Sydney Saize v Minister of Defence & War Veterans Affairs N.O and Others

### Preamble
1
HMT 81-20
HC 92/20
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SYDNEY SAIZE

versus

MINISTER OF DEFENCE & WAR VETERANS AFFAIRS N.O

and

MINISTER OF STATE FOR NATIONAL SECURITY N.O

and

MINISTER OF YOUTH SPORT, ARTS & RECREATION N.O

And

COMMANDER OF THE ZIMBABWE DEFENCE FORCES N.O

And

DIRECTOR-GENERAL, CENTRAL INTELLIGENCE ORGANISATION

HIGH COURT OF ZIMBABWE

MWAYERA J

MUTARE, 22 October 2020 and 12 November 2020

Exception and Special Plea

P. Nyakureba, for the Plaintiff

Mrs G. Dzitiro, for First and Fourth Defendants

P. Garwe, for Second, Third and Fifth Defendants

MWAYERA J: The plaintiff issued summons against the defendants claiming $ZWL 500 000-00 for unlawful arrest and detention. The plaintiff sought damages from the defendants based on vicarious liability emanating from a claim that the plaintiff was apprehended, assaulted and detained by employees of the first and fourth defendants. The defendants defended the claim and proceeded to file an exception and special plea on the basis that the summons and declaration by the plaintiff lacks the material articulations that establish vicarious liability. The summons and declaration is devoid of the names of the individuals who committed the offence against the plaintiff. Further there is no explanation for the non citation of the primary perpetrators. The first and fourth defendants content that considering that vicarious liability is an accessory delict in the absence of identification or citation of the primary or principal perpetrators of the alleged delictual wrong, there can be no link between the plaintiff (complainant) and the employer of the alleged offender. In short the defendants argued that there is no cause of action against first and fourth defendant disclosed in the summons and declaration.

The first and fourth defendants further argued in their special plea, that the notice of intention to sue by the plaintiff in compliance with the State Liabilities Act [Chapter 8:14] was defective as it did not comply with requirements outlined therein. Mr Garwe for the second, third and fifth defendants had no submissions to make, pointing out that he would be bound by the court’s decision. The plaintiff opposed the exception and special plea arguing that the exception and special plea raised constituted triable issues. The plaintiff contended that the exception and special plea were bad at law and were just raised as dilatory tactics.

In summary what falls for determination by this court is as follows:

Whether or not there is a cause of action disclosed in the summons and declaration issued against the defendants.

Whether or not the plaintiff issued a notice to the first and fourth defendants in compliance with s 69 of the State Liabilities Act [Chapter 8:14].

It is apparent from the papers that the plaintiff a freelance journalist alleges he travelled to Chimanimani sometime on or about 11 April 2019 to assess Cyclone Idai relief efforts. Whilst there the Plaintiff alleges he was detained by some officers at Ngangu Primary School for 5 hours. Thereafter photos were taken of the plaintiff next to a food hamper he was alleged to have stolen. These photographs were circulated on social media platforms. These events prompted the plaintiff to issue summons against the defendants. Despite mention of some officers in para 9 of the declaration the plaintiff did not include these officers as party to the proceedings. Para 9 of the declaration states:

“The officers identified themselves as Mr Edison Chipinda of Central Intelligence Organisation for which 5th Defendant is Director, under 2nd Defendant herein, Sergeant Shumba of the Zimbabwe Defence Forces/Zimbabwe National Army, for which 4th Defendant is Commander, under 1st Defendant herein and a Ms Precious Mukonori of the National Youth Service which is under the 3rd Defendant herein.”

The first and fourth defendants took issue with the non citation of the principal or primary offenders. Mrs Dzitiro in her argument emphasised that vicarious liability is a concept which imposes liability on a person who is not the primary perpetrator of the delictual wrong. The liability attached on the other person on the basis of a relationship that exists. For instance an employer is liable to his employee’s delictual wrong or torts provided when the liability arose the employee was acting within the course and scope of employment.

