TSANGA
J:
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 Zimbabwe3
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, more so 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$382,725.00 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 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 realised 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$572,725.00 through the same firm of lawyers as 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.4
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 emphasise 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 preoccupy 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 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, 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 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 last sixty days before the
institution of the proceedings.” (My emphasis.)
The
sixty days is incorporated into the eight month period under which
the claim is to be brought under the Police Act.
Mr
Biti's 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. 5
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 Police6,
which the respondents heavily rely on, Gubbay JA (as he then was),
drew on the case Chase Securities Corporation v Donaldson7
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 Badenhorst8
in which Gubbay JA (as he then was), approvingly endorsed the
following observations made by Benjamin J in Hatting v Hlabaki9
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.10
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.11
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.12
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.13
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 Act14
must be brought within 1 year of the event in terms of that
particular Act which deals with human rights.15
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 Defence16,
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 2217
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.” (My emphasis).
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.18
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 in so far 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 time frame
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.”
Section
69(2) is couched as follows:
“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. 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. 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, Mr Biti 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 work force 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
the Mohlomi case19,
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
rigor 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 20
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 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 Mdeyide21
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 RAF.22
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.23
Applicants
find favour in the arguments presented in the Mohlomi case 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 Mr Biti'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
Mandeya24
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 Mr Biti was indeed keen to emphasise, the Stambolie25
case which the respondents rely on was also scrutinised in the
Mohlomi case 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 the Stambolie case 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 the Stambolie case 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.
Mr
Biti also argued that the 60 day notice period for notifying the
police is problematic in so far 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, 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 time frame 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.”26
(My emphasis)
In
South Africa, following the enactment of the Institution of Legal
Proceedings against Certain Organs of the State Act27
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 Africa28
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
applicant's responsibility therefor.29
CONCLUSION
Looking
at the totality of the arguments attacking the constitutionality of
the section 70, I come to the conclusion that it is inconsistent with
section 69(2) and section 56(1) of the Constitution of Zimbabwe.
There
is no reason why the general 3 year prescription period for ordinary
debts, as contained in section 15(d) of our Prescription Act, should
not govern claims against the police. I am bolstered in this view by
other equally important considerations as to why the shortened time
limit is constitutionally problematic. The provision being of
colonial legacy, the time period stipulated, whatever other
expediencies, was also no doubt influenced among them at the time by
the need to keep claims against the police in check in light of the
repressive policies. Like many others, this law was taken over at
independence amidst a reality where just as many laws have been
reformed or challenged constitutionally whilst just as many have
remained intact. The specific provision therefore embodies
“legislative lag.” More significantly, with the ushering in of
the new Constitution in 2013, an unprecedented number of civil and
political liberties have been introduced by the new Constitution to
keep the State accountable. The tenets of the new Constitution commit
the State to fostering a new era of people centred constitutionalism.
Core
to constitutionalism is regulating all forms of public power.
It
is at the everyday level that most ordinary citizens often experience
abuse of power as opposed to the abuse coming from those at the
highest levels. It is therefore vital that as courts we do not
confine our sense of vigilant scrutiny of constitutionally deficient
legislation to only those issues, often brought by political elites
that have tended to dominate the courts such as those centred on
participation in and the outcome of elections, or media discourses.
Writing
about the revival of Constitutionalism in Africa, one scholar Kwesi
Prempheh puts it aptly when he observes as follows:
“To
the average African, then the constitutionalism that would seem to
matter the most is not always the high constitutionalism of political
elites (or what we might call wholesale constitutionalism) but a low
constitutionalism (or retail constitutionalism) that would address
the rampant impunity and abuse of power by public officials at the
most basic level of their public administration.”30
It
is precisely in the everyday role of police, as public servants, that
ordinary citizens generally encounter challenges with members of the
police force which they expect the police to be held accountable for.
Actions may arise from alleged assaults, malicious prosecutions,
false imprisonment, negligence, death in custody and general human
rights violations. A provision which favours the police, in terms of
the limited time frame within which unacceptable transgressions must
be challenged, does not accord with equal protection before the law
nor the right to access courts within a reasonable time.
Moreover,
human rights standards have influenced the outlook on time limits as
stipulated in the guiding recommendations to the implementation of
the International Covenant on Civil and Political Rights to which
Zimbabwe itself is a party.
