This
opposed application is brought as a constitutional challenge to the
eight month time limit for suing the police as stipulated in section
70 of the Police Act [Chapter 11:10].
The
time limit is said to be unconstitutional in that it violates section
69(2) of the Constitution of Zimbabwe, Amendment (No.20) Act 2013
which relates to the ...
This
opposed application is brought as a constitutional challenge to the
eight month time limit for suing the police as stipulated in section
70 of the Police Act [Chapter 11:10].
The
time limit is said to be unconstitutional in that it violates section
69(2) of the Constitution of Zimbabwe, Amendment (No.20) Act 2013
which relates to the right to a fair, speedy and public hearing
within a reasonable time. It is also said to be a violation of
section 56(1) of the Constitution which guarantees equality before
the law and the right to equal protection and benefit of the law.
The
application is opposed by the Civil Division, on behalf of the
respondents, on the basis that the time frame provided has valid
justifications, moreso when examined from the prism of the nature of
their work.
THE
FACTUAL BACKGROUND
The
factual background that has exorcised these alleged constitutional
shortcomings in the relevant statute stems from a trigger-eager
incident involving gun-toting police officers in relation to two army
officers. It unfolded on a fateful night on the 19th
of July 2014.
The
applicants, Michael Nyika and Chrispen Tobaiwa, are both members of
the National Army stationed at One Zimbabwe Armoured Car Regimen HQ
Squadron, Inkomo Barracks. They boarded a vehicle around 11pm at
Westgate Shopping Centre in Harare on their way to Karoi. They were
clad in army uniform. They arrived in Banket an hour later. There
they boarded another vehicle, an NP300 pick-up truck, together with
other passengers, which was proceeding to Karoi. The driver, however,
indicated that he needed to pass through a farm known as Madzibaba
Farm. Unfortunately, in the darkness of the night, he lost his way
ending up at Ashire Mine. A person said to be most likely a security
guard at the mine is said to have advised the driver that he had
gotten lost. The driver had made a U-turn. About three kilometres
from the mine, the vehicle had been stopped by police officers whose
three vehicles are said to have blocked the road. The seven police
officers, stationed at Banket Police Station, were led by the third
respondent, one Inspector Damburai. They ordered all passengers out
of the vehicle and to raise their hands.
They
complied.
Despite
their compliance, it is said that Inspector Damburai and Constable
Lisborne Chibanda (who is the fourth respondent), together with their
other colleagues who were all armed with FN rifles, proceeded to fire
arms at the applicants. They were mistaken for robbers though
ultimately never charged.
Michael
Munyika lost his right hand middle finger and was also shot in the
chest on the far bottom right. The bullet remains lodged in his body.
He also sustained injury to his ribs behind the right arm. He was in
hospital from the time of the incident to 29 November 2014. Whilst
hospitalised, he gave the police the required notice to sue as
required by the law. He issued summons against the police on the 9th
of June 2015 claiming itemised special and general damages in the sum
of US$382,725= being delictual damages arising out of the negligent
and wrongful use of firearms by the third and fourth respondents in
particular. He also claimed interest a prescribed rate of 5% and
costs of suit. His summons were served on the 23rd
of June which was some eleven (11) months after the incident.
In
the case of Chrispen Tobaiwa, who says he had also lifted his hands
in surrender and complied with orders, the officers proceeded to
shoot him in his right leg. As a result, he lost the leg from the
knee down. He now walks with the aid of crutches. He was hospitalised
until sometime in October 2014. Notice to sue, as required, had been
communicated to the first and second respondents on the 9th
of September 2014.
It
is indicated by both applicants that there had been negotiations
between the National Army's relevant authorities and the Police
until December 2014 when the applicants say they realized that the
respondents were just buying time. Thus, Chrispen Tobaiwa issued
summons on the 9th
of June also claiming itemised special ad general damages amounting
to US$572,725= through the same firm of lawyers as the first
applicant, namely, Pundu and Company.
There
was thus some 11 months from the cause of action to the actual
service of summons.
As
there is a distinction between issuing of summons and the actual
service of summons, the running of prescription is only interrupted
when service of summons has been effected. See Masenga v Minister of
Home Affairs 1998 (2) ZLR 183. Therefore, summons in both cases were
too late to interrupt prescription as both claims had expired after
eight months in terms of the Police Act [Chapter 11:10].
