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Petros Sokole v The Minister of Home Affairs N.O and The Commissioner General of Police N.O

High Court of Zimbabwe, Harare30 July 2025

HH 461-25HH 461-252025

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### Preamble
HH 461-25
HCH 10151/17
PETROS SOKOLE
---------

PETROS SOKOLE

versus

THE MINISTER OF HOME AFFAIRS N.O (1)

and

THE COMMISSIONER GENERAL OF POLICE N.O (2)

HIGH COURT OF ZIMBABWE

DEMBURE J

HARARE: 18 June & 30 July 2025.

Civil Trial: Special Plea of Prescription

K. Kabaya, for the plaintiff

F.Chimunoko, for the 1st & 2nd defendants

DEMBURE J:

INTRODUCTION

[1] On 18 June 2025, the parties, duly represented by their legal practitioners, appeared before me for a trial. The record showed that in the defendants’ plea, the defendants had pleaded the special defence of prescription, in part A thereof under the heading “IN LIMINE”. The first two issues for trial, being preliminary issues, had to be determined first. It was agreed that since the facts necessary for the determination of the preliminary issues were common cause, the parties would proceed to file their written submissions, and the court would make its decision on the papers.

[2] The parties filed their written submissions through their legal practitioners. However, I must point out that the defendants’ submissions came late, but since I had not prescribed the consequences for the late filing thereof, I decided to consider them since they were filed before I had determined the issues. I also considered that on 18 June 2025, Mr Chimunoko had indicated that he was standing in for another legal practitioner handling the matter, who had instructed him to seek a postponement of the trial. The heads of argument were prepared by one F Chimufaro.

THE PARTIES

[3] The plaintiff is Petros Sokole, a male adult. The first defendant is the Minister of Home Affairs, cited in his official capacity as the public official mandated with the administration of the Police Act [Chapter 11:10]. The second defendant is the Commissioner General of Police, also cited in his official capacity as the authority in charge of the police force.

FACTUAL BACKGROUND

[4] On 30 October 2017, the plaintiff had summons issued against the defendants seeking the payment of US$15,400.00, being damages for unlawful arrest and detention. The said sum is made up of the following:

(a) US$2,400.00 being special damages for loss of income during incarceration;

(b) US$5,000.00 being general damages for unlawful arrest and detention;

(d) US$3,000.00 being general damages for contumelia

In addition, the plaintiff claimed interest on the stated sums at the prescribed rate from the date of demand to the date of final payment and costs of suit.

[5] The facts are largely common cause: On 26 August 2016, the plaintiff was arrested at around 11:00 in the morning by uniformed members of the Zimbabwe Republic Police. He was taken to Harare Central Police Station, where he was detained in police custody pending initial court appearance. The following day, the plaintiff was taken to court and charged with public violence as defined in terms of s 36 of the Criminal (Codification and Reform) Act [Chapter 9:23]. The court subsequently remanded him in custody pending trial.

[6] The plaintiff’s averments are that upon his arrest he was assaulted by the police resulting in him suffering injuries to his back and left leg, that he was subjected to inhuman and degrading treatment at the police station and was not informed of the reasons for the arrest until the next day when he was taken to court and were denied bail by the defendants. They maintained that his arrest and detention was lawful.

[7] The plaintiff was tried for the offence by the Magistrates’ Court. It was further not in dispute that on 22 March 2017, he was acquitted and discharged at the close of the State case for lack of evidence. On 4 July 2017, the plaintiff served the defendants with the notice of intention to sue in terms of the State Liabilities Act [Chapter 8:14]. While the defendants acknowledged receipt of the notice and promised to revert to the plaintiff in due course, the plaintiff subsequently filed the current proceedings.

[8] It is clear from the record and not in dispute that the plaintiff instituted the action on 30 October 2017 and had the summons served on the defendants on 16 November 2017.

[9] Initially, the matter was set down for a Pre-Trial Conference (“PTC”) before MUCHAWA J on 20 September 2024. However, the defendants being in default, the court struck out their defence and referred the matter to the unopposed roll. The defendants went on to apply for rescission of the default judgment. On 30 October 2024, I heard the application for rescission of default judgment filed under Case No. HCH 4213/24. In default of the plaintiff (the respondent therein), I granted the order for the rescission of the default judgment entered against the defendants on 20 September 2024. The court further directed that the matter be set down for a PTC and proceed further in terms of the rules of court.

[10] As the record shows, the parties appeared before MAMBARA J on 31 January and 10 February 2025 for a PTC. On 10 February 2025, the matter was referred to trial on the following issues:

“1.1 Whether the plea of prescription was properly raised?

1.2 Whether or not the Plaintiff’s claim has prescribed in terms of section 70 of the Police Act [Chapter 11:10]?

1.3 Whether or not the Plaintiff was unlawfully and wrongfully assaulted, arrested and detained by members of the Zimbabwe Republic Police?

1.4 Whether or not the Defendants are liable to pay any of the damages claimed jointly and severally, one paying the other to be absolved?”