In
terms of General Comment 3131,
where public officials have committed violations of the Covenant,
among the impediments to their legal responsibility that should be
removed by the State are “unreasonably short periods of statutory
limitation in cases where such limitations are applicable in suing
violators.”
It
is therefore equally in the light of these considerations that I have
reached my conclusion.
In
my view, this finding should cause no great consternation among the
police. As with any change, it is the opportunity that it provides
for necessary re-adjustments not just in outlook but particularly to
ongoing strategic interventions such as training that seeks to ensure
that operational practices on the ground accord with the ethos of our
new constitutional dispensation. After all, it is in making these
adjustments that the police will avoid the high costs associated with
being sued.
Section
175(1) provides that where a court makes an order concerning the
constitutional invalidity of any law, such order has no force and
effect unless it is confirmed by the Constitutional Court.
Furthermore, in terms of section 175(2), a court which makes a
finding of constitutional invalidity of a law may grant a temporary
interdict or other temporary relief to a party or may adjourn
proceedings pending a decision of the Constitutional Court to which
such a matter must be referred for confirmation of such invalidity.
In the event of the Constitutional Court confirms such invalidity, it
will be for that court to make a pronouncement on what interim
arrangements ought to apply pending the legislature's intervention
regarding section 70.
DISPOSITION
In
the result, it is accordingly ordered that:
1.
Section 70 of the Police Act [Chapter 11:10] is hereby declared to be
inconsistent with section 69(2) and section 56(1) of the Constitution
of Zimbabwe.
2.
This matter is referred to the Constitutional Court in terms of
section 175(1) of the Constitution of Zimbabwe Amendment (No.20) Act
2013 for its confirmation or otherwise.
3.
Pending the Constitutional Court's decision as in (2) above, the
applicants' actions are hereby stayed.
Tendai
Biti Law, plaintiff's legal practitioners
Civil
Division of the Attorney General's Office, respondents' legal
practitioners
1.
The parties instituted separate actions for damages. However, for
purposes of this constitutional determination their matters have been
consolidated as one
2.
The Respondents pointed out that applicants sued the Ministry of
Defence when they should have sued the Minister of Defence. This
error in citation can be corrected upon application and hence I have
chosen to spell out the correct party herein
3.
Amendment (No.20) Act 2013
4.
See Masenga v Minister of Home Affairs 1998 (2) ZLR 183
5.
See Stevenson NO v Transvaal Provincial Administration 1934 TPD 80 at
p84; Osler v Johannesburg City Council 1948 (1) SA 1027 (W) at 1031;
Minister of Agriculture & Land Affairs v CJ Ranche (Pty) Ltd 2010
(4) SA 109 (SCA)
6.
1989 (3) ZLR 287 SC at p298C
7.
(1944) 325 US 304
8.
1983 (2) ZLR 248 (SC) at p253 A-B
9.
1927 CPD 220 at 223E
10.
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
11.
Supra
12.
Supra
13.
See https//www.pinsentmasons.com
14.
Human Rights Act 1998
15.
These time frames have been accessed and extracted from https
//www.donoghue–solicitors.co.uk
16.
1997 (1) SA 124 (CC)
17.
This was with reference to s22 of the then interim Constitution of
South Africa of 1993
18.
Mr Biti referred this court to cases that drew on the principle in
the Mohlomi decision supra 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
19.
Note 14 supra
20.
Act 40 of 2002
21.
2011 (2) SA 26 (CC)
22.
See also Barkhuizen v Napier in note 18 supra.
23.
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
24.
HH443-14. See in particular the discussion on pp. 8-9 of that
judgement
25
See note 5 supra
26.
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
27.
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
28.
2008 (4) SA 312 (SCA)
29.
See also MEC for Education, Kwazulu Natal v Shange 2012 (5) SA 313
(SCA)
30.
H K Prempheh Africa's “Constitutional revival: False start or new
dawn?” 5 Int'l J. Const. L 469 2007
31.
Human Rights Committee, General Comment 31, Nature of the General
Legal Obligations on States parties to the Covenant, U.N Doc.
CCPR/C?21/ Rev.1/Add.13 (2004). See paragraph 18 in particular of
this General Comment
