This is a referral from the High Court (“the court a quo”) of a constitutional matter in terms of section 175(4) of the Constitution of Zimbabwe 2013 (“the Constitution”).
The question referred to this Court for determination is:
“Whether or not section 70 of the Police Act, which sets the prescription period of eight (8) months for any person to institute civil proceedings against the Police, is ultra vires section 56(1) and 69(3) of the Constitution and therefore unconstitutional.”
It seems to me that the matter ought to be struck off the roll for two reasons:
(i) The first is that the referral was improperly made. I say this because, the issue of prescription not having arisen in proceedings before the court a quo, that court could not have properly referred the matter to this Court for determination in terms of section 175(4) of the Constitution.
(ii) The second, though ancillary reason, is that the matter set down before the court a quo, at the commencement of which this referral was made, was rendered abortive following the death of the presiding Judge.
The referral of the matter to this Court suffers from these deficiencies and must, as a consequence, be struck off the roll.
The reasons for the foregoing now follow.
FACTUAL BACKGROUND
The applicant is Patricia Dengezi who operates as an informal trader. The first and second respondents are, respectively, Munyaradzi Nyamururu and Xolisan Moyo. The first respondent was employed by the second respondent as a driver of a commuter minibus owned by the second respondent. The third respondent is Champions Insurance Company (Private) Limited, the third-party insurer of the commuter minibus owned by the second respondent. The fourth and fifth respondents, respectively, are the Commissioner General of Police and the Minister of Home Affairs.
The facts of this matter are largely common cause.
The applicant was in the informal business of vending. On 17 April 2017, while selling her wares from a pavement on Chinhoyi Street, close to Robert Mugabe Avenue in Harare, she was involved in a tragic accident. In her company was her son who was aged one year and two months.
In her declaration, she stated that on that fateful day, three officers of the Zimbabwe Republic Police who were carrying out their duties along Robert Mugabe Street threatened to arrest and intimidated certain commuter minibus drivers who were driving their vehicles in the area. Consequently, the commuter minibuses haphazardly sped off, in the process, driving against oncoming traffic moving along Chinhoyi Street, which is a one-way street.
The applicant alleges, that, as a result of the unlawful actions of the Zimbabwe Republic Police, the commuter minibus that was being driven by the first respondent, though travelling in the proper vehicular direction, veered off the road, hit the applicant and “smashed” her son who was killed immediately.
On 9 April 2018, almost a year later, the applicant sued out a summons commencing action out of the High Court at Harare claiming damages arising out of the said road traffic accident.
In her declaration, she made several claims for damages against the respondents.
The applicant's case before the court a quo was that, although the accident was caused by the first respondent, it was members of the Zimbabwe Republic Police who instigated the melee that resulted in the fatal incident. She alleges that the details from the Zimbabwe Republic Police were reckless and negligent and that they ought to have realized that their unlawful actions and intimidatory behaviour would “unleash [a] foreseeable chain of events including the loss of life.”
The third (Champions Insurance Company Limited), as well as the fourth and fifth respondents (Commissioner General of Police and Minister of Home Affairs), entered appearance to defend, and, in their pleas, denied liability.
The third defendant essentially pleaded that it has no knowledge of the facts forming the applicant's cause of action. On their part, the fourth and fifth respondents have pleaded that the actions of the officers of the Zimbabwe Republic Police were not unlawful and that they were not responsible for the death of the applicant's minor child.
That was the essence of their plea.
They said nothing about prescription and whether the claim should be dismissed on that basis. In their separate pleas, they simply prayed that the claim be dismissed with costs.
The applicant replicated to the pleas.
Following that replication, a pre-trial conference was convened before a Judge of the court a quo. For the purpose of that pretrial conference, the fourth and fifth respondents proposed three issues for determination in their pre-trial minute filed a quo. The proposed issues for determination were stated to be:
“1. Whether or not the plaintiff's claim has prescribed in terms of section 70 of the Police Act [Chapter 11;10].
2. Whether or not the police officers negligently caused the accident in question.
3. Whether or not the plaintiff is entitled to damages which are claimed.”
The record of the proceedings of the court a quo reveals that on 16 May 2019, following a pre-trial conference, three issues were referred for trial. These were:
(i) Whether the police officers controlling the traffic along Robert Mugabe Avenue were negligent;
(ii) If so, the quantum of damages payable by the State; and, lastly
(iii) The extent of damages recoverable from the insurance company.
