Vicarious liability of the State

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General

 

Under the State Liabilities Act [Chapter 8:14], the State can be sued vicariously for delictual and contractual wrongs committed by State employees in the course of their employment. Thus it is provided in s 2 that the State can be sued “where the claim arises or has arisen out of any contract lawfully entered into on behalf of the State or out of any wrong committed by any officer or employee of the State acting in his capacity and within the scope of his authority as such officer or employee, as the case may be.”

 

Immunities

 

Section 9 of the State Liabilities Act makes it clear that if any immunity from liability of the State is contained in any statute or a statute lays down special procedures for bringing a claim or special periods within which a claim must be brought, these provisions will still apply. It is important therefore to establish whether any such immunities for the State or any pre-conditions for claiming exist before mounting the action against the State. For example, in terms of s 58 of the Postal and Telecommunications Act [Chapter 12:05] there is immunity from liability for delays in delivery of postal items.

In the case of Nyakabambo v Minister of Justice, Legal and Parliamentary Affairs & Ors 1989 (1) ZLR 96 (H)there was an action against the Attorney-General for unlawful detention and malicious prosecution. The Attorney-General claimed that he was immune from liability for such a civil suit. The court held that the immunity from liability afforded to the Attorney-General by the proviso to s 13(5) of the Constitution is a qualified one; he is immune only if he acts reasonably and without malice and without culpable ignorance or negligence. In so providing the Constitution recognised and adopted the common law’s position on the matter.

 

Nominal defendant

 

Section 3 of the State Liabilities Act provides that the Minister or Vice-President in charge of the relevant Ministry or department may be cited as the nominal defendant or respondent in any proceedings against the State.

 

In terms of s 4 of the Act whenever the President, a Vice-President, a Minister or other public official is sued in his official capacity he must be referred to in his official capacity (i.e. as President, Vice-President, etc.) and not by name.

 

Actions against President

 

As regards actions against the President, Order 3 Rule 18 of the High Court Rules provides that “no summons or other civil process of the court may be issued out against the President .  .   . without the leave of the court upon motion made for that purpose.”

 

Notice

 

In terms of s 6 of the State Liabilities Act 60 days’ notice must be given of the intention to claim against the State. This notice must set out the grounds of the claim and, where appropriate and possible, give details of the officials involved and have copies of documents relating to the claim attached to it.

 

The courts, however, are given the power to condone failure to give the required notice where there has been substantial compliance with the section or where there is no undue prejudice to the State or the officer being sued.

 

Prescription

 

In terms of s 70 of the Police Act [Chapter 11.10] and s 196 of the Customs and Excise Act [Chapter 23:02], there is a shortened period of prescription of eight months for bringing actions against the State in respect of the actions of police officers or customs officers. This period also applies in respect of actions against the officers themselves. Sixty days’ notice of the intended action must also be given.

 

In Nyika & Anor v Minister of Home Affairs & Ors HH-181-16 the court decided that there was no reason why the general the year prescription period for ordinary debts as contained in s 15 (d) of our prescription should not govern claims against the police. It found that the provision providing for the shorter period of prescription for actions against the police violated s 69(2) (on the right to a fair hearing) and s 56 (1) (on the right to equality before the law and equal protection of the law).  It referred the matter to the Constitutional Court in terms of s 175 (1) of the Constitution for its confirmation or otherwise of this constitutional ruling.

It is strongly arguable that the ruling in the Nyika & Anor v Minister of Home Affairs & Ors HH-181-16 that the shortened period of prescription in respect of actions against the police would also apply in respect of actions against customs officers. In other words this shortened period of prescription is also unconstitutional.

Enforcement of judgment

 

Section 5 of the State Liabilities Act provides that where a person successfully sues the State and obtains a judgment, the court cannot order execution or attachment against State property but the nominal defendant (that is usually the Minister of State) may cause the judgment debt to be paid out of State funds. As regards the use of contempt proceedings to enforce a judgment, see Mhora & Anor v Minister of Home Affairs & Anor 1990 (2) ZLR 236 (H). See also 1987 Vol. 5 Zimbabwe Law Review 26 at 50 and Chairman, PSC & Ors v ZIMTA & Ors 1996 (1) ZLR 637 (S)

 

In Dingaan Hendrik Nyathi v The MEC, Department of Health, Gauteng and Others [2008] ZACC 8 the majority of the South African Constitutional Rights ruled that the provision in the South African State Liabilities Act barring execution against of state property unjustifiably limited the right to equal protection of the law contained in section 9(1) of the Constitution and was inconsistent with the constitutional protection of dignity and the right of access to courts. The Court held too, that section 3 also violated the principles of judicial authority, and the principle that the public administration be accountable.  The Court therefore upheld the declaration of constitutional invalidity, but suspended the order for 12 months in order to allow parliament to pass legislation that provides for an effective means of enforcement of money judgments against the state.