Both
applicants rightly emphasize that the lengthy period in hospital had
a fundamental impact on their ability to fully pursue their claims.
However, the time limit had been no bar to their taking action all
along until service of the summons. What is apparent from the facts
is that there was largely an awareness of the law, at least on the
lawyer's part, and that despite this, the delay in the actual
issuance and subsequent service of the summons appears to have been
lawyer-driven. The parties were legally represented by the same firm
of practitioners at the time that they instituted the proceedings.
The requirement to give notice to the State had been complied with.
It is the totality of this context that leads me to believe that the
ultimate failure to serve summons timeously was largely a result of
tardiness on the part of their legal practitioner.
Materially,
however, the application is brought on the basis of the applicable
law in question being in violation of the highest law of the land.
By
zeroing in on the constitutional argument, the gist of the
applicants' standpoint is that what should pre-occupy this court in
this matter is not a subjective assessment of the failure to meet the
deadline, but, rather, an objective assessment of whether the
relevant provision of the Police Act, looked at objectively, deprives
persons, in general, of their right to access court within a
reasonable time. In other words, as a result of the barring of the
applicants arising from section 70 of the Police Act [Chapter 11:10],
the matter encapsulates a constitutional argument that is said to
speak beyond the facts of this individual case. In so far as the
underlying facts are paramount, it is with regard to their assisting
this court to make its assessment of the effects of the shortened
prescription period from a constitutional violation standpoint.
Whilst
the applicants zero in on the constitutional violation argument, for
the respondents, it is precisely within the four corners of the
applicable law that they rely on prescription and upon which they
justify the provisions as constitutional.
APPLICABLE
PROVISIONS OF THE LAW
General
limitation periods in our case are captured in the Prescription Act
[Chapter 8:11] while the time period set out in the Police Act
[Chapter 11:10] is an example of a special limitation period whose
justifications will be briefly analysed below given their centrality
to the respondent's arguments.
Section
70 of the Police Act [Chapter 11:10] reads as follows:
“Any
civil proceedings instituted against the State or member in respect
of anything done or omitted to be done under this Act shall be
commenced within eight months after the cause of action has
arisen…,.”
Section
6(1) of the State Liabilities Act [Chapter 8:14] requires 60 days'
notice to be provided to the State before any legal proceedings can
be instituted on a claim sounding in money or delivery of goods. It
is worded as follows:
“6(1)
Subject to this Act, no legal proceedings in respect of any claim for
–
(a)
Money, whether arising out of contract, delict or otherwise; or
(b)
The delivery or release of any goods:
and
whether or not joined with or made as an alternative to any other
claim, shall be instituted against -
(i)
The State; or
(ii)
The President, a Vice President or any Minister or Deputy Minister in
his official capacity; or
(iii)
Any officer or employee of the State in his official capacity;
unless
notice in writing of the intention to bring the claim has been served
in accordance with subsection (2) at least sixty days before the
institution of the proceedings.”…,.
The
sixty days is incorporated into the eight-month period under which
the claim is to be brought under the Police Act.
Counsel
for the applicants' argument was therefore that it is not only the
eight months period which is unreasonable but also the two months'
notice period incorporated therein that is also unreasonably short.
What
is apparent from the above provisions is that there is nothing
therein that gives the court discretion to depart from the
prescription period as outlined on the grounds of injustice or
explicable delay on the part of the applicant. The time limit is
strictly construed and results in extinctive prescription regardless
of whether the claim is justified or not justified and regardless of
whether the delay was voidable or unavoidable.
JUSTIFICATIONS
The
rationale for giving notification of intention to sue State
institutions is explained as being grounded in the need to give such
institutions an opportunity to investigate and consider claims
against them. It also accords an opportunity to decide, before
getting embroiled in litigation, at public expense, whether they
ought to accept, reject, or endeavour to settle the claim.
See
Stevenson NO v Transvaal Provincial Administration 1934 TPD 80...,.;
Osler v Johannesburg City Council 1948 (1) SA 1027 (W)...,.; Minister
of Agriculture & Land Affairs v CJ Ranche (Pty) Ltd 2010 (4) SA
109 (SCA).
