MASENGA v MINISTER OF HOME AFFAIRS 1998 (2) ZLR 183 (H)

Flynote

Police — action against — prescription period — action must be commenced within eight months — interruption of prescription — prescription only interrupted from date of service of summons

Prescription — period — action against police — action must be commenced within eight months — interruption of prescription — whether prescription period interrupted as soon as summons is issued or only from date of service of summons

Headnote

In terms of s 70 of the Police Act [Chapter 11:10], civil proceedings against the State or a police officer have to be commenced within eight months after the cause of action has arisen. The plaintiff argued that the running of the prescription period was interrupted as soon as summons was issued whereas the defendant argued that the period was only interrupted when there has been service of the process.

Held, that on a correct interpretation of s 70 of Police Act [Chapter 11:10], as read with ss 6(4) and 9 of State Liabilities Act [Chapter 8:14], the running of the prescription period is only interrupted when there has been service of the summons. To hold otherwise would be to defeat the intention of the legislature. The purpose of the legislation is to ensure that the defendant is forewarned of the cause of the action so that he is able to collect any relevant evidence and decide whether or not to defend the claim. This purpose would be frustrated if the period of prescription could be interrupted by the unilateral act of issuing summons without the debtor being aware that this has been done.

Held, further, that although the court can condone the failure to give the required two months' notice of the claim, it cannot condone the failure to serve summons within the eight month period.