Court name
Supreme Court of Zimbabwe
Case number
SC 48 of 2003
Civil Appeal 147 of 2002

International Committee of the Red Cross v Sibanda and Another (47/02) (SC 48 of 2003, Civil Appeal 147 of 2002) [2004] ZWSC 48 (12 January 2004);

Law report citations
Media neutral citation
[2004] ZWSC 48













REPORTABLE
(40)


Judgment
No. SC 48/03


Civil
Appeal No. 147/02








THE
INTERNATIONAL COMMITTEE OF THE RED CROSS





v
(1) PHYLLIS SIBANDA (2) MUNYAMA NGANGURA








SUPREME
COURT OF ZIMBABWE


SANDURA  JA,
MALABA JA & GWAUNZA JA


HARARE,
SEPTEMBER 30, 2003 & JANUARY 13, 2004








H
Zhou
,
for the appellant





S
V Hwacha
,
for the respondents





SANDURA  JA:
This is an appeal against a judgment of the High Court which
declared that the appellant (“the ICRC”)
did not have immunity
from suit and legal process in respect of civil proceedings
instituted against it by the second respondent
(“Ngangura”),
directed the ICRC to comply with the Labour Relations (Retrenchment)
Regulations, 1990 (“the Retrenchment Regulations”)
before
terminating Ngangura’s employment, and referred to trial the issue
of whether the first respondent (“Sibanda”) had consented
to the
termination of her employment.






The
background facts are as follows. Ngangura and Sibanda were employed
by the ICRC in Zimbabwe. Ngangura’s employment was
terminated on
31 December 1997, and Sibanda’s was terminated on 31 December
1998. However, the circumstances in which
their employment was
terminated were not common cause.






Ngangura and
Sibanda alleged that they had been unlawfully retrenched, whilst the
ICRC contended that the termination of employment
had been by
agreement and that the Retrenchment Regulations did not, therefore,
apply. When legal proceedings were threatened,
the ICRC
alleged that it could not be sued in Zimbabwe because it enjoyed
immunity from suit and legal process in terms of the
Privileges and
Immunities Act [
Chapter 3:03]
(“the Act”).






Undaunted by
the stance taken by the ICRC, Ngangura and Sibanda filed a court
application in the High Court seeking an order declaring
that, in
respect of their contracts of employment, the ICRC did not enjoy
immunity from suit and legal process, and directing the
ICRC to
comply with the Retrenchment Regulations. The learned judge who
heard the application granted the order sought by Ngangura,
but
referred to trial the issue of whether Sibanda had consented to the
termination of her employment. Aggrieved by that decision,
the ICRC
appealed to this Court.





Two
main issues arise for consideration in this appeal. The first is
whether the ICRC enjoys immunity from suit and legal process
in
respect of contracts of employment. If it does, that is the end of
the matter and the appeal must be allowed. However, if
it does not
enjoy that immunity, the second issue to consider is whether the
termination of employment was by agreement. If it
was, the
Retrenchment Regulations would not apply and the appeal must be
allowed.





Section 7(1)
of the Act, which deals with the privileges and immunities of
specified international organisations, reads as
follows, in relevant
part:






“The
President may, by notice in the
Gazette,
confer upon any international or regional organisation or agency …
specified in such notice all or any of the privileges and immunities
set out in Part I of the Third Schedule.”





The
privileges and immunities set out in Part I of the Third
Schedule include immunity from suit and legal process.






In the court
a quo,
it was not in issue whether or not the President had acted in terms
of s 7(1) of the Act in respect of the ICRC. Accordingly,
the
learned judge accepted that the ICRC had been duly accorded the
immunity from suit and legal process. But, as the learned judge
correctly observed, that does not shed any light on whether or not
the immunity covers all suits and legal processes.





In
order to answer that question, it is necessary to examine the nature
and extent of the immunity accorded a foreign sovereign
in terms of
international law, because it could hardly have been the intention of
the Legislature to grant greater immunity to an
international
organisation, such as the ICRC, than that granted to a foreign
sovereign.






