STAMBOLIE v COMMISSIONER OF POLICE 1989 (3) ZLR 287 (S)

Flynote

Appeal — constitutional point being raised for first time on appeal — whether appellant should be restricted to matters argued in court a quo.

Constitutional law — prescription of claims arising out of constitutional rights — whether enactments imposing time limits are unconstitutional — constitutionality of s 76 of Police Act [Chapter 98].

Delict — false arrest or imprisonment and malicious arrest or imprisonment — distinction between.

Prescription — constitutional right to freedom from unlawful arrest — whether claim may be prescribed.

Statutes — Police Act [Chapter 98] — s 76 — notice of intended civil action — what must be in notice.

Headnote

The appellant was arrested by a member of the Criminal Investigation Department on 14 November 1985 on an allegation of fraud and detained until 17 November. He was then released on bail by the arresting officer. On 21 November he was asked by the arresting officer to go to court for the purpose of being remanded. The officer failed to advise the prosecutor that the appellant was already on bail and a further bail condition, in the form of a surety, was added by the magistrate. The appellant was unable to provide the surety before court rose for the day and was detained until the next day, when he was released. He remained on remand out of custody on the charge of fraud until 24 June 1986, when the charges were withdrawn.

The appellant issued a summons on 10 July 1986, claiming damages for wrongful arrest and detention, on the grounds that the original arrest had not been based on reasonable suspicion. The summons had been preceded by a letter, written on 25 November 1985 by the appellant's legal practitioner to the respondent, which stated that the appellant claimed damages for wrongful arrest. The letter claimed that the original arrest was unlawful, not being based on reasonable suspicion, and that the second period in custody was unlawful for the same reason and because the investigating officer "wrongfully/negligently" failed to inform the prosecutor and court that the appellant was not in custody.

The respondent's answer to the claim was to file a special plea in limine, to the effect that the action was barred by virtue of non-compliance with s 76 of the Police Act [Chapter 98]. This special plea was upheld in the C High Court.

On appeal, the appellant raised for the first time the argument that s 76 of the Police Act was ultra vires s 13(5) of the Constitution, which entitles a person who is unlawfully arrested or detained to compensation therefor. He argued that this entitlement was absolute and that the imposition of any time limit fettered the individual's constitutional right.

The respondent argued that the appellant should not be permitted to raise a constitutional point for the first time on appeal and should be restricted to matters argued before the court a quo. It was also argued that the appellant had not complied with the requirements of s 76 of the Police Act, which are that (a) notice in writing of any civil action and the cause thereof must be given to the defendant at least one month before the commencement of the action; and (b) any such action must be commenced within six months after the cause of action has arisen.

Held, that the principle that an excipient on appeal is to be confined to the grounds of exception given and urged in the lower court applies only to a situation where the party does not thereby lose the case but only suffers in costs due to his failure to put an end to the litigation as soon as he ought to have by a proper exception. To deny the appellant a hearing on the new point would deprive him, in the event of the appeal being dismissed, of the opportunity of arguing it at the trial and it was therefore right that he be heard on appeal, subject to his being penalised by an appropriate order in costs should he succeed on the constitutional point.

Held, further, that it is envisaged, in s 24(9) of the Constitution, that Parliament is at liberty to pass a law which prescribes the period of time within which a party who alleges that the Declaration of Rights has been, or is being, or is likely to be, contravened in relation to him must apply

for redress to the Supreme Court or must seek referral from a subordinate court. Statutes of limitation do not affect a substantive right, but merely limit in time the remedy of bringing proceedings to enforce that right. Such statutes find their justification in necessity and convenience rather than in logic. They represent expedients, rather than principles. The only qualification to be noted is that in enacting a statute of limitation the legislature must allow a reasonable period of time within which the party aggrieved may sue to enforce his constitutional right. If it does not, the statute will be struck down as an infraction of the Constitution. It would be extremely unreasonable and contrary to public policy generally to oblige the State or a member of the police to answer an action for unlawful arrest or detention if there were no limit of time in which it had to be brought.

Held, further, that the notice required under s 76 of the Police Act need not be set out with the same degree of precision as is required in pleadings. The approach of the courts is robust and practical rather than technical. The notice is good, provided it is sufficiently informative of the cause of the civil action complained of and does not leave the recipient conjecturing as to what form, once commenced, the action will take.

Held, further, that the letter alleged false arrest and imprisonment, not malicious arrest and detention. The two 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. The onus is on the person who effected the arrest to prove that it was legally justified. The letter constituted adequate written notice that the cause of action was false arrest and imprisonment. In the case of malicious arrest and imprisonment, on the other hand, a judicial act is interposed between the act of the defendant and the imprisonment. The defendant's acts must have set the judicial wheels in motion, making the restraint upon the plaintiff's freedom the act of law. It is necessary, however, to allege and show that the defendant acted maliciously In this case, it was merely alleged that he acted wrongfully or negligently.

Held, further, that whereas in the case of false arrest and imprisonment, the cause of action arises on the day the arrest is effected, in the case of malicious arrest and detention the cause of action arises only when the criminal proceedings have been terminated in favour of the plaintiff. Consequently, although the notice in respect of the first arrest was good, in respect of the second it was premature.