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IN THE HIGH COURT
OF BOTSWANA

HELD AT
FRANCISTOWN

CVHFT-000239-12

DATE:
08 MARCH 2013

IN THE MATTER
BETWEEN:

PHEMELO
MOGAPI…………………………………………………PLAINTIFF

AND

ATTORNEY
GENERAL…………………………………..1ST
DEFENDANT

COMMISSIONER OF
POLICE………………………2ND
DEFENDANT

Francistown, 13
December 2012 and 8 March 2013.

Plaintiff in
person

Y. K. Sharp for
the respondents

JUDGMENT

KETLOGETSWE J.

1. This judgment is
limited in scope to a special plea of extinctive prescription raised
in limine by the defendants to defeat the
plaintiffs claim at a
preliminary stage.

2. The plaintiff in
this matter, Phemelo Mogapi, has instituted an action against the
defendants for damages arising out of an alleged
torture of the
plaintiff by the second defendant’s agents or employees.

3. In short, the
plaintiff claims, in total, an amount of P900 000.00 against the
defendants for disfigurement and permanent disability,
future medical
expenses, pain and suffering and trauma and shock.

4. The plaintiffs
cause of action is based on events which occurred between 2 November
2006 and 6 November 2006 whereby the plaintiff
was arrested by the
second defendant’s employees and later allegedly tortured and
sustained injuries to his person. This
is in terms of paragraphs 4-13
(both inclusive) of plaintiffs particulars of claim filed alongside
his summons.

5. The said summons,
together with its accompanying particulars of claim was issued out of
this Court by the Registrar on 3 May
2012.

6. The claim was
served on the defendants on 4 July 2012.

7. Prior to
instituting these proceedings the plaintiff had issued a statutory
notice addressed to the second defendant dated 22
February 2010 in
terms of which he had made a demand for the payment of P900 000.00 in
the same terms as his claim before this
Court.

8. In a letter dated
4 June 2010, the first defendant responded to the plaintiffs demand
aforesaid on behalf of the second defendant
denying liability for the
plaintiffs claim.

9. After service of
plaintiffs claim on the defendants, the latter filed a memorandum of
appearance consisting of a special plea
and a plea over on the merits
of plaintiffs claim.

10. The defendants’
special plea is in the following terms:

“1.1 The
alleged cause of action in this suit arose on or about 2nd November
2006 when the plaintiff alleges that he was unlawfully
tortured and
dehumanized by the Selebi Phikwe CID officer.

1.2. The writ of
summons was filed with the High Court on the 3rd May 2012 and
subsequently served on the defendants on the 4th
July 2012.

1.3. In terms of
section 4(2), (b), (iv) as read with section 6 of the Prescriptions
Act (Cap 13:01), the plaintiffs claim against
the defendant
prescribed prior to the filing and issuance of the writ of summons at
the High Court.

2. Wherefore the
defendant therefore prays that this action be dismissed with costs.”

11. In his reply to
the defendants’ special plea of prescription the plaintiff has
not disputed the time lines as stated above
regarding when the
alleged cause of action arose and when he issued out the statutory
notice and filed his claim with the courts.

12. His defence is
that

(a) After he was
allegedly assaulted by the police, he lodged a report at Selebi
Phikwe Police Station and has been awaiting the
prosecution of those
whom he alleges tortured him. He says the police to whom he reported
have not taken his case seriously so
as to prosecute his alleged
assailants.

(b) He is serving a
prison term and there is a serious lack of or shortage of typing
facilities at prison and it took long for his
papers to be typed.

(c) He had hoped to
engage a lawyer with the help of his family members but he has not
been able to do so.

(d) At the time he
was allegedly assaulted by the second defendant’s servants he
was injured on his right hand, and did not
recover timeously for him
to be able to write out his claim as he was not able to use his left
hand for writing.

(e) He was not aware
of the Prescriptions Act until when the defendants served him with
their defence papers.

