By Bahle Gama
The High Court of Eswatini has dismissed an application by a man who alleges he was unlawfully shot by police officers in 2020.
Bonginkhosi Hlatshwako demanded the state pay him E1.5 million on the grounds that on December 22, 2020, members of the Royal Eswatini Police Service (REPS) who were acting within the scope of their employment unlawfully shot him while he was at Sigangeni.
He told the court that police officers fired three shots, two targeted his left leg whilst the third shot his head. He sustained an injury that caused him to walk with the aid of crutches, and his life has since been lessened by the shots.
According to a judgment issued on Thursday morning, before making the demand of the aforementioned amount, Hlatshwako applied for condonation and leave to serve a letter of demand to the Attorney General (AG), which was granted by Judge Qinisile Mabuza at the time.
Having served the letter of demand he then instituted another application, the government raised a special plea of prescription pointing out that the summons was served on July 4, 2024, and prayed for the dismissal of the action with costs.
According to the court, the issue was not whether the cause of action was prescribed per se, but the condonation being granted and the order giving Hlatshwako the right to file a letter of demand was extended to the right to institute legal proceedings.
Hlatshwako strongly urged the court to consider that inherent in the order in his favour to serve a letter of demand for the cause of action was the right to institute legal proceedings.
In advancing arguments in support of the proposition, Hlatshwako referred the court to Section 4 (1) under the Limitation of Legal Proceedings Against the Government Act 1972 which states that “the High Court may, on application by a person debarred under Section 2 (1) (a) from instituting proceedings against the government, grant special leave to him to institute such proceedings if it is satisfied of three major reasons.”
He further raised another point that the cause of action was still in process in that he had not healed from the injury sustained.
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According to the court, the government failed to abate it and therefore the date of the cause of action could not be ascertained, which means it cannot be said that the cause of action was prescribed.
However, Hlatshwako did not argue this point during the hearing, and the court assumed that it was abandoned.
“If not, it stands to be dismissed in that the plaintiff (Hlatshwako) acknowledges that he was out of time when he applied for condonation and an order granting him leave to file a demand. He acknowledged that he had served the letter of demand late,” the court said.
Further from the line of argument, on the first point raised by Hlatshwako, it was not an issue that the summons were filed out of time, mainly two years after the date it was due.
He also sought the court to draw a line of demarcation between a letter of demand and court proceedings in terms of Section 2 (1) of the Act.
The court stated that a letter of demand does not form part of a court process or proceedings, a view by legislators that resonates with the common law principle of what constitutes legal proceedings.
“Legal proceedings are formed by pleadings. A letter of demand, just like heads of argument does not form part of the pleadings in court.
They may both be demanded by the court, but they are certainly not pleadings,” said the court.
A letter of demand according to the court is provided by common law while heads of arguments are under a directive by the Chief Justice.
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From the overview, the court noted that Hlatshwako instituting summons, founded legal proceedings.
According to the court, the short of it is that Hlatshwako was late by two years when he instituted legal proceedings using summons upon the government.
The court clarified that the leave granted to Hlatshwako could not extend to the leave to institute legal proceedings.
It was only left to serve a letter of demand and certainly not to institute summons.
“The court is therefore without powers to extend the period of instituting legal proceedings out of two years as it were.
The cloth the court with such jurisdiction would be to defeat the intention of the legislature,”
The court dismissed Hlatshwako’s cause of action on grounds that it had prescribed, further upholding the government’s special plea of prescription.