Judgment No. HB 67/06
Case No. HC 754/01
MINISTER OF HOME AFFAIRS
AUGUSTINE CHIHURI IN HIS CAPACITY AS
COMMISSIONER OF POLICE
DETECTIVE INSPECTOR GUNYERE
WOMAN ASSISTANT INSPECTOR NCUBE
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 5 MAY 2005 & 29 JUNE 2006
T A Cherry, for plaintiff
M Munjanja, for defendants
General damages for illegal search
BERE J: The plaintiff is a legal practitioner and partner with a law firm, Webb, Low and Barry Legal Practitioners, Bulawayo. He is also a member of the opposition party in Zimbabwe called the Movement for
Democratic Change (pro-senate faction) and a Member of Parliament for Bulawayo South Constituency having been elected in March 2005.
On 9 March 2001, the plaintiff issued summons commencing action against the five defendants for a sum of $100 000,00 in the form of general damages plus other ancillary relief. The basis of his claim is clearly laid out in his declaration and it is important to re-state the most relevant parts of that declaration:
“8. On the 4thof October 2000 at about 7.40p.m third, fourth, fifth and sixth defendants conducted a search at plaintiff’s premises at 5 Martin Close, Burnside, Bulawayo, pursuant to a search warrant issued on that day alleging that plaintiff, a Director of Capital Radio [Private] Limited, was suspected of breaching section 13[a], [b] and [e] as read with section 29 [R][ii] of the Radio Communication Services Act, Chapter 12:04.
The said search was illegal as in terms of a High Court order issued on 4thOctober 2000, prior to the search, the High Court had ordered that Capital Radio [Private] Limited was entitled to operate, had interdicted the Minister of Information, Posts and Telecommunications Corporation and the Commissioner of Police for interfering with the right to operate and had specifically stated that section 12 and 13 of the Radio Communication Services Act were of no application to Capital Radio [Private] Limited. Second defendant was or ought to have been aware of the said order, and so was aware that the search was illegal.
Alternatively, the said search was illegal as the search warrant was issued by a Magistrate of the Magistrates’ Court, Harare and plaintiff, being in Bulawayo, was outside of the jurisdiction of the Harare Magistrates’ Court.
Alternatively, the said search was illegal as no search warrant was served on the plaintiff, the copy served on plaintiff being invalid by reason of being a facsimile.
At all times the second, third, fourth, fifth and sixth defendants acted in the course with their employment with first defendant.
As a consequence of the illegal actions of the defendants, plaintiff has suffered damages of contumelia, the unlawful invasion of his home, and discomfort, in the sum of $100 000,00.
This in its elaborate form formed the basis of the plaintiff’s suit.
The defendants filed their defence to the claim in two different pleas with fifth defendant filing a separate plea.
Basically, the position of the defendants was that at the time a search was conducted at the plaintiff’s premises they were not aware of the interdict granted by the High Court against their actions. They therefore believed the search was perfectly lawful.
It was conceded by the defendants that the warrant used to search the plaintiff’s premises had been issued by a magistrate who had no jurisdiction to issue it. They further stated that despite the defect in the warrant it was necessary for them to conduct a search and that in any event they could have done so without such a warrant in terms of section 51 of the Criminal Procedure and Evidence Act, Chapter 9:07.
In dealing with this matter I feel more inclined to address the issue of the application for amendment of pleadings first.
Application for amendment of the quantum for damages
On 4 May 2005, a day before trial the plaintiff filed a chamber application seeking an amendment to the amount claimed in the summons. At the time the summons was issued the claim had been pegged at $100 000,00. The chamber application sought to have the amount of claim raised to $10 000 000. The sole reason given was that due to lapse of time in setting the matter down the value of the Zimbabwe dollar has depreciated to such an extent as to render the claim wholly unrealistic.
In his founding affidavit in support of the chamber application the plaintiff detailed his difficulties in having the matter expeditiously dealt with from the time the pleadings were being filed right up to the time when all pleadings had been closed. He also gave a detailed summary of his frustration in having the matter set down. The stark reality is that the matter which commenced with summons being issued in the High Court on 9 March 2001 was only heard on 5 May 2005. It took over four years to have this matter set down despite the plaintiff’s countless efforts to have this matter set down.
The chamber application was vehemently opposed by the respondents through their legal practitioner, Masimba Munjanja who argued that the applicant’s application was irregular and that he was only entitled to the value of claim at the time of loss.
The question of amendment of pleadings is adequately dealt with by order 20 rules 132-136 of High Court of Zimbabwe Rules 1971. The amendment sought by plaintiff is specifically provided for in rule 134 which reads as follows:
“134. A summons or declaration: Cause of action arising after issue of summons
A summons or declaration may with the leave of the court or judge be amended to substitute or to include a cause of action arising after the issue of summons:
Provided that in the opinion of the court or judge such an amendment does not change the action into; or add it, an action of a substantially different character which would more conveniently be subject of a fresh action.