That vicarious liability is an assessory delict was clearly propagated in Amler’s Precedence of Pleadings, 3rd Edition p 302-303:

“An employer is liable for damage occasioned by the delicts committed by his employee in the course and scope of his employment. The onus rests on the plaintiff to allege and prove that the person who committed the delict was:

The servant of the defendant;

Gibbins v William Muller Wright & Mosterting 1987 (2) SA 82.

That he performed the act in the course and scope of his employment.

What the servant’s duties were or with what work he was entrusted of at the relevant time.

Mkize v Martens 1924 AD 982, Minister of Police v Mbilini 1983 (3) SA 705 (A).”

It follows that for vicarious liability to attach on the employer there must be identification of the servant or worker or primary actor so as to establish the nexus on the relationship to which liability attracts. In this case the plaintiff did not cite the alleged primary offenders neither did the plaintiff give any explanation for the non citation of the parties who are alleged to have committed the tort. The cause of action against the first and fourth defendants cannot be properly established in the absence of identity of the principal perpetrators of the alleged delictual wrong. The enquiry in vicarious liability claim hinges on whether there is an employer-employee relationship to establish the basis of accessory’s liability.

Further to establish vicarious liability is the enquiry on whether or not the primary perpetrator was acting within the course and scope of employment. Such enquires are hinged on the persona of the employee. The question that then arises is in the absence of explanation of the absence of the employee is how then will the court carry out investigative enquiry on nature and scope of enquiry? See Masendeke v Kukurakurerwa Bus Service (Pvt) Ltd HH 598/17. In which the court in dealing with the concept of vicarious liability commented on the need to have the primary offender in that case a bus conductor comment first before imputation of liability on the bus company without establishment of the nature and scope of employment. The court stated as follows:

“……The court accepts that the plaintiff was manhandled off a bus at Kadoma before reaching his destination in Harare. The question is by whom and should the defendant be held liable for alleged actions of an unnamed employee which took place in an unidentified bus? It is simply impermissible. The plaintiff’s claim is clearly premised on vicarious liability. It ought to have been specifically pleaded in accordance with the standard pleading for claims of vicarious liability which is set out in Amler’s Precedence of Pleadings. The plaintiff’s claim fails for failure to discharge the onus of pleading and or leading evidence as to the identity of the alleged perpetrator, employee of the defendant and failure to specifically plead and lead evidence as to the registrations number of particular bus belonging to the defendant which the plaintiff boarded. The court would go further and say that the plaintiff ought to have cited the employee of the defendant as a party to the proceeding because it is his actions which formed the basis of the claim by the plaintiff”. (Underlining my emphasis).

See also Bank of Credit and Commerce Zimbabwe Ltd v Jani Investment (Private) Limited 1983 (2) ZLR 317, where the court faced with defective summons had this to say:

“It will be immediately realised of course, by someone who runs very quickly as he reads, that the summons is wholly invalid since it discloses no cause of action whatever. Any exception to such summons can only succeed instantly and completely.”

In the present case the plaintiff’s summons and declaration lack the necessary facts to sustain a claim of vicarious liability because of the glaring exclusion of the primary offenders. It is clear that in a claim for vicarious liability examination of the principal offender’s job, description, scope of work and whether the actions complained of fall within the course and scope of employment fall into consideration. See Biti v Minister of State Security 1991 (1) ZLR 165 (SC). In the absence of establishment of the primary perpetrators acting on behalf of the first and fourth respondents then what would be served by leading unnecessary incomplete evidence during trial. There is no cause of action established or pleaded by the plaintiff against the defendant. The plaintiff’s claim in this case is excipiable as it does not disclose the cause of action against the first and fourth defendants.

