A former senior Pan African Parliament (PAP) official is challenging the diplomatic immunity conferred on the institution by its agreement with South Africa which ensures local courts have no jurisdiction over legal disputes involving it.
The PAP's former director of the bureau Martha Luleka has told the South Gauteng High Court that SA laws conferring immunity on the PAP on employment disputes are unconstitutional and invalid.
Luleka, a Tanzanian national, was hired by her compatriot, former PAP president Dr Gertrude Mongella, and her contract was linked to Mongella's term of office.
However, when Mongella stepped down in May 2009 Luleka told her replacement, Chad parliamentarian Dr Idriss Ndele Moussa, that she did not have a fixed term contract but a normal one.
Moussa had given Luleka three-months notice because he wanted to appoint his own director of the bureau, according to the PAP's Zwelethu Madasa. Madasa said Luleka then lodged a court case in which she claimed she was unfairly dismissed and succeeded.
She was demanding payment for about three years, which Madasa estimated would have been "quite substantial" and above R1-million.
The PAP successfully rescinded the judgment granted in Luleka's favour, confirming that local courts have no jurisdiction over a diplomatic organisation.
In court papers, Luleka says the host country agreement concluded between South Africa and the PAP unjustifiably differentiates between her (as an aggrieved former PAP employee) and any other worker in SA and that her rights to equality, fair labour practice and dignity have been violated.
"The house country agreement in effect bars the plaintiff (Luleka) from recourse to the courts, or an alternative tribunal, in South Africa, and in enforcing the plaintiff's rights in terms of her contract with the PAP, in violation of her right to access to courts in terms of the constitution," read Luleka's court papers.
Luleka says the agreement violates the applicable doctrine of restricted immunity in employment related disputes and likens it to "the doctrine of absolute immunity". According to Luleka, the doctrine of absolute immunity is no longer part of SA law, is contrary to the Foreign States Immunities Act and is contrary to customary international law which is part of the constitution.
The case follows the government's controversial decision to ignore a North Gauteng High Court ruling ordering it to arrest Sudan president Omar al-Bashir for war crimes during the African Union Summit in June. The SA government claimed by virtue of al-Bashir being an AU guest, he enjoyed full diplomatic immunity.
sidimbal@sowetan.co.za
'Local courts can't judge us, we're PAP'
A former senior Pan African Parliament (PAP) official is challenging the diplomatic immunity conferred on the institution by its agreement with South Africa which ensures local courts have no jurisdiction over legal disputes involving it.
The PAP's former director of the bureau Martha Luleka has told the South Gauteng High Court that SA laws conferring immunity on the PAP on employment disputes are unconstitutional and invalid.
Luleka, a Tanzanian national, was hired by her compatriot, former PAP president Dr Gertrude Mongella, and her contract was linked to Mongella's term of office.
However, when Mongella stepped down in May 2009 Luleka told her replacement, Chad parliamentarian Dr Idriss Ndele Moussa, that she did not have a fixed term contract but a normal one.
Moussa had given Luleka three-months notice because he wanted to appoint his own director of the bureau, according to the PAP's Zwelethu Madasa. Madasa said Luleka then lodged a court case in which she claimed she was unfairly dismissed and succeeded.
She was demanding payment for about three years, which Madasa estimated would have been "quite substantial" and above R1-million.
The PAP successfully rescinded the judgment granted in Luleka's favour, confirming that local courts have no jurisdiction over a diplomatic organisation.
In court papers, Luleka says the host country agreement concluded between South Africa and the PAP unjustifiably differentiates between her (as an aggrieved former PAP employee) and any other worker in SA and that her rights to equality, fair labour practice and dignity have been violated.
"The house country agreement in effect bars the plaintiff (Luleka) from recourse to the courts, or an alternative tribunal, in South Africa, and in enforcing the plaintiff's rights in terms of her contract with the PAP, in violation of her right to access to courts in terms of the constitution," read Luleka's court papers.
Luleka says the agreement violates the applicable doctrine of restricted immunity in employment related disputes and likens it to "the doctrine of absolute immunity". According to Luleka, the doctrine of absolute immunity is no longer part of SA law, is contrary to the Foreign States Immunities Act and is contrary to customary international law which is part of the constitution.
The case follows the government's controversial decision to ignore a North Gauteng High Court ruling ordering it to arrest Sudan president Omar al-Bashir for war crimes during the African Union Summit in June. The SA government claimed by virtue of al-Bashir being an AU guest, he enjoyed full diplomatic immunity.
sidimbal@sowetan.co.za
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