(Graphic: John McCann/M&G)
A former South African employee of the Indian consulate in Durban claims he was illegally detained and interrogated by consulate staff who accused him of spying for China because his son teaches in that country.
The consulate and the high commission in Pretoria have not responded to several queries about the claims by Siphiwe Mchunu, who had worked as a clerk at the consulate since 2006, and says he was subjected to racist treatment by consular staff before being dismissed in April.
The consulate’s legal team has claimed diplomatic immunity and has opposed Mchunu’s attempts at arbitration, arguing that he is subject to India’s labour law regime — and not South Africa’s — and that reasons behind his firing are “too sensitive” to be dealt with in a public forum.
Mchunu says he was interrogated on 26 April at the consulate offices in Durban’s Kingsmead precinct for nearly six hours and was only allowed to leave the complex close to 11pm, leaving his daughter stranded at school and his wife unaware of his whereabouts.
Mchunu’s cellphone was confiscated and was not returned to him when he was dismissed on 29 April, when he says he was again subjected to an interrogation about his son.
Mchunu is challenging his dismissal at the Commission for Conciliation, Mediation and Arbitration (CCMA), where an initial hearing of the complaint he lodged after being fired took place on 20 August.
He has also written to the department of international relations and cooperation, informing it about his ordeal and outlining allegedly racist treatment of himself and other black staff members.
In the memorandum to the department, seen by the Mail & Guardian, Mchunu said all South African staff members had been called to an urgent meeting in the boardroom at about 3pm by the head of chancery, Prem Sagar, who had instructed them to bring their cellphones.
Mchunu said employees did so after they were told they would be fired if they refused. Sagar ordered them to unlock their phones, and “proceeded to copy or transmit any desired information from the phones to his own device”.
At about 5pm Mchunu was interrogated by Sagar, who told him official documents had been found on his cellphone. He was then asked to provide details about his wife and children, his bank accounts and those of his family members.
Mchunu said he had explained that the documents had been sent to him for printing by the director for cultural affairs, Anasuya Boligarla.
“The second line of questioning focused on my son, who is currently employed as a teacher in China. The officials expressed curiosity as to how my son secured employment in China without possessing a degree in education,” Mchunu said.
“They inquired about any assistance he may have received in obtaining the job and questioned why he had not visited home in the last five years. Lastly, they sought information on my son’s romantic partner, specifically whether she is of Chinese nationality,’ he said.
“I proceeded to clarify how my son had obtained employment in China, highlighting the fact that numerous South Africans are working in similar capacities in China. Additionally, I emphasised that my son is 26 years old and is entitled to live his life according to his own choices.
“I expressed my confusion regarding the relevance of these questions about my son, as they seemed unrelated to my role at the consulate,” Mchunu said.
According to Mchunu, this is not the first time that he had been harassed over his son working in China by consular staff. He said in 2020 he had been questioned about his son’s employment and told that “this situation could potentially jeopardise my position with the Indian government”.
He was told that this was because “some individuals within the office had expressed suspicions that my son’s activities could be exploited by the Chinese government due to my affiliation with the Indian government”.
“Now, four years later, I find myself facing the same line of questioning, this time in a formal setting within the boardroom with six officials present,” Mchunu said.
“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.”
He said he was also interrogated about purchasing hair weaves, bags and cellphones from China until about 11pm, despite having asked much earlier to be allowed to fetch his daughter from school.
Mchunu said he was told to return to work on 29 April.
When he did, Mchunu was allegedly first body-searched and then subjected to a further interrogation about his relationship with an Indian staff member, to whom he had lent money and his car.
He said he was also questioned about invoices he had generated on behalf of a car hire service provider and was taken by security staff to get bank statements from an automated teller on Sagar’s instruction.
Mchunu said he was asked to provide information about corruption between the Indian staff member and the car hire company, but did not do so because “I had no understanding of the subject matter he was referring to”.
“Subsequently, they became agitated and ceased verbal communication, resorting instead to exchanging written messages among themselves. This abrupt shift in behaviour raised my concern, especially when they intermittently left the room and returned to continue intimidating me about my employment,” Mchunu said.
He added that at this point he began to fear for his safety.