ISSUES FOR DETERMINATION

[11] The two preliminary issues the court is called upon to determine, as stated in the parties’ joint PTC minute, are as follows:

1. Whether the plea of prescription was properly raised?

2. Whether or not the Plaintiff’s claim has prescribed in terms of section 70 of the Police Act [Chapter 11:10]?

1. WHETHER THE PLEA OF PRESCRIPTION WAS PROPERLY RAISED?

SUBMISSIONS FOR THE PLAINTIFF

[12] It was submitted for the plaintiff that the plea of prescription was not properly raised and must be struck out for non-compliance with the rules of court. It was argued that it is trite that a plea of prescription operates as a plea in bar. It must be raised by way of a special plea. The defendants’ point in limine concerning prescription is improperly before the court. The impropriety derives from the defendants’ failure to comply with the mandatory provisions of rules 137 and 139 of the now-repealed High Court Rules, 1971, which were in force at the material time. These rules specifically and unequivocally prescribed the manner in which a party wishing to rely on a special plea was to raise it.

[13] It was further argued that a plea in bar, such as prescription, was specifically required to be raised as a distinct special plea, permitting a party not to plead over the merits if that plea was taken. The defendants' purported preliminary point on prescription, which was raised as part of the pleadings, does not conform to the prescribed method. Counsel referred to the case of Van Brooker v Mudhanda & Anor: Pierce v Mudhanda & Anor SC 5/18, where the Supreme Court held:

“Generally, a plea is the answer by a defendant to the claim by the plaintiff as set out in particulars of claim or in a declaration as the case may be. In addition to a plea which raises a defence on the merits of a claim, a defendant may also raise a special plea which has its object either to delay the proceedings or to quash the action altogether.

The defence of prescription should not be raised by way of exception but must be specifically pleaded. The plea must set out sufficient facts to show on what the defence is based. However, due to its nature, the plea of prescription is a special plea. Such a plea is provided for in the High Court Rules 1971.”

[14] Counsel further quoted extensively from the above case authority. References were further made to the cases of Doelcam (Pvt) Ltd v Pichanick & Ors 1999 (1) ZLR 390 (H) at 396 B-F, which deals with the essence and purpose of a special plea. In Tendayi v Twenty Third Century Systems (Pvt) Ltd SC 135/20, the Supreme Court reiterated the position that the defence of prescription must be raised as a special plea. The Constitutional Court of Zimbabwe in Dengezi v Nyamaruru & Ors CCZ-13-23 also held that:

“It is a settled position in our adjectival law that the appropriate procedure available in a situation where a party intends to plead the defence of prescription is through a special plea.”

[15] It was argued that the defendants raised the issue of prescription merely as a preliminary point within the body of the main general plea rather than being formally and specifically pleaded as a distinct special plea. This approach fails to align with both the mandatory requirements of the now-repealed rules 137 and 139 and the established jurisprudence within our jurisdiction as set out in inter alia, the Van Brooker and Doelcam cases.

SUBMISSIONS FOR THE DEFENDANTS

[16] It was argued for the defendants that it is trite in our jurisdiction that a point of law can be raised at any time during the proceedings. By pleading the point of law, the defendants gave the plaintiff sufficient notice so that he would not be caught by surprise. The Supreme Court has consistently affirmed that a point of law can be raised at any stage of proceedings, including for the first time on appeal. This is particularly true of the point that goes to the root of the matter or concerns a nullity. Counsel referred the court to the case of Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S). The principle has been consistently reaffirmed in numerous cases, for instance, Trustees Leonard Cheshire Homes Zimbabwe Central Trust v Chite & Ors 2010 (1) ZLR 631, Nissan Zimbabwe (Pvt) Ltd v Hopitt (Pvt) Ltd 1997 (1) ZLR 569 (S) and ZESA v Bopoto 1997 (1) ZLR 126 (S).

[17] Counsel further submitted that the facts of the matter are common cause. No further evidence may be required to support the point. The Supreme Court in Delta Beverages (Pvt) Ltd v Marandu SC 38-15 at p 3 analysed the factors to be considered in raising a point of law and held that:

“The respondent challenges the point in limine, and prays that it be dismissed. I will start with a consideration of whether or not the point in limine meets the requirements for being raised for the first time on appeal. The appellant correctly avers that a point of law may be raised for the first time on appeal where the point; (i) is covered by the pleadings,

(ii) there would be no unfairness to the other party; (iii) the facts are common cause and

(iv) no further evidence would be required to support the point. (See Austerlands (Pvt) Ltd v Trade and Investment Bank Ltd & Ors 2006 (1) ZLR372(H).”

[18] The defendants raised the point of law in the pleadings, and the plaintiff has not been prejudiced. The facts are common cause. The plaintiff had the occasion to replicate the plea. The defendants also referred the court to the case of Schweppes Zimbabwe v Blackey Investments HH601/21. where Chitapi J held:

“In its replication on material issues, the plaintiff averred that as regards the point in limine raised in the plea, the defendant did not follow the correct procedure for raising the point in limine. The plaintiff pleaded that the plaintiff ought to have filed a special plea, exception or an application to strike out if it intended to raise an objection which does not touch on the merits of the matter to be decided. In my view, the point in limine raises questions of law and either party would be permitted to raise a point of law at any stage of the proceedings. Whilst ordinarily the point in limine as raised by the defendant would best have been raised by way of special plea, exception or application to strike out, the court has a discretion to condone the way that the point in limine was raised in the plea. The decision to condone is largely informed by the consideration whether or not there would be irreparable prejudice to the opposite party. Such prejudice is not apparent from the papers and in any event, the plaintiff did not allege any prejudice to its ability to answer the point in limine.”

