The
plaintiff, Charles Ngoni, issued summons claiming US$15,000= being
damages for shock, pain, suffering and medical expenses incurred as a
result of unlawful detention and assault by the third defendant,
Officer Chimedza, a police officer acting in the course and scope of
his employment. The first and second defendants, being the Minister
of Home Affairs and the Police Commissioner, respectively, were sued
on the basis of vicarious liability.
The
defendants filed a plea in bar on the basis that the plaintiff's
claim had prescribed in terms of the relevant provisions of the
Police Act [Chapter
11:10]
which prescribes the time frame for bringing an action against the
police. According to section 70 of the Police Act civil proceedings
must be commenced within eight months of the cause of action.
The
brief facts giving rise to the action were that on 24 May 2014
Charles Ngoni had gone to Dombotombo Police Station as he had been
informed that three of his youth members from MDC had been taken in
on account of public drinking. He states, in his declaration, that,
on arrival, Officer
Chimedza began assaulting him on the left arm and face with a baton
stick because he was wearing an MDC t-shirt. He says he was forced to
sit on the floor and kicked with booted feet and was unlawfully
detained for 30 minutes before being released.
This
was the basis upon which he issued summons.
The
summons were issued on the 17th
of February 2015 and served on the defendants on the 24th
of February 2015. A period of 9 months had thus elapsed since the
cause of action.
Section
2 of the State Liabilities Act provides as follows:
“Any
claim against the State which would, if that claim had arisen against
a private person, be the ground of an action in any competent court,
shall be recognisable by any such court whether the claim arises or
has arisen out of any contract lawfully entered into on behalf of the
State or out of any wrong committed by any officer or employee of the
State acting in his capacity and within the scope of his authority as
such officer or employee, as the case may be.”
Section
70 of the Police Act [Chapter 11:10] states as follows:
“Any
civil proceedings instituted against the State or
a member in respect of anything in relation to the Police Act must be
commenced within eight months after
the cause of action arose.”…,.
As
a result of section
70 of the Police Act in particular, the plaintiff, Charles Ngoni,
withdrew his action against the Minister of Home Affairs and the
Commissioner of police as first and second defendants but now insists
on proceeding against the third defendant, Officer Chimedza, in his
personal capacity.
He
argues that the Officer's actions were not justifiable and were
unlawful. He draws on section
50(9) of the Constitution which reads as follows:
“Any
person who has been illegally arrested or detained is entitled to
compensation from the person responsible for the arrest or detention,
but the law may protect the following persons from liability under
this section -
(a)
A
judicial officer acting in judicial capacity reasonable and in good
faith.
(b)
Any
other public officer acting reasonably and in good faith and without
culpable ignorance or negligence.”
In
insisting on proceeding against the officer in his personal capacity,
his core argument is that he was not acting in terms of the Police
Act and that there is nothing in the Act that requires him to assault
an individual. He argues that the provisions of the State Liabilities
Act and the Police Act should not be applied in isolation of the
Constitution to remove liability from police officers who act outside
the ambit of their professional duties. He argues that the officer
was acting overzealously and abusing his powers and functions as a
police officer. Moreover, he points out that he was released without
formal charge. He alleges that the police officer forfeited the
protection of the law in that he did not act reasonably or in good
faith and without culpable ignorance or negligence. As such, it is
his contention that the officer does not enjoy the protection granted
by the Police Act in terms of the necessity for the action to be
brought within a specified time period. He maintains that he is
liable in his personal capacity.
Officer
Chimedza opposes the action against him in his personal capacity.
The
basis for his objection is that civil suits arising out of action by
public officials acting in their official capacities, and within the
scope of their employment, are claims against the State. He argues
that he was acting within the scope of his employment and his action
was carried out in terms of the Police Act [Chapter
11:10].
It is also his argument that section 2 of the State Liabilities Act
[Chapter
8:14]
applies.
His
position is primarily that the proceedings against him, in his
personal capacity, are equally out of time as there is a nexus
between acts done by members of the police force and the State even
if these acts are contrary to the performance of their duties. He
further points out that the plaintiff even cited him as Officer
Chimedza and that his actions cannot be said to have been on a frolic
of his own. He places reliance on the case of Minister
of Police v Rabie
(1986)
(1) SA 117 (A) for the averment that where a person has been
appointed as a police officer, the State creates a risk of unlawful
harm to others i.e. the risk that the policeman might mis-use his
power for his own purposes.
The
nature of the then equivalent of the current section 50(9) of the new
Constitution, being the then section 13(5) of the old Constitution,
was discussed in some detail in the case of Stambolie
v Commissioner of Police
1989 (3) ZLR 287 (SC) together with the then section 76 of the Police
Act which dealt with time limits. As explained by GUBBAY CJ…,:
“The
entitlement to compensation for unlawful arrest or detention is no
more than an embodiment of an existing common law right. Subsection
(5) does not afford a right which is not already available to the
aggrieved party; but that right is derogated from under the proviso
to the extent that it specifies protection from liability for
judicial and public officers and any person assisting such public
officers, as being matters which it is permissible to regulate by
law.”
