Jurisdictional immunity in South Africa: interpreting section 2 of the foreign states immunities act in light of article 6(2)(B) of the United Nations convention on jurisdictional immunities of states and their property, 2004, and its drafting history

Abstract

In East Asian Consortium BV v MTN Group Limited the applicant sued the respondent in a South African court for allegedly bribing Iranian officials to award the latter a tender at the expense of the former. The respondents invoked section 2 of the Foreign States Immunities Act, 1981, to argue that South African courts did not have jurisdiction over the matter because the action was indirectly against the Iranian government which enjoyed jurisdictional immunity under article 6(2)(b) of the Immunities Convention, 2004. The majority of the court declined to interpret section 2 of the Foreign States Immunities Act in light of article 6(2)(b) of the Immunities Convention. In reaching this conclusion, the court relied on the United Kingdom Supreme Court’s decision in Belhaj v Straw, which held that the drafting history of article 6(2)(b), as well as state practices, showed that it is not customary international law, and that in the United Kingdom the Immunities Convention was not regarded as international law. In this article, the author argues to the contrary. By undertaking an in-depth analysis of the drafting history of article 6(2)(b) of the Immunities Convention and current state practices, the author argues that article 6(2)(b) of the Immunities Convention is international law (as understood by the South African Constitutional Court). Consequently, the court should have relied on it in interpreting section 2 of the Foreign States Immunities Act. It is also argued that a combined reading of the drafting history of article 6(2)(b) of the Immunities Convention and section 2(2) of the Foreign States Immunities Act shows that the court should have held that it did not have jurisdiction in the case. It is argued, further, that article 6(2)(b) is not limited to cases where a foreign state has legal interest in property but that it is applicable to interests, rights, property and activities. Furthermore, since the alleged bribery took place in Iran and the acts in question were juri imperii, South African courts did not have jurisdiction.