ZIM ASSIST (PRIVATE LIMITED
and
PURPLE DIVINE TECHNOLOGY (PRIVATE)
LIMITED
versus
THE MINISTER OF PRIMARY AND
SECONDARY EDUCATION
HIGH COURT OF ZIMBABWE
NDEWERE J
HARARE, 31 July 2019 & 11 June 2020
Special Plea
C. Warara, for the applicant
W. Chinhamora, for the respondent
NDEWERE J: The background of this matter is that the plaintiffs approached the defendants in 2014 with a project proposal for an electronic application for enrolment in schools for school children. They made presentations of the project to the Ministry of Primary and Secondary Education. On 30 September, 2015, they received a letter from the Permanent Secretary of the Ministry of Primary and Secondary Education advising that their proposal to provide the electronic application had not been granted.
The plaintiffs pursued the issue with the second defendant and this resulted in the second respondent allowing them to carry out pilot projects of the proposal at some schools during 2016. Further to that, the Director of ICT in the defendants ministry advised the plaintiffs that the Permanent Secretary in the Ministry had said that they had to wait for a tender process since the project was huge and it involved a lot of money. Later in the year, the second defendant announced through the press that pupils were going to apply for Form 1 places on line and the Ministry would manage the process through an Education Management Information System. The plaintiffs realised that they had been left out of the project; it was now just the Ministry of Primary and Secondary Education on its own.
On 15 December, 2016, the second plaintiff filed an urgent application alleging piracy of its software by the Minister of Primary and Secondary Education. In the application, the second plaintiff prayed that the second defendant be ordered to close down and cease the use of the website or portal called e-map for student online registration. The second defendant was to surrender and return to the applicant all the documentation handed to him or the Ministry officials by the second plaintiff.
The application was not granted.
On 13 February, 2017, the plaintiff issued summons against the defendants alleging piracy of its software and prayed that the defendants be ordered to shut down its portal called e-map and to return all the copies of plaintiff’s original works. The plaintiff claimed $3 550 000 .00 as damages for pirating its software and costs of suit.
The defendants filed their plea on 17 March, 2017. They raised a point in limine in that the plaintiffs had not given the 60 day statutory notice of intention to sue in terms of s 6 of the State Liabilities Act, [Chapter 8:14]. They said this rendered the whole case a legal nullity. On the merits, they denied the plaintiff’s allegations of piracy and put them to the proof thereof.
They also pleaded that the second defendant should not have been sued in his personal capacity.
The plaintiffs replication to the point in limine was that the proceedings were not fresh proceedings but had been instituted before by the plaintiff through an application in December 2016. They said the statutory notice was therefore superfluous because the defendants were already aware of the dispute which was widely covered in the press.
They persisted that the second defendant had been properly sued in his personal capacity.
The case was set down for argument on 18 September, 2018. On 18 September, 2018, the parties requested that the matter be postponed to 1 October, 2018 to enable the parties to engage in out of court settlement discussions. The parties agreed that if they failed to settle, they would then file Heads of Argument on the failure by the applicants to give notice in terms of section 6 of the State Liabilities Act, [Chapter 8:14] and asked the court to make a determination on that issue before the case proceeded any further.
The parties did not settle the matter. The defendants filed their Heads of Argument on the Special Plea concerning the failure to give notice in terms of the State Liabilities Act on 1 October, 2018. The plaintiffs filed their heads of argument on 5 October, 2018. The parties appeared in chambers on 31 July, 2019 and said they did not wish to make oral submissions and the court should decide the matter on the basis of the arguments in the Heads of Argument.
Section 6 (1) of the State liabilities Act Chapter 8:14 provides as follows:
“Subject to this Act, no legal proceedings in respect of any claim for
- Money, whether arising out of a contract, delict or otherwise … shall be instituted against-
- the state or
- the President, a vice President or any Minister or Deputy Minister in his official capacity or
- any officer or employee of the state in his official capacity; unless notice in writing of the intention to bring the claim has been served in accordance with subsection (2) at least sixty days before the institution of the proceedings.”
