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

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)

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.

According to the plaintiff's declaration, he was consulted in his capacity as a legal practitioner by one Michael Peter Hitschman. In the process of rendering professional legal advice to this client, a letter was addressed to the fourth defendant (the Attorney-General), on the client's instructions, on
2 November 2009. The fourth defendant forwarded the letter to the third defendant, the Commissioner-General of Police, with instructions that the plaintiff be arrested on a charge of seeking to interfere with the course of justice. The third defendant instructed the first and second defendants to arrest the plaintiff and detain him, which they did, on 2 November 2009, at 5 pm, without a warrant. The plaintiff was detained in custody until late in the afternoon on 3 November 2009 and was only released when he was admitted to bail by a magistrate. The plaintiff's cause of action is that his arrest without a warrant was wrongful, and unlawful, and contrary to the provisions of s 13 of the Constitution of Zimbabwe Order, 1979 (SI 1600 of 1979 of the United Kingdom) ("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 first defendant to arrest him was unlawful;

. the fourth defendant's instruction to the third defendant to cause his arrest was unlawful;

. the defendants acted maliciously and in breach of the law and failed to exercise their discretion in a reasonable manner.

The Civil Division of the Attorney-General's Office entered appearance to defend all the defendants on 16 April 2010. A plea was filed on behalf of the first, second, third and fifth defendants on 26 May 2010 by the Civil Division of the Attorney-General's Office. 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. They averred that the former Constitution allows the third defendant to receive a request from the fourth defendant to independently investigate any complaint. The defendants denied being instructed to arrest and detain the plaintiff. The defendants averred that they formulated independent opinions that reasonable suspicion existed that the plaintiff had committed an offence and they arrested him on the strength of that suspicion. The defendants denied that the plaintiff's arrest was wrongful or unlawful. They put plaintiff to the strict proof of the damages that he is claiming.

The fourth defendant's plea was filed of record on 27 May 2010. In the plea, it was averred that the plaintiff's claim is excipiable because certain material averments were not made in the claim against the fourth defendant. Such averments include lack of particularity regarding the instructions alleged to have been given to the third defendant to arrest the plaintiff, how the instruction was issued, when, and the basis on which, it is alleged that the instructions constituted an order to arrest and detain the plaintiff. The fourth defendant averred that there was no link to his alleged instructions to the third defendant, and the plaintiff's arrest. It was averred that there was no basis set out in the summons, for the citation of the fourth defendant in his personal capacity. Plaintiff's replications to the pleas were filed of record on 21 September 2010.

On 3 August 2010, the plaintiff filed a request for particulars for trial from the fourth defendant. The request appears at record page 27, and no useful purpose would be served in regurgitating it. The fourth defendant supplied further particulars on 27 September 2010. The plaintiff filed a pre-trial conference minute proposing that 13 issues be referred to trial on 3 August 2010, as well as a detailed summary of evidence. The plaintiff then filed interrogatories on 17 August 2011. The first, second, third and fourth defendants were directed to answer the interrogatories within 10 days, in terms of O 28 r 191 of the High Court Rules, 1971 (RGN 1047 of 1971) ("the Rules"), on 23 October 2013. The defendants' responses to the plaintiff's interrogatories appear more fully in the record. The first, second, third and fifth defendant's pre-trial conference minute appears at pages 77-78 of the record, and were filed of record on 3 October 2014. On 7 October 2014, the fourth defendant filed his pre-trial conference issues, and a summary of his evidence. On 11 November 2014, the first, second, third and fifth defendants filed an amended pre-trial conference minute.

In terms of the joint pre-trial conference minute filed by the parties on 8 April 2015, no less than 15 issues were referred for trial. When the parties appeared before the court for trial on 3 February 2016, Mr de Bourbon, counsel for the plaintiff, advised that the onus to begin lay with the defendants. Counsel for the fourth defendant, Mr Mutevedzi, applied for a postponement of the matter because of the non-availability of his client, who had been arraigned before the criminal court and just admitted to bail. The court was advised that the fourth defendant was not in good health in the circumstances, being hypertensive, and was indisposed. The application for postponement was opposed because the fourth defendant was alleged to be in contempt of court, counsel for the plaintiff's instructions were that the contempt be purged first before the fourth defendant could be granted any indulgences. It is common cause that the fourth defendant has not answered any interrogatories, despite the order of this Court that all the defendants do so within 10 days.

