Minister of Foreign Affairs v Michael Jenrich and Standard Chartered Bank Zimbabwe Limited and The Sheriff of Zimbabwe

The first respondent, Michael Jenrich, was a former employee of the Food and Agriculture Organisation of the United Nations (FAO), which had a sub-regional office in Zimbabwe pursuant to agreements with the Republic of Zimbabwe. These agreements, approved by Parliament on 23 July 1996, granted FAO immunity from legal suits in Zimbabwean courts. Despite this immunity, Jenrich sued FAO in the Labour Court, which granted him an order that was registered as an order of the High Court. When Jenrich sought to execute the order through a writ, the Minister of Foreign Affairs obtained a provisional order under HC 5213/14 on 27 June 2014 interdicting the Sheriff from executing the writ. Jenrich then circumvented this by obtaining a garnishee order against FAO's bank account with Standard Chartered Bank on 31 December 2014. The Minister, being prevailed upon by FAO, brought this urgent application to prohibit enforcement of the garnishee order, arguing that FAO enjoyed absolute immunity under international agreements with Zimbabwe.

• Whether the Minister of Foreign Affairs had locus standi to bring an application on behalf of FAO to enforce its immunity
• Whether the deponent to the founding affidavit had sufficient personal knowledge to depose to the affidavit
• Whether the FAO agreements with Zimbabwe were binding and enforceable despite not being fully domesticated into Zimbabwean law
• Whether FAO enjoyed absolute immunity or only restrictive immunity from suit in Zimbabwean courts
• Whether international organisations enjoy immunity from suit in labour disputes with their employees

The application for a provisional order was dismissed with costs against the applicant (Minister of Foreign Affairs).

International organisations enjoy only restrictive immunity under customary international law as incorporated into Zimbabwean law, not absolute immunity. Restrictive immunity does not extend to acts jure gestionis (acts of a private law character), which includes labour disputes with employees. Therefore, an international organisation such as FAO does not have immunity from suit in labour matters before Zimbabwean courts, and courts have jurisdiction to hear such disputes.

UCHENA J made several important obiter observations: (1) Courts have a duty to determine immunity issues mero motu as preliminary matters in limine litis, following the approach in Barker McCormac (Pvt) Ltd v Government of Kenya. (2) In exceptional circumstances where courts fail to act on immunity claims despite being informed, a host state may have locus standi to litigate on behalf of a foreign sovereign or international organisation to protect the state from potential proceedings under customary international law for breach of immunity obligations. (3) A sovereign state or international organisation can come to court to enforce its immunity without waiving that immunity, citing Lord Denning that "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." (4) International agreements approved by Parliament become binding under s 327(2)(a) of the Constitution even before incorporation/domestication under s 327(2)(b), though they may not form part of domestic law until incorporated.

This case is significant in South African and Zimbabwean jurisprudence for: (1) clarifying that customary international law forms part of domestic law under s 326 of the Zimbabwe Constitution; (2) establishing that international agreements become binding upon parliamentary approval under s 327(2)(a), even before domestication; (3) confirming that the doctrine of restrictive immunity (not absolute immunity) applies to international organisations in Zimbabwe, following the precedent in ICRC v Sibanda; (4) holding that restrictive immunity does not extend to labour disputes, which are considered acts jure gestionis; (5) recognizing in obiter that states may have locus standi in exceptional circumstances to litigate on behalf of international organisations to protect the state from potential international liability when courts fail to determine immunity issues in limine litis; and (6) emphasizing the duty of courts to determine immunity issues mero motu as preliminary matters in limine litis.