Limitation
periods, in general, are justified on three primary grounds;
(i)
The first is in the repose or finality to claims argument. It is
essentially that there should be a fixed time when a potential
defendant knows that he or she will not be held accountable for
ancient obligations.
(ii)
The second justification is an evidentiary one, namely, that claims
should not be based on stale evidence.
(iii)
The third rests on the need for diligence on the part of those who
seek to claim in the sense that litigants should not “sleep on
their rights”.
Statutes
of limitation, therefore, act as an incentive for plaintiffs to act
in a timely fashion.
In
the case of Stambolie v Commissioner of Police 1989
(3) ZLR 287 SC....,
which the respondents heavily rely on, GUBBAY JA..., drew on the case
of Chase Securities Corporation v Donaldson (1944)
325 US 304 in
which the following observations were made by Justice JACKSON
regarding statutes of limitations:
“…,.
Statutes of limitations find their justification in necessity and
convenience rather than in logic. They represent expedients rather
than principles. They are practical and pragmatic devices to spare
the courts from litigation of stale claims, and the citizen from
being put to his defence after memories have faded, witnesses have
died and disappeared, and evidence has been lost.”
In
relation to the special time limit accorded the police, the
respondents also draw legitimacy for their position from the case of
Minister of Home Affairs v Badenhorst
1983
(2) ZLR 248 (SC)...,.;
in which GUBBAY JA..., approvingly endorsed the following
observations made by BENJAMIN J in Hatting v Hlabaki
1927
CPD 220...,.
that:
“A
police constable may have to deal with a great number of cases, the
details of which would probably be evanescent, and, if a plaintiff
was not under an obligation to bring an action within a period,
recollection of the proceedings would probably vanish from the mind
or become obscure; therefore provisions of section 30 seem to be only
reasonable.”
On
the basis of these arguments, the respondents point out that the
eight months' time period is not so inadequate in a practical sense
as to nullify the fundamental right of access to the courts.
The
reality is that whilst justifications which underlie statutes of
limitation remain valid in and of themselves, special protections
accorded certain State institutions have not remained unshakeable
constants. Country-level experiential data with time limits and
recommendations of Law Development Commissions have at one level been
a core driver of reform in this area, bringing to the fore the need
for adjustments.
In
England, for example, a shorter limitation period of six months for
actions against public authorities used to be applicable between
1893-1954 by virtue of section 1 of the then Public Authorities
Protection Act. It was repealed in 1954 by the Law Reform (Limitation
of Actions) Act 1954. An earlier reform committee, in 1943, had found
that most of the justifications for the shorter limitation period
against public authorities no longer held sway (this historical
overview of the English experience is gleaned from the comparative
discussion of prescription periods in the following document: South
Africa Law Reform Commission Discussion Paper 126 on Prescription
Periods (July 2011) ISBN 978-0-621-40078-6).
It
was observed, for instance, that the justification emanating from the
size of public authorities and the resultant difficulty of record
keeping was not unique to public authorities as large corporations
were in the same situation as public authorities in this regard. It
had also been concluded that most cases would still be brought
timeously even if the special limitation period were removed....,.
Significantly,
restrictions were seen as a curtailment on the rights of individuals
and caused injustice to plaintiffs with genuine claims. Limitation
periods, since the repeal, have been exactly the same as those
applying to any other defendant. To date, it is the Limitation Act of
1980 which applies to proceedings against the Crown in the same way
as it applies to proceedings between any other subjects….,.
The
Act outlines limitation periods for various causes of action. These
cover negligence claims, tort product liability, personal injury or
death, contract, contract under seal and claims for the recovery of
land, proceeds of sale of land or money secured by a mortgage charge
among a variety of issues. See
https//www.pinsentmasons.com.
Claims
against the police which constitute torts and include actions such as
wrongful arrest/false imprisonment; death in custody; malicious
prosecution; negligence by the police; unlawful stop and search must
all be brought within 6 years of the event. However, a claim for
assault must be brought within 3 years of the event. A claim alleging
breach of the Human Rights Act (Human Rights Act 1998) must be
brought within 1 year of the event in terms of that particular Act
which deals with human rights (these time frames have been accessed
and extracted from https//www.donoghue–solicitors.co.uk).
GROUNDING
OF THE CONSTITUTIONAL ARGUMENT
At
another level, the ever strengthening practice of mirroring, for
conformity, all laws against human rights and constitutional
standards, has equally impacted on the need to revise limitation
statutes in pursuance of meaningfully achieving the goal of access to
justice.
