The International Committee of the Red Cross v (1) Phyllis Sibanda (2) Munyama Ngangura

Ngangura and Sibanda were employees of the ICRC in Zimbabwe. Ngangura's employment was terminated on 31 December 1997 and Sibanda's on 31 December 1998. The employees alleged they had been unlawfully retrenched, while the ICRC contended the termination was by agreement and that the Labour Relations (Retrenchment) Regulations, 1990 did not apply. When legal proceedings were threatened, the ICRC claimed immunity from suit and legal process under the Privileges and Immunities Act [Chapter 3:03]. The employees filed an application in the High Court seeking a declaration that the ICRC did not enjoy immunity from suit in respect of their employment contracts and directing compliance with the Retrenchment Regulations. The High Court declared that the ICRC did not have immunity, directed compliance with the Retrenchment Regulations before terminating Ngangura's employment, and referred to trial the issue of whether Sibanda had consented to termination. The ICRC appealed to the Supreme Court.

• Whether the ICRC enjoys immunity from suit and legal process in respect of contracts of employment under the Privileges and Immunities Act
• Whether the doctrine of absolute or restrictive sovereign immunity applies to international organisations in Zimbabwe
• Whether the termination of employment was by agreement or constituted retrenchment requiring compliance with the Labour Relations (Retrenchment) Regulations, 1990
• Whether an employment contract constitutes an act jure gestionis (private act) or jure imperii (sovereign act) for purposes of sovereign immunity

1. The appeal against the order granted in favour of the first respondent (Sibanda) 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 (Ngangura) is dismissed with costs.

The binding legal principles established are: (1) International organisations in Zimbabwe enjoy restrictive immunity, not absolute immunity from suit and legal process; (2) The doctrine of restrictive immunity applies such that immunity is available only for sovereign or public acts (jure imperii) but not for acts of a private law character (jure gestionis); (3) Employment contracts entered into by international organisations constitute acts jure gestionis (private acts) for which no immunity from suit and legal process exists; (4) International organisations cannot be granted greater immunity than that accorded to foreign sovereigns under international law; (5) Whether an international organisation enjoys immunity depends on the nature of the act forming the basis of the claim, not merely on the status of the organisation.

The Court noted it was unnecessary to consider whether clause 7 of the employment conditions, which provided that disputes would be settled in conformity with local labour legislation, constituted a waiver of the ICRC's immunity, having already determined that no immunity existed for employment contracts. The Court also made observations on the distinction between review proceedings (concerned with procedural irregularity) and proceedings raising issues of unlawfulness, rejecting the argument that the application was improperly framed as declaratory relief to avoid time limits for review applications. Sandura JA emphasized, citing Schmidt's letter, that the arrangements offered to Sibanda exceeded by far any obligations the ICRC might have under Zimbabwe's labour laws and were more generous than any arrangements typically made for departing staff.

This case is significant in Zimbabwean jurisprudence as it confirms the application of the doctrine of restrictive sovereign immunity (as opposed to absolute immunity) to international organisations operating in Zimbabwe. It establishes that international organisations enjoy immunity only for sovereign or public acts (jure imperii) but not for private law acts (jure gestionis) such as employment contracts. The judgment aligns Zimbabwean law with international trends and the positions adopted in other Commonwealth jurisdictions, particularly the United Kingdom and South Africa. It ensures that employees of international organisations have access to local courts for employment-related disputes, balancing the privileges of international organisations with the rights of local employees and the jurisdiction of domestic courts. The case demonstrates that international organisations cannot claim greater immunity than that accorded to foreign sovereigns.