The first and fourth defendants further raised a special plea that the plaintiff did not serve the defendants with a notice of intention to sue as provided for in s 6 of the State Liabilities Act. The plaintiff counsel Mr Nyakureba argued that the special plea was a dilatory tactic since notice was given. He however made a concession that the plaintiff did not cite the name of the offending officer in the notice which omission he outlined would be at the discretion of the court and could be condoned. I must hasten to point out that Mr Nyakureba did not move an application for such condonation neither did he seriously pursue the matter.

A close look at s 6 of the State Liabilities Act shows that the notice among other things should specify the name of the official, post and rank of an employee. Section 6 states as follows:

“1.	Subject to this Act, no legal proceeding in respect of any claim for

(a) 	money, whether arising out of contract, delict or otherwise; or

(b) 	the delivery or reas of any of goods and whether or not joined with or made as an alternative to any other claim shall be instituted against

i.	the State or

ii.	the president, a vice president or any Minister or Deputy Minister

in his official capacity, or

iii.	any officer or employee of the State in his official capacity unless notice in writing of the intention to bring the claim has been served in accordance with subsection (2) at least sixty days before institution of proceedings.

2.	A notice referred to in subsection (1)

(a)	shall be given to each person upon whom process relating to the claim is required to be served and

(b)	shall set out the grounds of the claim and

(c)	where the claim arises out of goods sold and delivered or services rendered, shall specify date and place of the sale or rendering the services and shall have attached copies of any relevant invoice and requisition where available and

(d)	where the claim is against or in respect of an act or omission of any officer or employee of the State shall specify the name, and official post, rank or number and place of employment or station of the officer or employee if known…..”

It is clear from the language used in s 6 that compliance with s 6 of the Liabilities Act is peremptory. Subsection (3) of s 6 allows the court a discretion to condone where the court is satisfied that there has been substantial compliance. It is settled that such condonation is only acceded to where there is an application and circumstances depict substantial compliance. In this case no application for condonation has been made. In any event a close look at the letter of notice only refers to the first and fourth defendant’s employee as Sergeant Shumba. The full name, rank and station is not outlined. Such narrow reference of an employee for an entity such as first and fourth respondents considering the numbers employed and nature and extent of the Ministry cannot be defined as substantial compliance. It is imperative when giving notice to be alive to the legislative intention for the peremptory requirement of notice. The notice should be elaborate so as to give the institution an opportunity to investigate and consider claims against them. The elaboration of detail will enable the institution to verify whether or not the primary offender is its employee. This informed compliance would then enable the institution to consider its position objectively on any claims. See Michael Nyika and Another v Minister of Home Affairs and Others and also Stevenson N.O v Transvaal Provincial Administration 1934 TPD 80 or 84.

In casu by merely referring to the primary perpetrator as Sergeant Shumba the plaintiff cannot be said to have complied with provisions of s 6 of the Liabilities Act or at least be said to have substantially complied. The non compliance is further compounded by the fact that the defendants have filed an exception which is intrinsically interrelated to the non compliance. The alleged primary offenders have not been identified neither have they been cited with a consequence that there is no cause of action disclosed in the summons and declaration. The concept of vicarious liability connotes accessory liability emanating from the employer-employee relationship between the alleged principal perpetrator and the employer. In the absence of establishment of link between the principal or primary perpetrator of alleged delictual wrong and the defendants as in this case then there is no cause of action.

The plaintiff’s pleadings are excipiable and the special plea of non compliance with s 6 of the State Liabilities Act is sustained. Having upheld the exception and special plea it follows that the plaintiff’s claim cannot stand.

Accordingly it is ordered that:

1.	The exception and special plea is upheld.

2.	The plaintiff’s claim is dismissed.

3.	The plaintiff shall bear the costs.

Maunga Maanda, Plaintiff’s legal practitioners

Mutumbwa Mugabe and Partners, 1st and 4th Defendant’s legal practitioners

Civil Division of the Attorney General’s Office, 2nd, 3rd and 5th Defendant’s legal practitioners