IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE
CIVIL
CASE NO. 2689/03
In
the matter between:
SOPHIE
ZWANE APPLICANT
VERSUS
THE
ATTORNEY GENERAL 1st RESPONDENT
THE
COMMISSIONER OF POLICE 2nd RESPONDENT
CORAM
SHABANGU AJ
FOR
APPLICANT MS. VILAKATI
FOR
RESPONDENT MS. KATAMZI
20th
October, 2004
The
applicant, one Sophie Zwane in these proceedings seeks an order in
the following terms;
"I.
That applicant be granted special leave in terms of section 4 (1) of
the Limitation of Legal Proceedings Against the Government Act, 1972,
to institute proceedings against the Government by way of demand,
being debarred under Section 2 (1) (a) of the same, on the basis that
the debt arises from a delict.
2,
Costs of this application in the event this application is opposed."
The
application is opposed and the basis of the opposition is set out in
a "notice to raise points of law in limine" wherein it is
contended that;
2
"The
Applicant's claim has prescribed in terms of Section 2 (1) (c) of the
Limitation of Legal Proceedings against the Government Act No. 21 of
1972 and that no relief is available to the Applicant under Section
4(1)."
The
Parties have argued the matter on the basis that the government is a
party to the present proceedings. The relief sought is clearly sought
against the government. Similarly, the "notice of intention to
raise points of law in limine" mentioned implicity assumes that
government is a party to these proceedings. Inspite of these however
there is nothing in the body of the affidavit filed in support of the
notice of application which makes the government a party to the
present proceedings. The Attorney-General is cited in paragraph 1.2
of the applicants' affidavit and is described in the following
language;
"The
first respondent is the Attorney-General, Minister (sic) of Justice
Usuthu Link road, Mbabane who is cited in his capacity as such and as
legal representative of the 2nd Respondent."
There
is no description of who the second respondent is in the body of the
affidavit. The only reference to a second respondent on the papers as
a whole is found in the heading wherein the Commissioner of Police is
named as the second respondent. The second respondent is not the
government but it is the Commissioner of Police. The Commissioner of
Police is not the government. In light of this to cite the
Attorney-General in his capacity "as such and as legal
representative of the Commissioner is not the same as citing the
Attorney-General in his capacity as legal representative of
government. In fact it seems to me that a better and clear
description of the government as a party to legal proceedings would
be to say that "the respondent is the government of Swaziland
represented in these proceedings by the Attorney-General who is cited
herein in a nominal capacity as such, with a principal place of
business at 4th Floor Ministry of Justice Building, Usuthu Link Road,
Mbabane," or such similar description. The basis of citing the
Attorney-General in proceedings against the government is found in
section three of the Government Liabilities Act, 1967. That section
reads;
"3.
In any action or other proceedings which are instituted by virtue of
Section 2, the plaintiff, the applicant or the petitioner, as the
case may be, may make the Attorney-General the nominal defendant or
respondent and in any action or other legal proceedings by the
Government or by the Minister, the Attorney-General may be cited as
the nominal plaintiff or applicant, as the case may."
3
The
word "may" in the expression "may make the attorney
General the nominal defendant or respondent" does not confer
upon the plaintiff or applicant who wishes to institute proceedings
against the government a choice between citing the Attorney-General
or some other person such as a head of department or a Minister
responsible. The words authorise the person who has been wronged by
the government or by a servant of the government who is alleged to
have been acting within the scope of his employment as a government
servant to sue. In other words the Government Liabilities Act 1967
was enacted to enable any person who had a claim against government
arising from contract or from any other wrong allegedly committed by
any servant of the government acting in his capacity and within the
scope of his authority as such servant, to bring proceedings against
the government. Similar legislation exists in South Africa in the
form of the State Liability Act 20 of 1957. It has been observed
elsewhere that the source of this kind of legislation was the success
of the special plea in BINDA V. COLONIAL GOVERNMENT, (1887) 5 SC 284
wherein it was held that because of the prerogative or immunity of
the crown, the crown could not be held liable for the delicts of its
servants, because according to the English law which was accepted as
governing the matter the government (as the crown) was not subject to
the jurisdiction of its own courts. In other words the crown could
not be dragged before its own courts. The English law relating to the
prerogative was accepted as being applicable inspite of the fact that
the British Government had no intention of imposing the law of
England upon the Cape or its acquired territories in Southern Africa
and had in fact specifically made provision for the Roman-Dutch law
to be the applicable law in Southern Africa. The understanding was
that even though a necessary inference is that the law which the
British sovereign authority had chosen would apply in the acquired
territories of Southern Africa, was the Roman-Dutch law, it did not
follow that the British Sovereign authority had also abandoned those
attributes of the prerogative most closely linked to the exercise of
sovereign authority, such as whether the crown was subject to the
jurisdiction of its own courts. See BAXTER, ADMINISTRATIVE LAW @ 397.
