Latson Zvinowanda v The Minister of Home Affairs N.O. (1) and The Commissioner General of Police N.O. (2)

### Preamble
1
HH 538 – 25
HCH 10162/17
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LATSON ZVINOWANDA

versus

THE MINISTER OF HOME AFFAIRS N.O. (1)

and

THE COMMISSIONER GENERAL OF POLICE N.O. (2)

HIGH COURT OF ZIMBABWE

MAMBARA J

HARARE: 8 & 11 September 2025

Summons Commencing Action

K. Kabaya, for the plaintiff
A. Magunde, for the 1st and 2nd defendants

MAMBARA J:

Introduction

This matter came before the High Court as a civil trial in which the plaintiff claims damages for unlawful arrest and detention against the defendants, who are cited in their official capacities under the Police Act [Chapter 11:10]. At the commencement of the trial, by agreement of the parties, two preliminary issues were set down for determination: (1) whether the defendants’ plea of prescription was properly raised, and (2) if so, whether the plaintiff’s claim has prescribed in terms of s 70 of the Police Act. I directed that the issue of the propriety of the plea be determined first, since a finding against the plaintiff on that point would necessitate an inquiry into prescription, whereas a finding in his favour would render the prescription defence improperly before the court. The parties proceeded to make submissions on these issues.

Background

The plaintiff is a male adult who was arrested by members of the Zimbabwe Republic Police on 26 August 2016 in central Harare, and was detained in police custody. He was taken to court the following day and charged with public violence; he was remanded in custody for trial and remained in detention for some time. On 22 March 2017, the plaintiff was acquitted and discharged at the close of the State case. The plaintiff thereafter gave notice of his intention to sue on 4 July 2017 in terms of the State Liabilities Act, and summons commencing action were issued on 30 October 2017. In this action, the plaintiff claims a total of US$17,000 in damages (special damages for loss of income during incarceration, and general damages for unlawful arrest and detention, pain and suffering, and contumelia), together with interest and costs. The defendants are the Minister of Home Affairs and the Commissioner General of Police, cited in their official capacities as the authorities responsible for the police. It is common cause that the arrest and detention of the plaintiff on 26 August 2016 were carried out by police officers acting in the course of their duties. It is also not disputed that the plaintiff’s claim as pleaded is one for unlawful arrest and detention (sometimes termed “false arrest or imprisonment”), and not one for malicious prosecution.

In terms of s 70 of the Police Act, any civil action against the State or a police officer “in respect of anything done or omitted to be done” under that Act must be commenced within eight months after the cause of action has arisen. The cause of action in a matter of unlawful arrest and detention is well settled to arise on the date of the arrest (as distinct from a cause of action for malicious prosecution, which arises upon the termination of the prosecution in the plaintiff’s favour). In this case, therefore, the plaintiff’s cause of action arose on 26 August 2016, the day of his arrest. The eight-month limitation period prescribed by s 70 of the Act ran from that date and expired on 25 April 2017. It is common cause that the plaintiff’s summons was only served on the defendants on 16 November 2017, well after the lapse of the eight-month period. This gives rise to the defendants’ contention that the claim had prescribed by operation of s 70. The plaintiff, on the other hand, contends that the defendants are precluded from relying on this defence because it was not raised in the proper manner.

Procedural History

Summons in this case were issued on 30 October 2017 under case number HC 10162/17, and were served on the defendants in November 2017. The defendants entered appearance to defend, and on 28 March 2019 they filed a single plea document. In that plea, the defendants set out, under a heading “IN LIMINE”, a special plea of prescription in terms of s 70 of the Police Act, averring that the plaintiff failed to institute proceedings within eight months of the accrual of the cause of action, and that “no action can be founded” by the plaintiff on the alleged acts in question. Under a separate heading “MERITS” in the same pleading, the defendants proceeded to plead over to the merits of the claim (denying liability for unlawful arrest and detention). The plaintiff did not file any exception or application to strike out this plea. Instead, the plaintiff filed a replication, in which he did not directly plead any interruption or extension of prescription, but rather attacked the validity and fairness of s 70 of the Police Act itself. In the replication, the plaintiff averred that s 70 is an “stringent and arbitrary” provision that unreasonably limits his constitutional rights to equal protection of the law (Constitution, s 56(1) and to a fair hearing within a reasonable time (Constitution, s 69(2), and he suggested that there had been “substantial compliance” with the law in that he only managed to institute his claim a few months after acquittal due to the circumstances of his prosecution. No formal constitutional application or referral was pursued, however, and the matter proceeded on the pleadings as they stood.