[19] It was further submitted that the point in limine raised by the defendants advanced a point of law capable of disposing of the matter in its entirety. It thus goes to the root of the matter. Pleading over the point in limine in the main plea is not misplaced. The form of the plea should not be used to militate against the dispensing of justice. The principle of substance over form is a judicial philosophy that prioritises the true nature and merits of a case over strict adherence to procedural technicalities. This approach is fundamental to ensuring that justice is achieved and that procedural rules do not become barriers to fair adjudication. Rule 7 is a statutory embodiment of the substance over form principle. The rules are meant for the court, not the court for the rules.

[20] The court must consider the substance of the defence itself. See also Kudakwashe Maponga v Duduzile Gumude & Anor HB 70/23, where the court, finding no prejudice, leaned towards hearing a case on the merits where it was argued that the wrong Form 25 was used instead of Form 23. The defendants’ position was, therefore, that the prescription had been properly pleaded and that it was an issue for determination and resolvable on the facts which are common cause.

THE LAW

[21] A plea is, generally, the defendant’s answer to the plaintiff’s claim. That defence may be raised over the merits of the claim, or as an alternative to pleading to the merits, the defendant may raise a special plea. The legal position was enunciated in Brooker v Mudhanda & Anor supra where GOWORA JA (as she then was) had this to say:

SPECIAL PLEAS, EXCEPTIONS, APPLICATIONS TO STRIKE OUT AND APPLICATIONS FOR PARTICULARS

137. Alternatives to pleading to merits: forms

(1) A party may—

(a) take a plea in bar or in abatement where the matter is one of substance which does not involve going into the merits of the case and which, if allowed, will dispose of the case;

(b) except to the pleading or to single paragraphs thereof if they embody separate causes of action or defence as the case may be;

(d) apply for a further and better statement of the nature of the claim or defence or for further and better particulars of any matter stated in any pleading, notice or written proceeding requiring particulars. [Subrule amended by s.i. 120 of 1995]”

[22] Further in subrule (2) of rule 137, it was further provided that:

“(2) A plea in bar or abatement, exception, application to strike out or application for particulars shall be in the form of such part of Form No. 12 as may be appropriate mutatis mutandis, and a copy thereof filed with the registrar…”

The provisions of rule 137 on the filing of special plea must also be read together with rule 139, which stated that:

“139. Special pleas, etc. to be stated or made at one time: pleading to merits

(1) A party shall state all his special pleas and exceptions and make all his applications to strike out at one time: Provided that where an exception or special plea is taken or where application to strike out is made it shall not be necessary to plead to the merits of the case.

(2) A party who pleads over may be allowed the costs of such plea to the merits even where the case is disposed of without going into such merits.” (my emphasis)

[23] What is clear from the provisions of rule 139 is that when one raises a special plea, it is not necessary to plead over to the merits. The parties would then adopt the procedure under rule 138 for the determination of the special plea. However, as subrule (2) of rule 139 clearly shows, it was still permissible for the defendant to plead a special plea and over to the merits in the same pleading. In that case, the case would proceed to trial, but at trial, even where the matter would be disposed of entirely on the special plea, the party would still be entitled to recover costs for pleading over to the merits. Essentially, the defendant has an option to simply raise a special plea and seek that it be determined or plead specially and over to the merits and the matter will proceed to trial.

EXAMINATION

[24] There is no doubt that the defendants’ plea is in two parts. In the first part A, with the heading “IN LIMINE”, the defendants pleaded a special plea of prescription, and in the second part B, titled “MERITS”, they pleaded over to the merits. The relevant part of the defendants’ plea read as follows:

“Defendants plead to Plaintiff’s claim as follows:

IN LIMINE

In terms of section 70 of the Police Act Plaintiff was obliged to institute these proceedings within eight months after the cause of action has arisen.

Plaintiff has failed to institute these proceedings within eight months after the cause of action has arisen and in the premises no action can be founded by Plaintiff based on the alleged acts of Defendants.

MERITS…”

[25] The plaintiff filed a replication and pleaded as follows:

“The Plaintiff replies to Defendants’ Plea as follows:

IN LIMINE

1. Section 69 (2) of the Constitution of Zimbabwe provides for the right to a fair, speedy and public hearing within a reasonable time. It is also a violation of section 56 (1) of the Constitution which guarantees equality before the law and the right to equal protection and benefit of the law.

2. However, section 70 is a stringent and arbitrary provision of the Police Act which contradicts these constitutional provisions as it unreasonably limits [the] time in which the Defendants can be sued.

3. In addition, the[re] has been substantial compliance with this provision. The criminal case was concluded in March 2017 after the Plaintiff was discharged and was only able to approach lawyers after this horrific ordeal. The courts tend to lean [toward] substantial compliance to strict compliance with the Rules. To command or compel slavish adherence to every jot and tittle of the rules may not necessarily and invariably secure the fulfilment of the intended objective. In many cases, it may even impede or frustrate that objective. The most important thing is to observe the primary intention of the law maker.

