Mordecai Pilate Mahlangu v Henry Sostane Dowa and 4 Others

### Preamble
1
HH359 -2013
HC2292/10
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MORDECAI PILATE MAHLANGU

versus

HENRY SOSTANE DOWA

and

CLEVER NTINI

and

AUGUSTINE CHIHURI

and

JOHANNES TOMANA

and

CO-MINISTERS OF HOME AFFAIRS

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 24 September & 23 October 2013

Opposed application

E.T. Matinenga,for the plaintiff,

In default, for the 1st,2nd,3rd and 5th defendants

T. Magwaliba, for the 4th defendant

MATHONSI J: This is an application made in terms of Order 28 r191 of the High Court of Zimbabwe Rules, 1971 for leave to administer interrogatories in a matter in which the plaintiff, a senior legal practitioner and a partner at the law firm of Gill, Godlonton & Gerrans in Harare, has sued the first defendant, a detective inspector in the Zimbabwe Republic Police(‘ZRP’) the second defendant, a detective chief inspector in the ZRP, the third defendant who is the Commissioner General of the ZRP, the fourth defendant, who is the Attorney General of this country and the Co - Ministers of Home Affairs, cited as fifth defendants for damages and compensation in the total sum of US$400 000-00.  He also seeks interest on that sum at the prescribed rate and costs of suit on the scale of legal practitioner and client.

The suit arises from the arrest of the plaintiff on 2 November 2009 at the offices of Gill, Godlonton & Gerrans and his subsequent detention at Harare Central Police Station until his release by a magistrate on bail the following afternoon.  The application is opposed by the fourth defendant only as the other defendants have not seen the need to oppose the application despite service of the application upon their legal practitioners on 18 August 2011.  One can only assume that their silence means acquiescence and that they will happily respond to the interrogatories.

On 12 April 2010, the plaintiff issued out summons against the defendants aforesaid and in his declaration he averred that during October 2009 he was consulted in his capacity as a legal practitioner by one Michael Peter Hitschman who sought is professional legal advice.  In pursuance of that, he had addressed a letter attached to the declaration, to the fourth defendant in his official capacity as the Attorney General, in which he advised him that not only had Hitschman not been validly sub-poenaed as a witness in a trial which was pending but also that Hitschman was not going to render any evidence relevant to the prosecution case in that trial.  He backed that opinion with an affidavit sworn to by Hitschman which was attached to the letter in question.

The plaintiff averred further that upon receipt of that letter the fourth defendant had forwarded it to the third defendant with instructions for the arrest and detention of the plaintiff on a charge of interference with the administration of justice.  He was then arrested by the first defendant acting on the orders of the second, third and fourth defendants without a warrant of arrest and detained a foresaid only to be released on bail on the afternoon of 3 November 2009.  The arrest without warrant was wrongful, unlawful and contrary to s13 of the former constitution of Zimbabwe because the first defendant did not hold a reasonable suspicion that an offence had been committed but merely acted on the unlawful orders of the second defendant who acted on unlawful orders of the third defendant who had in turn acted on the unlawful instructions or orders of the fourth defendant.  None of the defendants exercised the discretion required by law or exercised it improperly and in so doing they acted in breach of the law and maliciously.

The plaintiff stated further that his detention was wrongful and unlawful because there were no grounds for it.

All the defendants are contesting the suit.  In his plea filed on 27 May 2010, the fourth defendant stated:

“The fourth defendant pleads as follows to the plaintiff’s claim:

The plaintiff’s claim is excepiable (sic)

The plaintiff has failed to set out the following material averments with regard to its claim against the fourth respondent ( sic) :-

when the alleged instructions were issued.

how they were issued?

the basis upon which it is alleged that the instructions were an order for ‘arrest’ and ‘detention’.

Pursuant to the alleged instructions of the fourth defendant the plaintiff has failed to set out a basis upon which the actions of the first, second and third defendants can be linked or connected to the fourth defendant such as to establish liability on the part of the fourth defendant.

plaintiff does not allege or aver that:

that the alleged instructions were unlawful

that the fourth defendant was not entitled to issue such instructions in view of the provisions of section 7b of the Constitution of Zimbabwe.

that the first, second and third defendants acted on those instructions unlawfully.