The issue
concerning the immunity from suit and legal process accorded a
foreign sovereign has been the subject of judicial pronouncements
for
many years. Thus, in
Rahimtoola
v H.E.H. The Nizam of Hyderabad & Ors

[1957] 3 All ER 441 (HL) LORD DENNING said the following at
461 E-G:





“It
is more in keeping with the dignity of a foreign sovereign to submit
himself to the rule of law than to claim to be above it; and
his
independence is better ensured by accepting the decisions of courts
of acknowledged impartiality than by arbitrarily rejecting
their
jurisdiction. In all civilised countries there has been a
progressive tendency towards making the sovereign liable to be
sued
in his own courts – notably in England by the Crown Proceedings
Act, 1947. Foreign sovereigns should not be in any different
position. There is no reason why we should grant to the departments
or agencies of foreign governments an immunity which we do
not grant
our own, provided always that the matter in dispute arises within the
jurisdiction of our courts and is properly cognizable
by them.”





As
to the nature and extent of sovereign immunity, the learned LAW LORD
had this to say at 463I-464A:





“Applying
this principle it seems to me that at the present time sovereign
immunity should not depend on whether a foreign government
is
impleaded, directly or indirectly, but rather on the nature of the
dispute. Not on whether ‘conflicting
rights
have to be decided’, but on the nature of the conflict. Is it
properly cognizable by our courts or not? If the dispute
brings
into question, for instance, the legislative or international
transactions of a foreign government, or the policy of its executive,
the court should grant immunity if asked to do so, because it does
offend the dignity of a foreign sovereign to have the merits of
such
a dispute canvassed in the domestic courts of another country; but if
the dispute concerns, for instance, the commercial transactions
of a
foreign government (whether carried on by its own departments or
agencies or by setting up separate legal entities), and it
arises
properly within the territorial jurisdiction of our courts, there is
no ground for granting immunity.”






Similarly,
in
I
Congreso del Partido

[1981] 2 All ER 1064 (HL) at 1070 f-j LORD WILBERFORCE
said:






“It
is necessary to start from first principle. The basis on which one
state is considered to be immune from the territorial jurisdiction
of
the courts of another state is that of ‘
par
in parem
’
…, which effectively means that the sovereign or governmental acts
of one state are not matters on which the courts of other
states will
adjudicate.





The
relevant exception, or limitation, which has been engrafted on the
principle of immunity of states, under the so-called restrictive
theory, arises from the willingness of states to enter into
commercial, or other private law, transactions with individuals. It
appears to have two main foundations. (a) It is necessary in the
interest of justice to individuals having such transactions with
states to allow them to bring such transactions before the courts.
(b) To require a state to answer a claim based on such transactions
does not involve a challenge to or inquiry into any act of
sovereignty or governmental act of that state. It is, in accepted
phrases,
neither a threat to the dignity of that state nor any
interference with its sovereign functions.






When
therefore a claim is brought against a state … and state immunity
is claimed, it is necessary to consider what the relevant
act is
which forms the basis of the claim: is this, under the old
terminology, an act ‘
jure
gestionis
’
or is it an act ‘
jure
imperii
’;
is it (to adopt the translation of these catchwords used in the Tate
letter) a ‘private act’ or is it a ‘sovereign or public
act’,
a private act meaning in this context an act of a private law
character such as a private citizen might have entered into?”.






See also
Trendtex
Trading Corporation Ltd v Central Bank of Nigeria

[1977] 1 All ER 881 (CA) at 890 f-g.






The above
pronouncements by both LORD DENNING and LORD WILBERFORCE
received the approval of this Court in
Barker
McCormac (Pvt) Ltd v Government of Kenya

1983 (2) ZLR 72 (S) at 79 G-H, 1983 (4) SA 817 (ZSC) at 821 F-G,
where GEORGES  JA (as he then was) said:





“I
am completely satisfied therefore that the doctrine of sovereign
immunity generally applied in international law is that of
restrictive
immunity. There are no decisions of courts of this
country and no legislation inconsistent with that doctrine and it
should be
incorporated as part of our law.”