ON MERITS…”

As enunciated in the Brooker case, a defence of prescription is a special plea. It is normally raised as a special plea. What a special plea entails was further highlighted in the said authority as follows:

“It was critical for the court to understand the nature of the defences of prescription. The court disposed of the special pleas in the same manner as provided for exceptions and applications to strike out in the rules of the High Court 1975. The distinction between these procedures was highlighted by MURRAY CJ in Reuben v Meyers 1957(4) SA 57(SR) at 58C-D, wherein the learned judge stated:

“According to the modern practice a defence of prescription is raised by special plea; in the Courts of Holland this was done by exception, a term which as pointed out by Innes C.J., in Western Assurance Co. v D Caldwell’s Trustee, 1918 AD 262 at p 270, is used not in the narrow sense applied to it in South Africa (and Southern Rhodesia), but as covering a number of what would here be called special pleas.”

A special plea is an objection on the basis of certain facts which do not appear in the plaintiff’s declaration or particulars of claim and has the effect of either destroying or postponing the action. The various forms of special pleas and the rationale underlying the procedure were set out by Gillespie J In Doelcam (Pvt) Ltd v Pichanick & Others 1999 (1) ZLR 390 (H), at 396B-F in which he said:

“The purpose of a special plea is to permit a defendant to achieve prompt resolution of a factual issue which founds a legal argument that disposes of the plaintiff’s claim. Special pleas are three in kind. The plea in bar, by which a party may interpose a purely formal objection to the jurisdiction of the court. The plea is available as a plea to the jurisdiction or as a plea for the recusal of a judge and in no other case. Other special pleas are available to disclose some ground either for quashing or for delaying proceedings. Both are usually termed pleas in abatement, although that expression is properly used to describe the declinatory, rather than merely dilatory plea. The plea in abatement, strictly so called, avers some good ground, not disclosed in the declaration, which otherwise is admitted, for denying the plaintiff relief. The dilatory plea advances some fact, not disclosed in the declaration, which is otherwise admitted, and which entitles the defendant to a stay of proceedings.

Since a special plea involves the averment of a new fact, it is susceptible of replication and of a hearing at which evidence on this new fact alone may be led.”

The above dictum shows that a special plea enables a litigant to obtain prompt resolution of a dispute because it either delays the proceedings or quashes them. Because of its ability to extinguish a claim there is need for a judge faced with such a plea to hear evidence from the parties. Herbstein & Van Winsen,: The Civil Practice of the Supreme Courts of South Africa 5 ed Vol 1 at pp599-600 in explaining the essential differences between an exception and a special plea, articulated the need to adduce evidence in the case of a special plea as follows:

“The essential difference between a special plea and an exception is that in the case of the latter the excipient is confined to the four corners of the pleading. The defence raised on exception must appear from the declaration itself; the excipient must accept as correct the allegations contained in it and he may not introduce any fresh matter. Special pleas, on the other hand, do not appear ex facie the pleading. If they did, then the exception procedure would have to be followed. Special pleas have to be established by the introduction of fresh facts from outside the circumference of the pleading, and those facts have to be established by evidence in the usual way. Thus, as a general rule, the exception procedure is appropriate when the defect appears ex facie the pleading, whereas a special plea is appropriate when it is necessary to place facts before the court to show that there is a defect. The defence of prescription appears an exception to this rule for it has been held that the defence should be raised by way of special plea even when it appears ex the plaintiff’s particulars of claim that the claim has prescribed, apparently because the plaintiff may wish to replicate a defence to the claim of prescription, for example an interruption.”

[26] The Constitutional Court of Zimbabwe in the Dengezi case, supra, confirmed that the defence of prescription must be specifically pleaded. The issue that arose in that case was whether there was a valid plea of prescription before the court a quo. The court emphasised that it must be pleaded or raised in the pleadings as it is a special plea. Thus, the court stated that:

“26. Put another way the issue that now arises is whether the validity of the prescriptive period in s 70 of the Police Act had been specially pleaded and therefore arose in proceedings before the court a quo. It is only if the validity s 70 of the Police Act properly arose in the proceedings that the question of its constitutionality could have arisen.

27. It is a settled position in our adjectival law that the appropriate procedure available in a situation where a party intends to plead the defence of prescription is through a special plea. In Brooker v Mudhanda & Anor: Peace Mudhanda & Anor 2018(1) ZLR 33, 38F-G, a decision of the Supreme Court of Zimbabwe, the court remarked as follows at p 38 F-G:

“The defence of prescription should not be raised by way of exception but must be specifically pleaded. The plea must set out sufficient facts to show on what the defence is based. However, due to its nature, the plea of prescription is a special plea. Such a plea is provided for in the High Court Rules 1971. Order 21, r 137 specifies the manner in which a party wishing to rely on a special plea may raise such.”

28. Similarly, in Tendayi v Twenty Third Century Systems (Pvt) Ltd S–135–20 at para. 9, the Supreme Court reiterated the position that the defence of prescription must be raised as a special plea. In no uncertain terms, the Court stated that:

“It is settled that the defence of prescription must be raised as a special plea for the reason that a plaintiff confronted with a claim of prescription may wish to replicate to the objection. This is particularly pertinent where a defendant pleads that a claim has prescribed with a plaintiff replicating that prescription has been interrupted.”