Counsel for the first, second, third and fifth defendants then sought a postponement of the matter on the basis that their client's instructions were that they wished to have the matter handled by the Attorney-General, Mr Machaya, who was in France attending an arbitration matter between Zimbabwe and its former commercial farmers. The matter had previously been postponed at the plaintiff's instance due to the unavailability of his counsel of choice. The ruling of the court was that s 69 (4) of the Constitution of Zimbabwe, 2013 ("the Constitution") protects and enshrines the right to choose to be represented by a legal practitioner before any court, tribunal or forum. The court took the view that the plaintiff has asserted this constitutional right on more than one occasion, successfully, and without any adverse orders as to costs. The application for postponement was allowed with costs to follow the cause. The court would have been inclined to dismiss the application for postponement made on behalf of the fourth defendant because of the lack of documentary evidence of his medical condition.

The matter came before the court again for trial on 16 May 2016. Counsel for the first, second, third and fifth defendants, Mr Uriri, submitted that, in his view, the onus to start the proceedings did not rest with his clients, contrary to the submissions which had been made by Mr de Bourbon for the plaintiffs at the last hearing of the matter. The court was referred to para 2 of the joint pre-trial conference minute, which is the issue of whether the plaintiff is entitled at law to sue the defendants in their personal capacities in the circumstances of this matter. We were referred to O 49 r 437 of the Rules which I set out in full for purposes of expediency and which provides:

"437 The burden of proof and the right or duty to begin

(1) If on the pleadings the burden of proof is on the plaintiff, he shall first adduce his evidence, and if absolution from the instance is not then decreed, the defendant shall then adduce his evidence.

(2) When such burden of proof is on the defendant, the defendant shall first adduce his evidence, and the plaintiff shall thereafter adduce his evidence.

(3) Where the burden of proving one or more of the issues is on the plaintiff and that of proving others is on the defendant, the plaintiff shall first call his evidence on any issues proof whereof is upon him, and may then close his case, and the defendant shall then call his evidence on all the issues.

(4) If the plaintiff has not called any evidence, other than that necessitated by his evidence on the issues, proof whereof is upon him, on any issues, proof whereof is on the defendant, he shall have the right to do so after the defendant has closed his case. If he has called any such evidence, he shall have no such right.

(5) In case of any doubt or dispute arising, the court shall have discretion to determine which party shall begin. Either party may, with the leave of the court, adduce further evidence at any time before the judgment; but such leave shall not be granted if it appears to the court that such evidence was intentionally withheld out of its proper order." (my emphasis).

The court was also referred to the judgment of Mafusire J in Mahlangu v Dowa & Ors HH 611-14 (unreported), which directed that this issue be disposed of first as a preliminary point. Mr Uriri also advised the court that the third defendant, the Commissioner-General of Police, was not in attendance as he was attending a security briefing with the President which normally takes place on Mondays. He asked that his client be excused from attending the proceedings. The court ruled that the third defendant be excused from attending court until such time as his presence was needed. Another preliminary point raised was whether all the defendants could be represented by the Civil Division of the Attorney-General's Office. The court noted that the plaintiff had abandoned this issue, which appears as issue 1.1 on the joint pre-trial conference minute.