It is,
therefore, clear that the doctrine of sovereign immunity applicable
in this country is that of restrictive immunity as opposed
to
absolute immunity. In other words, a foreign sovereign would enjoy
immunity from suit and legal process where the relevant act
which
forms the basis of the claim is an act “
jure
imperii
”,
i.e. a sovereign or public act. On the other hand, he would not
enjoy such immunity if the act which forms the basis of the
claim is
an act “
jure
gestionis
”,
i.e. an act of “a private law character such as a private citizen
might have entered into”.






The position
in South Africa is the same. It was stated by CORBETT CJ
in
The
Shipping Corporation of India Ltd v Evdomon Corporation & Anor

1994 (1) SA 550 (A) at 565 A-B as follows:






“The legal
position in this country regarding the doctrine of sovereign immunity
was carefully and comprehensively surveyed by the
Full Bench of the
Transvaal Provincial Division in the case of
Inter-Science
Research and Development Services (Pty) Ltd v Republica Popular de
Mocambique

(1980 (2) SA 111
supra).
As this survey shows, South African Courts initially applied the
doctrine of absolute immunity, but in the
Inter-Science
case the Court … decided to follow the world-wide trend and to
apply the restrictive doctrine.”








In
my view, an international organisation, such as the ICRC, enjoys
immunity from suit and legal process subject to the provisions
of
international law, and the doctrine of restrictive immunity applies
to it. It could hardly have been the intention of the Legislature
to grant absolute immunity from suit and legal process to such an
organisation when a foreign sovereign did not enjoy such immunity.






I now wish
to consider the nature of the act which forms the basis of the claims
brought by Ngangura and Sibanda against the ICRC.
That act is a
contract of employment which, clearly, is “an act of a private law
character such as a private citizen might have
entered into”.





Having
come to that conclusion, it is not necessary for me to consider
whether clause 7 of the conditions of employment, which
provided
that any dispute arising in the application of the conditions would
be settled in conformity with the labour legislation
in force in the
country, constituted a waiver of the ICRC’s immunity.






In the
circumstances, as the learned judge correctly decided, the ICRC does
not enjoy immunity from suit and legal process, and
the point
in limine
raised by it falls away.





I
now wish to deal with the merits of the claim by the two employees,
i.e. that before terminating their employment contracts the
ICRC
should have complied with the Retrenchment Regulations. The ICRC’s
reply to this was that there was no need to comply with
the
Retrenchment Regulations because the contracts of employment were
terminated by agreement.





In
the case of Sibanda, the ICRC relies upon its letter to her which was
dated 18 February 1998. It was written by Frank Schmidt
(“Schmidt”), the ICRC’s regional delegate, and reads as
follows:





“Dear
Mrs Sibanda,





This
is to confirm the agreement we reached in our meeting on 17 February
in my office regarding the termination of your employment
with the
ICRC’s regional delegation in Harare.





We
agreed on the following specific points:






1. Your contract of full-time
employment will end on 28 February 1998. Under a separate,
fixed-term contract, you will continue
to work for us, at 50% of your
time, from 1 March to 31 December 1998. The financial and
practical conditions pertaining
to this arrangement, including
severance pay, will be the same as those set out in Mr Givel’s
letter to you of 1 December
1997.





2. You
have made arrangements with the University of
Southern Queensland/Toowoombe to finish your studies in business
administration
by the end of 1998. This means that the financial
support which ICRC is providing you with for these studies will also
terminate
at the end of 1998. You have assured me that the cost of
this support will not vary from that which we accorded you
previously.
Please confirm directly to Patricia Barber what
this will mean in actual figures and due-dates for our payments to
the University.






3. Due to the
above points having remained pending for some time, you said that you
have fallen behind in your studies. I have agreed
to compensate you
with a reasonable amount of extra time off to allow you to catch up.
Please discuss the exact modalities of this
with Patricia as well.






4. You
have asked me if ICRC can provide you with a PC for your studies. I
said I could not promise you anything, as we are under
instruction
from HQ not to divest ourselves of any of our EDP equipment at
present, but that we are prepared to examine other possibilities.

Please also discuss with Patricia.