…

35. In light of the above, the defence of prescription has to be specifically pleaded and properly established by evidence. Indeed, the Prescription Act itself provides, in s 20, that the defence of prescription must be specifically pleaded. In casu, it is evident that the defence of prescription was not specifically pleaded. A reading of the record of proceedings shows that, although the issue first arose only in the fourth and fifth respondents’ draft pre-trial conference minute, it was never persisted with. Nor was any attempt made by the respondents, as fourth and fifth defendants, to amend their plea in order to introduce such a defence. Before us, Ms Tembo, for the fourth and fifth respondents, accepted this to be the correct position. The pleadings did not reflect that prescription was an issue. As a defence, it was not even mentioned during the pre-trial conference that took place before a judge or in the conference minute prepared shortly thereafter. When the parties appeared before the court a quo on the first day of trial, it was not one of the issues requiring determination by the court.

36. In its judgment on the request to refer a constitutional matter to this Court, the court a quo, clearly misled by the statement of agreed facts, incorrectly stated that “on filing her summons for damages and other claims, the applicant was met with a plea of prescription” by the fourth and fifth respondents in terms of s 70 of the Police Act. That could not have been the case given that no such plea of prescription was ever made.

37. I conclude, therefore, that the defence of prescription was never properly raised. It is apparent that counsel for both the applicant and the fourth and fifth respondents had informal discussions just before the commencement of the trial. It was during these discussions that it appears the respondents indicated they were of the view that the claim had prescribed. In the circumstances of this case, one can safely assume that the issue arose in vacuo. The court a quo could not purport to refer a constitutional matter to this Court in respect of an issue that was not procedurally before it.” (my emphasis)

[27] In the Dengezi case, the issue of prescription had not been pleaded at all in the pleadings before the court. It could not simply arise as an issue once it was not pleaded. The above authorities clearly show that the defence of prescription is by its nature a special plea. It must be specifically pleaded. The manner of pleading a special plea, as set out in the then-applicable rule 137, allowed the defendant to raise it as an alternative to pleading over to the merits. The rules, however, did not bar the defendant from raising both a special plea and pleading over to the merits. If that course had been taken, the special plea would be disposed of at the trial. In casu, while the defendant pleaded specifically the defence of prescription in part A of their plea, they could not categorise it as merely a point of law. It is by its nature a special plea. The defence is not merely an ordinary point in limine but a special plea. It must be pleaded specially. While the defendants ought to have described the defence as a special plea, I do not believe that the mere title or heading of it should make the defence disqualified as a special defence. What the law requires is that the prescription must be specifically pleaded. See Dengezi supra. I am of the view that the defendants specifically pleaded their defence of prescription, which was raised on facts which are common cause.

[28] Part A of the plea, in my view, in substance, specifically pleaded a special plea of prescription. The mere heading of the plea as having been raised “in limine” cannot, in my view, render it a nullity. It qualifies to be a valid special plea of prescription in substance. It cannot, therefore, be said to be invalid or improperly before the court. What matters is that the defence is specifically pleaded or is placed before the court in the defendant’s plea. This is what the defendants pleaded. That is in sharp contrast to the case in Dengezi, where the court noted that the defendants did not even amend their plea to incorporate such a defence, and it was not pleaded anywhere in the pleadings before the court. To that extent, it was not an issue before the court. In casu, prescription was pleaded in the defendant’s plea before the defendants pleaded over to the merits. They placed the issue before the court, and it accordingly arises for determination from the pleadings. It is trite that the court’s mandate is to determine issues placed before it by the parties through pleadings. See Nzara & Ors v Kashumba & Ors SC 18/18 at p 11.

[29] Further, the courts have emphasised that an application, for example, is disposed of on the basis of the founding affidavit even where the headings on the cover of the application tell a different story. See Ahmed v Docking Station Safaris Private t/a CC Sales SC 70/18 at p 3, where the court had this to say:

“In cases where the headings on the cover of an application tell one thing and the contents of the founding affidavits tell another, the nature of the application that is before the court is determined by the contents of the founding affidavit and not the headings on the cover of the application. This was aptly captured by GOWORA JA in Zimbabwe Posts (Pvt) Ltd v Communication & Allied Services Union SC 20/16 as follows:

“The issue that begs an answer is how the court a quo have dealt with the matter given the apparent confusion that had been created by the appellant in settling its papers. An application must be disposed of on the basis of the founding affidavit. …”

[30] The above reasoning would apply in equal force in relation to pleadings in an action. Headings in pleadings are important as they guide the court and the parties as to the nature of a document, but when the court considers the nature of the defence or the claim, the court must consider the substance of the pleading. In this case, it is clear that the defendants pleaded their defence of prescription specifically in the first part of the plea under the heading “IN LIMINE”. They further pleaded over to the merits in part B of the plea. The plaintiff also filed a replication to both the special plea of prescription and sought to argue a constitutional cover, and also replicated on the merits. To that extent, the issue of prescription was properly placed before the court. While the defendants’ plea does not correctly characterise the first part thereof as a special plea, it is such a special plea in substance. It qualifies to be a valid special plea of prescription pleaded together with a plea to the merits. The law did not bar the defendants from pleading a special plea and plead over to the merits at the same time. The argument, therefore, that one could only raise a special plea under rule 137 without pleading over to the merits has no support in our law. It is not in consonance with the ordinary interpretation of rules 137(a) and 139(2), which would be rendered redundant.