Ad paragraph 1-6

No issues

Ad paragraph 7

No basis has been set out for liability to plaintiff in the personal capacity of the fourth defendant.

It is not alleged that the defendant had no lawful authority under section 76(4) (a) of the Constitution of Zimbabwe.

It is not alleged that the fourth defendant has a personal interest or was motivated by other personal considerations beyond mere exercise of duty.

Ad Paragraph 8 & 9

Fourth defendant has no knowledge of this.

Ad Paragraph 10,11 &12

The fourth defendant acted in terms of section 76(4)(a) of the constitution of Zimbabwe and merely requested the third defendant to investigate and report to him.

it is denied that fourth defendant issued instructions for the arrest of plaintiff

it is further denied that fourth defendant instructed the detention of the plaintiff.

Ad Paragraph13,14,15,16,17 & 18

The fourth defendant is not responsible for the actions of first, second and third defendants as these derive their mandate from the constitution separately and independent of the fourth defendant.

The arrest and detention of the plaintiff would have been on the basis of the opinions formulated by the first, second and third defendants for which the fourth defendant is neither responsible nor answerable.

The fourth defendant has no knowledge of damages suffered by plaintiff and puts plaintiff to the strictest proof thereof.”

The record that has been placed before me does not show that a pre-trial conference took place and what transpired at that conference. Suffice to say that the plaintiff requested particulars from the fourth defendant to enable him to prepare for trial probably stung by the fourth defendant’s failure to let out anything useful in his plea.  In that request the plaintiff put specific and direct questions to the fourth defendant which did not yield any useful outcome.  The request for particulars for trial reads:

“In order to enable the plaintiff to prepare for trial, the fourth defendant is required to provide the following particulars within 10days of service of this request upon him in terms of Rule 143.

At what time on 2 November 2009 did the fourth defendant first receive and read the letter which is attached to the declaration?

At what time on 2 November 2009 did the fourth defendant forward the letter of 2 November 2009 attached to the declaration to the third defendant?

When forwarding the letter attached to the declaration to the third defendant, did the fourth defendant give any instructions in writing or make any request in writing?  If so, a copy of such instructions or request is required.  If not, full details are required of any communications between the fourth defendant and the third defendant regarding the letter, that took place on either 2 November 2009 or 3 November 2009.

In so far as the fourth defendant alleges that he acted in terms of section 76(4a) of the Constitution of Zimbabwe, the fourth defendant is required to give full details as to the basis upon which he reached the opinion stipulated by that section before referring the letter to the third defendant.

What criminal offence or alleged or suspected criminal offence did the fourth defendant require to be investigated by the third defendant?

Did the third defendant report to the fourth defendant as required by section76 (4a) of the Constitution of Zimbabwe?  If so, the date of such report is required to be stated.

Was any such report in writing? If so, a copy thereof is required.  If not, full details are required as to the contents of the report and the manner in which it was made.

The fourth defendant is required to state in detail his knowledge of the plaintiff in his capacity as a legal practitioner as at 2 November 2009.  Full details are required of any professional dealings between the plaintiff and the fourth defendant prior to 2 November 2009.”

The fruit of the plaintiff’s industry came in the following negativity filed by the fourth defendant as further particulars on 27 September 2010:

“Please take note of the fourth defendant’s further particulars.

Ad Paragraph 1-2

The particulars requested relate to matters of evidence.

Ad Paragraph 3

The information requested here is unnecessary for the purposes of the plaintiff’s preparation for trial.  More importantly, it relates to matters that can be conversed through cross examination.

Ad Paragraph 4

The particulars requested relate to issues of law.

Ad paragraph 5

The fourth defendant merely requested the third defendant to investigate and report back to him in terms of the law.

Ad paragraph 6,7 & 8

The particulars requested herein relates (sic) to matters of evidence.”