It was submitted on behalf of the plaintiff by Mr de Bourbon that the accepted position of the parties on the issue of the onus to prove the issues referred to trial was set out in the joint pre-trial conference minute filed of record. The plaintiff prepared for trial on the basis that the onus to prove issues 1.10-1.15 rests on the plaintiff, but that the onus rests on the defendants on all critical issues. The essence of the plaintiff's submission was that in all the cases where a litigant was arrested without a warrant the onus lay on the arresting detail to prove the basis on which such an arrest was made. The law places that duty on the defendants. It was submitted on behalf of the three defendants by Mr Uriri that the court has a discretion to make a ruling at the commencement of a trial on the duty to begin. The court was referred to Intramed (Pty) Ltd v Standard Bank of South Africa Ltd 2004 (6) SA 252 (W) as authority for this proposition. Counsel for the fourth defendant, Mr Hashiti, jumped into the fray with a submission that his client had excepted to the summons and that the exception ought to be disposed of first. Counsel for the plaintiff disputed this assertion, and pointed out that merely referring to the possible excipiable nature of the averments in the summons as part of a plea does not constitute a formal exception which should be heard by the court.

Counsel for the plaintiff reiterated that it was a question of law that the person who will have caused the arrest of another on suspicion of committing a criminal offence bore the legal duty to justify this action first. The court was referred to various cases as authority for this proposition - see Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S); Liversidge v Anderson [1941] 3 All ER 338 (HL) at 362B, where Lord Atkin said that the person directing imprisonment must justify his act; OK Zimbabwe Ltd v Msundire 2015 (1) ZLR 741 (S). The court ruled that O 26 r 182 of the Rules governs the pre-trial conference procedure which is aimed at curtailing trial proceedings and to facilitate settlement. Parties wishing to proceed to trial may only do so after the pleadings are closed. Once pleadings are closed the question of onus is apparent from the pleadings, and this will not change unless the pleadings are re-opened. Depending on the cause of action as stated in the summons the onus will clearly be on the plaintiff on some issues. Depending on the cause of action and on the defendant's plea, the onus will form part of the pleadings, and may be on the defendant on some of the issues. At pre-trial stage the parties agree on how best to curtail the trial proceedings in terms of O 26 r 182 (2)(a) of the Rules.

The issues for trial may include admissions of facts and documents, exchange of expert reports and a definition of the issues to be referred to trial, as well as the manner in which a particular issue is to be proved at trial - see
O 26 r 182 (2)(h) of the Rules. Order 26 r 183 allows a judge to call into chambers counsel for the parties with a view to securing agreement on any matters likely to curtail the duration of the trial. There is nothing in O 26 rr 182, 183 or 184 which suggests that a judge is at liberty to revisit the question of onus which will have previously been agreed to by the parties at pre-trial conference stage. Order 49 r 437 sets out the burden of proof in civil proceedings. It confirms that the burden of proof emanates from the pleadings, not from a direction by a judge before the trial commences, although it appears to confer a certain level of discretion on the judge - see O 49 r 437 (5). The burden of proof was apparent from the pleadings at pre-trial conference stage. The court exercises its discretion in favour of following the joint pre-trial conference minute which was filed of record. In terms of that minute, the defendants agreed that the duty to begin lay on them on the substantive issues set out as 1.3-1.9 in the minute.

After this ruling in court the parties reconvened after tea, at which stage Mr Uriri for the first, second, third and fifth defendants drew the court's attention to the joint pre-trial conference minute which forms part of the record. He submitted that there was another preliminary issue for determination by the court: that of whether the plaintiff is entitled at law to sue the defendants in their personal capacities in the circumstances of this case. It was submitted that this was a question of law which can be put to the court at any stage of the proceedings. The following facts were submitted as common cause: that at 5 pm on 2 November 2009 the first defendant arrested the plaintiff. He did so in the course and scope of his employment as a member of the Zimbabwe Republic Police. This should be taken as a fact by the court. The first and second defendants are alleged to have caused the detention of the plaintiff at Harare Central police station until he was released the following afternoon. The plaintiff avers, again, that these defendants were acting in the course and scope of their employment. The fifth defendants are cited in their official capacities as the Ministers responsible in law for the Zimbabwe Republic Police.