 

In a 2017 case High Court justice Mushore ruled that the State Liabilities Act must be invalidated as it is inconsistent with the new Constitution. “At present, the respondents have been and are continuing to be in contempt. It is to that end that is it my considered view that the respondents consider themselves to be immune to legal consequence by virtue of the validity of Section 5 (2),” Mushore said. “It would be dangerous for this court to endorse wrongful actions and justifications by accepting that their justifications have merit, which they do not,” she said. The judge said the respondents are positively refusing to obey court orders and in the process wilfully and deliberately obstructing the court processes. This comes after Chombo was previously slapped with a 90-day prison term for contempt of court based on his failure to comply with the court order, demanding him to release the money. “If Section 5 (2) is being used to frustrate justice as is clearly the case in the present matter, then Section 5 (2) is not justifiable in a democratic society based upon openness, justice, fairness, human dignity, equality and freedom,” she said, adding that the respondents’ actions were unconstitutional. She further said that the duty of the court can never be felt if court orders are ignored as though they are “meaningless pieces of paper”. “Section 5 (2) of the State Liabilities Act [Chapter 8:14] be and is hereby declared to be inconsistent with the Constitution of the Republic of Zimbabwe and is therefore invalid

Actions arising out of contracts with State

 

In the course of administering the modern State the Government will enter upon a whole range of activities similar to those of ordinary commercial, trading and industrial corporations, and will enter into a wide variety of contracts with organisations outside Government in order to carry out many of these activities. Provided that the contract was lawfully entered into by the Government official acting on behalf of the State and the official had the capacity to enter into the contract on behalf of the State, in terms of s 2 of the State Liabilities Act [Chapter 8:14] the State can be sued by the other contracting party if the State breaches the contract.

 

In the case of Minister of Natural Resources v FC Hume (Pvt) Ltd 1989 (3) ZLR 55 (S) at 59-60, it was made clear that where the State had concluded an ordinary commercial contract with a private person that contract was binding on the State and the private person could sue the State for specific performance to oblige it to carry out the obligation which it had bound itself by contract to perform. The court said that s 2 of the State Liabilities Act placed the State in the same position as any other party to a contract. The court distinguished a situation where the State enters into a binding contract from that where a Government official purports to contract on behalf of Government where he is not empowered to enter into such a contract on behalf of Government or where a Government official promises at some stage in the future that the Government will enter into a contract with the private individual. As regards a promise to enter a contract in the future see also Murray v McLean NO 1969 (2) RLR 541 (H).

 

In Chaeruka v Minister of Lands & Anor 2014 (1) ZLR 179 (H) the applicant had been given an “offer letter” in respect of a farm which had been compulsorily acquitted by the State. The farm had previously been owned by a company of which the second respondent was a director. The applicant cultivated only about 1 hectare of the farm’s 498 hectares and about 8 months after he received the offer letter he was verbally notified by the then Vice-President that his offer letter was to be withdrawn and the farm re-allocated to the second respondent, who was also at the meeting. The second respondent was, nearly three years later, given an offer letter in respect of the farm. The applicant sought an order setting aside the withdrawal of his offer letter. He maintained that there was no provision in the contract entitling the Minister to terminate it. In addition, he argued that the withdrawal of the offer letter was in violation of s 3 of the Administrative Justice Act [Chapter 10:28] which enjoins the Minister to act lawfully, reasonably and in a fair manner. Specifically, he argued, the Minister should have given him notice of the intention to terminate, giving him adequate time to make representations. Clause 7 of the offer letter stated that “The Minister reserves the right to withdraw or change this offer letter if he deems it necessary, or if you are found in breach of any of the set conditions. In the event of a withdrawal or change of this offer, no compensation arising from this offer shall be claimable or payable whatsoever.” Among the conditions referred to was one to the effect that the recipient of land was required to undertake and initiate development on the farm in accordance with the 5 year development plan submitted, and another that the offer may be cancelled or withdrawn for breach of any of the conditions set out.

