Minister of Foreign Affairs v Michael Jenrich

The first respondent, Michael Jenrich, was a former employee of the Food and Agriculture Organisation (FAO). He obtained a garnishee order against the FAO in Case No. HC 9895/14 on 31 December 2014. The applicant, the Minister of Home Affairs (referred to as Minister of Foreign Affairs in the title), applied for a stay of execution of the garnishee order, which was dismissed by the High Court on 11 March 2015. The applicant filed an initial notice of appeal timeously on 16 March 2015, but it was struck off by consent on 24 November 2015 due to a fatal defect (failure to appeal against the whole judgment). The applicant then sought condonation for the late filing of a new appeal through this chamber application filed on 22 January 2016. By the time of this application, the second respondent, Standard Chartered Bank Zimbabwe Limited, had already paid out the amount to the first respondent in terms of the garnishee order.

• Whether condonation should be granted for the delay in filing the appeal
• Whether the applicant (Minister) has locus standi to assert immunity on behalf of the FAO
• Whether the FAO enjoys immunity from suit, legal process and execution under international law and domestic law
• The effect of the new Constitution (2013) on the application of international law and treaties in Zimbabwe
• The interpretation of sections 326(2) and 327(6) of the Constitution regarding international customary law and binding treaties

The application for condonation was granted. The court ordered: (1) The delay in filing the notice of appeal is condoned; (2) The applicant is granted an extension of time in which to appeal; (3) The applicant shall file his notice of appeal within 5 days from the date of the order; (4) The applicant shall bear the costs of this application on the ordinary scale.

The binding legal principles established are: (1) Under sections 326(2) and 327(6) of the Constitution, courts must interpret legislation consistently with international customary law and treaties binding on Zimbabwe; (2) The host State has sufficient legal interest and locus standi to assert immunities on behalf of foreign states and international organisations located in the country pursuant to international agreements and domestic statutory arrangements; (3) Where international treaties are binding on Zimbabwe, they carry significant implications for the scope and application of immunities accorded to international organisations under both domestic legislation and common law; (4) The FAO Headquarters Agreement and the Convention on the Privileges and Immunities of Specialised Agencies, being binding on Zimbabwe, confer upon the FAO complete immunity from suit, legal process and execution, which must be given effect in domestic courts.

The court made several non-binding observations: (1) That the explanation for delay was "not entirely satisfactory," particularly regarding why the draft application was left pending in the Attorney-General's Office for almost six weeks and then for a further ten days; (2) That the FAO "probably enjoys full legal personality and capacity to sue in municipal courts" even though it was not a party to the proceedings; (3) That the applicant's prospects of success on appeal, while strong, are "not entirely unassailable"; (4) The court described the pre-2013 constitutional position regarding international law: treaties could only be binding after parliamentary approval and would not form part of municipal law unless domesticated by incorporation or transformation, and international custom enjoyed even less cognisance and could only be applied to the extent not inconsistent with statute or judicial precedent.

This case is significant in South African (Zimbabwean) jurisprudence for several reasons: (1) It clarifies the transformative effect of the 2013 Constitution on the application of international law in domestic courts, particularly sections 326(2) and 327(6) which require interpretation consistent with international customary law and binding treaties; (2) It recognizes the locus standi of the host State to assert immunities on behalf of international organisations even where those organisations have legal personality; (3) It affirms the broad scope of immunities accorded to UN Specialised Agencies under both international law and domestic law; (4) It represents a significant departure from the pre-2013 position where international agreements had to be domesticated through incorporation or transformation to have effect in municipal law; (5) The court indicated the matter would be heard by a full bench of five judges, underscoring its constitutional and jurisprudential importance.