As
captured by DIDCOTT J in Mohlomi v Minister of Defence 1997 (1) SA
124 (CC), in acknowledging the underlying justifications for statutes
of limitation in general:
“It
does not follow, however, that all limitations which achieve a result
so laudable are constitutionally sound for that reason. Each must
nevertheless be scrutinised to see whether its own particular range
and terms are compatible with the right which section 22
(this
was with reference to section 22 of the then interim Constitution of
South Africa of 1993)
bestows on everyone to have his or her justiciable disputes settled
by a court of law. The right is denied altogether, of course,
whenever an action gets barred eventually because it is not
instituted within the time allowed. But the prospect of such an
outcome is inherent in every case, no matter how generous or meagre
the allowance may have been there and it does not per se dispose of
the point, as I view that at any rate. What counts is the sufficiency
or insufficiency, the adequacy or inadequacy, of the room which the
limitation leaves open in the beginning for the exercise of the
right. For the consistency of the limitation with the right depends
upon the availability of an initial opportunity to exercise the right
that amounts, in all the circumstances characterising the class of
case in question, to a real and fair one.”...,.
This
case was heavily relied on by applicants in this matter.
The
emergent principle from this case, as applied in later cases dealing
with various instances involving statutes of limitation, has thus
been the availability of the opportunity to exercise the right to
judicial redress and whether that is reasonable time-wise.
Counsel
for the applicants referred this court to cases that drew on the
principle in Mohlomi
v Minister of Defence 1997 (1) SA 124 (CC)
in South Africa such as Moise v Greater TLC: Minister of Justice
Intervening 2001 (4) SA 491; Engelbrecht v Road Accident Fund
2007 (6) SA 966; Brummer v Minister of Social Development 2009 (6) SA
323 (CC) and Barkhuizen v Napier 2007 (5) SA 323 (CC) among others.
What
constitutes an adequate and fair opportunity is a more fundamental
contextual question which draws on social, economic, and political
context where the statute of limitation seeks to find fruition.
What
was at stake in that particular case was the constitutionality of the
then section 113(1) of the SA Defence Act 44 of 1957 which required a
civil action to be instituted against the police within a period of
six months, incorporating a one month notification period. It was
held to be a violation of the constitutional right to have
justiciable disputes settled by a court of law, or, where
appropriate, another independent or impartial forum. The court took
due notice of the South African contextual realities for the majority
of poverty, illiteracy, and inequality insofar as these impact on
ability to access the law. Legal illiteracy, in particular, abounds,
and, as observed, many people who may have been injured may simply be
unaware of their rights in light of limited availability of legal
aid. It was therefore emphasised that within such context, the
limited timeframe within each ordinary citizens were expected to
pursue their remedies against State bodies, such as the defence
forces in this instance, was jarring.
By
placing statutes of limitations under constitutional scrutiny, the
tampering has been at two levels:
(i)
Firstly, in the adjustment in the time period for giving notice for
the intention to sue and permitting condonation; and
(ii)
Secondly, in the adjustment of the curtailed time period for suing
State institutions by subjecting hitherto 'sacred' cows to
prescription periods that are in line with those in the relevant
provisions of the Prescription Act in line with everyone else.
It
is within the above knowledge context of constitutional arguments
elsewhere that the applicants point to core constitutional violations
arising from the unreasonably short time periods for giving
notification and for suing. They draw strength from section 56 of the
Constitution which focuses on the right to equal protection and
section 69(2) on the right to a fair and speedy hearing within a
reasonable time.
Section
56(1) reads as follows:
“All
persons are equal before the law and have the right to equal
protection and benefit of the law.”
“In
the determination of civil rights and obligations, every person has a
right to a fair, speedy and public hearing within a reasonable time
before an independent and impartial court, tribunal or other forum
established by law.”
Two
sets of constitutional arguments therefore arise from the above.
(i)
The one relates to the unconstitutionality of the protective time
limit accorded to the police as violating the principle of equal
protection before the law.
(ii)
The other relates to the time limit in so far as it infringes the
right to access courts.
I
will address the equality argument first as, in my viewing, that is
really the starting point.