The
case also discussed the principle that rights guaranteed by the
Constitution are not necessarily immune from being time barred even
though the right itself remains otherwise un-affected. Constitutional
rights can be subject to time barring in terms of the time frame
during which proceedings are to be brought.
Thus,
the time limit placed by the Police Act is not necessarily in
violation of the Constitutional right to seek compensation for
unlawful arrest and detention effected by another person.
The
plaintiff's reliance on section 50 of the Constitution suggests
that by proceeding against the defendant in his personal capacity he
is able to circumvent the time limits placed on suing the police by
section 70 of the Police Act [Chapter 11:10] and that it is the
broader principles of the Prescription Act that would apply.
The
issue, however, is if the underlying reasons for limiting the
time-frame within which a remedy is to be sought may still be
pertinent where an officer is sued in personal capacity given the
link to his work in general.
LEON,
99 South African Law Journal 1982…, discusses the reasons behind
the shortened prescription period as it relates to the police in
relation to section 32 of the South African Police Act whose wording
is similar to ours save that ours now talks of eight months. As
regards the need to give police notice, he sees this affording the
State the opportunity of investigating the incident and considering
whether it should meet the claim instead of incurring costs.
The
second reason he canvasses regarding the shortened prescription
period is that it allows the State, which can incur vicarious
liability on behalf of its employees, to identify the individual
responsible for the delict.
The
third reason, which, in my view, is the one most pertinent to the
issue before me, is that what he calls the public interest served by
the notice and shortened prescription period in that the State is
enabled thereby to take prompt action against an employee who might
be abusing his authority or wide discretionary powers.
Given
that the plaintiff, Charles Ngoni, admits that he is out of time in
pursuing his action against the defendant, vicariously, the issue of
the police needing to decide whether or not to settle the claim or
the police needing to identify the individual fall away. However, in
my view, his efforts to pursue the same action against the defendant,
in his personal capacity, would nonetheless still embroil his
employers into the matter outside the time limits, in terms of
dealing with issues of abuse of authority given the factual
circumstances giving rise to the cause of action.
Granted,
not all situations where one is a police officer automatically result
in vicarious responsibility or the risk of unlawful harm to others.
Much depends on the facts. See for example Minister
Van Wet En Orde v Wilson en'n Ander
1992
(3) SA 920 A where it was stated that 'by appointing a person as a
police man creates the risk of unlawful harm to others in that the
policeman might misuse his power for his own purposes; the link
between such harm and the aforementioned creation of risk can be so
slender that the State is not vicariously liable.
Dithipe
v Ikageng Town Council
1992
(4) SA 748 (T) is an example of a case where the State was not found
to be responsible on the facts.
The
important point here is that when the plaintiff instituted his legal
proceedings he had no doubt in his mind that his action was against
the police officer in question in his official capacity. Not only had
he regarded his employers as vicariously liable for his actions. What
has changed his mind about his original standpoint is that he is out
of time with his claim. It is solely on this basis that he now
purports to proceed against the officer in question in his personal
capacity on the understanding that the time limit would accordingly
be in terms of the Prescription Act and would be three years. Brought
timeously, it would have been the role of the trial court to make a
finding whether an officer was acting reasonably and in good faith
without culpable ignorance and negligence.
See
the remarks made by MAFUSIRE J in Mordecai
Pilate Mhlanga v Henry Sostane Dowa and Ors
HH611-14
regarding the duty of the trial court to make such a finding.
One
has to consider here that the act complained of is one which occurred
at the police station during a time when the police officer was at
work. Furthermore, this is not a case where the defendant was
incapacitated by any pending action, for example, from instituting
his action immediately. It is not clear why he delayed in bringing
his claim in the first place. There were no charges pressed against
him so it's not like he had to await the outcome of any matter
against him. The plaintiff, in the initial instance, clearly intended
to proceed against the State.
But, as stated, the fact that one has a Constitutional right does not
make that right immune from any statutory limitation.
As
was stated in Stambolie
v Commissioner of Police
1989 (3) ZLR 287 (SC)….,.:
“It
has been said that statutes are conservators without which society
cannot wholly govern. They are founded on grounds of public policy
and give effect to two maxims:
(i)
First, interest
reipublicae ut sit finis litium
– the
interest of the State requires that there should be a limit to
litigation.
(ii)
Second, vigilantibus
non diormientbus jura subveniunt -
that
laws aid the vigilant and not those who slumber. They exist to
prevent oppression; to protect individuals from having to defend
themselves against claims when the basic facts have become obscured
with the passage of time.”
Also
pointed out in the same case is that all arrests are prima facie
illegal and the onus is upon the person who effected it to prove that
the arrest was legally justified.
Significantly,
the cause of action arose as soon as the arrest occurred. But time
limits apply in suing the police. Against a backdrop of factual
realities which would undoubtedly involve the State, in a matter
which is effectively time-barred, I come to the conclusion that
section 70 of the Police Act [Chapter 11:10] is not only an absolute
bar to proceeding just against the first and second defendants but
also against the third defendant.
Accordingly,
the third defendant's plea in bar on the grounds of prescription is
upheld with costs.