The plaintiff gave notice in terms of s 70 of the Police Act [Chapter 11:10] and s 6 of the State Liabilities Act [Chapter 8:14] of his intention to sue the first, second, third and fifth defendants. It was submitted that, when regard is had to these common cause facts, a determination should be made as to whether the plaintiff is entitled to proceed against the defendants in their personal capacities. It was submitted, further, that the plaintiff's claim is predicated on the provisions of s 13 (5) of the former Constitution, which creates two instances in respect of which liability can be attached on a person for wrongful arrest:

(a) where the person effecting the arrest or detention does so in his own right; or

(b) where he does so in the course of the employment of another.

It was submitted that under (b) it is the employer who in terms of the former Constitution must pay the compensation. It was submitted, further, that the use of the word "or" suggests that the two provisions are disjunctive, in other words one is not at liberty to claim compensation under both heads. Proviso (a) was said to protect a judicial officer, and any other public officer acting reasonably and in good faith and without culpable negligence/ignorance. Proviso (b) stipulates that all these three factors must be present in order for a public officer to be indemnified for liability from such compensation.

Counsel for the defendants submitted that paras 6, 12, 13 and 17 of the plaintiff's declaration make clear averments that the defendants were acting in the course and scope of their employment and that they fall within the category of s 13 (5) of the former Constitution which imputes liability for compensation to their employer. He submitted further that the plaintiff's declaration does not make the necessary averments for purposes of s 13 (5), which is that the defendants:

(a) did not act reasonably; and

(b) did not act in good faith; and

(c) that they acted with culpable ignorance/negligence.

The submission is that these averments were not specifically pleaded, therefore the plaintiff is not entitled to sue the defendants in their personal capacities, in terms of s 13 (5) of the former Constitution. The defendants cannot be asked to answer in their personal capacities for actions which they took while acting in their official capacities. The notice which was given in terms of the Police Act is an acknowledgment of the fact that the first and second defendants are officers of the Zimbabwe Republic Police. Section 2 of the State Liabilities Act recognises that a claim which arises out of a wrong committed by an employee of the State is a claim against the State. That is why notice must be issued to the State. To sum up the submissions, the defendants can only be held liable in their personal capacities if they were not acting in their official capacities. The court was referred to the following cases as authority for this proposition: Minister of Police v Rabie 1986 (1) SA 117 (A); Rose NO v Fawcett Security Operations (Pvt) Ltd 1998 (2) ZLR 114 (H).

Counsel for the fourth defendant, Mr Hashiti, advised the court that his instructions were that the fourth defendant wished to adopt the same point of law taken on behalf of the other defendants, which is why in his plea, he had raised the issue that the summons was excipiable on that basis. The plaintiff addressed a letter to the Attorney-General in his official capacity. The fourth defendant then instructed the Zimbabwe Republic Police to investigate. In paras 12 and 13 of the plaintiff's declaration it was averred that the first and second defendants acted within the course and scope of their employment. It was submitted that the fourth defendant was not at liberty to instruct the Zimbabwe Republic Police in its personal capacity; the discretion that reposes in the fourth defendant only entitles him to instruct them in their official capacity. It was submitted further that the plaintiff's summons is defective and ought to be amended to make the necessary averments in support of his claim.

Counsel for the plaintiff, Mr de Bourbon, submitted that it was inappropriate for counsel for the defendants to raise this point of law at this stage, it ought to have been dealt with as an exception or a special plea. It was submitted that the first issue was one of vicarious liability, and that the question that the court should determine is that of whether the vicarious liability of the employer gives immunity to the employee. The court was referred to two South African cases: Botes v van Deventer 1966 (3) SA 182 (A) and Randbond Investments (Pty) Ltd v FPS (Northern Region) (Pty) Ltd 1992 (2) SA 608 (W) at 621. The common law position was submitted to be that both master and servant are liable and can be sued in the same action - see Smyth v Ushewokunze & Anor 1997 (2) ZLR 544 (S); Bull v Attorney-General & Anor 1986 (1) ZLR 117 (S), and Botha v Zvada & Anor 1997 (1) ZLR 415 (S) at 419A-B. In Feldman v Minister of Home Affairs 1992 (2) ZLR 304 (S), where the applicant sued for damages for wrongful imprisonment GUBBAY CJ, at 308C, referred to what the Supreme Court had said in Attorney-General v Blumears & Anor 1991 (1) ZLR 118 (S) at 122A-C:

"The standard for the deprivation of personal liberty under s 13 (2)(e) of the Constitution are facts and circumstances sufficient to warrant a prudent man in suspecting that the accused person had committed, or was about to commit, a criminal offence. This standard represents a necessary accommodation between the individual's fundamental right to the protection of his personal liberty and the State's duty to control crime. It seeks on the one hand, to safeguard the individual from rash and unreasonable interference with liberty and privacy, and from unfounded charges of crime; yet on the other, to give fair leeway for enforcing the law in the community's protection. The criterion of reasonable suspicion is a practical, non-technical concept which affords the best compromise for reconciling these often opposing interests. Requiring more would unduly hamper the legitimate enforcement of the law. To allow less would be to leave law-abiding persons at the mercy of the whim or caprice of the authorities.".

The Supreme Court again considered the question of wrongful arrest and detention in Muzonda v Minister of Home Affairs & Anor 1993 (1) ZLR 92 (S). At 95H-96D GUBBAY CJ said:

"Section 29 (1)(b) of the Criminal Procedure and Evidence Act [Chapter 59] makes it clear that a peace officer must have reasonable grounds to suspect a person of having committed any of the offences mentioned in the First Schedule - which includes an offence at common law - before he is empowered to arrest him without a warrant. Without such an important protection, even the most democratic and enlightened society could all too easily fall prey to the abuses and excesses of a police state. In order to safeguard the liberty of citizens in the case of an arrest made without a warrant, it is essential for a peace officer to demonstrate the reasonable grounds upon which the arrest was based. The importance of this to citizens of a democracy is self-evident. Yet society must also be protected against crime. Thus what has to be struck is a necessary accommodation between the individual's right to liberty and that of society to be protected from crime. It is done by requiring of a peace officer that before arresting without a warrant he must satisfy himself that reasonable grounds for suspicion of guilt do exist. That requirement is very limited. He is not called upon before acting to have anything like a prima facie case for conviction. Certainty as to the truth is not involved, for otherwise it ceases to become suspicion and becomes fact. Suspicion, by definition, is a state of conjecture or surmise whereof proof is lacking" (my emphasis).

The court found that the police officer concerned had reasonable grounds for suspecting that the person arrested had committed the crime of assault and theft but went on to consider whether or not the power of arrest had been reasonably exercised. At 98D-99E GUBBAY CJ continued:

"In the celebrated case of Holgate-Mohammed v Duke [1984] 1 All ER 1054 (HL) the issue arose as to whether the exercise of the discretion to arrest was to be treated in the same manner as the assessment of the existence of reasonable grounds for suspicion. Stated otherwise: was the arrest rendered unlawful if the decision was one which the court believed to be unreasonable, applying the same general objective test as it would to the existence of grounds? The House of Lords held that the police constable's discretion to arrest was not reviewable in the same way as the grounds for arrest, but only on the principles applicable in administrative law, where an executive discretion is conferred on a public officer. This was explained by LORD DIPLOCK in the course of his speech at 1057e-g:

'So the condition precedent to Det Con Offin's power to take the appellant into custody and the power of the other constables at Southsea police station to detain her in custody was fulfilled; and, since the wording of the subsection under which he acted is "may arrest without warrant", this left him with an executive discretion whether to arrest her or not. Since this is an executive discretion expressly conferred by statute on a public officer, the constable making the arrest, the lawfulness of the way in which he has exercised it in a particular case cannot be questioned in any court of law except on those principles laid down by LORD GREENE MR in Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680; [1948] 1 KB 223, that have become too familiar to call for repetitious citation. The Wednesbury principles, as they are usually referred to, are applicable to determining the lawfulness of the exercise of the statutory discretion of a constable under s 2 (4) of the 1967 Act, not only in proceedings to judicial review but also for the purpose of founding a cause of action, at common law for damages for that species of trespass to the person known as false imprisonment, for which the action in the instant case is brought'.