Equal
protection before the law
By
giving the police preferential treatment in terms of the time period
within which claims must be instituted against them, the underlying
argument is that implicit therein is the absence of equal protection
and benefit of the law. In other words, by giving special protection
to the police, this piece of legislation is an exemplar of positive
discrimination in favour of the police, on one hand, which certainly
results, on the other hand, in negative discrimination against
ordinary citizens with claims against them.
By
way of illustration, counsel for the applicants argued that the
police are given protection for reasons which, at the end of the day,
bear little grounding in logic. He emphasised that in the modern age
of computers and e-governance, the argument regarding the need to
accord special protection on account of the size and bulkiness of the
State no longer holds water. He pointed that there are equally other
large corporations and institutions, among them the CIO, as an
institution, and corporates like Econet, that employ a large
workforce and yet do not enjoy any special privileges when it comes
to being sued. He also observed as equally problematic, the
justification for the curtailed time limit, on account of the volume
of their work and their heightened likelihood of forgetting. He
opined that this lacked logic on the basis that every other person
forgets too and that if a general period of three years is good
enough for everyone in terms of the Prescription Act, it should be
good enough for the police.
I
would agree with these observations for the following reasons;
An
examination of changes in prescriptive periods involving actions
against the police from other legal systems do indeed bear testimony
to the fact that over the years dynamic changes which accord with
equal protection before the law have infiltrated this sphere of
restrictive protections. The trend has shifted in favour subjecting
State institutions, like the police, to time periods which generally
accord with everyone else.
In
Mohlomi
v Minister of Defence 1997 (1) SA 124 (CC)...,
the court pointed out that reasons such as those advanced by the
respondents in this case, which touch on the logistical and
bureaucratic hurdles in suing the State, had, in the context of South
Africa, been discounted by its Law Commission some ten years earlier.
The Commission had even, at that time, recommended that ordinary
prescription periods apply to litigation against departments of
State. It had also recommended that save for the requirement for
rigour in notification, special periods should be scrapped.
The
situation in South Africa today is that a 3-year prescription period
applies to actions against the police.
Following
the Constitutional Court declaration that certain limitation or
expiry periods were inconsistent with the Constitution and hence
unconstitutional, the culmination in South Africa was the enactment
of the Institution of Legal Proceedings against Certain Organs of the
State Act, Act 40 of 2002 which impacted on, among other statutes
involving State institutions, section 113 of the Defence Act 1957;
section 57 of the South African Police Service Act 68 of 1995; and
section 26 of the Intelligence Services Act to mention a few.
The
time period for suing the police is now three (3) years in line with
the Prescription Act.
In
face of the Constitutional argument it is, however, not all time-bar
limits that have been held to be inconsistent with constitutional
standards.
In
Road Accident Fund & Anor v Mdeyide
2011
(2) SA 26 (CC)
it was held that the Road Accident Fund Act (RAF) had been
specifically enacted because the Prescription Act was not regarded as
appropriate. The Act differed with the Prescription Act as to when
prescription begins to run. Whilst acknowledging that the Act limits
the right to access to the courts, what was taken into account in
finding the limitation reasonable and justifiable was the potential
harm to the viability of the function of the Fund should a “knowledge
requirement”, as under the Prescription Act, be imported into the
relevant provision in the Road Accident Fund Act (RAF). See also
Barkhuizen v Napier 2007 (5) SA 323 (CC)
…,.
Access
to the courts
The
gist of the argument, with regard to access to justice, is that
extinctive prescription that arises from the failure to institute
proceedings against the police within the stipulated time frame,
means that those with genuine claims are denied of redress in
relation to their right to access courts. This is particularly so
given the absence of the power to condone late applications in the
said provision (other cases that have come before our courts where
the stipulated time period has proved to be an achilles heel in the
pursuance of claims against the police include Chihota v Home Affairs
Minister & Ors HH93-15; Charles Ngoni v Minister of Home Affairs
& The Commissioner of Police & Anor HH658-15).
The
applicants find favour in the arguments presented in Mohlomi
v Minister of Defence 1997 (1) SA 124 (CC)
that in a social context where poverty and legal illiteracy abounds,
and where legal aid is limited, the curtailed time-frame can only but
deny ordinary people the right to access courts.
