No. SC 48/03
Appeal No. 147/02
INTERNATIONAL COMMITTEE OF THE RED CROSS
(1) PHYLLIS SIBANDA (2) MUNYAMA NGANGURA
COURT OF ZIMBABWE
MALABA JA & GWAUNZA JA
SEPTEMBER 30, 2003 & JANUARY 13, 2004
for the appellant
for the respondents
This is an appeal against a judgment of the High Court which
declared that the appellant (the ICRC)
did not have immunity
from suit and legal process in respect of civil proceedings
instituted against it by the second respondent
directed the ICRC to comply with the Labour Relations (Retrenchment)
Regulations, 1990 (the Retrenchment Regulations)
terminating Nganguras employment, and referred to trial the issue
of whether the first respondent (Sibanda) had consented
termination of her employment.
background facts are as follows. Ngangura and Sibanda were employed
by the ICRC in Zimbabwe. Nganguras employment was
31 December 1997, and Sibandas was terminated on 31 December
1998. However, the circumstances in which
their employment was
terminated were not common cause.
Sibanda alleged that they had been unlawfully retrenched, whilst the
ICRC contended that the termination of employment
had been by
agreement and that the Retrenchment Regulations did not, therefore,
apply. When legal proceedings were threatened,
alleged that it could not be sued in Zimbabwe because it enjoyed
immunity from suit and legal process in terms of the
Immunities Act [Chapter 3:03]
the stance taken by the ICRC, Ngangura and Sibanda filed a court
application in the High Court seeking an order declaring
respect of their contracts of employment, the ICRC did not enjoy
immunity from suit and legal process, and directing the
comply with the Retrenchment Regulations. The learned judge who
heard the application granted the order sought by Ngangura,
referred to trial the issue of whether Sibanda had consented to the
termination of her employment. Aggrieved by that decision,
appealed to this Court.
main issues arise for consideration in this appeal. The first is
whether the ICRC enjoys immunity from suit and legal process
respect of contracts of employment. If it does, that is the end of
the matter and the appeal must be allowed. However, if
it does not
enjoy that immunity, the second issue to consider is whether the
termination of employment was by agreement. If it
Retrenchment Regulations would not apply and the appeal must be
of the Act, which deals with the privileges and immunities of
specified international organisations, reads as
follows, in relevant
President may, by notice in the Gazette,
confer upon any international or regional organisation or agency
specified in such notice all or any of the privileges and immunities
set out in Part I of the Third Schedule.
privileges and immunities set out in Part I of the Third
Schedule include immunity from suit and legal process.
In the court
it was not in issue whether or not the President had acted in terms
of s 7(1) of the Act in respect of the ICRC. Accordingly,
learned judge accepted that the ICRC had been duly accorded the
immunity from suit and legal process. But, as the learned judge
correctly observed, that does not shed any light on whether or not
the immunity covers all suits and legal processes.
order to answer that question, it is necessary to examine the nature
and extent of the immunity accorded a foreign sovereign
in terms of
international law, because it could hardly have been the intention of
the Legislature to grant greater immunity to an
organisation, such as the ICRC, than that granted to a foreign
concerning the immunity from suit and legal process accorded a
foreign sovereign has been the subject of judicial pronouncements
many years. Thus, in Rahimtoola
v H.E.H. The Nizam of Hyderabad & Ors
 3 All ER 441 (HL) LORD DENNING said the following at
is more in keeping with the dignity of a foreign sovereign to submit
himself to the rule of law than to claim to be above it; and
independence is better ensured by accepting the decisions of courts
of acknowledged impartiality than by arbitrarily rejecting
jurisdiction. In all civilised countries there has been a
progressive tendency towards making the sovereign liable to be
in his own courts notably in England by the Crown Proceedings
Act, 1947. Foreign sovereigns should not be in any different
position. There is no reason why we should grant to the departments
or agencies of foreign governments an immunity which we do
our own, provided always that the matter in dispute arises within the
jurisdiction of our courts and is properly cognizable
to the nature and extent of sovereign immunity, the learned LAW LORD
had this to say at 463I-464A:
this principle it seems to me that at the present time sovereign
immunity should not depend on whether a foreign government
impleaded, directly or indirectly, but rather on the nature of the
dispute. Not on whether conflicting rights
have to be decided, but on the nature of the conflict. Is it
properly cognizable by our courts or not? If the dispute
into question, for instance, the legislative or international
transactions of a foreign government, or the policy of its executive,
the court should grant immunity if asked to do so, because it does
offend the dignity of a foreign sovereign to have the merits of
a dispute canvassed in the domestic courts of another country; but if
the dispute concerns, for instance, the commercial transactions
foreign government (whether carried on by its own departments or
agencies or by setting up separate legal entities), and it
properly within the territorial jurisdiction of our courts, there is
no ground for granting immunity.