[31] It is accepted that when determining the nature of a pleading, the court will prioritise the substance of the document over its form. This means that the court will look at the core issue being raised by the pleading, rather than focusing on the way the pleading is presented. An issue arose in the National Employment Council for the Construction Industry v Zimbabwe Nantong International (Pvt) Ltd SC 59/15, whether the defence of lack of jurisdiction was properly raised through an exception and not a special plea. The High Court had upheld the exception. On appeal, it was argued that the defence of lack of jurisdiction could only validly be raised as a special plea. After reviewing several authorities, the Supreme Court agreed and held that:

“As a general rule, exceptions taken by a defendant must be limited to objections or defences that arise ex facie the declaration itself. These would include averments that the declaration or part thereof does not disclose a valid cause of action or is vague and embarrassing. On the other hand, where the point taken constitutes a special defence, such as absence of jurisdiction, res judicata or prescription (cf. the pleas referred to above, as discussed by Herbstein & van Winsen, loc. cit), the procedure to be followed is by way of special plea. These are instances where the defence relied upon is not evident ex facie the declaration and involves the averment of some new fact or facts to be proved with fresh matter. The procedure by way of special plea enables the plaintiff to rebut the defence raised by replication and the adduction of further evidence where necessary. In exceptional cases, however, where the special defence in question is apparent ex facie the declaration itself, the court may allow the matter to be decided on exception. This is subject to the qualification that the plaintiff has nothing to adduce in rebuttal and will not be prejudiced by a decision being taken on exception.”

[32] However, the court further observed that the parties had fully pleaded on the issue such that there was no prejudice suffered by the way the defence had been raised as an exception instead of a special plea and dismissed the first ground of appeal on that basis. PATEL JA (as he then was) at p 13, concluded that:

“In any event, the jurisdiction of the High Court to adjudicate the claim was impliedly asserted and presumed in the declaration. Thereafter, the question of the court’s jurisdiction was fully ventilated in the respondent’s requests for particulars and the appellant’s responses thereto. In effect, the appellant had substantially replicated to the respondent’s special defence of lack of jurisdiction. In these circumstances, it seems to me that there was nothing further that either party might have adduced, whether by way of further pleadings or through fresh evidence, to enable the court to determine the propriety or otherwise of its jurisdiction over the matter. Moreover, I do not perceive that the appellant was prejudiced in any fashion by the matter having been allowed to proceed on exception rather than by way of special plea. Consequently, it cannot be said that the court a quo erred in entertaining a challenge to its jurisdiction raised through an exception.”

[33] I fully associate myself with the above remarks. In casu, the characterisation of the nature of the defendants’ defence as a point in limine or point of law in a plea where it is clear that the defendants were pleading specifically the defence of prescription should not lead this court to discard the defence because of form or the heading. See also Schweppes Zimbabwe supra. In any case, there was no prejudice suffered by the manner in which the defence was pleaded. This case is distinguishable from the Dengezi case, where the defendants did not formally plead the defence in their papers but merely discussed it at the hearing. In casu, the defendants pleaded the special defence in their plea before pleading over to the merits. The plaintiff filed a replication to the defence, thereby putting it in issue. It is also one of the issues for the trial. The plaintiff suffered no prejudice at all from the manner the defence was pleaded. I, therefore, find no merit in the plaintiff’s objection. It is accordingly dismissed, and the court will proceed to determine the second issue.

2. WHETHER OR NOT THE PLAINTIFF’S CLAIM HAS PRESCRIBED IN TERMS OF SECTION 70 OF THE POLICE ACT?

DEFENDANTS’ SUBMISSIONS

[34] It was submitted that prescription is calculated from the date of the cause of action to the date of service of summons. The defendants stated that the plaintiff was arrested on 27 August 2016. I pause to state that this could have been an error since it was common cause that he was arrested on 26 August 2016. The defendants’ plea confirms this position. It was further submitted that he served the summons on 16 November 2017. The plaintiff’s cause of action in a claim for damages is the act of arresting and detaining the plaintiff. The detention ends when the plaintiff is taken to court, and thereafter further detention would have been sanctioned by the court. What constitutes a cause of action was enunciated in several cases inter alia, Mudhanda v The Registrar of Deeds & Anor SC 5/18.

[35] Counsel also submitted that the plaintiff was arrested and detained at Harare Central Police Station and taken to court for his initial appearance. In the case of Muyambo v Ngomaikarira & Ors HH138/11 PATEL J (as he then was) said:

“The delict of unlawful arrest and detention is committed when a person, without lawful justification, restrains the liberty of another by arresting or imprisoning him.”

It was further argued that in terms of the dictum of Patel J supra, the cause of action was completed when the Plaintiff was arrested and taken to court. What happened after the appearance in court does not alter the status of the arrest.

[36] The plaintiff’s claim is for damages for unlawful arrest and detention. There is no mention of malicious prosecution. As held in Stambolie v Commissioner of Police 1989 (3) ZLR 287 (SC), the cause of action in respect of false arrest and imprisonment arose the day such an arrest was effected. The plaintiff’s cause of action is based on false arrest and imprisonment. The cause of action having been completed on 27 August 2016, he had to serve his summons by 27 April 2017. He sat on his laurels and served the summons on 16 November 2017. The prescription was not interrupted by service of summons within the prescriptive period. It was finally submitted for the defendants that the plaintiff’s claim had prescribed and that the defence must be upheld and the action dismissed.