A distinction was therefore drawn between the 'political rights of
the crown' and the so-called "minor rights of the crown"
which are not essentially bound up with its sovereignty. In the case
of the latter, the crown must be taken to have abandoned its
prerogatives; the former must be assumed
4
to
operate as the necessary result of the fact that it was the British
Crown which governed. From the case of UNION GOVERNMENT (MINISTER OF
LANDS) V. ESTATE WHITTAKER 1916 AD 194 @ 211, BAXTER supra quotes the
following statement from the judgement of Solomon J.A, which
illustrates the understanding of the legal position of the time.
SOLOMON J.A. observed;
"It
is almost inconceivable that in any English possession the
[Constitutional relations between the Crown and its officials] should
be decided by any other than English law, but there is nothing at all
repugnant to the idea that in the case of the rights (rights of
property, of the Crown), the local law should prevail."
'
Similarly INNES CJ in the same case, that is UNION GOVERNMENT
(MINISTER OF LANDS) V. ESTATE WHITTAKER expressed the position as
follows;
"It
is clear that the prerogative is as extensive in Natal as in England,
except in so far as it has in either country been duly modified or
abandoned ...it is clear, nor do I understand the point to be
disputed, that the British government had no intention of imposing
the law of England upon the newly acquired territory. The country was
taken possession of on that understanding... Now, when the Sovereign
agrees that the system of law prevailing in a conquered settlement
shall continue in force thereafter, it would seem a necessary
inference, in the absence of any stipulation to the contrary, that
the rights of the state, with regard to the acquisition, alienation
and disposition of property, are intended to be regulated by the
legal principles which the Sovereign expressly sanctions. Such
questions as whether the Crown is amenable to the jurisdiction of the
courts, and its constitutional position in regard to matters of
government stand on a different footing, and no inference affecting
them could properly be drawn from the establishment of a system of
law different from that of England. But the crown continually engages
in transactions relating to the ownership of property; it may
frequently appear in the Courts. Even if not subject to their
authority, either by consenting to the jurisdiction if defendant, or
by invoking their assistance as plaintiff.
The
legal position as understood at the time legislation such as the
Government Liabilities Act 1967 was promulgated for the first time in
Southern Africa was therefore as outlined above, namely that the
crown (ie the government) was not subject to the authority of its own
courts and therefore could not be sued in those courts. Despite
strong criticism of this legal position it might be interesting to
note PROFESSOR BAXTER'S views who in his analysis appears to hold the
firm view that the decision in BINDA V. COLONIAL GOVERNMENT supra and
in other cases which followed it
5
was
correct. See BAXTER, ADMINISTRATIVE LAW pages 398 and 622. At page
622 of the abovenamed text LAWRENCE BAXTER summarises the historical
background which gave rise to the promulgation of the various Crown,
Government or State Liabilities legislation in so far as the legal
liability of the state is concerned with the following observations.
"The
most important public authority is the state. Obviously it can only
act through the medium of officials acting individually or
collectively; indirect methods are therefore necessary in order to
hold the state liable for the acts of its 'agents' as is also the
case with other public institutions. Until 1888 this was impossible
because, although one might have been able to sue the crown as an act
of grace, the crown could not be held liable for the delicts of its
servants as the ancient feudal maxim that 'the King can do no wrong'
had come to mean that fault could not be attributed to the crown...In
BINDA V. COLONIAL GOVERNMENT the court reluctantly but correctly held
that the government at the Cape could not be held vicariously liable
for the acts of its servants. As a result of the criticisms levelled
by the judges in that case, the situation was reformed by the
enactment of remedial legislation in the Cape Colony and, shortly
thereafter, in other colonies. In this respect South African law was
progressive by comparison with the English law, although practice had
already developed in England whereby the Crown would have been liable
had it been a private employer. On the formation of the Union, the
colonial legislation was replaced by the Crown Liabilities Act which
was itself replaced in 1957 by the State Liabilities Act."