 

The court held for the applicant to enforce a contract arising out of an offer letter, he had to bring himself within the provisions of that contract. If he accepted the offer letter, he accepted it on the basis of its terms, including the clause which gave the Minister unfettered power to cancel or withdraw the land as a result of a breach or “if he deems it necessary”. The Minister was entitled to withdraw the offer letter if he deemed that to be necessary or where the applicant was in breach of the terms of the offer letter, which he was, because of the under-utilisation of the land. The government policy on land reform is not recreational, neither is it designed to accord beneficiaries some pastime. It is meant to benefit those willing and able to utilise land. One cannot be allowed to hold on to large tracts of land simply to baby sit an inflated ego. If a beneficiary is not using the land that is a breach of the conditions upon which that land is offered. It should therefore be withdrawn and given to more deserving candidates. For the applicant to utilise less than a hectare, while leaving the remaining 497 hectares fallow, was scandalous. It entitled the first respondent to withdraw the offer as he did. Once it was accepted that an offer letter gave rise to a valid contract binding on the parties, the court was applying contract law and could not, at the same time, apply administrative law rules. The contract was the covenant governing the relationship of the parties. By appending their signatures to the written contract, the parties accepted that their relationship was to be governed by that contract and nothing else. The applicant could therefore not seek refuge outside the four corners of that written contract. The contract binding on the parties gave the Minister unfettered power to withdraw the offer letter. The applicant could not, therefore, seek to defeat the imperatives of a contract he entered into, by importing rules of administrative law alien to the contract of the parties. When the State concludes a contract, it is bound by its terms and not by rules of administrative law which apply when it is exercising state power over the subject.In any event, the applicant was notified of the intention to withdraw the offer letter and had ample time to make representations.

 

Some difficulties are created by the case of Chairman, PSC v ZIMTA& Ors 1996 (1) ZLR 637 (S). This case concerned the withdrawal of a bonus from teachers. This had been done in terms of a regulation passed by the PSC that provided that bonuses could be withdrawn or withheld after consultation with the Ministry of Finance. The minority of the court found that in terms of the relevant legislation there was a contractual obligation to pay an annual bonus to the teachers. The majority held that it could not interfere with the regulation passed by the PSC as it was a body set up in terms of the Constitution and was not exercising delegated powers. The Government was the best judge of how government finances should be used and there would be no way in which an order obliging the payment of money to the teachers could be enforced.

 

The State, however, can raise a special defence to an action for damages for breach of contract, namely that it would no longer be bound by a contract if the public interest would be prejudiced by the continued adherence to that contract. Implicit in this is that in these circumstances the State can resile from the contract with impunity and without having to pay damages. If the enforcement of the contract is incompatible with the advancement of public welfare the contract is not binding upon the State. The contract cannot be allowed to stand if it is incompatible with the purpose for which the power was conferred upon the public official.

 

In both Zimbabwe and in South Africa, there have been decisions purporting to follow the approach in the English case of Rederiactiebolaget Amphitrite v The King [1921] 3 KB 500. What the Amphitrite case laid down was that a public authority cannot by contract fetter its discretion to act at a later point in time for the public good and that if a contract it has entered into turns out not to be compatible with the public good, the public good will override the contract. This view was adopted in the various Zimbabwean cases such as Waterfalls TMB v Minister of Housing (1957), Murray v McLean NO 1969 (2) RLR 541 (H ; Commissioner of Police v Wilson 1981 ZLR 451 (A)1981 (4) SA 726 (ZAD) 737 See particularly the dissenting judgment of Baron JA and Tanaka Power (Pvt) Ltd v Acting Minister of Industry & Technology HH-225-89. Most of these cases, however, were concerned with undertakings from public officials and not ordinary commercial contracts. For instance in the Waterfalls case the court decided that a Minister was not bound by an undertaking he had given not to erect buildings in a particular place. In any event, a public authority may not fetter its future freedom of action by stipulating how it will act in the future, although if an undertaking is given about future action, this may give rise to a legitimate expectation on the part of the person to whom it is given and a procedural right to be heard from first before the undertaking is not honoured.

 

This principle that contractual arrangements cannot stand in the way of advancement of the public welfare was also adopted in the South African cases of Sachs v Donges NO 1950 (2) SA 265 (A) and Fellner v Minister of the Interior 1954 (4) SA 523 (A).

 

Where a contract is contrary to the purposes of the statute or it purports to take away the discretion of another decision-maker it is in effect ultra vires the Act and therefore is null and void on this basis.

 

In the South African case of President of South Africa & Ors v SA Rugby Football Union & Ors President of South Africa & Ors v SA Rugby Football Union & Ors 2000 (1) SA 1 (A) the court adopted the test of whether the contract entered into by the public authority “is wholly incompatible with the discretion conferred upon it.” In this case a contract was entered into between the Minister and a sporting body that the Minister would appoint a task team to investigate certain complaints made against such sporting body and no Commission of Inquiry would be appointed by the President. The court held that this contract was not binding on the Minister or the President.

