IMMUNITY- SU4.2

Question 1

TWO FORMS OF IMMUNITY:

Answer 1

1. Sovereign or state immunity
2. Diplomatic and consular immunity.

Question 2

SOVEREIGN OR STATE IMMUNITY:

Answer 2

involves the immunity of the head of a foreign state or government, the government of a foreign state or its senior officials or a department of such a government.

Question 3

DIPLOMATIC AND CONSULAR IMMUNITY:

Answer 3

deals with the immunities and privileges granted to foreign diplomats and consuls.

Question 4

States support a…

Answer 4

states support a doctrine of restricted or qualified immunity, according to which immunity from the jurisdiction of municipal courts will be granted in respect of acts jure imperii (governmental public activities) and not in respect of acts jure gestionis (commercial activities).

Question 5

AUTHORITIES (ACTS/ CASE LAW):

Answer 5

1. Foreign states immunities act 87 of 1981
2. Arrest Warant Case

Question 6

IMMUNITY WILL NOT BE GRANTED IN THE FOLLOWING CASES:

Answer 6

1. Waiver
2. Commercial transactions
3. Contract of employment
4. Personal injury and damage to property
5. Miscellaneous

Question 7

WAIVER:

Answer 7

a foreign state will have no immunity where it has expressly waived immunity after the dispute has arisen or where it has done so by prior written agreement.

Question 8

COMMERCIAL TRANSACTIONS:

Answer 8

a foreign state will not be immune from the jurisdiction of a municipal court in proceedings relating to ‘a commercial transaction’ entered into by the state.
-to determine whether a transaction is commercial, it is therefore necessary to consider its nature and not its purpose.

Question 9

CONTRACT OF EMPLOYMENT:

Answer 9

in terms of s 5(1) of the Foreign States Immunities Act, a South African court will have jurisdiction in proceedings relating to a contract of employment between a foreign state and an individual provided that:
1. the contract was entered into in the Republic, or the work is to be performed wholly or partly in the Republic.
2. at the time when the contract was entered into the individual was a South African citizen or was ordinarily resident in the Republic.
3. at the time when proceedings are brought the individual is not a citizen of the foreign state.

Question 10

PERSONAL INJURY AND DAMAGE TO PROPERTY:

Answer 10

a foreign state is not immune from the jurisdiction of a municipal court in proceedings relating to death, injury to any person or damage to tangible property caused by its acts or omissions in the Republic.

Question 11

MISCELLANEOUS:

Answer 11

a foreign state will not enjoy immunity in proceeding relating to immovable property, trademarks, membership of an association, or sales tax.

Question 12

IMMUNITY RATIONE PERSONAE:

Answer 12

attaches to the person because of his status or office

Question 13

IMMUNITY RATIONE MATERIAE:

Answer 13

relates to acts performed in an official capacity.