Congreso del Partido
 2 All ER 1064 (HL) at 1070 f-j LORD WILBERFORCE
is necessary to start from first principle. The basis on which one
state is considered to be immune from the territorial jurisdiction
the courts of another state is that of par
, which effectively means that the sovereign or governmental acts
of one state are not matters on which the courts of other
relevant exception, or limitation, which has been engrafted on the
principle of immunity of states, under the so-called restrictive
theory, arises from the willingness of states to enter into
commercial, or other private law, transactions with individuals. It
appears to have two main foundations. (a) It is necessary in the
interest of justice to individuals having such transactions with
states to allow them to bring such transactions before the courts.
(b) To require a state to answer a claim based on such transactions
does not involve a challenge to or inquiry into any act of
sovereignty or governmental act of that state. It is, in accepted
neither a threat to the dignity of that state nor any
interference with its sovereign functions.
therefore a claim is brought against a state
and state immunity
is claimed, it is necessary to consider what the relevant
which forms the basis of the claim: is this, under the old
terminology, an act jure
or is it an act jure
is it (to adopt the translation of these catchwords used in the Tate
letter) a private act or is it a sovereign or public
a private act meaning in this context an act of a private law
character such as a private citizen might have entered into?.
Trading Corporation Ltd v Central Bank of Nigeria
 1 All ER 881 (CA) at 890 f-g.
pronouncements by both LORD DENNING and LORD WILBERFORCE
received the approval of this Court in Barker
McCormac (Pvt) Ltd v Government of Kenya
1983 (2) ZLR 72 (S) at 79 G-H, 1983 (4) SA 817 (ZSC) at 821 F-G,
where GEORGES JA (as he then was) said:
am completely satisfied therefore that the doctrine of sovereign
immunity generally applied in international law is that of
immunity. There are no decisions of courts of this
country and no legislation inconsistent with that doctrine and it
incorporated as part of our law.
therefore, clear that the doctrine of sovereign immunity applicable
in this country is that of restrictive immunity as opposed
absolute immunity. In other words, a foreign sovereign would enjoy
immunity from suit and legal process where the relevant act
forms the basis of the claim is an act jure
i.e. a sovereign or public act. On the other hand, he would not
enjoy such immunity if the act which forms the basis of the
an act jure
i.e. an act of a private law character such as a private citizen
might have entered into.
in South Africa is the same. It was stated by CORBETT CJ
Shipping Corporation of India Ltd v Evdomon Corporation & Anor
1994 (1) SA 550 (A) at 565 A-B as follows:
position in this country regarding the doctrine of sovereign immunity
was carefully and comprehensively surveyed by the
Full Bench of the
Transvaal Provincial Division in the case of Inter-Science
Research and Development Services (Pty) Ltd v Republica Popular de
(1980 (2) SA 111 supra).
As this survey shows, South African Courts initially applied the
doctrine of absolute immunity, but in the Inter-Science
case the Court
decided to follow the world-wide trend and to
apply the restrictive doctrine.
my view, an international organisation, such as the ICRC, enjoys
immunity from suit and legal process subject to the provisions
international law, and the doctrine of restrictive immunity applies
to it. It could hardly have been the intention of the Legislature
to grant absolute immunity from suit and legal process to such an
organisation when a foreign sovereign did not enjoy such immunity.
I now wish
to consider the nature of the act which forms the basis of the claims
brought by Ngangura and Sibanda against the ICRC.
That act is a
contract of employment which, clearly, is an act of a private law
character such as a private citizen might have
come to that conclusion, it is not necessary for me to consider
whether clause 7 of the conditions of employment, which
that any dispute arising in the application of the conditions would
be settled in conformity with the labour legislation
in force in the
country, constituted a waiver of the ICRCs immunity.
circumstances, as the learned judge correctly decided, the ICRC does
not enjoy immunity from suit and legal process, and
raised by it falls away.
now wish to deal with the merits of the claim by the two employees,
i.e. that before terminating their employment contracts the
should have complied with the Retrenchment Regulations. The ICRCs
reply to this was that there was no need to comply with
Retrenchment Regulations because the contracts of employment were
terminated by agreement.
the case of Sibanda, the ICRC relies upon its letter to her which was
dated 18 February 1998. It was written by Frank Schmidt
(Schmidt), the ICRCs regional delegate, and reads as
is to confirm the agreement we reached in our meeting on 17 February
in my office regarding the termination of your employment
ICRCs regional delegation in Harare.