 

It would be similar with a contract between the Minister of Foreign Affairs and an individual under which the Minister undertakes to ensure that the individual is appointed as ambassador to a particular country. This contract cannot fetter the President’s constitutional discretion in regard to the appointment of ambassadors.

 

Where a contract has been entered into in terms of a statute and that statute is later expressly repealed (or the section in terms of which the contract was entered into is repealed), the contract is no longer binding on the State and it can resile from that contract without having to pay contractual damages.

 

Similarly a benefit previously available under a statute can be removed by subsequent legislation. In Hewlett v Minister of Finance 1981 ZLR 571 (S) under legislation relating to compensation for victims of terrorism, the applicant had been awarded compensation for loss of property but had not yet been paid such compensation. He had also lodged further claims for such loss. Subsequent legislation removed the right to compensation for property loss. The applicant alleged that his constitutional right to property had been violated by this subsequent removal of his right to compensation. The court held that, although debts owed by the State arising from actual awards of compensation constitute property, extinction of a right to in property did not amount to compulsory acquisition property for the purposes of the constitutional provision.  

 

Even where the public good dictates that a contractual agreement entered into by a public official should not be binding if the public good dictates otherwise, it seems only fair that some   compensation should be paid to the private party with whom the contract was made and who has suffered loss as a result of the public authority resiling from it. See Baxter pp 323-324 and the English case of Robertson v Minister of Pensions[1948] 2 All ER 767. This remedy should apply both where a validly concluded contract has to be varied because of change of circumstances and where a subsequent statute is enacted which invalidates the contract which was validly concluded.

 

Craig in Administrative Law p 547 says that although the action taken by the public authority is lawful as a public body cannot promise not to interfere with one of its contracts if this is required by the public interest, there should be a remedy that recognises the legality of the public body’s actions, but which nevertheless accepts that compensation should be payable. 

 

 

Actions in delict

 

Generally, the State is only liable here if the person committing the delict is–

 

  • State employee who is not an independent contractor; and

 

  • the employee is acting in the scope of his employment when he committed the delict.

 

As regards the first requirement civil servants who are full time employees clearly fall into this category. However, there may be difficulties in deciding whether private persons temporarily employed in certain capacities or especially by parastatals are employees in this sense. Baxter argues at pp 626-629 of his book that the use of the private law model of vicarious liability in the field of public law causes problems and acts as a hindrance to the development of a proper approach to public liability. There is no difficulty where the person committing the delict is an employee in the normal sense and is subject to direct control in his work, e.g. a road worker employed by the City Council, but says Baxter, many administrative officials, especially high ranking officials, exercise personal powers under statute and where this is the case these persons are not acting as employees of the executive but rather on behalf of the executive and the normally understood employer-employee relationship is absent. In practice, however, no great difficulties now arise providing the courts continue to use an approach that plays down the need for control in any direct sense and simply require that the State employee committed the delict in connection with his official duties.

However, in the case of Nyakabambo v Minister of Justice, Legal and Parliamentary Affairs & Ors 1989 (1) ZLR 96 (H) the High Court decided that in an action against the Attorney-General for unlawful detention and malicious prosecution, the Minister had been wrongly joined as a defendant. It reasoned that for the State to be vicariously in delict for the actions of a State official under the State Liabilities Act the civil servant whose acts gave rise to the action must have been subject to the directions and control of the Executive. Where he was instead carrying out a duty entrusted to him by statute and where the Executive had no power to direct or control him in carrying out that duty, he could not be regarded as a servant of the State. In terms of s 76(4) of the Constitution, power and responsibility over all prosecutions in Zimbabwe is vested in the Attorney-General; s 76(4) provides that in exercising these functions the Attorney-General is not subject to the directions or control of any other person or authority. Consequently, the citing of the Minister was a misjoinder.

 

See also Minister of Police v Gamble 1979 (4) SA 759 (A) (Wrongful arrest by police);  Nel & Anor v Minister of Defence 1978 RLR 455 (Liability of State for theft by soldiers); Reid-Daly v Hickman & Ors (1) 1980 ZLR 201 (Liability of Ministry when no action brought against actual perpetrators) and Badenhorst v Minister of Home Affairs 1984 (2) SA 13 (ZS) (Action against State for harm caused by negligent driving of a policeman. The shorter prescription period applied.)

 

 

Damages for unlawful arrest or imprisonment

 

If a person is unlawfully arrested or detained by the law enforcement agencies, the State can be sued for damages. This action will obviously not be available if the arrest or detention is lawful either in terms of the provisions of the Criminal Procedure and Evidence Act [Chapter 9:07] or some other law.