The case experienced some procedural delays. It was eventually set down for a Pre-Trial Conference in 2024 under the new High Court Rules, 2021. On 3 June 2024, the parties appeared before Deme J for a Pre-Trial Conference, and a Joint Pre-Trial Conference Minute was filed, recording the agreed issues for determination. As relevant to the present judgment, the first two issues were the preliminary ones already noted: (a) whether the plea of prescription was properly raised, and (b) whether the plaintiff’s claim prescribed in terms of s 70 of the Police Act. The onus of proof on the first issue was recorded as resting on the plaintiff (who challenges the propriety of the plea), whereas the onus on the prescription issue rests on the defendants. The matter was then set down for trial, with the understanding that these preliminary questions would be resolved first, potentially disposing of the matter or narrowing the scope of any further proceedings. The trial eventually commenced before me on 8 September 2025, whereupon counsel made oral submissions on the two preliminary issues. I reserved judgment after hearing argument.

Submissions by the Plaintiff

The plaintiff’s counsel argued that the defendants’ plea of prescription was improperly raised and should be struck out for non-compliance with the applicable procedural rules. It was submitted that the defence of prescription is in the nature of a plea in bar (a defence that, if upheld, would quash the action) and thus falls to be raised by way of a special plea, separate from the plea on the merits. At the time the plaintiff’s summons was issued and the plea filed (2017–2019), the now-repealed High Court Rules, 1971 were still in force. Order 21 Rule 137 of those rules required that a party wishing to raise a special defence file it in the form of a special plea (Form No. 12), as an alternative to pleading to the merits. Rule 139 of the same Order explicitly provided that where a special plea or exception is taken, it is not necessary to plead to the merits (indeed, the whole point of a special plea is to avoid or postpone consideration of the merits). In the present case, instead of filing a separate special plea in bar, the defendants purported to raise the prescription defence as a point in limine within their consolidated plea, and simultaneously pleaded to the merits. This, the plaintiff contends, was a procedurally irregular approach that “fails to align with… the mandatory requirements” of the rules and established practice.

The plaintiff’s counsel relied on several authorities underscoring the need to raise prescription as a special plea. In Van Brooker v Mudhanda & Anor (SC 5/18), the Supreme Court stressed that a prescription defence “should not be raised by way of exception but must be specifically pleaded”, and that due to its nature, “the plea of prescription is a special plea”, for which the High Court Rules 1971 made specific provision. The Supreme Court further explained that a special plea allows a defendant to raise a dispositive defence without engaging with the merits, in order to “delay the proceedings or… quash the action altogether”, and that the High Court Rules set out the procedure for doing so. Likewise, in Tendayi v Twenty-Third Century Systems (Pvt) Ltd (SC 135/20) the Supreme Court reaffirmed that the defence of prescription must be raised as a special plea, not merely within a plea on the merits. The Constitutional Court has echoed this position: in Dengezi v Nyamaruru & Ors (CCZ 13/23) it was emphatically stated that “the appropriate procedure available in a situation where a party intends to plead the defence of prescription is through a special plea.” In the plaintiff’s submission, these authorities and rules establish a strict procedural requirement which the defendants ignored. By bundling the prescription point into their plea (and pleading over), the defendants denied the plaintiff the clear procedural path ordinarily followed for special pleas – where a plaintiff can elect to replicate specifically to the special plea (e.g. pleading any interruption or delay of prescription) and have the special plea set down for determination before the merits. It was argued that the court should not countenance this deviation from the rules, especially on a vital issue like prescription, and that the point in limine as framed by the defendants is “not properly before the court and must be dismissed.”

Submissions by the Defendants

In response, the defendants’ counsel maintained that the prescription defence was properly and adequately raised, albeit within the plea, as a point of law which can be taken at any stage of proceedings. Counsel argued that what matters is the substance of the defence, not the form, and that the plaintiff was given clear notice of the prescription issue by its inclusion in the plea, thereby avoiding any trial by ambush. The defendants placed reliance on authorities which acknowledge that a pure point of law may be raised even for the first time on appeal – provided it was foreshadowed by the pleadings and causes no prejudice. In particular, Zimasco (Pvt) Ltd v Marikano (SC 130/11) and Delta Beverages v Marandu (SC 38/15) were cited. The latter decision enumerates the factors permitting a point of law to be taken late: (i) the point is covered by the pleadings; (ii) no unfairness or prejudice to the other party; (iii) the facts are common cause; and (iv) no further evidence is required to decide the point. In casu, argued the defendants, all these requirements are met – the prescription issue was explicitly covered in the plea, the plaintiff in fact filed a replication responding to it (demonstrating he was neither caught by surprise nor prejudiced), the material facts relevant to prescription are common cause, and the issue can be resolved without hearing evidence.