For
a discussion of the merits of the criticism that have been levelled
against the decision in BINDA V. COLONIAL GOVERNMENT supra see
footnote number 158 in BAXTER'S ADMINISTRATIVE LAW page 623. See also
notes 75-6 at page 398 of BAXTER'S ADMINISTRATIVE LAW, The Government
Liabilities Act of 1967 in this country must therefore be understood
as remedial legislation aimed at giving persons who believe they had
a claim against the government to approach the courts which are then
given authority over the person of the government as a party to such
proceedings. The Swaziland Act is worded in almost identical language
with its South African counterpart. Beside making it possible for the
government to be sued or to sue in the courts it also provides that
where the government is being sued it is the Attorney-General who
should be cited as the nominal defendant or respondent as the case
may be. On this latter aspect its South African counterpart makes
reference to and names the Head of Department or the Government
Minister responsible as the person to be cited as a
6
nominal
defendant or respondent in the place of government. In the South
African counterpart of section 3 of our Government Liabilities Act it
would be competent to join and cite the Commissioner of Police as a
respondent in proceedings such as the present. However our Act,
unlike the South African Act does not provide for the citation of a
head of department but provides for the citation of the
Attorney-General instead. The Attorney-General has to be cited in a
nominal capacity on behalf of the government. To cite the
Attorney-General in his capacity "as such and as legal
representative" of the Commissioner of Police is not the same
thing as citing him as a "legal representative of the
government" and does not make the government a party to the
present proceedings. It follows from this that it would be
inappropriate to grant relief against the government in these
proceedings when it is not even a party to the proceedings. The
Government Liabilities Act of 1967 which as already observed is
intended to be remedial legislation making the government subject to
the jurisdiction of the courts even in matters where its officials
act under the prerogative powers. By the prerogative power of the
government is meant the residue of all the non statutory powers,
privileges, liberties and attributes which are recognised at common
law to be possessed by the head of state and exercised by him
personally or exercised through his officials in the executive branch
of government. This relates to the prerogative as one such source of
authority for exercise of power by the administrative or executive
arm of government. The second source of authority for executive
action is legislation. See BAXTER, ADMINISTRATIVE LAW, 393 for the
conceptions of the prerogative authority. Except in the case of an
exercise of power under the prerogative, a public authority has no
powers other than those which have been conferred upon it by
legislation. In practice nearly all the authority for administrative
action emanates from legislation, because many of the powers which
used to fall within the prerogative are now wholly or partially
codified by statute. CORA HOEXTER in (1985) 48 'INHERENT EXECUTIVE
POWER : PREROGATIVE OR PUISSANCE PUBLIQUE THRHR (1985) 48 AT 152
raises the discussion whether the prerogative authority of the state
and its servants still exists. The Government Liabilities Act, 1967
does not apply to the exercise of power by public authorities which
emanate from legislation or statute as their source. Where therefore
the exercise of statutory power by a public authority is being
challenged it is not necessary
7
and
it is not competent to cite the Attonery-General as a party to the
proceedings aimed at questioning the regularity or validity of the
administrative action purportedly confered by statute. Where for
instance an administrative official or statutory body exercises
powers conferred upon it by statute such administrative official can
be cited in his name or in his official capacity without citing the
Attorney-General at all. This is because as has been observed in a
number of cases a public authority who is conferred with authority by
statute is said to be exercising a power conferred upon him
personally by Parliament. This distinction is well illustrated by the
cases of wrongful arrest effected by the police. A police officer is
authorised by the Criminal Procedure and Evidence Act to effect an
arrest without a warrant under certain defined circumstances. It has
been held that such a police officer in effecting an arrest on the
basis of the Criminal Procedure and Evidence Act 67 of 1938 is
exercising a personal discretion conferred upon him personally by
Parliament. In other words such a police officer is not acting as a
servant or employee of the government, with the logical consequence
that no question of vicarious liability on the part of government can
arise. In other words because the police officer is exercising a
personal discretion conferred upon him personally by parliament he
does not act as a government employee. The only basis it has been
said for joining government is because the victim is detained in a
government owned police station and the detention is before the first
remand authorised by government. On the other hand if a junior police
officer is instructed by a senior police officer, such as the station
commander to go out and arrest a particular person he is under such
circumstances acting as an employee or servant of the government and
the government represented by the Attorney-General in accordance with
the provisions of the Government Liabilities Act, 1967may be joined
in the proceedings on the basis of an alleged vicarious liability. In
short therefore it is important to determine the circumstances when
the government, that is the Attorney-General may be cited in legal
proceedings and when it would be competent to cite any public
authority or administrative official such as the Commissioner of
Police in the present proceedings. In the present proceedings it is
not competent to cite or join the Commissioner of Police in the
present proceedings. Support for this proposition is to be found in
the judgement of ROONEY J., in the yet unreported case of FRANK B.