As pointed out by my brother judge NDOUJ in Fanny Abednigo Ncube v Thabani Dube and Elton Dube and National Insurance Company of Zimbabwe judgment number HB-106-04 at page 3 of the cyclostyled judgement:
“… it is trite that the granting of an application for the amendment of a pleading is a matter for the discretion of the court to be exercised judicially in light of all the facts and circumstances before it. The court has such a discretion to allow a litigant to amend his or her pleadings at any time prior to judgment.” I endorse the position.
In the case of Munhuweyi v Mhukahuru Bus Services (Pvt) Ltd 1994(2) 382, the late CHATIKOBOJ expressed the view that damages must be assessed as at the time of the wrong or breach. It appears to me that the position adopted by the defendants in opposing the application for amendment was leaning on this tried and tested principle of our law as stated by CHATIKOBO J. I accept that the view expressed by the late CHATIKOBO J in Munhuweyi is derived “from a respectable pedigree of cases” extensively referred to in his judgment. It is difficult to depart from such a principle.
I must however, add caution and say, persuasive as it is, in my respectful view, that approach is only sustainable in a normal economic environment. There is a general acknowledgement in this country that our economic situation is on the decline. The continuous and systematic rising of inflation puts our economic situation in an awkward position.
This case was only heard four years or so after summons had been issued and the delay in hearing this matter was through no fault of the plaintiff. He did all he could to try and have the matter heard in time but
failed. It is a well known fact that generally unless matters are heard on urgent basis, there is quite some considerable period of time that lapses between issuing of court process and the trial of the case. Add to this an economy that is not performing to expectations with inflation currently pegged at over 1 000%.
In my view, given the peculiar circumstances of our situation, the application for amendment made by the plaintiff was well founded. It would have to be in extremely exceptional circumstances where an application like the one made by the plaintiff is denied particularly where it is apparent that the other party would not be prejudiced by such an amendment.
The amendment sought is accordingly granted.
I must now proceed to deal with the substantive issues in this matter. In doing so, I propose to deal with the issues as chronologically set out in the plaintiff’s declaration commencing with the effect of the High Court provisional order of 4 October 2000.
Was the search conducted in violation of the High Court order?
It is clear from the plaintiff’s pleadings that the order made by the High Court on 4 October 2000 is central to his civil suit. It is the main ground upon which he sought to found liability against the defendants.
The plaintiff was therefore expected to demonstrate to this court on a balance of probabilities that at the time a search was conducted at his residence those who conducted or initiated the search knew of the existence of the interdict issued by the High Court on 4 October 2000.
Because of the passage of time none of the witnesses had a vivid recollection of the exact time the police arrived at the plaintiff’s place. That is understandable given the fact that this case was only heard in court more than four years after the event.
However, the witnesses were generally agreed that the police officers arrived at the plaintiff’s place armed with a search warrant late in the afternoon of 4 October 2000. In fact according to the plaintiff, he testified that he had been advised by his wife that the police had been at their premises at approximately 1600 hours and that when they arrived they had exhibited a search warrant.
The plaintiff further testified that he engaged 3rddefendant at approximately 18.45pm. He could, for obvious reasons not state the time with absolute precision. After failing to dissuade the police officers from conducting the search, the plaintiff eventually gave in but when he did so, he made it clear that he was doing so on a without prejudice basis. The plaintiff’s attitude towards the search and his threat for litigation against the police was confirmed by the third defendant.
From the evidence of the plaintiff as well as that of the third defendant it would appear that the search was concluded well after 2000 hours. It is clear to me that if there was no initial resistance to the search
from both Mrs Coltart and the plaintiff the search would have taken place as soon as the police arrived at plaintiff’s residence.
It is clear from the affidavit of one Anthony Andrew Brooks that the much talked about High Court interdict or order granted by CHATIKOBO J (as he then was) was only granted at around 2000 hours on 4 October 2000.
For clarity’s sake Anthony Andrew Brooks stated in his affidavit paragraph 5 thereof as follows:
“Mr Samukange and I then proceeded to the High Court where we appeared before Hon. Mr Justice Chatikobo at around 8p.m, to make urgent application for the suspension of the search until this matter could be heard in full argument the following day (i.e. the 5thOctober 2000). The learned judge then issued an order …”
It is abundantly clear to me that at the time the police officers exhibited a search warrant at the plaintiff’s residence in the afternoon of 4 October 2000, there was no High Court interdict or order to talk about. That order was a subsequent development and it would not have bound police officers who were at the Coltarts’ residence almost 4 hours before it was issued.
