MAHLANGU v DOWA & ORS

HIGH COURT, HARARE

[Civil Trial HH 653-16]

October 28, 2016

CHIGUMBA J

Delict – Liability – Vicarious liability – Right of plaintiff to sue both servant and master for wrongful acts committed in course of employment.

Practice and procedure – Pleadings – Need to set out clearly what basis of claim is – Citation of servants in their personal capacities – Need for pleadings to make clear how parties are being cited.

The plaintiff, a senior legal practitioner, was representing a client, on whose behalf he wrote a letter to the fourth defendant, the Attorney-General. The latter took the view that the letter was an attempt to interfere with the course of justice and instructed the third defendant, the Commissioner-General of Police, to arrest the plaintiff. The arrest was carried out by the first and second defendants, who were police officers. The plaintiff was detained overnight but released by a magistrate the following day. The plaintiff sued for damages, claiming that his arrest without a warrant was wrongful and unlawful, and contrary to the provisions of s 13 of the former Constitution, in that: there was no reasonable suspicion that he had committed an offence which entitled the first defendant to arrest him; the order given to the first defendant to arrest him was unlawful; and the fourth defendant’s instruction to the third defendant to cause his arrest was unlawful. The defendants, he averred, acted maliciously and in breach of the law and failed to exercise their discretion in a reasonable manner. He averred further that first four defendants were being sued in their personal capacities.

The defendants averred that they were acting in the course and scope of their employment, and that therefore it was improper for them to be sued in their personal capacities. In any event, they had acted lawfully and reasonably.

There was a dispute about whether the onus was on the defendants to start the trial, the plaintiff saying that where a litigant is arrested without a warrant, the onus lies on the arresting detail to prove the basis on which such an arrest was made. Here, the duty lay on the defendants. The defendants argued that the court had a discretion. The defendants also raised the issue of whether the plaintiff was entitled at law to sue the defendants in their personal capacities in the circumstances of this case. The plaintiff had given the necessary notice in terms of the Police Act [Chapter 11:10] and the State Liabilities Act [Chapter 8:14] of his intention to sue the first, second, third and fifth defendants. The plaintiff’s declaration had averred that the defendants were acting in the course and scope of their employment and thus they fall within the category of s 13 (5) of the former Constitution which imputes liability for compensation to their employer. The defendants further submitted that the plaintiff’s declaration did not make the necessary averments for purposes of s 13 (5) and allege that the defendants:

(a) did not act reasonably;

(b) did not act in good faith; and

(c) acted with culpable ignorance/negligence.

The defendants could not be asked to answer in their personal capacities for actions which they took while acting in their official capacities. They could only be held liable in their personal capacities if they were not acting in their official capacities.

The plaintiff argued that the first issue was one of vicarious liability, and that the question that the court should determine was whether the vicarious liability of the employer gives immunity to the employee. Case law indicated otherwise. The delict of wrongful arrest could be committed by an individual, and could give rise to a claim for compensation. The plaintiff was seeking compensation in terms of the common law and not in terms of the former Constitution. In any event, Parliament had not made any law to exempt public officers from liability to pay compensation. The plaintiff was asserting his common law right to sue both the servant and the master.

Held, that the court accepted the common law position that a servant can be sued at the same time as his master in the same action for some wrong that he committed during the course and scope of his employment. The court accepted further, that the servant’s wrongful actions cannot be imputed to the master if the actions did not take place during the course of employment. If the defendants acted in their personal capacities, then they were not acting in the course and scope of their employment.

Held, further, that the purpose of pleadings is to bring clearly to the notice of the court and the parties to an action the issues upon which reliance is to be placed. A pleader cannot be allowed to direct the attention of the other party to one issue and then, at the trial, attempt to canvass another. When regard was had to the plaintiff’s summons and declaration, it was apparent that the plaintiff averred that the action that he sought to be compensated for took place during the course and scope of the defendants’ employment.

