TSANGA
J:
The
plaintiff, Charles Ngoni issued summons claiming US$15,000-00 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 17 February 2015 and served on the
defendants on the 24 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 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.” (My emphasis)
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 misuse 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 as he
then was:
“The
entitlement to compensation for unlawful arrest for 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 unaffected. 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 of necessarily in
violation of the constitutional right to seek compensation for
unlawful arrest and detention effected by another person.
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 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
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 the Stambolie
case at p 299:
“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: First interest
reipublicae ut sit finis litium – the
interest of the State requires that there should be a limit to
litigation. 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
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.
Zimbabwe
Human Rights NGO Forum,
plaintiff's legal practitioners
Civil
Division of the Attorney General's Office,
defendants' legal practitioners
1.
99 South African Law Journal 1982 at p509-515 at p514
