Dingake was delivering judgment this week in a case where a former employee of the Libyan Embassy, Amadou Oury Bah was suing the mission for failing to pay him his severance pay.
Bah, a Guinean citizen, who used to work as a translator at the Libyan Embassy was also seeking relief for the payment of three months wages in lieu of notice, payment of unlawfully withheld wages and the return of his certificate of employment.
When the matter was brought to the Industrial Court last month, Dingake raised the question of whether the respondent, being an embassy of a foreign state, was capable of being sued having regard to the provisions of the Diplomatic Immunities Privileges Act. The judge also requested the Registrar of the Industrial Court to ask the Attorney General to appear amicus curiae (as a friend of the court) to assist the court in arriving at an appropriate determination.
Chief State Counsel, Stephen Tiroyakgosi of the Attorney General’s Chambers, submitted that the international law recognises the doctrine of restrictive immunity and that the respondent can be sued for acts that are not of a sovereign nature. His opinion was that Bah’s employment was not an act of a sovereign nature, but a mere private act that does not fall within the protection offered for the purposes of immunity.
Dingake who has just been appointed a High Court judge, ruled that the doctrine of absolute immunity that was previously applicable in International Law is no more. “In the days past, when absolute immunity reigned supreme, a sovereign state was immune, irrespective of the nature of the activities which gave rise to the suit. The notion of sovereign immunity can safely be regarded as dead and buried, it is offensive to modern thinking and has now given way to restricted immunity. In the past it did not matter whether the subject of litigation was a governmental one or purely commercial,” said Dingake.
He continued: “The Vienna Convention on Diplomatic Immunities and Privileges as incorporated into the laws of Botswana recognises the existence of certain exceptions to the immunity of a diplomatic agent to jurisdiction of the courts of Botswana. The Diplomatic Immunities and Privileges Act seeks to emphasise the application of immunity on matters which are necessary for the functional needs of a diplomatic mission or agent, hence the acceptance of exceptions to the rule on immunity in respect of matters which are of non-functional importance to the duties of a diplomatic agent. The Act draws a distinction between the diplomatic agent when conducting a sovereign act and those done as any other individual. In the case of the latter, the diplomatic agent is short of his/her immunity.”
After citing other legal authorities, Dingake said any action or legal suit arising from out of breach of the Employment Contract or Employment Act, involves a private law transaction and is justifiable. “In my considered view, there is no reason why the respondent should be immune from a legal suit of this nature. The applicant is not in any way challenging a governmental act, but is merely seeking compliance with the Employment Act in so far as he is merely claiming payment of severance pay, notice pay and the payment of wrongfully withheld wages.
“The proceedings do not in any way assault the dignity of the respondent. In my view, the respondent would have done itself some good if it had cooperated and submitted itself to the jurisdiction of the court.
“I would go further and suggest there is a duty of diplomatic missions or embassies to respect the laws of the receiving state, for to do otherwise may undermine the rule of law of the receiving state. In the end, the court is satisfied that the respondent enjoys no immunity with respect to this matter,” the judge ruled.
The court ruled that the Libyan Embassy should pay Bah his severance pay plus three months wages in lieu of notice and the P1,400 which was deducted from his salary. The embassy has also been ordered to furnish Bah with his certificate of employment.
No order was made in regard to costs. The applicant was not challenging the decision to terminate his contract of employment.
Bah was employed by the embassy since November 1999 until his employment was terminated in September this year. He avers in his founding affidavit that in terms of the contract of employment he signed, he was entitled to three months notice in the event that the embassy wished to terminate the contract. He therefore claims payment equivalent to his salary for three months in lieu of notice.
He further averred that the respondent unlawfully deducted a total amount of P1,400 from his July and August salary. He also wanted the respondent to give him his certificate of employment.
The court accepted his averments as being truthful because they were not challenged.
