Indian embassy invokes diplomatic immunity to halt SA police investigation

A diplomatic spat has broken out between the Indian high commission in Pretoria and the South African government over attempts by the South African Police Service (SAPS) to investigate criminal charges laid against a senior member of its Durban diplomatic staff.

The high commission invoked the Vienna Convention on Diplomatic Relations hours after a female police detective who is investigating criminal charges laid by former consul employee Siphiwe Mchunu was allegedly assaulted by Indian security staff in its Durban office on Monday.

The detective, based at the Durban Central police station, has since laid assault charges against the security official involved and the police service is understood to have now made a request to the department of international relations and cooperation for permission to pursue an investigation into both sets of charges.

But the Indian embassy has written to South Africa’s chief of state protocol, Nonceba Losi, invoking article 31 of the Vienna Convention on Consular Relations, to reiterate the “inviolability” of its consular premises.

It is understood to have accused the detective of having “shouted” at security staff and tearing a visitors’ book in the Durban consulate’s foyer in the Kingsmead precinct during an altercation.

Sources said the high commission registered a formal complaint and a “strong” protest with the department, and also asked for an urgent meeting with Losi.

It is not yet clear whether the meeting has taken place, but the international relations department has confirmed that it is aware of the “sensitive” incident and said it will process a request from the SAPS to pursue the matter.

The diplomatic drama unfolded after Mchunu, who worked at the Durban consulate for 26 years, laid charges with the police against head of chancery Prem Sagar Kesarapu for allegedly detaining and interrogating him on 26 April this year.

Mchunu said his cellphone was seized when he was interrogated about suspicions of his spying for China, India’s geopolitical ally and rival, because his son works in that country, adding that the device has not been returned to him.

Mchunu, who was fired three days later, laid further charges when he discovered his car had been broken into on the consulate premises — in which he later found an electronic device — and that his employer refused to return his cellphone.

The detective assigned the case is understood to have gone to the consulate to interview Kesarapu on Monday after two weeks of unsuccessfully attempting to speak to him over the phone.

A source with intimate knowledge of the matter said that after being forced to wait in vain for several hours and to hand over the case file to consulate security, the detective attempted to retrieve her documents and leave.

At this point an argument broke out and she was allegedly assaulted by an Indian security official during the scuffle that followed. The SAPS diplomatic unit was called and the detective then returned to Durban Central and laid an assault charge against the security official.

The Indian high commission has consistently failed to respond to emails and calls from the Mail & Guardian about the matter.

Chrispin Phiri, the spokesperson for South Africa’s international relations minister, Ronald Lamola, said that the department was “aware” of the matter.

“It is a delicate matter which is being handled with the appropriate care,” Phiri said. “The department will duly process and consider a request from the relevant SAPS unit.”

KwaZulu-Natal police spokesperson Colonel Robert Netshiunda undertook to comment, but had not done so by the time of publication.

This is not the first time that the Indian high commission has attempted to invoke the Vienna Convention with regard to its treatment of Mchunu.

Its lawyers did so last month in a failed effort to stop the Commission for Conciliation, Mediation and Arbitration (CCMA) from hearing an application by Mchunu over his dismissal.

Last week the CCMA condoned a late application by Mchunu and deferred any discussion on diplomatic immunity to later in the process.

Commissioner Jerald Vedan ordered that Mchunu be granted condonation despite an attempt by lawyers for the Indian consulate to argue that the CCMA did not have jurisdiction to hear the matter because staff of foreign governments had diplomatic immunity.

In his order Vedan said that although the consulate’s lawyer had “indicated that the CCMA does not have jurisdiction in the matter on the grounds of diplomatic immunity”, the matter had been set down as an application for condonation by Mchunu.

Vedan said he would deal with whether the CCMA had the authority to accept a referral, which had been applied for 56 days later and that “the question of diplomatic immunity can be pursued at a later stage in the proceedings”.

He added that Mchunu had told the CCMA his main reasons for the late referral was “fear for his personal safety” after he had been interrogated, had his car forcibly opened and searched and had discovered a tracking device in his vehicle.

Mchunu then went into hiding in Gqeberha and only returned to Durban a month after the incident. He then fell ill and sought medical treatment from a traditional healer, after which he had approached the international relations department for intervention, before being referred to the CCMA.

Vedan said despite the “considerable” delay, he had been persuaded that Mchunu should be allowed the opportunity to bring his matter before the CCMA because he had provided explanations as to why he was “compelled to leave town”.

The reasons for lateness were “credible and satisfactory” and were “both reasonable and compelling” because Mchunu had “presented a prima facie case for pursuing his claim despite the delay”.

“I am of the opinion that the matter warrants further consideration,” Vedan said in the order.

He said Mchunu had followed the procedural policy for handling disputes involving foreign diplomatic entities, which was contained in guidelines provided by the department’s directorate for diplomatic immunities and privileges.

This stated that Mchunu should initially refer the dispute to the CCMA without having to provide proof that he had served notice of intention to do so to the consulate or embassy.

The consulate’s legal team had argued that it was necessary for him to do so and that he should have followed a channel through the Indian government, rather than taking the matter to a South African forum.

The consulate team said Indian law, and not South Africa’s labour relations regime, should apply in Mchunu’s case because the services he provided were for the benefit of the government of India.

It has also argued that the matter was “too sensitive” to be ventilated in any South African forum because the detail concerned the workings of the Indian consulate and that the investigation into Mchunu was ongoing and confidential.

Vedan said Mchunu was now “unemployed after 26 years of service and is the sole provider for his family”, and that this significantly outweighed any prejudice the government of India might suffer by the matter being heard.

“The applicant, being 52 years old, faces considerable challenges in securing new employment and providing for his family under the current circumstances,” Vedan said.

He said Mchunu had argued in papers that he had a strong prospect of success in the matter because the consulate staff had not provided any evidence before firing him and this also weighed in favour of the hearing going ahead.

In addition to taking the CCMA action and laying criminal charges, Mchunu has also furnished the international relations department with a dossier alleging racist and corrupt behaviour by members of the Indian diplomatic contingent, including the abuse of allowances during the Brics (Brazil, Russia, India, China and South Africa) summit held in Johannesburg in August last year.