The plaintiff’s effort in terms of r 143 having left him rooted in the same place, he was probably despondent and without solution.  He then brought this application in terms of r191 seeking leave to administer interrogatories arguing that the particulars he had requested cannot be left for cross examination at the trial as alleged by the fourth defendant as he is entitled to them in preparation for trial.  He maintained that the interrogatories are relevant to the matters in issue between the parties.

In his opposing affidavit the fourth defendant maintained that the interrogatories are not necessary and that “the procedure of interrogatories has fallen into disuse.” He stated further at para(s) 8 to 11 of the affidavit that:

“8. Plaintiff is patently mistaken in its (sic) view that the interrogatories are of necessity to his preparation for trial.  This is clearly a fishing expedition and an inquisitorial foray meant to gain undue insight into the strength of my defence.

The further particulars sought by way of interrogatories disclose a mala fide attempt by applicant to harass and vex me.  Sufficient particulars to enable the applicant to prepare for trail have been furnished.  I am advised that it is inappropriate for the applicant to seek the furnishing of evidence through the avenue of interrogatories.

Furthermore, the information required by plaintiff through the interrogatories is neither necessary nor relevant for the purpose of preparing for trial.  The law only enjoins me to disclose the particulars that are being sought at the trial as they concern matters of evidence which have nothing to do with the plaintiff’s pre-trial requirements.

In light of the foregoing, I submit that plaintiff is not entitled to the particulars sought via its (sic) numerous interrogatories as such particulars are not relevant at this juncture.”

The foregoing extract betrays some kind of misunderstanding of the procedure for interrogatories.  To say that the procedure for interrogatories has fallen into disuse, when it remains in the rules, cannot be taken seriously.  It is true of course that r191 is seldom employed mainly because litigants usually find it easy to proceed in terms of r143 and request discovery there by making it unnecessary to employ the procedure provided for in r191.  In casu, I have already stated that the plaintiff went the r143 route but came out very empty handed because the fourth defendant did not co-operate.  He then sought sanctuary in r191.

That rule provides for discovery by interrogatories in the following:

“(1) A party to a cause or matter may make a chamber application for directions for an order –

giving him leave to serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter; and

requiring that other party to answer the interrogatories on affidavit within such period as may be specified in the order.

(2) A copy of the proposed interrogatories in Form No.26 shall be served with the notice by which the application for such leave is made.

(3) On the hearing of an application under this rule, the judge shall give leave as to such only of the interrogatories as he considers necessary either for disposing fairly of the cause or matter or for saving costs; and in deciding whether to give leave the judge shall take into account any offer made by the party to be interrogated to give particulars or to make admissions or to produce documents relating to any matter in question.

(4) A proposed interrogatory which does not relate to such a matter as is mentioned in sub r (1) shall be disallowed notwithstanding that it might be admissible in oral cross-examination of a witness.”

Clearly the relief sought by way of interrogatories is discretionary in nature but that does not detract from the fact that a party to an action has a right to interrogate his opponent on matters which are relevant to an issue in which such party bears the onus of proof.  The remedy provided for in r191 has no counter part in South African procedure coming as it does, borrowed from English law.

In upholding the decision of the General Division on the general principles applicable to the court’s discretion to grant or refuse interrogatories, in Serfontein & Anor v Irvine 1979 RLR 510 (AD), LEWIS JP stated at 514E-H; 515A-B:

“The general principles applied are summed up in the passage in the judgement of LORD ESHER in Marriot v Chamberlain (1886) 17 Q.B.D 154 at 163.

The relevant passage is quoted at p71H of the judgement in the court aquo as follows:

‘It does not, to my mind signify, in dealing with these questions, on whom it lies to prove the facts with regard to which the interrogatory is put.  These facts may be called part of the plaintiff’s case, but if they are, I think the defendant has a right to interrogate with regard to them, because they are part of the plaintiff’s case.  The law with regard to interrogatories is now very sweeping.  It is not permissible to ask the names of persons merely as being the witnesses whom the other party is going to call, and their names not forming any substantial part of the material facts; and I think we may go so far as to say it is not permissible to ask what is mere evidence of the facts in dispute, but forms no part of the facts themselves.  But with these exceptions it seems to me that pretty nearly anything that is material may now be asked.  The right to interrogate is not confined to the facts directly in issue, but extends to any facts the existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue.’