MAGAGULA VS COMMISSIONER OF POLICE & OTHERS case No. 455/90 where
even though the
8
plaintiff
succeeded in his claim for wrongful arrest the learned judge
dismissed his claim in so far as it related to the Commissioner of
Police remarking;
"It
follows that the plaintiff in this case has established that he was
unlawfully arrested and detained by the third, fourth, fifth and
sixth defendants and he is entitled to damages from the second
defendant as the others were acting as the servants of the Swaziland
Government. The first defendant who is the Commissioner of Police is
not responsible for the delicts of his officers. He should not have
been joined in these proceedings and I dismiss the claim in so far as
it relates to him. "
See
also BRITISH SOUTH AFRICA COMPANY VS CRICKMORE 1921 AD 107. See also
MCKERRON, R.G. THE LAW OF DELICT 7th edition page 78. MHLONGO V.
MINISTER OF POLICE 1978(2) SA 551 (A).
Furthermore,
the Government Liabilities Act, 1967 in providing that the
attorney-General may be cited in proceedings where any person is
instituting an action or claim or application against government does
not necessarily entitle the Attorney-General to a right of audience
on behalf of government in the courts. It may well be that this is
provided for in another statute. Similarly where the proceedings of a
statutory body such as Road Transportation Board are being challenged
on review reliance cannot be placed on the Government Liabilities Act
for the appearance of the Attorney- General or his citation in such
proceedings.
However
I should point out obiter that it is not clear to me why the present
application is necessary in the first place. The applicant does not
say when the vehicle in respect of which she wishes to claim damages
was destroyed by fire. She further does not allege any fault on the
part of those she intends to bring the claim against. She does say
however in paragraph 4.2 of the founding affidavit that the
destruction of the vehicle by fire has not been communicated to her.
She further goes on to say that a list of vehicles which were
destroyed by fire was published on 20th November, 2002 in the Swazi
Observer newspaper and that her vehicle is not listed therein. On the
authority of the court of Appeal decision in COMFORT SHABALALA V.
SWAZILAND GOVERNMENT CIVIL APPEAL NO. 2618/95 delivered on the 7th
day of June, 2002 read together with the provisions of section 2 (2)
(b) and (c) of the Limitation of Legal
9
Proceedings
Against Government Act the debt did not become due until the date
upon which the applicant became aware of the fact that her vehicle
was amongst those destroyed by fire. She does not give the date on
which she became aware that the vehicle was destroyed by fire. Other
than that she says she has been informed by some Police Officers who
are her relatives that her car has been destroyed by fire she has not
been advised by the Police or by the government that her vehicle was
destroyed by fire.
In
many other respects the applicants' papers, are badly drafted to say
the least. For example, other than what is referred to in this
judgement, she describes herself in paragraph one of the founding
affidavit as "a Swazi female adult and widower of Mbabane".
Similarly the respondents' notice of intention to raise points of law
in limine is badly formulated and is misconceived. It would not have
succeeded. There is nothing in the point as formulated which gives an
indication of the reason for the contention that the applicants'
claim has prescribed. As formulated the point of law in limine is
nothing but a bald legal proposition. There is no indication as to
when the debt is considered to have become due by either the
applicant or the respondents. In the circumstances it seems to me
that the appropriate result which should follow from the above is
that "no order is made". Each party is to bear its own
costs.
ALEX
S. SHABANGU
ACTING
JUDGE