13. After having
perused the papers filed by the parties, this Court, with the
agreement of the parties at the additional case management
conference
directed that the special plea raised by the defendants be dealt
with. The reason for this approach is that if the special
plea is
upheld it will be dispositive of this matter. But even if it is not
upheld the future conduct of the matter will be best
managed.

14. The plaintiffs
claim is no doubt a claim for delictual damages.

15. In terms of s.
4(1) of the Prescriptions Act, Cap 13:01 extinctive prescription is
the rendering unenforceable of a right by
the lapse of time.

See also the case of
Wilson Moatshe & Others v. the Attorney- General- MAHLB-000067-07
per Tafa, J.

16. Subsection (2)
(b) (iv) of s. 4 of the Prescriptions Act, supra, is to the effect
that the period of extinctive prescription
for purposes of actions
for damages is three years.

17. Where a party to
an action raises the special plea of extinctive prescription to the
plaintiffs action the onus is on that party
to prove on a balance of
probabilities that, indeed the claim has prescribed.

18. If on the
pleadings, it is possible to determine prima facie the date when the
right of action arose and the date when the plaintiff
(creditor)
issued out process against the defendant (debtor) and the defendant
is able to show on the pleadings that the plaintiffs
claim has
prescribed, the onus to show that either its claim has not prescribed
or that prescription was suspended or interrupted
in terms of s. 8 of
the Prescriptions Act, supra, or some other law, shifts to the
plaintiff. See Masole v Emmanuel [2006] BWHC 19; [2006] 1 BLR 541 (HC) per Chinhengo,
J.

19. In the
circumstances of the present case it is clear ex facie the plaintiffs
particulars of claim annexed to his summons that
the alleged wrongful
act of torture was committed against him between 2nd and 6th November
2006. It is also clear as the defendants
have argued in their special
plea that he instituted proceedings against them in May of 2012.

20. That the
defendants have shown, prima fade that the plaintiffs claim has
prescribed is notoriously clear ex facie the pleadings.
The onus was
now on the plaintiff to show that his claim has not prescribed or
that prescription has been interrupted or suspended.

21. The plaintiff
has argued that he was still awaiting the prosecution of the police
officers who allegedly assaulted him before
he could institute this
action.

22. In my thinking,
this is not a valid excuse. Plaintiff has not stated how the criminal
proceedings he intended be taken against
the police officers who
allegedly assaulted him prevented him from issuing out process of a
civil nature against the defendants.
This ground of delay as relied
upon by the plaintiff is not one recognized by law as suspending the
running of prescription and
it is without merit and it is dismissed.

23. The plaintiff
has argued that he is a serving prisoner and therefore that there is
a shortage of typing facilities at prison.
That may be so, but for a
delay of over five years, the excuse is unmeritorious and it is
dismissed. The same applies to his argument
that he intended engaging
a lawyer. The plaintiff has himself drafted his papers in this
matter. He has not been able to demonstrate
that the absence of a
lawyer did in any way impede him from instituting proceedings against
the defendants timeously. His argument
is without merit and is liable
to be dismissed.

24. The plaintiff
has argued that his right hand was injured rendering him unable to
draft his papers. There is no allegation or
even evidence that the
plaintiff was hospitalized or any medical evidence filed by himself
that his right hand was so immobilized
as to render him incapable of
drafting his papers on time, let alone to wait until after the expiry
of a period in excess of five
years.

25. I think the
truth about the plaintiffs delay in instituting proceedings lies in
his argument that he was not aware of the Prescriptions
Act and its
provisions until after he was served with the special plea by the
defendants. For his part he has conceded that ignorance
of the law is
no excuse or that it does not offer him a defence.

26. In the
circumstances, and for the reasons stated above, I find that
plaintiffs claim is prescribed and the defendants’
special plea
of prescription must succeed.

DELIVERED IN OPEN
COURT ON FRIDAY 8 MARCH 2013.

G. G. KETLOGETSWE
JUDGE

Plaintiff in
person

Attorney-General
– Legal practitioner for the defendants

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