“Throughout this ordeal, I couldn’t help but recall the tragic story of Jamal Khashoggi. He, too, entered an embassy seeking official documentation, only to never return, with subsequent investigations revealing that he had been killed by embassy officials,” Mchunu said in the memorandum.
He said the questioning continued until about 6pm, when the consul general, Thelma John David, arrived and “promptly informed me of my expulsion from the consulate due to alleged security breaches”.
“She noted the discovery of official documents in my personal emails. She instructed consulate officials in the room to escort me out of the building, and I left,” he said.
Mchunu said the treatment he had experienced was “inhumane and racist” and that there had been a history of racist treatment of black people employed at the consulate in recent years.
Allegedly racist incidents included the failure of the consulate to pay black performers at a Yoga Day last year while paying their Indian counterparts and the recent refusal to pay retirement benefits to a black woman employee whose name is known to the M&G.
“The deplorable treatment endured by local employees of African origin is nothing short of disgraceful. They are subjected to substandard treatment, devoid of respect, and are essentially treated as second-class citizens in their own country,” Mchunu said.
“These individuals are often called upon to fulfil menial tasks, such as carrying their superiors’ handbags to and from the basement. Local Africans are exploited during consulate events, used as props for photo opportunities in order to feign diversity.”
He claimed black employees were compelled to work long hours and weekends without receiving adequate compensation, which was “a clear case of exploitation”.
“Africans who have dedicated 26 years of service to the consulate have been denied their rightful gratuity, while their Indian counterparts, despite serving fewer years, have enjoyed such benefits,” Mchunu said.
“While I refrain from implicating the government of India in this matter, I cannot overlook the fact that certain officials refuse to acknowledge our shared humanity.”
Mchunu said it was “disheartening to witness the current Indian diplomats in Durban dismantling the solid foundation established by their predecessors”.
He also outlined what he claimed were acts of corruption and abuses of diplomatic privileges by Indian staff members during consular events, and during the Brics meeting in Johannesburg last year.
These included defrauding the subsistence and transport allowance system by double claiming from the Indian government for meals that were being paid for by service providers.
And he claimed that a Zimbabwean was employed at the residence of the consul general in the city as a domestic worker, despite not having the necessary paperwork.
According to the letter of dismissal issued to Mchunu, his services had been terminated “consequent to the security check” carried out on 26 April.
On Tuesday, lawyer Tashya Giyapersad filed an affidavit with the CCMA asking for condonation for making a late application and claiming diplomatic immunity on behalf of the Indian consulate.
She said that in terms of the Vienna Convention on Diplomatic Relations and United Nations Convention, which were incorporated into South African law, “missions and diplomatic representatives enjoy immunity and inviolability”.
While there were exceptions to this in terms of the Foreign State Immunities Act, Mchunu’s contract was not exempt because it had
been signed in accordance with Indian, and not South African, labour law.
The Indian government “can never be a party to the proceedings as it is envisaged in terms of the CCMA proceeding as it is precluded and has immunity”, she said.
She added that there was “no need” for the CCMA to set the matter down for further hearing to decide on the matter of jurisdiction and asked that it be dismissed on the grounds of her affidavit.
Giyapersad said the matter involving Mchunu was still under investigation and was “sensitive in nature and pertains to the confidential internal processes” of the consulate and therefore “cannot be discussed in a forum such as the CCMA or any such South African-based forum or court”.
“It is for this very reason that he was employed by the rules that regulate the employment of Indian nationals and South Africans,” she said.
She added that the Vienna Convention stated that the assets of a diplomatic mission could not be attached, and that this meant that any award by the CCMA in Mchunu’s favour could not be enforced.
“It makes such a referral to the CCMA pointless and a waste of time,” Giyapersad said.
Given the “sensitivity” of Mchunu’s employment, it was impossible to discuss the merits of his case because it related to “confidential internal processes” of the consulate, she said.
Instead of approaching the CCMA, Mchunu should have “immediately referred the matter to the Indian authorities” and should have dealt with it through its foreign offices, Giyapersad said.
The matter has been adjourned with no definite date to resume to allow Mchunu to file an answering affidavit.
Chrispin Phiri, the spokesperson for the international relations and cooperation department, undertook to comment but had not done so at the time of writing.
Last week, Mchunu laid criminal charges at the Durban Central police station against Sagar for unlawful detention.