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Sharon Hofisi Legal Letters
I INDICATED in my previous think piece that the present article shall further focus on the doctrine of constitutional avoidance. Today I focus on the case of Michael Nyika and Crispen Tobaiwa versus Minister of Home Affairs and Commissioner-General, Police N.O. and Inspector Damburai and Constable Lisborne Chibanda.

This judgment was passed at the High Court of Zimbabwe by Justice Tsanga.

The matter, an opposed application, had been brought by the applicants as a constitutional challenge to the eight-month time limit for suing the police as stipulated in s70 of the Police Act [Chapter 11:10].

The time limit was said to be unconstitutional in that it violates s69(2) of the Constitution, the right to a fair, speedy and public hearing within a reasonable time. It is also said to be a violation of s56 (1) of the Constitution which guarantees equality before the law and the right to equal protection and benefit of the law.

Imagine what would have become of constitutional jurisprudence had the court simply accepted technical arguments that were or could have been raised in this case!

The court accepted the respondents’ argument that the applicants had erroneously sued the Ministry of Defence when they should have sued the Minister of Defence.

This error in citation was corrected and upon application the court had to spell out the correct party.

The judgment opens with the raising of technical arguments and shows how the court was equally prepared to exercise its discretion to ventilate the constitutional issues raised.

After dealing with the technical arguments, the court dealt with the factual background in this case.

It was a trigger-eager incident involving gun-toting police officers in relation to two army officers. It unfolded on one fateful night on July 19, 2014.

The applicants, Nyika and Tobaiwa, were both members of the ZNA stationed at Inkomo Barracks.

They boarded a vehicle around 11pm at Westgate Shopping Centre in Harare on their way to Karoi. They were clad in army uniform.

The court dealt with what became of that journey until they boarded another vehicle whose driver lost his way, in the darkness of the night, and ended up at Ayrshire Mine. The person who could have likely acted against the driver and the applicants was the security guard at the mine.

He advised them that they were lost and the driver had made a U-turn.

The police officers had stopped the driver, other passengers and the two applicants some three kilometres from the mine. They had three vehicles which are said to have blocked the road. There were seven police officers altogether.

The importance of dealing with the constitutional issues and applying the constitutional provisions on fair hearing and the non-discrimination clause become apparent at this juncture. Firstly, the police officers ordered all passengers out of the vehicle and to raise their hands. They com- plied.

There were several means that the police could have used to deal with the applicants other than using the force of the gun. Despite their compliance, it is said that Inspector Damburai and Constable Lisborne Chibanda together with their other colleagues who were all armed with FN rifles, proceeded to fire arms at the applicants.

Secondly, the applicants, who were mistaken for robbers were never charged (for robbery or any other charge). Nyika lost his right hand middle finger and was also shot in the chest on the far bottom right. The bullet remains lodged in his body.

Had it been that there was something untoward in his conduct, the police would have arrested him and charged him. Even when he was subsequently hospitalised, the police could have asked the courts to remand him there for the purposes of prosecuting him upon his recuperation.

Most importantly, Nyika spent some four months in hospital and even gave the police the required notice to sue as required by the law.

His summons, served some 11 months after the incident, could have led to the dismissal of his case without the hearing of the merits of his application.

The same would have been the issue with the claim from Chrispen Tobaiwa, who says he had also lifted his hands in surrender and complied with orders, but the officers had proceeded to shoot him in his right leg, which was subsequently amputated from the knee down. He now walks with the aid of crutches.

There was again some 11 months from the cause of action to the actual service of summons.

In being innovative, the court properly dealt with the distinction between issuing of summons and the actual service of summons.

From this distinction, the running of prescription was interpreted as being only interrupted when service of summons has been effected.

Basically, the summons in both cases were too late to interrupt prescription as both claims had expired after eight months in terms of the Police Act [Chapter 11:10].

The court, obviously giving full effect to the provisions of the Constitution, particularly Section 46 as the interpretation provision, made a remarkable finding that both applicants had rightly emphasised that the lengthy period in hospital had a fundamental impact on their ability to fully pursue their claims.

Although the subsequent service of the summons appeared to have been lawyer driven, the court proceeded to a level which, in advanced constitutional law, calls for the invention of some Justice Hercules, a superhuman judge.

Materially, the court found that the application had been brought before it on the basis of a constitutional breach: violation of the highest law of the land. A distinction was made between the subjective assessment of the failure to meet the deadline and the objective assessment of whether the relevant provision of the Act, looked at objectively, deprives persons in general of their right to access court within a reasonable time.

A plethora of cases were cited and the basis of complying with the provisions of the statutes of limitation such as the Police Act and State Liabilities Act were clearly made. The court also compared the legal positions in South Africa and England.

It explained why shorter periods like six months in England were discarded through legal reform. In short, the judgment also considered foreign law and international law as was required of it by Section 46 of the Constitution. It also referred to case laws and repealed Acts which I argue in this article that they form part of what can be rightly called the “constitutional common law”.

Indeed, the Nyika case shows how the avoidance of technical arguments can allow judges to invoke the doctrine of avoidance as a constitutional remedy. It is not only used as a method of enabling judges to exercise their discretion to refuse to deal with constitutional issues.

How did Justice Tsanga come up with the description “Statutes of Limitation?”

While she found several references to explain the difference between the statutes which limit the ability of an applicant to sue certain State institutions, it is clear that the answer comes from the highest law of the land, the preparedness of the judiciary to develop the constitutional jurisprudence and the use of foreign law and international law in legal reasoning.

The judgment shows how the Zimbabwean judiciary must urgently develop methods of constitutional interpretation that are different from ordinary rules of statutory interpretation. It also shows how the interpretation checklist provided in Section 46 of the Constitution can assist courts making the law stable, but at the same time accepting that it need not stand still, it has to develop. The only way to do so is to accept to deal with the constitutional issues in the interests of justice and fairness.

Sharon Hofisi is a lawyer and writes in his own capacity. Feedback: [email protected]