Source: Tomana, Chihuri contest suit | The Herald May 19, 2016
Daniel Nemukuyu Senior Court Reporter
PROSECUTOR-General Johannes Tomana and Police Commissioner-General Augustine Chihuri, who are being jointly sued for $400 000 for unlawful arrest and prosecution by a Harare lawyer, have challenged citation of their names as defendants in their personal capacities.
Mr Tomana and Comm-Gen Chihuri are being sued for unlawfully causing the arrest of a senior lawyer, Mr Mordecai Pilate Mahlangu, for “merely representing his client” Michael Peter Hitschmann, who was accused of illegally possessing firearms.
Mr Tomana and Comm-Gen Chihuri are being sued together with two detectives — Henry Dowa and Clever Ntini.
Mr Tomana, Comm-Gen Chihuri and the two detectives on Monday raised a preliminary point arguing the actions complained of were done in the discharge of their official duties, hence suing them in their personal capacities was unlawful.
They argued that they were not properly sued and that the matter must fail on that preliminary point.
Advocates Adrian de Bourbon and Thabani Mpofu represent Mr Mahlangu while being instructed by Mr Raymond Moyo of Gill Godlonton and Gerrans.
Adv Lewis Uriri instructed by the Attorney-General’s Civil Division is representing Comm-Gen Chihuri and the two detectives while Adv Sylvester Hashiti acts for Mr Tomana while taking instructions from Mutamangira and Associates.
The defendants’ lawyers argued that their clients acted in the scope of their employment when they allegedly behaved in the manner complained of and that they should have been sued in their official capacities.
It was argued that the plaintiff did not state in his declaration that the defendants acted unreasonably. They also argued the declaration did not talk of the defendants acting in bad faith.
Instead, they argue, the declaration recognises that the defendants were acting in their official capacities.
Responding to the preliminary point, Adv De Bourbon cited a South African case which sought to prove that both the employee and employer can be sued lawfully for a wrongful act.
He argued that the law of the country did not intend to protect individuals who break the law, hence they must be sued in their personal capacities.
Adv De Bourbon urged the court to throw out the preliminary point, describing it as a delaying tactic by the defendants to evade the civil trial.
High Court judge Justice Priscilla Chigumba reserved judgment on the matter.
She is expected to rule on whether the defendants were properly sued in their personal capacities.