I think, however, it is of importance to add a further well-established principle, not dealt with by  LORD ESHER in that passage which is that interrogatories are admissible not only for the purpose of supporting the applicant’s case but also for the purpose of impeaching or destroying his opponent’s case.  See Hennessy v Wright (1890) 24 Q.B.D 445 at 447 per LORD ESHER in the opening sentence of his judgement.  See also Plymouth Mutual Co-operative and Industrial Society Ltd v Traders’ Publishing Association Ltd [1906] I.K B403 at 416-7 per STIRLING. L.J.”

The learned authors Herbestein and Van Winsen, The Civil Practice of the Superior Courts in South Africa, 3rd Edition, Juta & Co Limited also make the point that evidence can be elicted through interrogatories. At p 439-40 they state:

“The basic difference between interrogatories and commissions de bene esse is that while in the latter case general evidence is required, in the former certain specific questions are formulated for the purpose of being put to the witness by the commissioner.  The conditions under which leave will be granted to take evidence by means of interrogatories and the method of, and the time for obtaining such leave are the same as in the case of a commission.  The party applying for leave annexes to his application questions which he requires to be put to the witness and the respondent is entitled to ask to put cross-interrogatories to the same witness in the form of set questions approved by the court granting leave.”

I approach this matter from the premise that a litigant is entitled to information from his adversary which will enable him to adequately prepare for trial and should not be put in the position of preparing for trial in the dark. As stated by MACDONALD ACJ in Timsecurity (Pvt) Ltd v Castle Hotel (Pvt) Ltd 1972(3) SA112 (RAD) 114H; 115 A:

“A litigant is entitled to know the case or defence he has to meet; not only to know whether he should admit or deny the particular allegation.  He is entitled to be placed in the position of being able to decide whether to persist in his claim or defence.  This aspect has, perhaps, not been sufficiently emphasized in the decided cases.  A litigant must not be put in the embarrassing position of being forced to resort to a bare denial by the lack of particularity; a denial which, in the light of particulars supplied at a later stage, he might well be obliged to withdraw, or qualify.  He should be in a position honestly to deal with the matter and either to admit or deny an allegation in the light of the particulars furnished.”

Mr Matinenga, who appeared for the plaintiff strongly argued that the fourth defendant’s presentation in all his pleadings, including the response to the request for further particulars for trial, shows that he is ducking and driving in a manner suggestive of the fact that he does not take the exercise seriously at all.  On the other hand, Mr Magwaliba for the defendant was firmly of the view that the interrogatory is not relevant to the issues for trial and contains matters in which the plaintiff has already pleaded existence of certain facts.  To him the plaintiff is not entitled to inquisitively question evidence outside a trial.

The plaintiff alleges that the fourth defendant set in motion the process which led to his arrest and detention after he had received a letter written to him by the plaintiff.  The plaintiff alleges that the conduct of the defendant was unlawful and wrongful and contrary to the provisions of the law.  He further avers that the fourth defendant and the other defendants did not exercise the discretion required of them by law or exercised it improperly.  In doing that, the defendants were actuated by malice.

On the other hand, the fourth defendant denies those averments and has pleaded that he acted in terms of powers given to him in s76 (4a) of the former constitution by merely requesting the third defendant to investigate and report to him.  The fourth defendant has refused to shed any more light as to whether the third defendant reported back to him as required by law and what was contained in that report.  It is common cause that the letter which triggered the chain of events complained of was written on 2 November 2009 and delivered on the fourth defendant the same morning.  Hours later that day, the plaintiff was arrested and detained.