I
would like to emphasise once again that these arrangements exceed by
far any obligations that ICRC might have toward you under Zimbabwe’s
labour laws, were it bound by them, and that they are far more
generous than any I have ever known ICRC to make for any local staff,
or indeed for any expat, ending their employment with the
institution.





I
am pleased that we have thus successfully and definitely concluded a
somewhat protracted process of clarification of the terms of
your
departure. I would appreciate your confirming your agreement to
these terms, as set out above, by returning to me a copy of
this
letter with your signature.





With
my best wishes for your personal and professional future, I remain
…”.





As
requested by Schmidt, Sibanda confirmed her agreement with the terms
set out in the letter by returning to him a copy of the letter
signed
by her. In addition, the few remaining issues which were to be
finalised in consultation with Patricia Barber were
agreed upon
and finalised on 19 February 1998.






Subsequently,
on 24 February 1998 Sibanda received her terminal benefits,
amounting to $118 703.10, in respect of the termination
of the
main contract of employment, and on 18 December 1998 she
received her salary and other benefits, amounting to $23 326.00,
in respect of the fixed term contract.





However,
the allegation by Sibanda was that in addition to the terms set out
by Schmidt in the letter dated 18 February 1998,
it was agreed
that the issue of whether or not she would receive a retrenchment
package, determined in terms of this country’s
labour law, would be
dealt with later. This allegation was made for the first time in
the answering affidavit, and Sibanda does
not explain why it was not
made in the founding affidavit.





In
any event, I find the allegation incredible, bearing in mind the
detailed agreement set out by Schmidt in his letter dated 18 February
1998. The letter set out in great detail what matters had been
agreed upon and what matters were still be to finalised. There
is
no mention of a retrenchment package being considered later.






Taking a
robust and commonsense approach, I am satisfied that there is no
dispute of fact in this matter which cannot be resolved
on the
papers. See
Zimbabwe
Bonded Fibreglass (Pvt) Ltd v Peech

1987 (2) ZLR 338 (S).







In the circumstances, I am
satisfied that the termination of Sibanda’s employment was by
agreement and that the Retrenchment Regulations
do not apply.
Sibanda’s application should, therefore, have been dismissed.






However,
Ngangura’s case stands on a different footing. On 1 December 1997
the ICRC’s administrator advised him by letter that
because of the
need to reduce the local staff, his employment would be terminated on
31 December 1997. He objected to the
termination of his
employment unless it complied with the Retrenchment Regulations, but
accepted, under protest, the terminal benefits
offered by the ICRC.
He made it clear, however, in a letter dated 16 December 1997,
that he looked forward to negotiating
a proper retrenchment package.







In the
circumstances, I cannot accept that the termination of Ngangura’s
employment was by agreement.







Finally, I
wish to deal very briefly with the allegation by the ICRC that the
application by Ngangura and Sibanda was in fact an application
for a
review of the ICRC’s decision to dismiss them. It was alleged
that the relief sought had been described as a declaratory
order in
order to avoid the consequences of having failed to institute the
application for review within the time limit specified
in the High
Court Rules.







Commenting on
this allegation the learned judge in the court
a quo
said:





“I
cannot agree that this application is in reality one for review.
Review proceedings are concerned with an irregularity of a procedural
nature. The mere fact that the applicants allege a failure on the
part of the ICRC to comply with the Regulations does not raise
a
matter of procedural irregularity or impropriety. It raises,
rather, the issue of unlawfulness in the action taken by the ICRC.”





I
respectfully agree. The ICRC alleged that the Retrenchment
Regulations did not apply because the termination of employment had
been by agreement. On the other hand, Ngangura and Sibanda alleged
that the Regulations applied, and sought a declaration to that
effect.





In
the circumstances, the following order is made:






1. The appeal against the order
granted in favour of the first respondent is allowed with costs.
The order is set aside and in its
place is substituted an order
dismissing the application with costs.







2. The appeal against the order
granted in favour of the second respondent is dismissed with costs.














MALABA
JA: I agree.














GWAUNZA
JA: I agree.















Kantor &
Immerman
,
appellant's legal practitioners


Dube,
Manikai & Hwacha
,
respondents' legal practitioners