I am aware that when the plaintiff gave evidence in court he made reference to a Supreme Court decision that was granted on 22ndday of September 2000 by the full bench of the Supreme Court. I note however, that the basis of his claim as derived from his declaration which I have referred to in extensio was the alleged violation of an interdict issued by the late CHATIKOBOJ. Even the pre-trial conference memorandum suggests
the focus at trial was going to be on the High Court order of 4 October 2000.
There appears to be some confusion as regards when precisely the High Court provisional order granted by CHATIKOBOJ, was issued. This is so because on the order itself which is on pages 3 and 4 of the bundle of
the plaintiff’s documents marked exhibit ‘A’ the learned Judge put 5 October 2000 as the date he granted the order. This is despite the High Court stamp dated 4 October 2000.
I have not allowed this confusion to detain my mind or cloud my perception of what took place on the 4thof October 2000. I am satisfied the order was made on 4 October 2000. I say so basically for two reasons. Firstly, I derive support from the affidavit of Anthony Andrew Brooks, earlier on referred to.
Secondly, exhibit ‘C’ which is a confirmation of the provisional order of CHATIKOBOJ by GWAUNZAJ (as she then was) on 5 October 2000 specifically made reference to the order made by CHATIKOBOJ on 4 October 2000.
Whichever way one looks at the evidence of the plaintiff and all the witnesses, it cannot be concluded by any fair minded person that the defendants knew of the existence of the High Court order by CHATIKOBOJ when they went to the plaintiff’s residence on 4 October 2000. If the High Court interdict was the sole basis of plaintiff’s claim, I would have proceeded to dismiss the claim without further ado.
Given the nature of plaintiff’s declaration, I am enjoined to consider the alternative basis of his claim as captured in paragraph 10 of his declaration.
I am aware that counsel for the plaintiff argued during court addresses that the fact that the initiator of the search warrant, that is, Assistant Commissioner Liberman Ndlovu was subsequently found to be in contempt of the court order of 4 October 2000 and fined $3 000,00 should be read in favour of the plaintiff’s case.
To get an insight into what happened in this regard I sought assistance from the founding affidavit of one Jonathan Samukange, a legal practitioner whose founding affidavit appears to have been the cornerstone of the contempt of court proceedings against Assistant Commissioner Liberman Ndlovu. I also sought assistance from the supporting affidavit of Antony Andrew Brooks in the same application for contempt of court.
It is clear that after the later Judge, CHATIKOBOJ had issued an order at around 8pm on 4 October 2000, that order was exhibited to the Assistant Commissioner Liberman Ndlovu who chose to disregard the order at his own peril. Paragraph 15 of Jonathan Samukange’s affidavit suggests the officer acted in total contempt of that order after it was issued and that his contemptuous actions spilled over to the early morning of 5 October 2000. This was long after the police officers had visited the Coltarts and conducted a search. Given this scenario the position taken by Advocate Cherry, the plaintiff’s counsel is clearly untenable.
Was the search illegal on the basis of the defect in the warrant itself
It was contended by plaintiff that “the search warrant was issued by a magistrate of the Magistrate’s Court, Harare, and the plaintiff, being in
Bulawayo, was outside of the jurisdiction of the Harare Magistrates’ Court”. This fact was conceded by the defendants. That concession was well made.
There can be no argument in my view that the search warrant used by defendant three and his fellow officers was defective in that it had been issued by a magistrate who did not have jurisdiction in Bulawayo.
The powers of any magistrate in this country are governed by statute. Such magistrate can only enjoy the power conferred upon him/her by statute and nothing more. It is patently clear therefore that the search warrant which was relied upon by the third defendant and his fellow police officers was defective in that the magistrate who issued it had no legal power or jurisdiction to do so. His authority was limited to his province in terms of the Magistrates’ Court Act Chapter 7:10.
Despite the defects in the warrant it would appear that what happened in this case is precisely what was anticipated by section 67 of the Police Act Chapter 11:10 which tends to provide wide protection to members of the force who execute their duties on the strength of a warrant which turns out to be defective. The section in question is couched in the following words:
“67. Non-Liability for acts done under irregular warrant
If any legal proceedings other than legal proceedings for unlawful arrest or detention, be brought against any member for any act done in obedience to a warrant purporting to be issued by a judge, magistrate or justice of the peace or other officer authorised by law to issue warrants such member shall not be liable for any irregularity in the issuing of the warrant or for want of jurisdiction in the person issuing the same, and upon producing the warrant containing the signature of the person reputed to be a judge, magistrate or justice of the
peace or other such authorised officer and upon proof that the acts complained of were done in obedience to the warrant, judgment shall be given in favour of such member.”(my emphasis)
It is important to note that our law requires a police officer desiring to obtain a search warrant to have satisfied himself on reasonable grounds that the search and seizure of the items targeted is imperative and in accordance with sections 49,50 and 51 of the Criminal Procedure and Evidence Act (the code) before he sets out to obtain such a search warrant.
