Speeding kombi knocks toddler dead, mom sues owner US$500k and seeks ConCourt intervention

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By Mary Taruvinga l Senior Reporter

A HARARE vendor, Patricia Dengezi whose one-year-old son was fatally crushed by a commuter omnibus in 2017, is seeking US$510,000 compensation from the vehicle owner, his insurer, and the police.

Dengezi was also knocked down, left unconscious and seriously injured by kombi, which was being driven by Munyaradzi Nyamaruru on April 17, 2017.

Cited as respondents in the application are Nyamaruru and his employer, Xolisani Moyo, Champions Insurance Company Limited, Zimbabwe Republic Police (ZRP) Commissioner General, Godwin Matanga, and Home Affairs Minister, Kazembe Kazembe.

Agreed facts are that on the fateful day, Dengezi was at her vending site with her toddler son when they were both hit by a commuter minibus, which left her unconscious.

Unfortunately, her son was crushed and died on the spot.

It is common cause that Nyamaruru was driving against on-coming traffic while fleeing from police officers enforcing traffic regulations.

The vehicle was insured by Champions Insurance in terms of third party insurance cover.

Parties proceeded on the basis of a statement of agreed facts, but Kazembe and Matanga have disputed that police officers acted illegally contributing to the accident.

Dengeza instituted court proceedings a year after the incident on April 9, 2018 seeking US$510,000 compensation for her injuries and death of her son.

After filing the summons, the police bosses retaliated in terms of section 70 of the Police Act and a tender for payment of ZW$2 000 by Champions Insurance, which was the amount provided for by s 23 (b) and (c) of the Road Traffic Act (RTA).

The section sets the prescription period of eight months for any person to institute civil proceedings against the police was ultra vires ss 56 (I) and 69 (3) of the Constitution and, therefore, unconstitutional.

Faced with the predicament, Dengeza then decided to have her case heard by the Constitutional Court.

She then filed an application seeking referral of her concerns to the apex court.

Dengeza wants to know whether the said sections of the RTA, which limit the statutory amount that can be paid by a third party insurer (currently at US$2 000 and at ZW$2000 at a time of application) for injury or death.

She seeks to know if injury or death resulting from a road traffic accident infringes her right to equal protection and benefit of the law guaranteed in section 56 (I) of the Constitution and right to life as provided for in section 48 (I) of the Constitution.

She also wants to know whether section 70 of the Police Act, which sets the prescription period of eight months for any person to institute civil proceedings against the police is ultra vires section 56 (I) and 69 (3) of the Constitution and therefore unconstitutional.

High Court Judge, Justice Elijah Makomo partly upheld her request.

“I fall short of associating myself with and adopting those considerations because my jurisdiction ends with merely considering the frivolity or vexatiousness of the request.

“Suffice to state that I hold that the facts of this case as agreed by the parties indeed raise a constitutional issue of whether s 70 of the Police Act is constitutional in light of Dengezi’s right of access to the courts.

“It is a question that the applicant may expect relief from and the determination of which will enable this court to in turn determine the matter before it.

“In the final analysis, I hold that the request to refer the constitutional question on the constitutionality of section 70 of the Police Act is not frivolous or vexatious,” said the judge.