Defendants’ counsel further distinguished the present case from the scenario in Dengezi (CCZ 13/23). In Dengezi, a prescription defence had not been pleaded at all in the court a quo, yet the judge attempted to deal with it and even refer a constitutional question to the Constitutional Court, which censured that attempt as the issue was not properly before the lower court. By contrast, in the present matter the defendants did plead prescription (albeit as a point in limine within a composite plea), so the issue cannot be said to have arisen “in vacuo” or without notice. The defence submitted that form should not trump substance in this instance. They urged the court to exercise its discretion to condone any procedural irregularity in the manner the special plea was taken, in light of the lack of prejudice and the fact that the point is decisive of the dispute. Several precedents were invoked where courts favoured substance over form. For example, in Schweppes Zimbabwe Ltd v Blackey Investments (Pvt) Ltd (HH 601/21), Chitapi J dealt with a nearly identical objection by a plaintiff who argued that a point in limine in the plea was procedurally improper. The learned judge acknowledged that “ordinarily the point in limine… would best have been raised by way of special plea”, yet held that “the court has a discretion to condone the way that the point in limine was raised in the plea”, especially where the opposing party did not demonstrate any prejudice. In that case, since the plaintiff’s ability to respond was not impaired, the court condoned the irregularity and proceeded to determine the point in limine on its merits. Similarly, in Kudakwashe Maponga v Gumude & Anor (HB 70/23), the High Court (Bulawayo) overlooked the use of an incorrect form in a summons, finding no prejudice, and opted to hear the case on the merits rather than slavishly enforce a technical procedural rule. The defendants argued that these examples illustrate the “principle of substance over form”, which is entrenched in our law (indeed reflected in Rule 7 of the 2021 High Court Rules as an overriding objective) – namely, that procedural rules are instruments for justice, not hurdles to prevent its attainment. Thus, the court was implored to focus on the substance of the prescription defence as pleaded, rather than the label or format in which it was raised.

Analysis

I have carefully considered the pleadings, the applicable rules, and the submissions of counsel in light of the authorities cited. This case presents a classic tension between strict adherence to procedural rules on the one hand, and the need to do justice on the merits on the other. There is no doubt that, in principle, a defence of prescription is meant to be raised by way of a special plea. The High Court Rules, 1971 (then in force) explicitly provided a mechanism for special pleas in bar, and our superior courts have repeatedly underscored that a prescription defence “must be specifically pleaded” as such. The plaintiff is therefore correct that the orthodox and recommended practice is to file a separate special plea (in the form prescribed by the rules) when raising prescription, rather than embedding it in a general plea to the merits. The Van Brooker and Tendayi cases in the Supreme Court, as well as the Dengezi judgment of the Constitutional Court, all reiterate this point in unambiguous terms. It is also true that by pleading over to the merits, a defendant ordinarily waives the tactical pause that a special plea allows – since under Rule 139(1) one need not plead to the merits at all if a special plea is taken. In the present case the defendants chose to plead to the merits regardless, which was permissible (a defendant may plead a special plea and simultaneously to the merits), but unusual in that typically a special plea would be set down and resolved before any trial on the merits. Strictly speaking, the defendants’ plea could be said to have an irregular form: it combined what should have been a separate pleading (the special plea) into the general plea.

The key question is whether this irregularity is fatal to the defendants’ reliance on prescription. In my view – and on the weight of the authorities presented – it is not fatal in the circumstances of this case. It bears emphasis that the purpose of requiring a special plea is to ensure that a plaintiff is made aware, in a clear and timely manner, of a defence that could bar the claim, and to allow the plaintiff an opportunity to respond to it (for instance, with a replication) before the matter proceeds. That purpose was substantially achieved here. The defendants’ plea, under the in limine section, plainly set out the prescription defence by reference to the governing law (s 70 of the Police Act) and the plaintiff’s failure to meet the 8-month limitation. The plaintiff was thus apprised of the defence from the outset and, indeed, he did respond – not by disputing the dates or claiming an interruption of prescription, but by attacking the fairness of the limitation itself (in his replication). Moreover, the plaintiff suffered no procedural prejudice: he was not ambushed at trial by a new defence, nor denied an opportunity to address the point. On the contrary, the issue was crystallised in the pleadings well in advance, and was even included as an issue in the Joint PTC Minute. The court was therefore able to entertain full argument on the point from both sides. In these circumstances, to strike out or ignore the prescription plea solely because it was not raised by separate document would be an exaltation of form over substance. Our courts have often decried such an approach. As Chitapi J observed in the Schweppes case (supra), while the correct procedure might have been a special plea, a court “has a discretion to condone the way that the point in limine was raised in the plea”, especially where no irremediable prejudice results. I find this reasoning persuasive. Indeed, Rule 7 of the 2021 High Court Rules now encapsulates the principle that rules of procedure are instruments to serve justice – “the rules are meant for the court, not the court for the rules.” Even under the old rules, the court always retained a discretion to depart from strict compliance in the interests of justice.