It bears mention at this stage, that, the parties did not regard as an issue for determination the question whether or not the applicant's claim had prescribed in terms of section 70 of the Police Act [Chapter 11:10] (“the Police Act”).
Just before the trial commenced in the court a quo, on 14 February 2022, following what appear to have been informal discussions with the fourth and fifth respondents counsel, the applicant filed an affidavit in support of a request to refer a matter to this Court in terms of section 175(4) of the Constitution.
Therein, the applicant alleged that two issues had arisen, namely:
(i) The constitutionality of section 23(3)(b) and (c) of the Road Traffic Act [Chapter 13:01] (“the Road Traffic Act”); and of
(ii) Section 70 of the Police Act.
The applicant pertinently averred that:
“24. During the course of proceedings today, despite the fact that the Commissioner General and the Minister of Home Affairs had not insisted on prescription, today, they insisted that my matter was prescribed.
25. I could not bring legal proceedings within six months as I was ill, and, in any event, mourning the loss of my child.
26. I however contend, that, section 70 of the Police Act is clearly unconstitutional.
27. Why, for instance, should the police have protection when every other defendant, including the President or large corporations like Delta or Econet, do not have the same six months protection.
28. Clearly, section 70 is unconstitutional and I make reference to the judgment of Justice Tsanga in another related matter.”
Two days later, on 16 February 2022, the parties then filed what they termed a Statement of Agreed Facts “for reference to the Constitutional Court in terms of Rule 108(4) of the High Court Rules, SI 202/2021.”
Therein, the parties outlined the facts that they considered to be “common cause”.
However, contrary to the fourth and fifth respondents plea, to which reference has already been made, the parties purported to agree that “the fourth defendant, [the] Commissioner General of Police, had pleaded prescription based on the fact that the summons was issued way after the 8 months provided for by section 70 of the Police Act.”
The request for the referral of the questions relating to the constitutionality of section 23(3)(b) and (c) of the Road Traffic Act and section 70 of the Police Act was heard by the court a quo, per MAKOMO J, on 14 May 2022, on the basis of the applicant's affidavit filed in support of the said request and the Statement of Agreed Facts.
The reasons for the court a quo's determination on the request were delivered on 10 October 2022.
The court a quo concluded, that, the request to refer the question relating to the constitutionality of section 70 of the Police Act was not frivolous and vexatious and accordingly granted the request. However, the request relating to the question of the constitutionality of section 23(3)(b) and (c) of the Road Traffic Act was found to be frivolous and vexatious and was therefore refused.
Consequently, the court a quo only referred the question relating to the constitutionality of section 70 of the Police Act to this Court for determination and stayed the proceedings before it pending the determination of the question referred to this Court.
Sadly, on 25 December 2022, before this matter could be heard and finalised by this Court, Mr Justice MAKOMO, the presiding Judge a quo, passed on.
APPLICANT'S SUBMISSIONS BEFORE THIS COURT
At the commencement of the hearing, the Court directed the parties to advance submissions on the question whether or not the referral was properly made.
Counsel for the applicant submitted, that, the matter was properly referred to this Court.
This, so he submitted, was because, if a constitutional matter arises in non-constitutional proceedings before a lower court, the lower court has no jurisdiction to itself determine the constitutional matter but must refer the matter to this Court.
In counsel for the applicant's view, the fact that the defence of prescription had not been pleaded by the respondents, as defendants, was not a bar to the raising of a constitutional matter.
Further asked during oral submissions whether the death of the presiding judge a quo had any effect on the validity of the referral, counsel for the applicant contended, that, the Judge a quo had become functus officio on the referral and that his judgment referring the constitutional question to this Court remained extant.
As such, the referral can properly be determined by this Court, and, thereafter, the matter can proceed before another judge of the High Court for a final determination of all the issues raised in the pleadings before the court.
FOURTH AND FIFTH RESPONDENTS SUBMISSIONS BEFORE THIS COURT
Counsel for the fourth and fifth respondents submitted, that, although no evidence had been led before the late Mr Justice MAKOMO, the proceedings had indeed commenced before him. She stated that the “special plea” on prescription was raised in the fifth respondent's pre-trial conference minute but conceded that it was not identified as an issue requiring determination at the trial.
