model Gabriella Engels, filed a court application on Wednesday, where they said section 6(a) states no foreign person shall be immune to criminal charges if death or injury was caused to a South African national.

In the court application, Grace was cited as the second respondent, while South Africa’s Department for International Relations and Co-operation, which granted the Zimbabwean First Lady diplomatic immunity, is the first respondent.

“A foreign State [which includes the Head of State] shall not be immune from the jurisdiction of the courts of the republic in proceedings relating to, inter alia (among other things), the injury of any person caused by an act or omission in the republic,” the court papers read.

“Any derivative immunity that may attach to the President of Zimbabwe would, in our contention, not contain immunity in conflict with section 6(a) of the Foreign States Immunities Act.

“If the minister intended such immunity, it would lack legality and be irrational.”

Section 2(2)(a) of the Diplomatic Immunities and Privileges Act 37 of 2001 states that immunity is stripped if the accused person, if convicted, could face five or more years in jail.

The Diplomatic Immunities and Privileges Act 37 of 2001 enacts into South African law the Vienna Convention on diplomatic relations, which is widely used for most global diplomatic transactions.

“The purpose of the Vienna Convention is set out in the preamble, thereof:

“One of the founding principles set out in the preamble is the realisation that the purpose of such privileges is not to benefit individuals, but to ensure the efficient performance of the functions of diplomatic missions representing States,” the court papers read.

“In it, one of the founding principles is that the purposes of privileges and immunities are not to benefit individuals but ‘to ensure the efficient performance of the functions of diplomatic missions as representing States’.”

When the alleged attack took place on August 13, at the Capital 20 West Hotel in Sandton, Johannesburg, South Africa, Grace was reportedly responding to calls to address her sons, Bellarmine Chatunga and Robert Jnr.

Grace was given until October 19 to defend herself against the court application filed against her at the Pretoria High Court in South Africa.

Service of papers to Grace will be done before September 19, 30 days before the proposed October date, to give her time to respond.

AfriForum said the papers would be served at President Robert Mugabe’s offices, as Zimbabwe’s high commission in South Africa is not permitted by law to receive lawsuits and legal papers of that kind.

“Since service on the second respondent needs to be authorised by the court in a separate and preceding interlocutory application for substitued service and edictal citation, a date no later than September 19, 2017 is necessary for hearing of part A proceedings,” the papers read.

AfriForum said International Relations minister Maite Nkoana-Mashabane had erred in granting Grace immunity.

Newsday