The plaintiff’s counsel urged that the defendants’ failure to follow the letter of the rules should result in the prescription defence being thrown out. He cited case law suggesting that a plea in bar “must” be taken by special plea. I do not disagree with the legal principle; however, the cases in question do not purport to say that any deviation from the prescribed form inexorably nullifies the defence regardless of circumstances. Notably, none of those authorities involved a situation where the prescription point was in fact pleaded (albeit incorrectly) and the plaintiff responded to it without any prejudice. In Dengezi, for example, the plea of prescription was not pleaded at all – a far more egregious situation. In Van Brooker and Tendayi, the courts were laying down the proper procedure, but neither dealt with the scenario of an irregularly pleaded special plea that the plaintiff had nonetheless joined issue on. In the present case, to dismiss the defence purely on a technical procedural impropriety would be to elevate form over justice. The defendants have, in substance, complied with the key requirement for raising a prescription defence: they pleaded it early, clearly, and tied it to the facts of the claim. The plaintiff was aware and took steps to meet the defence (albeit on grounds that did not ultimately negate prescription). No further factual inquiry was needed to resolve the point, as it turned purely on dates that were common cause. In such a scenario, our courts have been inclined to overlook the procedural lapse and deal with the point on the merits, provided the core objectives of the pleading rules (notice and fairness) have been met.

I am fortified in this conclusion by the recent judgment of Dembure J in a closely similar case, Petros Sokole v Minister of Home Affairs & Anor (HH 461-25). In fact, the present matter is on all fours with the Sokole case. The facts are virtually identical (both Sokole and the current plaintiff were arrested on the same day under similar circumstances), the pleadings are a “mirror image” of each other, and the legal issues coincide. Indeed, Mr. Kabaya, who appears for the plaintiff here, was also counsel for the plaintiff in the Sokole case. In Sokole, Dembure J was confronted with the very argument now before me – that the prescription plea was invalid for want of a proper special plea. The learned judge decisively rejected that argument and held that the special plea of prescription was properly raised despite its form, emphasizing that the court must look to substance rather than form in determining the validity of the plea. He reasoned that since the defence was clearly pleaded in limine, the plaintiff was not prejudiced and had even filed a replication, the spirit of the rules was met if not the letter. I find nothing in the present case to justify a departure from that reasoning. To the contrary, I fully align myself with the view taken in Sokole. The plaintiff before me has not pointed to any prejudice or injustice he has suffered by the manner in which the prescription defence was raised. His complaint is purely technical. While the court does not condone laxity in compliance with rules, it will not allow procedural technicalities to bar the diligent and fair resolution of matters on their merits – especially where the outcome, as here, potentially disposes of the entire case.

Accordingly, I conclude that the defendants’ special plea of prescription, albeit not filed as a separate pleading, was properly raised in the defendants’ plea and is properly before this court for determination. The plaintiff’s objection to its form is not upheld. The second preliminary issue is therefore answered in the affirmative: the plea of prescription was raised in an acceptable manner.

Conclusion and Disposition

In the final analysis, the plaintiff’s technical objection to the manner in which the prescription defence was pleaded is devoid of merit and is dismissed. The special plea of prescription is properly before the court.

In the result, it is ordered that:

The plaintiff’s point in limine objecting to the defendants’ plea of prescription for non-compliance with the rules is dismissed.

After delivering the ruling, counsel for the plaintiff sought a brief moment to confer with his client. Upon resumption counsel for the plaintiff with the concurrence of counsel for the defendants applied that the plaintiff’s claim be struck off with no order as to costs. This is a proper concession as the issue of prescription is unassailable. In any case the same issue was dealt with decisively by Dembure J in the Sokole matter (supra).

In the result, it is ordered as follows;

The plaintiff’s claim be and is hereby struck off with no order as to costs.

Mambara J: ………………………………………………………..

Zimbabwe Lawyers for Human Rights, plaintiff’s legal practitioners

Civil Division of the Attorney-General’s Office, defendants’ legal practitioners