Again,
I would agree fully with counsel for the applicant's argument that
the contextual challenges presented in that case, such as lack of
awareness of the law and inability to readily access legal aid,
pertain to our situation just as vigorously - if not more so.
I
had occasion to observe, in the case of Deria Mupapa v George Mandeya
HH443-14 (see in particular the discussion on pp 8-9 of that
judgement) that the State's role in promoting access to justice
through widespread information dissemination so as to create, at the
very least, knowledge of the law for accessing the courts remains
minimal. Non-governmental organisations who often play this role more
directly are equally hampered by financial constraints in terms of
their geographical reach. Where they do have reach, people may also
only get to know of their rights well out of time.
Therefore,
if the critical test for reasonableness of a time limit, such as the
eight months in the Police Act, is whether it permits sufficient or
adequate time to exercise the right of access to the court, then
undoubtedly, for the vast majority of our populace who face the
challenges alluded to, the resounding answer is that it simply does
not.
Notably,
as counsel for the applicants was indeed keen to emphasize, Stambolie
v Commissioner of Police 1989
(3) ZLR 287 SC which
the respondents rely on was also scrutinised in Mohlomi
v Minister of Defence 1997 (1) SA 124 (CC) since
it had been drawn on in argument as one of the cases justifying time
limits. The first observation made by DIDCOTT J was that Stambolie v
Commissioner of Police 1989
(3) ZLR 287 SC had
not been confronted with a similar provision like section 22 relating
to the right to have all justiciable disputes settled by a court of
law, which was what was under scrutiny in the case before him.
Secondly, it further observed that Stambolie v Commissioner of Police
1989
(3) ZLR 287 SC had
not been about actual the time limit provided in the Police Act for
bringing a case against the police but rather about the
Constitutional entrenchment of the right to compensation for unlawful
arrest or detention. To the extent that the actual time limits had
been referred to, it was noted that these had been obiter.
Counsel
for the applicants also argued that the 60 day notice period for
notifying the police is problematic insofar as it is sufficient to
allow for access to justice within a reasonable time as envisaged by
section 69(2).
As
pointed out, in the framing of section 70 the Police Act [Chapter
11:10] there is no power to condone non-compliance with time frames.
Such power is important in the sense that it provides applicants with
an opportunity to explain their non-compliance, and, if good cause is
shown, condonation is granted.
In
Botswana, for example, although the timeframe for suing the police is
six months, in terms of section 61 of the Police Act [Chapter 21:01],
the provision permits an extension on good cause shown. It reads as
follows:
“For
the protection of persons acting in pursuance of this Act, any civil
action against any such person in respect of anything done or omitted
to be done in pursuance thereof shall be commenced in the six months
next after the cause of action arises and notice of any civil action
and of the substance thereof shall be given to the defendant at least
two months before the commencement of the said action: Provided that
the court may, for good cause, proof of which shall be upon the
applicant, extend the said period of six months.”...,.
See
the case of Tidimane v Attorney General 1990 BLR 540 (HC) for the
application of the provision in that case. I tried to ascertain if
there have been changes to this legislation and it appears to be
still as outlined.
In
South Africa, following the enactment of the Institution of Legal
Proceedings against Certain Organs of the State Act, Act
40 of 2002 (section 3(1) of the Act provides that no legal
proceedings for the recovery of a debt may be instituted against an
organ of State unless the creditor has given the said organ of State
notice in writing of his or her or its intention to institute the
legal proceedings. Section 3(2)(a) stipulates that a notice must,
within six months from the date on which the debt became due)
the notice period for suing an organ of the State institutions must
now be given within a period of six months. Even then, condonation
can be sought for failure to adhere to the stipulated time for
notification.
Thus,
in Madinda v Min of Safety & Security of the Republic of South
Africa
2008
(4) SA 312 (SCA)
the court held that the determination of good cause entailed a
consideration of those factors which have a bearing on the fairness
of granting condonation and affecting the proper administration of
justice. These factors to be taken into account were said to include;
(i)
Prospects of success in the proposed action.
(ii)
Reasons for the delay.
(iii)
The sufficiency of the explanation offered.
(iv)
The bona fides of the applicant;
(v)
Any contribution by other persons and other parties to the delay and
the applicant's responsibility therefor.
See
also MEC for Education, Kwazulu Natal v Shange 2012 (5) SA 313 (SCA).