Cases cited:

Attorney-General v Blumears & Anor 1991 (1) ZLR 118 (S), referred to

Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S), referred to

Botes v van Deventer 1966 (3) SA 182 (A), referred to

Botha v Zvada & Anor 1997 (1) ZLR 415 (S), referred to

Bull v Attorney-General & Anor 1986 (1) ZLR 117 (S), referred to

Chifamba v Mutasa & Ors HH 16-08(unreported), referred to

Courtney-Clarke v Bassingthwaighte 1990 NR 89 (HC); 1991 (1)
SA 684 (Nm), applied

Feldman v Minister of Home Affairs 1992 (2) ZLR 304 (S), referred to

Hwange Colliery Gasification Co v Hwange Colliery Co Ltd HH 477-15 (unreported), referred to

Imprefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (A), referred to

Intramed (Pty) Ltd v Standard Bank of South Africa Ltd 2004 (6)
SA 252 (W), referred to

Kali v Incorporated General Insurances Ltd 1976 (2) SA 179 (D), referred to

Liversidge v Anderson [1941] UKHL 1; [1942] 1 KB 87; [1942] AC 206; [1941] 3 All ER 338 (HL); 116 LT 1, referred to

Mahlangu v Dowa & Ors HH 611-14 (unreported), referred to

Makhanya v University of Zululand 2010 (1) SA 62 (SCA), applied

Minister of Police v Rabie 1986 (1) SA 117 (A), referred to

Muzonda v Minister of Home Affairs & Anor 1993 (1) ZLR 92 (S), referred to

Nyakabambo v Minister of Justice Legal and Parliamentary Affairs & Ors 1989 (1) ZLR 96 (H), referred to

OK Zimbabwe Ltd v Msundire 2015 (1) ZLR 741 (S), referred to

Randbond Investments (Pty) Ltd v FPS (Northern Region) (Pty) Ltd 1992 (2) SA 608 (W), referred to

Rose NO v Fawcett Security Operations (Pvt) Ltd 1998 (2) ZLR 114 (H), referred to

S v Makwakwa 1997 (2) ZLR 298 (H), referred to

Smyth v Ushewokunze & Anor 1997 (2) ZLR 544 (S), referred to

Legislation considered:

Constitution of Zimbabwe Order, 1979 (SI 1600 of 1979 of the United Kingdom), s 13, 13 (5)

Constitution of Zimbabwe, 2013, ss 50 (9), 69 (4)

Police Act [Chapter 11:10], s 70

State Liabilities Act [Chapter 8:14], ss 2, 6

High Court Rules, 1971 (RGN 1047 of 1971), O 26 rr 182, 182 (2)(a), (h), 183, 184, O 28 r 191, O 49 r 437, 437 (5)

AP de Bourbon SC with T Mpofu, for the plaintiff

L Uriri, for the first, second, third and fifth defendants

SM Hashiti with GRJ Sithole, for the fourth defendant

CHIGUMBA J:

The plaintiff’s claim against each of the defendants is for payment of damages in the sum of US$ 200 000, compensation in the sum of US$ 200 000, as well as interest at the prescribed rate on these sums, calculated from 3 November 2009 to the date of payment in full, and costs of suit on a legal practitioner-client scale. The issue that arises for determination is a preliminary one which was raised on behalf of the defendants before trial commenced, that of whether the plaintiff is entitled to sue the defendants in their personal capacities. Faced with a question of law which may be raised at any stage of the proceedings, with a potential to dispose of the matter, submissions were heard from both sides and judgment reserved in order to allow the court to do justice to this question.

The plaintiff is a registered legal practitioner and a partner at the law firm Gill, Godlonton and Gerrans. The first defendant is a detective inspector in the Zimbabwe Republic Police, based at Harare Central Police Station, in the Criminal Investigation Department. The second defendant is a detective chief inspector in the Zimbabwe Republic Police, who works in the same department and at the same station as the first defendant. The third defendant is the Commissioner-General of Police. The fourth defendant was the Attorney General of Zimbabwe at the time that summons was issued, on 12 April 2010. The fifth defendants were the
co-ministers of Home Affairs, jointly responsible for supervising the police, at the time, during a Government of National Unity. The plaintiff avers that first four defendants were sued in their personal capacities.

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