By Staff Reporter
Two Harare men who were randomly shot by Zimbabwe Republic Police (ZRP) in 2018 had their application challenging the Police Act trashed by the High Court after they complained that officers who shot them were being unfairly protected by the law.
The two, Brian Choba and Justice Chiutsi had issued summons against the Home Affairs minister and Police Commissioner General suing for damages.
They were both shot at and injured by members of the ZRP on 22 February 2018.
They both instituted claims for general and special damages before the High Court separately.
Choba claims that on 22 February 2018 between 1800 hours and 1900 hours, he was shot in the thighs by uniformed police officers as he was boarding a commuter omnibus at the intersection of Julius Nyerere and Kenneth Kaunda in Harare.
The identities of the police officers are unknown to him.
On 25 June 2018, Choba gave the respondents notice of his intention to sue in terms of s 6 of the State Liabilities Act [Chapter 8:14], as read with s70 of the Police Act.
Summons were issued and filed under HC 11467/18 on 12 December 2018.
The respondents filed an appearance and a plea in terms of which they raised a preliminary point that the claim had prescribed in terms of s 70 of the Police Act.
Chiutsi was shot on 22 February 2018, around 1900 hours and while on his way to board a commuter omnibus alongside his wife and child, he was shot on the forehead, at the back of his head and on the neck by uniformed police officers.
Just as was the case with the first applicant, Chiutsi gave the respondents notice of his intention to sue on 25 June 2018.
Section 70 of the Police Act provides that civil proceedings must be instituted within eight months from the date that the cause of action arose.
The applicants sought an order declaring s 70 of the Police Act to be unconstitutional because the time frame within which a litigant must institute proceedings is unreasonably short. After all, the 60-day notice required under the State Liabilities Act is also part of the eight months.
They said section 15 of the Prescription Act provides a general prescription period of three years for debts.
They argued that there was therefore no justification for a shorter prescription period in respect of claims against the police.
The applicants also contend that s 2 of the Constitution regards the Constitution to be the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid.
“Section 56 (1) of the Constitution guarantees the right to equality before the law and equal protection and benefit of the law,” they submitted.
Choba and Chiutsi said s 70 of the Police Act therefore infringed the rights constitutionally guaranteed by s 56(1) because: s 70 is couched in mandatory terms which takes away the courts’ discretion to depart from the prescription period in deserving cases.
“The provision gives the Police special or preferential treatment, consequently discriminating against ordinary citizens with claims against the police; the general prescription period of three years under the Prescription Act also applied to bigger corporates or entities similar in size or even larger than the police force.