On whether the question relating to the constitutionality of section 70 of the Police Act had arisen before the court a quo, it was her submission, that, the issue indeed arose before MAKOMO J.
ISSUES ARISING FOR DETERMINATION
The main issue that arises before this Court is whether the court a quo properly referred the matter to this Court. Put otherwise, this Court essentially has to determine whether or not section 175(4) of the Constitution, regulating the referral of constitutional matters to this Court, was complied with.
A further but incidental issue that arises from the facts of this case is whether the passing on of MAKOMO J had any effect on the referral. Put another way, the question is whether the referral, in any event, became a nullity following his demise.
This Court, in various decided cases, has stressed, that, in respect of matters referred in terms of section 175(4) of the Constitution, it is always obliged to determine whether a referral was properly made.
If a referral is not properly before the Court, it will be disposed of, without further ado, on that ground alone: see S v Nyathi CC16–19…,.; Muhala & Others v Mukokera 2019 (1) ZLR 294 (CC); Nyagura v Ncube & Others 2019 (1) ZLR 521 (CC)…,.; and S v Mwonzora & Others CC09–15…,.
WHETHER OR NOT THE REFERRAL OF THE CONSTITUTIONAL MATTER WAS PROPERLY MADE
The resolution of the question whether the instant referral was properly made requires this Court to examine whether there was a valid plea of prescription before the court a quo, taken on the basis of the prescriptive period set out in section 70 of the Police Act.
There would have been a need for the court a quo to have decided whether the validity of section 70 of the Police Act had been engaged by the facts that were before it the moment a request to refer a constitutional matter to this Court was made.
If the constitutionality of section 70 of the Police Act had not arisen before the court a quo, there would have been no basis to refer a constitutional matter to this Court.
In considering whether there was a valid plea raising the constitutionality of section 70 of the Police Act before the court a quo, there is need for this Court to examine the law governing the raising of special pleas.
Such an examination does not directly involve the interpretation, protection, or enforcement of the Constitution but is a matter connected with a decision on a constitutional matter.
I digress momentarily to discuss what constitutes an issue connected with a decision on a constitutional matter.
Section 167(1)(b) of the Constitution provides that:
“(1) The Constitutional Court —
(a)…,.
(b) Decides only constitutional matters and issues connected with decisions on constitutional matters, in particular, references and applications under section 131(8)(b) and paragraph 9(2) of the Fifth Schedule;”
We have not, as a jurisdiction, had occasion to clearly define what constitutes “issues connected with decisions on constitutional matters” as provided in section 167(1)(b) of the Constitution.
In this regard, it may be necessary to have regard to a number of decisions by the South African Constitutional Court.
Given that this Court only decides constitutional matters, an issue connected with a decision on a constitutional matter must be preceded by a constitutional matter and the determination of the issue must essentially be inseparable from the decision on the constitutional matter.
In Rushesha & Others v Dera & Others CC24–17…, this court expressed the view that the word “connected” in section 167(1)(b) of the Constitution means that the issue must bear a relationship to the decision on a constitutional matter.
In the leading South African case of Alexkor Ltd and Another v Ritchersveld Community and Another 2004 (5) SA 460 (CC)…, the Constitutional Court remarked that “when any factum probandum of a disputed issue is a constitutional matter, then, any factum probans bearing logically on the existence or otherwise of such factum probandum, is itself an issue 'connected with [a] decision on [a] constitutional matter.'”
In S v Basson 2005 (1) SA 171 (CC)…, the court further remarked that “legal and factual matters that need to be decided in order to determine a constitutional matter are issues connected with a decision on a constitutional matter.”
The enquiry that this Court sets out to make, of whether or not section 70 of the Police Act had been engaged and pleaded a quo so as to give rise to a constitutional matter, is clearly an issue connected with a decision on a constitutional matter.
The issue is connected with the decision that this Court is required to make on the constitutional question as to whether or not the present referral is valid.
Any question as to whether or not a referral was made in accordance with the provisions of the Constitution and is valid is no doubt an important question that this court must determine.