See also Shaaban Bin Hussein v Chong Fook Kam [1969]
3 All ER 1626 (PC) at 1630E; Wade Administrative Law 6 ed
at p 405.

Accordingly, a far stricter test than reasonableness in the normal meaning of the word is to be applied. The decision will be held to be ex facie unreasonable and subject to interference only where it is 'so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it': per LORD DIPLOCK in Council of Civil Service Unions v Minister for the Public Service [1984] 3 All ER 935 (HL) at 951a-b. Later, in Nottinghamshire County Council v Secretary of State for the Environment [1986] 1 All ER 199 (HL) at 202f, LORD SCARMAN spoke of a decision having to be so absurd that the decision-maker 'must have taken leave of his senses' for a challenge to succeed." (my emphasis)

More recently, the Supreme Court in OK Zimbabwe Ltd v Msundire (supra) at page 746D-E has said that:

"The position is now settled that whist the action for unlawful arrest and detention is usually brought against the police or other uniformed forces, a private individual can also commit this delict - Feltoe, A Guide to the Zimbabwe Law of Delict 3 ed (2001) p 56... The position is also settled that in our law, unlike South Africa, once unlawful arrest or imprisonment are proved, animus injuriandi is presumed and intention is not a requirement for this delict - Feltoe op cit p 56".

The plaintiff persisted in his submission that his action is perfectly valid, that he pleaded a common law position that this delict can be committed by a private individual, and that one is entitled to compensation from the person who arrests you, if such arrest is found to be unlawful. It was submitted on behalf of the plaintiff that the wording of s 13 (5) of the former Constitution is not disjunctive, and that there is a common law right to compensation which is not premised on the constitutional right to compensation. It was submitted that s 13 (5) of the former Constitution is now s 50 (9) of the current Constitution which reads as follows:

"(9) Any person who has been illegally arrested or detained is entitled to compensation from the person responsible for the arrest or detention, but a law may protect the following persons from liability under this section –

(a) a judicial officer acting in a judicial capacity reasonably and in good faith;

(b) any other public officer acting reasonably and in good faith and without culpable ignorance or negligence."

It was submitted that whether or not the wording is disjunctive or conjunctive advances the defendant's cause no further, since the plaintiff is seeking compensation in terms of the common law and not in terms of the former Constitution. In any event, Parliament has not made any law to exempt public officers from liability to pay compensation. The plaintiff is asserting his common law right to sue both the servant and the master.

Counsel for the defendants in reply, referred the court to the following two cases: Nyakabambo v Minister of Justice Legal and Parliamentary Affairs & Ors 1989 (1) ZLR 96 (H) and S v Makwakwa 1997 (2) ZLR 298 (H). It was submitted on behalf of the defendants that these cases support the proposition that the cause of action becomes constitutional, when regard is had to the plaintiff's prayer in terms of para 16 of its prayer. In Chifamba v Mutasa & Ors HH 16-08 (unreported) this Court stated:

"The purpose of pleadings is not only to inform the other party in concise terms of the precise nature of the claim they have to meet but pleadings also serve to identify the branch of law under which the claim has been brought. Different branches of the law require different matters to be specifically pleaded in the claim to be sustainable under that action".

See also Hwange Colliery Gasification Co v Hwange Colliery Co Ltd HH 477-15 (unreported) at 2.

In determining what the plaintiff's cause of action was, the court relied on the following line of cases: In Courtney-Clarke v Bassingthwaighte 1990
NR 89 (HC) at 103 the court said:

"...there is no precedent or principle allowing a court to give judgment in favour of a party on a cause of action never pleaded, alternatively there is no authority for ignoring the pleadings in a case such as the present and giving judgment in favour of a plaintiff on a cause of action never pleaded".