Section76 (4a) of the former constitution provides:

“The Attorney General may require the Commissioner – General of Police to investigate and report to him on any matter which, in the Attorney General’s opinion, relates to any criminal offence or alleged or suspected criminal offence, and the Commissioner General of Police shall comply with that requirement”

In terms of s76 (7) the powers given to the Attorney General under subs (4a) are not subject to the direction or control of any person or authority but rest exclusively upon him.

In my view, the issue of what informed the decision of the fourth defendant to act as he did in terms of s76 (4a), what he told the Commissioner General , and whether the latter did report back to him and the contents of such report are legitimate subjects for interrogation.  In that regard interrogatories 1 to 5 are relevant to the issue between the parties.

I agree with Mr Magwaliba that interrogatories 6 to 9 relate to questions of law, in particular the duties of a legal practitioner in relation to his client and professional responsibility in the attainment of justice.  They do not necessarily achieve relevance in respect of the plaintiff’s preparation for trail.  I would therefore disallow them.

What is germane to the facts in issue in this matter is the interaction between the fourth and third defendants, the fourth defendant having formulated the opinion in terms of s 76(4a) of the former constitution that a criminal offence may have been committed by the plaintiff whether in penning the letter of 2 November 2009 or the affidavit of his client.  For that reason, the plaintiff is entitled to interrogate the fourth defendant in relation to his interaction with the Commissioner General and ascertain what transpired.  It should be borne in mind that the plaintiff has a right to information which is necessary for disposing fairly of some of the issues raised in the pleadings, the fourth defendant having lent heavily on the defence that he merely instructed the Commissioner General to investigate and nothing more.

It is in that light that interrogatories 10 to 32 should be examined. Other than to say that he requested the Commissioner General to investigate and report to him, the fourth defendant’s plea does not set out any facts that can be used to resolve the matter between the parties.  It purposely avoids delving into the facts of the matter and leaves the plaintiff extremely embarrassed as to the evidence he has to meet at the trial.  It is crucial to note that in exercising the discretion reposed to me by r191 (3) the extent to which a party has given particularity is of material consideration. LEWIS JP made the point in Serfontein & Anor v Irvine (supra) at 520E that:

“In terms of Rule 191 (3) the court, in the exercise of its discretion, has to consider whether the interrogatories are ‘necessary either for disposing fairly of the cause or matter or for saving costs’, and if the disclosure would enable the defendant to make a tender and settle the matter out of court, then both these objects would be satisfactorily attained by the granting of the application.”

Granted what is required of the fourth defendant in interrogations 10 to 32 is fairly detailed but it is all because the fourth defendant’s pleadings have bordered on bare denials which do not concern themselves with relevant facts in issue between the parties.  The information that is required by the plaintiff is in my view relevant to the facts.  I am also mindful of the fact the authorities make it clear that pretty nearly anything that is material to the issue between the parties may be asked and that interrogatories are admissible for supporting the plaintiff’s case and also for impeaching or destroying his opponent’s case. A very senior legal practitioner was arrested while discharging his duties.  The details of what prompted that arrest are fair targets of interrogation in preparing for trial.

I am fortified in that view by the realisation that where the fourth defendant is genuinely unable to answer the particular interrogatory he is entitled to say so and move on.

I conclude therefore that the plaintiff is entitled to the order that he seeks against the fourth defendant with the exception of interrogatories 6 to 9 on the plaintiff’s list.  I have already stated that the other defendants have not opposed the application and I see no reason why the plaintiff should not be granted the relief that he seeks against them.

In the result, I make the following order, that

In terms of r191 of the High Court of Zimbabwe Rules, 1971, the first, the second, the third and the fourth defendants are directed to answer the interrogatories sought in respect of each such defendant on affidavit within a period of ten (10) days from the date of this order.

In respect of the fourth defendant he shall answer the interrogatories directed to him except for interrogatories 6 to 9 on the list.

The costs of this application shall be costs in the main action.

Messrs Gill Godlonton& Gerrans, plaintiff’s legal practitioners

Messrs Mutamangira & Associates,4th defendant’s legal practitioners