ANALYSIS: Why politics may still get Grace off the hook
She has no immunity, but is still very unlikely to stand trial thanks to political considerations
Former Zimbabwean first lady Grace Mugabe can no longer use diplomatic immunity as protection from possible prosecution for assault.
But that does not mean she will face charges related to her alleged “extension cord attack” on 20-year-old model Gabriella Engels any time soon. The National Prosecuting Authority says it’s yet to decide whether Mugabe has a case to answer.
“We have actually not seen the docket in this case, so we have no way of knowing what the evidence (against Grace Mugabe) actually is,” NPA spokesperson Phindi Mjonondwane told Times Select.
“As a result, we have not even made a decision about whether she should be prosecuted. It’s only when we have the docket that we can make that decision.”
She referred all further queries to the police.National Police spokesperson Brigadier Vishnu Naidoo confirmed that the Engels investigation docket was still open and “due processes will follow”.
Court documents reveal that then acting national commissioner Lesetja Mothiba stated at the time of the alleged assault that the police believed there was a “prima facie” case against Mugabe, and that this view was shared by an unidentified prosecutor.
However, he noted that a number of statements “from potential witnesses were still outstanding” and said the Johannesburg NPA head had not made a decision on “whether a prosecution of Dr Mugabe would ensue as no statement had been received from Dr Mugabe”.
It was while the police were in the early stages of investigating the Engels assault that International Relations Minister Maite Nkoana-Mashabane agreed to requests by Zimbabwean officials for Mugabe to be granted diplomatic immunity.Pretoria High Court Acting Judge Bashir Vally found on Monday that this decision was based on an “error of law”, based on the minister’s incorrect belief that the spouses of sitting heads of state were automatically entitled to diplomatic immunity.
Vally recorded how, after Engels laid assault charges against Mugabe, the police made several attempts to contact her lawyer and persuade Mugabe to hand herself over and make a statement to the authorities about her side of the story. These efforts were unsuccessful, and Mugabe fled South Africa days after her alleged attack.
Less than a week after the alleged attack, Nkoana-Mashabane “bestowed” diplomatic immunity on Mugabe. While acknowledging the importance of “rule of law”, the minister said she also needed to consider the diplomatic implications attached to the potential prosecution.
“Indeed, such action could have serious implications for the relations between South Africa and African states,” her office said in a letter to the Zimbabwean Embassy.
In the end, though, she unlawfully justified her decision to grant Mugabe immunity on the basis of her status as the first lady of Zimbabwe – a status that no longer exists.
In the wake of Monday’s ruling, AfriForum’s Willie Spies said the lobby group is determined to see Mugabe face trial, and will even apply for her extradition, through a private prosecution process, if the state elects not to do so.
In response, the NPA’s Mjonondwane urged AfriForum to “hold its horses”.
“As I’ve said before, we are still waiting for the investigation docket. AfriForum must allow us to consider the evidence and make a decision first.”
An international criminal law expert at the Institute for Security Studies, Allan Ngari, said it would not be easy to get Mugabe to appear before a South African court.An arrest warrant would have to be issued first.
“Ideally, the National Prosecuting Authority would need to get the arrest warrant, but it is possible for civil society to seek the same.
“As to the implementation of the warrant, this is where it will become very difficult because of diplomatic relationships between South Africa and Zimbabwe. The two governments will have to deal with it,” he said.
“She is not a state official so she should not receive protection from the state in Zimbabwe. But then there is the political connection. And we need to understand the changes currently going on in Zimbabwe diplomatically.“This process may be impossible. I don’t see the probability of an arrest warrant effected successfully being too high," said Ngari.
Mugabe was accused of assaulting Engels at a Johannesburg hotel‚ where Mugabe’s two sons were staying, in August 2017.
Engels sustained deep cuts to her forehead and the back of her head, and registered a case with the police the next day. But the state granted Mugabe immunity‚ saying it was imperative to maintain good intergovernmental relations within the region‚ in particular between South Africa and Zimbabwe.
– Additional reporting by Amil Umraw