SUBMISSIONS FOR THE PLAINTIFF

[37] It was submitted for the plaintiff that he had instituted the legal proceedings within the period set out in s 70 of the Police Act, as he initiated the service of summons on the defendants before the eight months had lapsed. The plaintiff was arrested on 26 August 2016 and subsequently acquitted on 22 March 2017. The plaintiff issued summons on 30 October 2017 seeking damages for unlawful arrest and malicious detention. I pause to state that the characterisation of the detention as malicious is not what the summons states. The damages as per the plaintiff’s claim are for unlawful arrest and detention.

[38] It was also argued that the plaintiff issued summons approximately seven months after his acquittal. The commencement of the proceedings was, therefore, within the eight-month period stipulated in s 70 of the Police Act. Counsel further submitted that the cause of action for unlawful arrest and malicious prosecution arises when the criminal proceedings are terminated. Reference was made to the case of Manjoro v The Minister of Home Affairs & Ors HH 536-15. The further argument was that the plaintiff’s cause of action arose on 22 March 2017, the date of his acquittal. The summons being issued on 30 October 2017 means that the matter falls within the eight-month period from the date the cause of action arose. It was finally submitted that the defendants’ plea of prescription was without merit and ought to be dismissed.

THE LAW

[39] The prescriptive period applicable in respect of the cause of action in this matter is set out in s 70 of the Police Act. That provision reads:

“70 Limitations of actions

Any civil proceedings instituted against the State or member in respect of anything done or omitted to be done under this Act shall be commenced within eight months after the cause of action has arisen, and notice in writing of any such civil proceedings and the grounds thereof shall he given in terms of the State Liabilities Act [Chapter 8:15].”

[40] It is trite that to determine whether the claim has prescribed, the court must make a finding on the cause of action upon which the party is based and when that cause of action specifically arose. See Mudhanda v Van Brooker & Anor SC 5-18 at p 4 where Gowora JA (as she then was) said:

“In order to determine the question of prescription, the court first had to make a finding on the cause of action upon which the respondent’s claim was premised and when specifically the cause of action arose. What constitutes ‘a cause of action’ was described in Abrahams & Sons v SA Railways and Harbours 1933 CPD 626. At 637 Watermeyer J stated:

“The proper meaning of the expression ‘cause of action’ is the entire set of facts which gives rise to an enforceable claim and includes every act which is material to be proved to entitle a plaintiff to succeed in his claim. It includes all that a plaintiff must set out in his declaration in order to disclose a cause of action.”

ANALYSIS

[41] It is trite that the onus is on the defendants to show that the claim has prescribed, but if in the replication the plaintiff alleges that prescription has been interrupted or waived, the onus shifts back to the plaintiff to prove interruption or waiver. See Brooker v Mudhanda & Anor, supra, at p 11. It is also settled law that evidence is required to determine a special plea unless the facts are common cause or not in dispute. See Brooker v Mudhanda & Ors supra at p 16. In this case, the facts are common cause. There was, therefore, no need for the parties to lead any evidence on the issue as it is easily resolved from the facts pleaded by the plaintiff and which are not disputed.

[42] I must determine the cause of action the plaintiff’s claim is premised on. To do so, the court must be guided by the plaintiff’s summons and declaration. The said pleadings appear from pp 2-6 of the record. As is clear from the face of the summons, the plaintiff’s claim is one for damages for unlawful arrest and detention. The cause of action pleaded in the declaration relates to the unlawfulness of the arrest and detention. In para 4 of the declaration, the plaintiff averred that he was arrested and detained by the police at Harare Central Police Station on 26 August 2016. This is common cause. The plaintiff further averred in para 5 that he was assaulted by the police at the time of his arrest and the assault continued while being force marched to the police vehicle and was taken to Harare Central Police station, where he was detained and subjected to inhuman and degrading treatment. He stated in para 8 that he was not informed of the reasons for his arrest until the next day, when he was taken to court. He was then remanded by the court in custody and sent to Chikurubi Maximum Prison. In para 13, he pleaded that the arrest was carried out by members of the Zimbabwe Republic Police during the scope of their employment, which is also common cause. He was acquitted on 22 March 2017, and that is also not in dispute. In para 14, he pleaded that as a result of the conduct of the defendants’ members, he suffered damages, and in para (b), therefore, he buttresses the nature of his claim that he was seeking damages for unlawful arrest and detention. There is no reference at all in his pleadings that his claim is one for malicious arrest and detention or malicious prosecution.

[43] It is only in the plaintiff’s submissions that a position is now taken that his claim was for unlawful arrest and malicious prosecution. The law is settled that written submissions are not pleadings and that one cannot plead through written submissions. See Brooker at p 17. The plaintiff’s counsel cannot seek to make his case in the submissions. The plaintiff’s cause of action is premised on the unlawfulness of his arrest and detention by the police. It is not a claim founded on unlawful arrest and malicious detention or prosecution, as the plaintiff’s counsel argued in his submissions. The reason he seeks to abandon his pleadings is clear: he realised that he had nothing of substance to say to rebut the defence that the plaintiff’s claim had prescribed. In fact, in his replication, he did not even meet the sting of the defence raised by the defendants. He sought to argue against the constitutionality of s 70 of the Act and that it should not be strictly applied. It appears all these arguments were abandoned as they were not motivated before me.

