Exception
MATHONSI
J:
The
plaintiff was, at the material time, an attested member of the
Zimbabwe Republic Police stationed at Chiredzi Police
Station.Following a conviction under the Police Act [Cap 11:10] on 31
January 2012 he was sentenced to 7 days imprisonment at Fairbridge
Police Detention Barracks in Bulawayo. He was being ferried to the
detention centre in a police defender vehicle registration number ZRP
1544D on 1 February 2012 when the vehicle in question was involved in
a collision with a Greyhound Omnibus registration number YRR 321 GP
near the 89km peg along the Masvingo–Beitbridge road. As a result,
the plaintiff sustained injuries for which he now sues the defendants
for a total of $750,000-00 damages.
The
plaintiff did not cite the driver of the police defender vehicle. He
did not make an averment as to the cause of the accident. Neither did
he allude to any legal basis upon which the defendants are liable. In
fact, the summons and declaration put together do not even begin to
disclose any cause of action. The defendants have excepted to the
summons on the basis;
(i)
firstly, that the plaintiff's claim is prescribed; and
(ii)
secondly, that the summons and declaration are bad at law to the
extent that they do not disclose a cause of action.
The
plaintiff was served with the notice of set down of the exception on
14 January 2015 but chose not to appear.
Mr.Kapusura,
for the defendants, has applied for the dismissal of the plaintiff's
claim on the basis that it is prescribed. He conceded that the second
leg of the exception would not entitle the defendants to a dismissal.
The
remedy available to an excipient on the basis that a summons does not
disclose a cause of action is not an outright dismissal of the claim
but an order directing the plaintiff to amend the pleadings within a
fixed period of time: Auridium Zimbabwe (Pvt) Ltd v Modus
Publications (Pvt) Ltd 1993 (2) ZLR 359 (H) 373C-D; Adler v Elliot
1988 (2) ZLR 283 (S) 292B.
It
is the aspect of prescription which really brings the action to its
knees.
The
cause of action in this matter arose on 1 February 2012 when the
plaintiff was injured in an accident. He only gave notice of
intention to sue on 11 December 2013, well over a year after the
cause of action arose and only issued summons on 4 April 2014 which
was served on 7 April 2014.
In
terms of section 70 of the Police Act [Cap11:10]:
“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 (8) months after the cause of action has
arisen, and notice in writing of any such civil proceedings the
grounds thereof shall be given in terms of the State Liabilities Act
[Chapter8:14].”
The
plaintiff was required to give 60 days notice of the intended suite
in terms of section 6 of the State Liabilities Act. He was required
to also bring the suit within the prescribed period of eight months.
He
did not.
A
failure to comply with those provisions renders the action a nullity.
While a failure to comply may be condoned in appropriate
circumstances, there has been no attempt to seek condonation: Masenga
v Minister of Home Affairs 1998 (2) ZLR 183 (H).
There
can be no doubt therefore that the clear intention of the legislature
in the provisions I have cited was to extinguish the claim; Coutts &
Co v Ford & Anor 1997 (1) ZLR 440 (H) 443B.
In
the circumstances, there can be no doubt that the plaintiff must
suffer grief.
Accordingly
the plaintiff's claim is hereby dismissed with costs.
Civil
Division of the Attorney General's Office, defendants' legal
practitioners
