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

The first respondent, Michael Jenrich, was employed by the Food and Agriculture Organisation (FAO) as an Emergency Programme Officer from 2004. The FAO renewed his fixed-term contracts for six consecutive years. In January 2012, the FAO did not renew his contract following the abolition of his post and allegations of misconduct. The first respondent challenged the termination, claiming legitimate expectation of renewal, that the misconduct allegations were false, and that the termination was unlawful. After failed conciliation in November 2012, he sued the FAO in the Labour Court, claiming USD 623,400 in terminal benefits, damages for loss of future earnings, and emotional distress. The FAO did not respond or participate, asserting absolute immunity from local courts under international treaties including the Constitution of the FAO (1981), the Convention on Privileges and Immunities of Specialised Agencies (1991), and the FAO Headquarters Agreement (1995). The Labour Court issued a default judgment on 13 February 2014 ordering reinstatement or damages. The first respondent obtained registration of the order for execution and issued writs against the FAO's property. The Minister of Foreign Affairs issued a Ministerial Certificate on 9 June 2014 certifying the FAO's immunity and sought to stop execution. The High Court granted a garnishee order against the FAO's bank account on 31 December 2014. On 23 January 2015, the President published a notice conferring absolute immunity on the FAO. The High Court dismissed the Minister's application, holding that the FAO enjoyed only restrictive immunity based on the Supreme Court decision in ICRC v Sibanda 2004 (1) ZLR 27 (SC). The Minister appealed to the Supreme Court.

• Whether international organisations such as the FAO enjoy absolute (functional) immunity or restrictive immunity from suit, legal process and execution under local law
• Whether the doctrine of restrictive sovereign immunity applicable to foreign states extends to international organisations
• Whether the decision in International Committee of the Red Cross v Sibanda 2004 (1) ZLR 27 (SC) was correctly decided in extending restrictive immunity to international organisations
• Whether the FAO Headquarters Agreement and Convention on Privileges and Immunities of Specialised Agencies were binding on Zimbabwe
• Whether labour disputes between international organisations and their employees fall within the scope of functional immunity
• Whether local courts have jurisdiction to entertain labour disputes involving international organisations

1. The appeal is allowed with costs. 2. The judgment of the High Court is set aside and substituted with: (a) The application is granted with costs; (b) It is declared that the FAO enjoys absolute immunity from every form of legal process and execution in Zimbabwe; (c) The garnishee order issued on 31 December 2014 is declared invalid and set aside; (d) The writs of execution issued against the FAO's property are declared invalid and set aside. 3. The decision in International Committee of the Red Cross v Sibanda & Anor 2004 (1) ZLR 27 (SC) is overruled to the extent that it extended the principle of restrictive immunity applicable to sovereign states to international organisations.

International organisations enjoy functional immunity which is absolute in nature and protects them from any form of legal process and execution under local legal systems. This functional immunity is distinct from the restrictive sovereign immunity enjoyed by foreign states. While sovereign states derive immunity from the principle of equality between states (par in parem non habet imperium), international organisations derive immunity from the principle of functionality - the need to carry out their universal mandate without being subject to the varying laws of different member states. Functional immunity is a principle of customary international law which is incorporated into Zimbabwean law by section 326 of the Constitution without requiring specific legislation for domestication. Labour disputes lie at the core of an international organisation's functional immunity because requiring compliance with employment laws of numerous member states would make their operations nearly impossible. The scope of functional immunity is determined by the constituent instruments establishing the international organisation and by headquarters agreements with host states. The Convention on Privileges and Immunities of Specialised Agencies and the FAO Headquarters Agreement grant the FAO absolute immunity from every form of legal process and execution, which extends to employment-related disputes.

The Court made several important observations: (1) While international organisations enjoying immunity are not obliged to participate in legal proceedings instituted against them, it is desirable for them to do so, at least to draw the court's attention to the immunity issue, showing respect for local courts and preventing unnecessary costly proceedings. (2) Courts should raise the issue of immunity mero motu when it appears on the record that a defendant can raise sovereign or functional immunity. Jurisdiction is everything - without it, a court has no power to proceed, and decisions made without jurisdiction amount to nothing. Questions of immunity are preliminary issues which must be expeditiously decided in limine litis as a generally recognised principle of procedural law. (3) The State, through the Minister of Foreign Affairs, should have intervened earlier to inform the courts of the FAO's immunity status once aware of proceedings. (4) The FAO should have informed the State of proceedings instituted against it to ensure the immunity issue was determined at the outset. (5) The Court noted that international organisations establish internal dispute resolution mechanisms precisely to ensure justice for aggrieved parties who would otherwise be without remedies due to functional immunity. (6) The Court commented on the evolution of sovereign immunity from absolute to restrictive, noting that this restriction cannot be extended to international organisations because their immunity serves a fundamentally different purpose.

This case establishes a fundamental principle in South African (and broader regional) jurisprudence regarding the immunity of international organisations. It definitively distinguishes functional immunity of international organisations from sovereign immunity of foreign states, clarifying that international organisations enjoy absolute functional immunity rather than restrictive immunity. The decision overrules the precedent in ICRC v Sibanda, which had incorrectly applied the restrictive immunity doctrine to international organisations. This is significant because it affects how international organisations operating in Zimbabwe and potentially other SADC countries are treated under domestic law. The case affirms that functional immunity extends to labour disputes, meaning employees of international organisations cannot sue in local courts but must use internal dispute resolution mechanisms. It also clarifies the incorporation of customary international law into domestic law under section 326 of the Constitution, confirming that international treaties granting immunity to international organisations are binding without need for specific domestication legislation where they embody customary international law. The judgment provides important guidance on when courts should raise jurisdictional issues mero motu and emphasizes that immunity questions must be determined as preliminary issues in limine litis.