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]....,.
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 ...
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]....,.
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....,.
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.