Section 6 (2) continues thus:
“A notice referred to in subsection (1) (a) shall be given to each person upon whom the process relating to the claim is required to be served; and (b) shall set out the grounds of the claim.”
The above provisions are mandatory; they are not optional, so they ought to be
followed. The notice is what makes the proceedings against a state entity or official legal. The notice is the starting point of any legal process against a state entity or official in their official capacities.
One may ask why such a notice was considered relevant. The answer is found in
Administrator, Transvaal v Husband, 1959 (1) SA 392 AD. Malan J, when faced with a section similar to section 6 of the State Liabilities Act, [Chapter 8:14] stated as follows at p 394;
“…….it should be borne in mind that the primary object of the provision is to ensure that the administration shall be apprised, within reasonable time, of an intention to hold it liable in damages sustained as a result of the default or negligence of any officer acting in the course of the execution of his duty in circumstances described in the subsection. The Administration will thus be able to investigate the circumstances and be placed in a position to determine whether it should settle the claim or prepare to resist it.”
The plaintiffs in their heads of argument refer to a letter dated 12 December, 2016 to the first defendants’ Permanent Secretary notifying them of the threat of a court action. That letter was received by the first defendant on 13 December, 2016 and two days later, on 15 December, 2016, the plaintiffs were in court with an application against the second defendant. Clearly that letter was not in compliance with section 6 of the State Liabilities Act. It was just an ordinary letter of demand, giving just 2 days notice as opposed to the statutory requirement of six months.
After abandoning the Urgent Chamber application which they filed on 15 December 2016, the plaintiffs issued summons on 13 February 2017. That was just two months after the letter of demand of 12 December 2016. Yet the statutory requirement is six months. So the plaintiffs cannot argue substantial compliance when the idea behind the section is to give state entities sufficient time to investigate the allegation and then decide what to do. Two months was not enough when there is a statutory requirement of six months.
Moreover, this was two months in a situation where even the plaintiffs changed. The letter cited one plaintiff as Purple Divine Technology (Pvt) Ltd. It left out Zim Assists. It cited one defendant as the Minister of Primary and Secondary Education. But the case before the court right now involves a second plaintiff; being Zim Assist and a second defendant Mr Lazarus Dokora in his personal capacity. So a letter which failed to give 6 months’ notice and which left out some of the parties cannot be said to be substantial compliance with s 6 of the State Liabilities Act, [Chapter 8:14].
The plaintiffs also refer to an intention to apply for condonation. There is no application for condonation which is already before the court. For a matter that has been pending since 2016, the court would have expected the plaintiffs; if they were serious; to have filed an application for condonation in writing citing s 6 (3) of the State Liabilities Act, [Chapter 8:14], giving their justification for the condonation application. Reference to a future intention to apply for condonation when the issue has already been raised in pleadings creates the impression that the issue of condonation came as an after thought when the defendants persisted with the point. Prior filing of the application for condonation would have exhibited some seriousness on the plaintiffs’ part.
The plaintiffs allege that there will be no prejudice if the court condones the failure to give notice. That is incorrect. The notice is meant to give the state entities prior notification so that it investigates the matter fully. The state entities expect that notice because the law provides for it and when they do not get it they may not investigate issues fully. If the court proceeds to determine the matter without a full investigation by the defendants because of the absence of the statutory notice, that may prejudice the defendants. The defendants may be made liable to a claim which, if fully investigated, could have been successfully defended or settled. The damages being claimed in this case are quite huge; and it will be prejudicial to the defendants for the court to proceed with a case with such a huge claim in the absence of the requisite notice.
In conclusion, the plaintiffs were required to give six months’ notice in terms of s 6 of the State Liabilities Act [Chapter 8:14]. They did not do so. There was no substantial compliance to enable the court to invoke s 6 (3); neither is there a basis to conclude that the failure to give notice will not unduly prejudice the defendant.
The point in limine is therefore upheld. Without the requisite notice, the proceedings are null and void. The plaintiff’s case is therefore struck off the roll.
Warara & Associates, applicant’s legal practitioners
Civil Division of the Attorney-General’s Office, defendant’s legal practitioners