In the case of Makhanya v University of Zululand 2010 (1) SA 62 (SCA) at 80G-I the South African Supreme Court of Appeal stated:

"When a claimant says that the claim arises from the infringement of the common law right to enforce a contract, then that is the claim, as a fact, and the court must deal with it accordingly. When a claimant says that the claim is to enforce a right that is created by the LRA, then that is the claim that the court has before it, as a fact. When he or she says that the claim is to enforce a right derived from the Constitution, then, as a fact, that is the claim. That the claim might be a bad claim is beside the point".

It is trite 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 - see Imprefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (A); Kali v Incorporated General Insurances Ltd 1976 (2) SA 179 (D).

When regard is had to the plaintiff's summons and declaration, it is apparent that the plaintiff avers that the action that he seeks to be compensated for took place during the course and scope of the defendants' employment. When the first and second defendants arrested and detained the plaintiff, they did so as officers of the Zimbabwe Republic Police. The fourth defendant is cited in his official capacity. The averment was that when he allegedly instructed the third defendant to investigate or arrest the plaintiff he also did so during the course and scope of his employment. It is common cause that the plaintiff was officially detained at a police station, using police procedures, which only official officers of the Zimbabwe Republic Police can do. The first and second defendants did not arrest or detain the plaintiff in their personal capacities, and they could not have caused him to be detained at the police station in their personal capacities.

The court accepts 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. It is my considered view, however, 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 a servant murders his wife while off duty it cannot be said that his employer should be vicariously liable for his actions. In the same way that a servant who commits a wrong while "on a frolic of his own" is held personally liable for the wrong and the master indemnified, in my view, a wrong which is committed during the course and scope of employment ought to be treated as an "official" act - "official" as in being conduct which the servant can legitimately do, as part of his duties, during the accepted time when he is expected to be at work, and in the prescribed manner of conducting his duties. It seems to me that if the defendants acted in their personal capacities, then they were not acting in the course and scope of their employment.

The plaintiff's averments in its summons and declaration are mutually exclusive and inconsistent, and do not conform with the standards of pleadings in that they do not inform the defendants in a concise manner whether they are being sued in their personal or official capacities. They make reference to two causes of action, common law and the former Constitution. If the plaintiff's cause of action is the former Constitution, then the defendants were properly cited and sued in their official capacities, for conduct which arose during the course and scope of their employment, conduct which their employer can be held vicariously liable for. If the defendants were cited and sued in their personal capacities in terms of the common law, then in that event the plaintiff ought to expunge any and all reference to s 13 (5) of the former Constitution from the pleadings, and to expunge averments that show that the defendants were acting in an official capacity.

The question of whether the plaintiff can proceed against the defendants in their personal capacities in these circumstances is determined in favour of the defendants, for the reasons set out above. The pleadings are not clear as to which cause of action the plaintiff seeks to rely on. The defendants are entitled to know the case that they are answering, whether it is a claim for compensation in terms of the common law, or a claim for compensation which is based on the former Constitution. No suggestion has been placed before the court that the requirements of the two causes of action which must be specifically pleaded are exactly the same. The fact that the plaintiff adhered to the requirements of the Police Act and the State Liabilities Act supports the assertion that the defendants were cited and sued in terms of the former Constitution, in their official capacities. The plaintiff's summons supports this assertion, as well as the declaration and the rest of the pleadings.

The plaintiff is given a period of 10 working days from the date of this order to indicate whether he intends to proceed against the defendants in their official capacities and in terms of the constitutional right to compensation, or alternatively, to amend the summons to cite and sue the defendants in their personal capacities and give them sufficient time within which to amend their pleas. In the event that the plaintiff elects to proceed with the trial against the defendants in their official capacities without any further amendments, we note that the court has already ruled that the duty to begin the trial lies on the defendants, on those issues that were set out in terms of the parties' joint pre-trial conference minute.

Gill Godlonton & Gerrans, plaintiff's legal practitioners

Mutamangira & Associates, first, second, third and fifth defendants' legal practitioners

Civil Division of the Attorney-General's Office, fourth defendant's legal practitioners