The focus in this case must be restricted to the provisions of sections 49 and 50 of the code as it would appear the warrant used to search the plaintiff’s premises was obtained in terms of section 50. The assumption must be that before the defective warrant was granted the Harare magistrate must have been satisfied from the information given under oath that the plaintiff had under his control items listed on the search warrant which had to do with Capital Radio (Pvt) Ltd.
The witnesses who executed the warrant led by Superintendent Mathe were criticised for not having applied their minds to the search warrant before executing it. They were attacked for not having accepted
the plaintiff and his lawyer’s advice that the search warrant was defective. They were also criticised for not having personally formulated reasonable grounds for suspecting that the plaintiff indeed had the articles mentioned on the warrant.
All the witnesses testified that they believed their function was merely to execute the warrant faxed to them by their senior officer in
Harare, Assistant Commissioner Liberman Ndlovu who incidentally was not cited in these proceedings despite it being common knowledge that he had himself initiated, obtained and faxed the search warrant in question.
The 3rddefendant testified that when the defect of the warrant was brought to his attention by the plaintiff, he believed the warrant was in fact valid and felt compelled to execute it.
It is tempting to say the third defendant was negligent in his conduct. One must understand the nature of the force. It is a command structure where one is obliged to follow lawful orders from those above him. In my own view police operations would grind to a halt if they were to take instructions from suspects during the course of their investigations, for example. They are expected to act swiftly and competently in their quest to maintain law and order.
As observed by my learned brother CHEDA J in Geoffrey Zombe Sikazwe and 2 Ors v Detective Chief Inspector Mchada and 2 Ors judgment No. HB-121-05 at page 5 of his cyclostyled judgment:
“Police officers work under very difficult circumstances in an attempt to maintain law and order. There is therefore, a need for the
courts to adopt a robust approach when scrutinising their behaviour in the conduct of heir duty.”
When the police officers in this case were armed with a search warrant directing them to conduct a search at the plaintiff’s residence it would have been naïve in my view to have expected them to accept to be guided or to be advised by the plaintiff whose premises they had instructions to conduct a search upon. Otherwise the whole object of conducting a search would have been defeated.
It is in my view this sought of situation which section 67 (supra) envisaged. I must however add caution to the provisions of section 67. That section in my view must only be read to protect those officers who act bona fide in the execution of their duties. It could not have been the intention of the legislature to protect and camouflage police actions clouded by mala fides.
In the instant case, if it is accepted that the cornerstone of plaintiff’s action is non-compliance with a High Court order issued by CHATIKOBOJ, I am unable to find mala fides on the part of the conduct of the police and consequently all the defendants.
I would probably have been persuaded to look at the matter differently if the plaintiff’s case was premised on failure by the defendants to comply with the Supreme Court judgment of 22 September 2000. As earlier on mentioned that has never been the basis of the plaintiff’s action. I can only speculate and say perhaps it was an acknowledgment by the
plaintiff that the Supreme Court decision had grey areas which required a subsequent High Court provisional order granted by the late CHATIKOBOJ and confirmed by GWAUNZAJ on 5 October 2000. That might explain why focus was on violation of the High Court interdict as opposed to the Supreme Court decision.
The plaintiff’s claim was also premised on the third alternative that “the search was illegal as no search warrant was served on the plaintiff, the copy served on the plaintiff being invalid by reason of being a facsimile.”
I listened carefully to the evidence in chief adduced by the plaintiff and also to the submissions made by his counsel in summary and I did not hear the plaintiff to have taken this issue seriously in his evidence.
According to the plaintiff, once the faxed copy was exhibited to him, the focus shifted to the jurisdiction of the magistrate who had granted the warrant. The plaintiff said he clearly saw what was on the search warrant and page 15 of the plaintiff’s bundle of documents gives the search warrant in what appears to be in its original form. In any event, it would appear the plaintiff had by implication abandoned this as the basis of his action.
If I am wrong in my reading of the plaintiff’s evidence, it would seem that that defect was not such that it could invalidate or illegalise the search in the light of section 67 of the Police Act.
Having considered all the evidence in this case, I am satisfied that the plaintiff has failed to establish his claim. The action is dismissed with costs.
Messrs Coghlan & Welshplaintiff’s legal practitioners
Messrs Cheda & Partners, defendant’s legal practitioners