[44] What the plaintiff’s counsel was now arguing was that the cause of action arose on 22 March 2017 when he was acquitted. He was also now arguing for a cause of action that was founded on malicious arrest and detention or prosecution, not what is actually the plaintiff’s own cause of action.

[45] It is clear from his pleadings that the plaintiff’s cause of action is one premised on unlawful arrest and detention, also commonly referred to as false arrest and imprisonment. The law is now settled as to when the cause of action for unlawful arrest and detention arises: it arises on the date of the arrest. Accordingly, when this delict is regarded as having been committed was well answered in Muyambo v Ngomaikarira & Ors supra where it was held that:

“The delict of unlawful arrest and detention is committed when a person, without lawful justification, restrains the liberty of another by arresting or imprisoning him.”

[46] This delict is distinct from the one for malicious arrest and detention, whose cause of action would only arise once the criminal proceedings have been terminated. The legal position was authoritatively set out in Stambolie v Commissioner of Police supra, where Gubbay CJ (as he then was) had this to say:

“Plainly, the stated cause of action is alleged to be false arrest and imprisonment and not malicious arrest and detention. The two concepts give rise to different causes of action. They are separate and distinct species of wrongdoing. Under the former, the act of restraining the plaintiff’s freedom is that of the defendant or his agent for whose actions he is vicariously liable. The arrest itself gives the right of action, and it is unnecessary to establish either absence of reasonable or probable cause or malice. All arrests are prima facie illegal, and the onus is upon the person who effected it to prove that the arrest was legally justified. See Whittaker v Roos & Bateman 1912 AD 92 at 124-125; Birch v Ring 1914 TPD 106 at 109; Thompson & Anor v Minister of Police & Anor 1971 (1) SA 371 (E) at 373E-F; Newman v Prinsloo & Anor 1973 (1) SA 125 (W) at 127C-G; Donono v Minister of Prisons 1973 (4) SA 259 (C) at 262B; Mabaso v Felix 1981 (3) SA 865 (A) at 873 in fin; Grundling v Minister of Law and Order & Anor supra at 631F-I.” (my emphasis)

The court went on to conclude as follows:

“Whereas the cause of action in respect of false arrest and imprisonment arose on the day such arrest was effected, that is, on 14 November 1985, no cause of action for malicious arrest and detention was in existence on 25 November 1985, the date notice was given. It would only have arisen on 24 June 1986 when the charge against the appellant was withdrawn. The rationale is succinctly expressed by Eksteen J in Thompson & Anor v Minister of Police & Anor supra at 375A-C:

“In an action based on malicious prosecution it has been held that no action will lie until the criminal proceedings have terminated in favour of the plaintiff. This is so because one of the essential requisites of the action is proof of a want of reasonable and probable cause on the part of the defendant, and while a prosecution is actually pending its result cannot be allowed to be prejudged by the civil action: (Lemue v Zwartbooi 13 SC 403 at 407). The action therefore only arises after the criminal proceedings against the plaintiff have terminated in his favour or where the Attorney-General has declined to prosecute. To my mind the same principles must apply to an action based on malicious arrest and detention where a prosecution ensues on such arrest, as happened in the present case. The proceedings from arrest to acquittal must be regarded as continuous, and no action for personal injury done to the accused person will arise until the prosecution has been determined by his discharge. (Bacon v Nettleton 1906 TH 138 at 142-3.)” In that case the criminal proceedings terminated on 29 April 1968. Thereafter, the cause of action having arisen, notice was given on 20 September 1968 and summons issued on 25 October 1968 in compliance with s 32 of the South African Police Act 7 of 1958. See also Grundling v Minister of Law and Order & Anor supra at 632D-I.” (my emphasis)

[47] From the above authority, which is binding to this court in respect of the law outlined therein, the date of acquittal of 22 March 2017 would only have been the date the cause of action would have arisen if the plaintiff’s claim was one for malicious arrest and detention or prosecution. His claim, being for unlawful arrest and detention, the cause of action arose on the date such arrest was effected, 26 August 2016. It is common cause that the plaintiff was arrested and detained by the police on 26 August 2016. The prescriptive period under s 70 of the Police Act began to run from that date. The eight months from 26 August 2016 lapsed on 25 April 2017. At that stage, it is common cause that the plaintiff had not yet served his summons on the defendants to interrupt the running of prescription. It is also common cause that the summons was only served on the defendants on 16 November 2017. What is clear is that the plaintiff’s claim had long prescribed by that date.

DISPOSITION

[48] The defendants managed to discharge the onus to show that the plaintiff’s claim had prescribed in terms of s 70 of the Police Act. The special plea of prescription ought to succeed. Costs shall follow the cause.

[49] In the result, it is ordered that;

The special plea of prescription be and is hereby upheld.

The plaintiff’s claim be and is hereby dismissed with costs.

DEMBURE J: ………………………………………………

Zimbabwe Lawyers for Human Rights, plaintiff’s legal practitioners

Civil Division of the Attorney-General’s Office, 1st & 2nd defendants’ legal practitioners