Chamanga v Minister of Home Affairs and Culture and Heritage And 3 Others (27 of 2021) [2021] ZWHHC 27 (13 January 2021)

1 HH 27-21 HC 9650/19 DAVID CHAMANGA versus MINISTER OF HOME AFFAIRS AND CULTURE AND HERITAGE and THE COMMISSIONER GENERAL OF POLICE and OFFICER IN CHARGE MUTOKO CID and SERGEANT MAFA HIGH COURT OF ZIMBABWE TAGU J HARARE 4 November 2020 and 13 January 2021 Opposed Application D. Kawenda, for plaintiff B. Moyo, for defendants TAGU J: The defendants filed a special plea to the plaintiff’s summons as amplified in the plaintiff’s declaration. According to the plaintiff’s declaration the plaintiff is has been a long standing member of the Movement for Democratic Change, (MDC) one of Zimbabwe’s leading opposition party. The defendants are members of the Zimbabwe Republic Police. He alleged that as a result of his affiliation with the MDC, he has over the years been subjected to harassment and torture by fellow members in his community who are active members of the Ruling Party Zanu PF. As a result on 7 August 2018 the plaintiff’s homestead was burnt beyond recognition leading to the destruction of his Agricultural products, domestic animals, household furniture, three bedroom home and personal belongings. The matter was reported to Criminal Investigations Department of Mutoko as Malicious Damage to property as defined in Section 140 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9.23]. No effective investigations were carried out as far as this matter was concerned thereby allowing the plaintiff to be vulnerable. This was the second incident since sometime in 2013 just after the Presidential elections his home and property was destroyed in the very same manner. Reports were made to HH 27-21 HC 9650/19 the Zimbabwe Republic Police in Mutoko and no proper investigations were carried out neither were any arrests made. On the 27th November 2019 the plaintiff issued summons against the defendants for Constitutional damages against the defendants for failure to effectively investigate the incidence in terms of Section 219 (1) (a) (e) (3) of the Constitution of Zimbabwe, whereby he was claiming ZWL$500 000.00 being delictual Constitutional damages in respect of non-patrimonial loss suffered as a result of the defendants’ failure to carry out its constitutional duty. Having been served with the Summons the defendants filed a special plea in bar to the effect that the plaintiff failed to comply with the provisions of section 70 of the Police Act [Chapter 10.11] in that the cause of action arose on the 1st of September 2018 but the plaintiff only acted on 4 December 2019, 15 months after the cause of action arose. They prayed that the claim be dismissed with costs. In response to the special plea in bar the plaintiff submitted that he could not have filed the present summons claim because he was not aware of all the material facts to this matter when the outcome of the report received was not yet out as the police in that outcome report treated the matter as an ongoing investigation. He said it was only in April 2019 that he became aware of the following facts which allowed him to make the claim: a) b) c) That police had failed to take all reasonable steps available to them to secure evidence concerning the incident. Un-explained delay in ascertaining the cause of fire. None of the named suspects which were provided to the police were called in for questioning. It was at this point the named suspects bragged before the plaintiff on how they were immune from prosecution as a benefit of their political affiliation. d) There was never victim participation in the matter. He further submitted that his claim is made in terms of section 85 of the Constitution of Zimbabwe. He averred that Section 85 (1) (3) of the Constitution provides that the courts must not be unreasonably restricted by procedural technicalities. Besides section 70 of the Police Act is a breach of the plaintiff’s constitutional right to access to the courts in terms of section 69 (3) and the right to equal protection of the law as provided in section 56 of the Constitution. He prayed that the special plea in bar be dismissed. HH 27-21 HC 9650/19 Section 70 of the Police Act [Chapter 10.11] is very clear. It stipulates that- “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 (8) months from the date that the cause of action arose…” In casu, the plaintiff in his declaration said his property was firstly destroyed sometime in 2013 after the Presidential elections. He reported to the respondents and nothing was done. Then on the 7th of August 2018 his property was destroyed in the same manner. He again reported to the respondents and nothing was done. He only filed his claim almost 15 months later yet the Police Act stipulates that any civil proceedings should be brought within 8 months. While the plaintiff claims that section 70 of the Police Act is unconstitutional, it is extant and has not been declared to be unconstitutional. Further, the court found contradictory explanations from the plaintiff as to the reasons for the delay in filing the present claim. Firstly, he seems to say he was in hiding for some time. Secondly, he says he was not aware of all the material facts to matter which he only got to know in April 2019. Having gathered the facts and realizing that he was out of time the plaintiff ought to have filed an application for condonation first before filing the present claim. It is crucial to note the sentiments expressed by the Honourable MATHONSI J, (as he then was) in the case of Chihota v Minister of Home Affairs and 2 Others HH-95-15 in which he stated that: “While failure may be condoned in appropriate circumstances, there has been no attempt to seek condonation.” The plaintiff therefore needed to have made an application to be condoned by this Honourable Court for failure to abide by the law. For failure to do so the matter has prescribed and the court has no option but to uphold the special plea in bar and dismiss the claim with costs. IT IS ORDERED THAT 1. 2. 3. The Defendants’ special plea in bar is upheld. The Plaintiff’s claim is hereby dismissed. The plaintiff to pay costs. Tendai Biti law chambers, plaintiff’s legal practitioners Civil Division of the Attorney General’s Office, defendants’ legal practitioners HH 27-21 HC 9650/19