 

In Parliament during 1986, the then Prime Minister stated emphatically that the Government would not necessarily feel obliged to pay the damages awarded by the courts in cases of unlawful arrest and detention, and where it felt that the plaintiff did not deserve to receive such damages it would refuse to pay him out of public funds. This statement was made when there was extensive South African destabilisation of Zimbabwe and a state of emergency was in operation. A number of suspected saboteurs and spies sued the State for unlawful arrest and detention. It was in this context that this statement was made and, in a number of such cases at this time, the State refused to pay out compensation awarded by the court. Since the ending of the state of emergency in 1990, it seems that the State has abided by court rulings awarding damages in cases of unlawful arrest and detention and has paid out the damages.

 

See Mandirwhe v Minister of State 1986 (1) ZLR 1 (S); Granger v Minister of State 1985 (1) ZLR 153 (H);  Minister of Home Affairs v Allan 1986 (1) ZLR 263 (S); Makomberedze v Minister of State Security 1986 (1) ZLR 73 (H); 1986 (4) SA 26 (ZH); Chitunga v Minister of Home Affairs HH-261-89 and Stambolie v Commissioner of Police 1989 (3) ZLR 287 (S). See also 1987 Vol. 5 Zimbabwe Law Review 26 at 30-38.

 

 

Damages for malicious arrest or prosecution

 

This delict is committed when the defendant maliciously and without reasonable cause brings about the arrest or prosecution of another. The criminal proceedings must have terminated in favour of the plaintiff and prescription only starts to run from the date the charge is withdrawn.

 

See Lovemore v Rhoguard GS-154-72 and Stambolie v Commisioner of Police S-178-89 at p 16. See also 1987 Vol. 5 Zimbabwe Law Review 26 at 38-40.

 

 

Breach of statutory duty

 

The primary question is whether the statute was intended to create a civil right of action.

 

The breach of statutory duty allows a person affected thereby to sue if 

  • he has suffered damage as a result of such breach;
  • he is one of the persons for whose benefit the duty was imposed;
  • the harm caused was within the mischief contemplated by the statute;
  • the statute has not expressly or impliedly excluded the ordinary civil remedy; and
  • the breach of the statute was the proximate cause of the loss.

 

See Patz v Greene & Co 1907 TS 427; Salisbury Bottling Ltd v Central African Bottling Ltd 1958 (1) SA 750 (FS); Da Silva v Coutinho 1971 (3) SA 123 (A); Tobacco Finance Ltd v Zimnat Insurance 1982 (1) ZLR 47 (H); 1982 (3) SA 55 (ZH); Knop v Johannesburg City Council 1995 (2) SA 1 (A) and van Buuren v Minister of Transport 2000 (1) ZLR 292 (H)

 

Burchell in Principles of Delict at p 46 has this helpful comment–

 

A statute may specifically provide for a civil remedy for damages, specifically provide for a criminal penalty but remain silent on the availability of a civil remedy, remain silent on any means of enforcement or provide for a ‘special’ remedy. Obviously if a statute includes a civil remedy for the enforcement the ordinary principles of liability apply. Where the statute specifically provides for a criminal sanction this does not necessarily exclude the availability of a civil remedy and the intention of the legislature on this matter must be determined. Where the statute remains silent on the means of enforcement it may be presumed that the legislature intended it to be enforceable by ordinary private right of action. Where the statute provides for a ‘special’ remedy there is a strong indication that the legislature intended the special remedy to be the only one.

 

In the case of Patz v Greene 1907 TS 427 the court established the rule that where the legislature intends to protect the interests of a particular group of persons, then if P is part of that group, he or she does not have to prove that he or she has suffered damage, as it will be presumed that he or she has suffered damage. If, on the other hand, the legislature simply wants to protect the general public interest, P must prove that he or she suffered damage.

Defence of statutory authority

 

Even where there is no statutory immunity from liability, there may still be no liability if the public authority or official has acted under statutory authority. Thus, where a statute has authorised the body or official to carry out some function that will infringe upon certain legal rights, the public authority or official cannot be held liable for taking the authorised action; the authorised action cannot be wrongful. This, however, is subject to the proviso that authorisation is given to perform the function in a non-negligent fashion, and if harm is caused as a result of negligent execution of that task there may still be liability. For a detailed treatment of this topic, see Baxter pp 603-615.

 

On the subject of reform to the law so as to provide compensation for harm caused by non-negligent or lawful administrative action, see Baxter pp 636-642.