agreed on the following specific points:
1. Your contract of full-time
employment will end on 28 February 1998. Under a separate,
fixed-term contract, you will continue
to work for us, at 50% of your
time, from 1 March to 31 December 1998. The financial and
practical conditions pertaining
to this arrangement, including
severance pay, will be the same as those set out in Mr Givels
letter to you of 1 December
have made arrangements with the University of
Southern Queensland/Toowoombe to finish your studies in business
by the end of 1998. This means that the financial
support which ICRC is providing you with for these studies will also
at the end of 1998. You have assured me that the cost of
this support will not vary from that which we accorded you
Please confirm directly to Patricia Barber what
this will mean in actual figures and due-dates for our payments to
3. Due to the
above points having remained pending for some time, you said that you
have fallen behind in your studies. I have agreed
to compensate you
with a reasonable amount of extra time off to allow you to catch up.
Please discuss the exact modalities of this
with Patricia as well.
have asked me if ICRC can provide you with a PC for your studies. I
said I could not promise you anything, as we are under
from HQ not to divest ourselves of any of our EDP equipment at
present, but that we are prepared to examine other possibilities.
Please also discuss with Patricia.
would like to emphasise once again that these arrangements exceed by
far any obligations that ICRC might have toward you under Zimbabwes
labour laws, were it bound by them, and that they are far more
generous than any I have ever known ICRC to make for any local staff,
or indeed for any expat, ending their employment with the
am pleased that we have thus successfully and definitely concluded a
somewhat protracted process of clarification of the terms of
departure. I would appreciate your confirming your agreement to
these terms, as set out above, by returning to me a copy of
letter with your signature.
my best wishes for your personal and professional future, I remain
requested by Schmidt, Sibanda confirmed her agreement with the terms
set out in the letter by returning to him a copy of the letter
by her. In addition, the few remaining issues which were to be
finalised in consultation with Patricia Barber were
and finalised on 19 February 1998.
on 24 February 1998 Sibanda received her terminal benefits,
amounting to $118 703.10, in respect of the termination
main contract of employment, and on 18 December 1998 she
received her salary and other benefits, amounting to $23 326.00,
in respect of the fixed term contract.
the allegation by Sibanda was that in addition to the terms set out
by Schmidt in the letter dated 18 February 1998,
it was agreed
that the issue of whether or not she would receive a retrenchment
package, determined in terms of this countrys
labour law, would be
dealt with later. This allegation was made for the first time in
the answering affidavit, and Sibanda does
not explain why it was not
made in the founding affidavit.
any event, I find the allegation incredible, bearing in mind the
detailed agreement set out by Schmidt in his letter dated 18 February
1998. The letter set out in great detail what matters had been
agreed upon and what matters were still be to finalised. There
no mention of a retrenchment package being considered later.
robust and commonsense approach, I am satisfied that there is no
dispute of fact in this matter which cannot be resolved
papers. See Zimbabwe
Bonded Fibreglass (Pvt) Ltd v Peech
1987 (2) ZLR 338 (S).
In the circumstances, I am
satisfied that the termination of Sibandas employment was by
agreement and that the Retrenchment Regulations
do not apply.
Sibandas application should, therefore, have been dismissed.
Nganguras case stands on a different footing. On 1 December 1997
the ICRCs administrator advised him by letter that
because of the
need to reduce the local staff, his employment would be terminated on
31 December 1997. He objected to the
termination of his
employment unless it complied with the Retrenchment Regulations, but
accepted, under protest, the terminal benefits
offered by the ICRC.
He made it clear, however, in a letter dated 16 December 1997,
that he looked forward to negotiating
a proper retrenchment package.
circumstances, I cannot accept that the termination of Nganguras
employment was by agreement.
wish to deal very briefly with the allegation by the ICRC that the
application by Ngangura and Sibanda was in fact an application
review of the ICRCs decision to dismiss them. It was alleged
that the relief sought had been described as a declaratory
order to avoid the consequences of having failed to institute the
application for review within the time limit specified
in the High
this allegation the learned judge in the court a quo
cannot agree that this application is in reality one for review.
Review proceedings are concerned with an irregularity of a procedural
nature. The mere fact that the applicants allege a failure on the
part of the ICRC to comply with the Regulations does not raise
matter of procedural irregularity or impropriety. It raises,
rather, the issue of unlawfulness in the action taken by the ICRC.
respectfully agree. The ICRC alleged that the Retrenchment
Regulations did not apply because the termination of employment had
been by agreement. On the other hand, Ngangura and Sibanda alleged
that the Regulations applied, and sought a declaration to that
the circumstances, the following order is made:
1. The appeal against the order
granted in favour of the first respondent 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 is dismissed with costs.
JA: I agree.
JA: I agree.
appellant's legal practitioners
Manikai & Hwacha,
respondents' legal practitioners