In the past, this Court has held that it has no discretion to condone a departure from the Constitutional provisions regulating the referral of constitutional matters: see Mukoko v Commissioner General of Police & Others 2009 (1) ZLR 21 (S)…,. and S v Kisimusi & Others CC01–14…,.
Bearing the above in mind, I now turn to consider whether the provisions of section 70 of the Police Act had been properly engaged in the proceedings before the court a quo so as to give rise to a constitutional matter.
Put another way, the issue that now arises is whether the validity of the prescriptive period in section 70 of the Police Act had been specially pleaded and therefore arose in proceedings before the court a quo.
It is only if the validity of section 70 of the Police Act properly arose in the proceedings that the question of its constitutionality could have arisen.
It is a settled position in our adjectival law, that, the appropriate procedure available in a situation where a party intends to plead the defence of prescription is through a special plea.
In Brooker v Mudhanda & Anor: Peace Mudhanda & Anor 2018 (1) ZLR 33, 38F-G, a decision of the Supreme Court of Zimbabwe, the court remarked as follows at p38F-G:
“The defence of prescription should not be raised by way of exception but must be specifically pleaded. The plea must set out sufficient facts to show on what the defence is based. However, due to its nature, the plea of prescription is a special plea. Such a plea is provided for in the High Court Rules 1971. Order 21 Rule 137 specifies the manner in which a party wishing to rely on a special plea may raise such.”
Similarly, in Tendayi v Twenty Third Century Systems (Pvt) Ltd SC135–20…, the Supreme Court reiterated the position, that, the defence of prescription must be raised as a special plea. In no uncertain terms, the Court stated that:
“It is settled, that, the defence of prescription must be raised as a special plea for the reason, that, a plaintiff confronted with a claim of prescription may wish to replicate to the objection. This is particularly pertinent where a defendant pleads that a claim has prescribed with a plaintiff replicating that prescription has been interrupted.”
Section 70 of the Police Act and Part IV of the Prescription Act [Chapter 08:11] (“the Prescription Act”) are in pari materia. The provisions of the two statutes, considered together, accentuate the need to raise a plea of prescription by way of special plea.
In this regard, I first cite section 70 of the Police Act which states 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, and notice in writing of any such civil proceedings and the grounds thereof shall be given in terms of the State Liabilities Act [Chapter 8:15].”
In turn, section 13 of the Prescription Act provides that:
“13 Debts to which Part IV applies
(1) This Part shall, save in so far as it is inconsistent with any enactment which —
(a) Provides for a specified period within which —
(i) A claim is to be made; or
(ii) An action is to be instituted in respect of debt; or
(b) Imposes conditions on the institution of an action for the recovery of a debt;
apply to any debt arising on or after the 1st January 1976.”…,.
It is clear, from the foregoing, that, section 13 of the Prescription Act applies to any claim to be made or action to be instituted in respect of a debt except to the extent different provision is made in another statute.
Given that the Police Act provides for a specific prescriptive period for actions against the State, section 13(1) of the Prescription Act must be interpreted to mean that the Prescription Act applies to and regulates the defence of prescription to the extent that its provisions would not be inconsistent with the Police Act, and, in particular, the prescriptive period delineated in section 70 of that Act.
There are provisions of the Prescription Act that have direct application in proceedings in which a special plea has been raised on the basis of section 70 of the Police Act.
The first is section 2 of the Prescription Act which defines the term “debt” to mean, without limiting the meaning of the term, anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise.
The second significant provision of the Prescription Act is section 16, which states thus:
“16 When prescription begins to run
(1) Subject to subsections (2) and (3), prescription shall commence to run as soon as a debt is due.
(2) If a debtor wilfully prevents his creditor from becoming aware of the existence of a debt, prescription shall not commence to run until the creditor becomes aware of the existence of the debt.
(3) A debt shall not be deemed to be due until the creditor becomes aware of the identity of the debtor and of the facts from which the debt arises:
Provided that a creditor shall be deemed to have become aware of such identity and of such facts if he could have acquired knowledge thereof by exercising reasonable care.”…,.
Section 17 then provides, that, if a creditor is prevented by superior force from interrupting the running of prescription in terms section 19(2), and the period of prescription would, but for the subsection, be completed before or on or within one year after the date on which the relevant impediment has ceased to exist, the period of prescription shall not be completed before the expiration of a period of one year which follows that date.
