The Indian consulate general is claiming “diplomatic immunity” in a complaint before the Commission for Conciliation, Mediation and Arbitration (CCMA) lodged by a former employee who was summarily dismissed after working as a clerk for almost 18 years, apparently on allegations he was a spy.
Siphiwe Mchunu has already cleared one legal hurdle in his matter with a ruling condoning the late filing of his application.
He told the commission he had been in hiding since his dismissal in April.
“He alleges he was subjected to interrogation, had his car forcibly opened and searched and discovered a device planted in it. He left Durban and went into hiding,” CCMA commissioner Jerald Vedan said in his recent ruling.
“He argues that he has substantial prospects of success because he was never informed about the documents allegedly found on his cellphone, which has still not been returned to him despite numerous requests.”
He said the reasons for a delay in filing the complaint were “credible and satisfactory”.
Submissions by attorney Tashya Giyapersad, for the Indian consulate, were that the CCMA had no jurisdiction to hear the matter, said Vedan.
He said the procedure to serve legal processes on foreign states was regulated by the Foreign States Immunities Act and courts had clarified that referrals to the CCMA do not constitute “legal proceedings”.
“Rather it imposes a duty on the CCMA to attempt conciliation thereby potentially avoiding formal legal proceedings,” Vedan said.
The department of international relations and cooperation (Dirco) outlines a procedural policy for the handling of disputes involving foreign diplomatic entities.
The policy states that the applicant should initially refer a dispute to the CCMA without needing to provide proof of service on the consulate or embassy.
He said Mchunu thus had a right to refer the case to the CCMA.
Giyapersad, in her affidavit, argued the Foreign States Immunities Act precluded litigation relating to the employment of diplomatic, administrative, technical and service staff of any foreign mission in South Africa.
She said Mchunu worked under the auspices of the ministry of external affairs, New Delhi.
At all material times, he operated purely for the purposes of the consulate and as such his tasks and functions applied to the business affairs of the consulate, and not of South Africa.
His employment contract made it clear he was subject to the rules governing India and not those of South Africa.
She said the termination was “sensitive in nature and pertains to internal processes and cannot be discussed in a forum such as the CCMA or any such South African-based forum of court”.
Giyapersad also pointed to the Vienna Convention on Diplomatic Relations, which barred attachment of assets from any foreign mission.
“This essentially means that under no circumstances will any award in favour of the applicant, ever be made enforceable. It makes such a referral to the CCMA pointless and a waste of time.
“If the applicant had a case to be answered, he should have immediately referred the matter to the Indian authorities and not the CCMA, and should have dealt with it via its foreign officer.”
Giyapersad told TimesLIVE premium the CCMA still had to decide on whether it has jurisdiction.
Mchunu, however, is determined to be heard.
His attorney Nyameko Jodwana said: “We are going to the next stage now. We will argue that our client did not get a fair hearing and his constitutional rights were violated.”
In a memorandum written to Dirco, seen by TimesLIVE premium, Mchunu claimed staff were called to an urgent meeting.
Head of chancery Prem Sagar Kesarapu made them all hand over their phones. He then transferred information from the phones to his own device.
“This incident has left me with numerous unanswered questions as to why both myself and my family have become targets of scrutiny.”
— Siphiwe Mchunu
Later that day, Mchunu was interrogated about documents on his phone, his bank accounts and his son, who works as a teacher in China.
He said the issue of his son’s employment had been raised previously, four years ago, “and I found myself facing the same line of questioning, this time in a formal setting within the boardroom, with six officials present.
“The meticulous note-taking during this session, coupled with the nature of the inquiries, led me to conclude that the consulate of India office in Durban believes that I am involved in espionage.
“I was also interrogated about my personal business dealings with China. I explained that I engage in the purchase and sale of products such as weaves, bags and cellphones from China.
“This incident has left me with numerous unanswered questions as to why myself and my family have become targets of scrutiny.”
He said he was not allowed to leave the office. But later heard his car alarm going off. He said someone had searched the vehicle: “I have never experienced such inhumane and racist treatment.
“They even forced me to open my online banking. They refused to return my phone.”
He said on the day he was dismissed, he had been physically searched and escorted into the boardroom.
He was asked for a year’s worth of bank statements and repeatedly told to “speak up” because this was his “final opportunity”.
Just after 6pm, the consul general had entered the boardroom and informed him of his expulsion due to security breaches. He was escorted out of the building.
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