JEWISH CHAUFFEUR CLAIMS DISCRIMINATION BY ESWATINI HIGH COMMISSION

MBABANE – Eswatini can brace itself for a court battle that may attract international attention, involving the country’s high commission to the United Kingdom (UK) and a former staff member. The case also touches on allegations that the former staff member, who was a chauffeur, was discriminated against because he is a member of the Jewish Community. Racist remarks were allegedly made against the Jews and he felt offended. 

The claimant in the case is Adam Gale, a former chauffeur of the High Commissioner Thandazile P Mbuyisa.  Gale submitted to the Labour Tribunal, a British version of the Conciliation, Mediation and Arbitration Commission (CMAC), that he was unfairly dismissed and is, therefore, entitled to compensation. Gale brought complaints of unfair dismissal, wrongful dismissal, race discrimination, failure to pay notice pay and unlawful deductions from wages in relation to overtime pay, against the high commission.

Judgment

The Central London Employment Tribunal, presided over by Employment Judge Brown heard the case on January 25, 2025 and handed down a judgment. The high commissioner was represented by Counsel N Hart, while Gale was represented by Counsel T Lowenthal. “The claimant gave his dates of employment as September 21, 2022 – June 20, 2023. In his grounds of complaint, he said that he had been subjected to racial discrimination as a Jewish person. He also said that he had not been paid holiday pay,” reads the judgment.

The high commission argued that it has State immunity from such legal proceedings in that Gale’s contract of employment, as a member of the staff of the high commission, was entered into in the exercise of the high commission’s sovereign authority. They argued that this is so because the functions which Gale was employed to perform were closely connected to the performance of ‘governmental functions and exercise of sovereign authority’. To support its argument, the high commission further said Gale was employed as the high commission’s chauffeur and was responsible for transporting the high commissioner, other diplomatic agents in the UK and other senior dignitaries and government figures, to official events.

“It said that the claimant was entrusted with maintaining the security of these individuals and the high commission and was privy to confidential information. It said that he was, therefore, closely involved in protecting, in the UK, the interests of the Kingdom of Eswatini and of its nationals within the meaning of Article 3(1)(b) of the Vienna Convention on Diplomatic Relations.” The high commission also argued that the case should have been addressed to the Kingdom of Eswatini as the respondents in the matter. Due to diplomatic status, High Commissioner Mbuyisa and Counsellor at the High Commission Temnotfo Nkambule, did not give evidence. They also wrote witness statements, which the court used to make determinations on the matter.

The judge had to determine the job description of the chauffeur to know if indeed it bordered on the high commission’s sovereign authority. This was after the councillor had said Gale’s role was ‘an important position of trust and responsibility’. “None of the mission cars which the claimant drove had a partition separating the chauffeur from the passengers. The claimant could overhear the conversations which were taking place in the car and on the phone. The high commissioner would speak in her own language, siSwati, as well as in English.”

There was a dispute of fact between the high commission and Gale as to whether the diplomats at the mission discussed official business and took sensitive calls in the chauffeur’s presence.  “The high commissioner’s evidence was that she took telephone calls from colleagues at other embassies, or government officials from Eswatini. The claimant denied that he discussed diplomatic matters with his passengers. His evidence was that he would discuss their destination, or any significant events or successes which had been reported. The claimant said that the majority of his passengers’ conversations would be in siSwati,” the ruling said.

Reasons

One of the reasons that led to the high commission’s argument for diplomatic immunity being rejected by the court was that Gale, clearly, was interested in business and in pursuing his business interests. “From the documentary evidence, it appeared that he sought to introduce himself and his contacts to the mission and to ministers, with a view to promoting his business interests. However, from the documentary evidence, the diplomats at the mission did not reciprocate, or provide information to him. On the documentary evidence, they certainly did not disclose any confidential governmental matters, or strategic interests, to him.

I concluded that the diplomats were careful not to disclose any confidential information to the claimant. I found that it was very unlikely that they would have disclosed any such material in conversation in his car, either,” the judge ruled. Ultimately, the judge found that the case is not barred by State immunity. When a claim is ‘not barred by State immunity’ and can proceed, it means that a court has determined that a lawsuit against a foreign government can move forward because the legal doctrine of ‘State immunity’ does not apply in this particular case, allowing the plaintiff to pursue their claim against the State in court.

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