Section 18, in turn, provides for the interruption of prescription by an acknowledgement of liability whilst section 19 itemises instances of judicial interruption of prescription.
Several decisions of the courts in this jurisdiction have passed upon the necessity of determining when prescription began to run in any action in which the defence of prescription is raised and whether or not it was interrupted.
It is trite, that, as a general proposition, prescription generally begins to run from the date when the event giving rise to the claim occurs. However, the date on which a debt becomes due may be different. Prescription may also be delayed or interrupted.
For this reason, in the majority of matters coming before the courts, there is usually need for evidence to be led to establish when it started to run. The other party may also wish to lead evidence to show that the running of prescription was delayed or interrupted.
Thus, in Brooker v Mudhanda & Anor: Peace Mudhanda & Anor 2018 (1) ZLR at 39F, the Court pertinently remarked that:
“In a plea of prescription, the onus is on the defendant to show that the claim is prescribed, but if, in reply to the plea, the plaintiff alleges that prescription was interrupted or waived, the onus would be on the plaintiff to show that it was so interrupted or waived.”
And further, at 41A–B, the Court added:
“…, a special plea enables a litigant to obtain prompt resolution of a dispute because it either delays the proceedings or quashes them. Because of its ability to extinguish a claim, there is need for a judge faced with such a plea to hear evidence from the parties.”…,.
In light of the above, the defence of prescription has to be specifically pleaded and properly established by evidence.
Indeed, the Prescription Act itself provides, in section 20, that the defence of prescription must be specifically pleaded.
In casu, it is evident that the defence of prescription was not specifically pleaded.
A reading of the record of proceedings shows, that, although the issue first arose only in the fourth and fifth respondents draft pre-trial conference minute, it was never persisted with. Nor was any attempt made by the respondents, as fourth and fifth defendants, to amend their plea in order to introduce such a defence.
Before us, counsel for the fourth and fifth respondents accepted this to be the correct position.
The pleadings did not reflect that prescription was an issue. As a defence, it was not even mentioned during the pretrial conference that took place before a judge or in the conference minute prepared shortly thereafter. When the parties appeared before the court a quo on the first day of trial, it was not one of the issues requiring determination by the court.
In its judgment on the request to refer a constitutional matter to this Court, the court a quo, clearly misled by the Statement of Agreed Facts, incorrectly stated that “on filing her summons for damages and other claims, the applicant was met with a plea of prescription” by the fourth and fifth respondents in terms of section 70 of the Police Act.
That could not have been the case given that no such plea of prescription was ever made.
I conclude, therefore, that, the defence of prescription was never properly raised.
It is apparent, that, counsel for both the applicant and the fourth and fifth respondents had informal discussions just before the commencement of the trial. It was during these discussions that it appears the respondents indicated they were of the view that the claim had prescribed.
In the circumstances of this case, one can safely assume that the issue arose in vacuo.
The court a quo could not purport to refer a constitutional matter to this Court in respect of an issue that was not procedurally before it. Accordingly, the referral to this Court was not proper as the issue referred to this Court was not necessary for the court a quo to dispose of any of the issues arising in the matter before it.
In addition, without the benefit of a replication from the applicant on the claim of prescription informally raised by the fourth and fifth respondents, the court could not have assumed that prescription had run its course. The procedure for a referral made it incumbent for the court a quo to verify, in light of the pleadings filed in the matter before it, the accuracy of the Statement of Agreed Facts.
In accordance with the procedure set out in several judgments of this Court, there was a need for the court a quo to determine when the debt became due.
A reading of section 70 of the Police Act reveals, that, the court a quo had to make a specific finding that eight months had elapsed after the applicant obtained knowledge that her cause of action against the fourth and fifth respondents had arisen. The court should also have determined when the debt became due and whether the fact of the applicant's stay in hospital, captured in the parties Statement of Agreed Facts, would have, pursuant to section 17(1) of the Act, had any effect on such prescription.
In the absence of these factual findings, the referral was fatally defective.
In light of the foregoing, the undoubted corollary must be, that, the referral was improper and the matter should be disposed of on this basis.
