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UNREST LAWSUITS: LATE FILING GRANTED FOR 7

24/10/2023 11:12:00 Kwanele Dlamini

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MBABANE – Seven of the people who were allegedly shot during the unrest in 2021 and wanted to sue, but filed letters of demand late, were granted permission to do so on Friday.

The applicants told the court that they were not aware of the stipulated period within which to serve the letters of demand. Some of them told the court that they were still receiving treatment and were unable to serve the letters of demand timeously. The granting of their applications to be pardoned for late filing of their letters of demand with government, in terms of Section 2(1) of the Limitation of Legal Proceedings Against Government Act, 1972, means that they can go on and sue government.

letters

On Friday, 10 applications to be allowed to proceed to sue despite the late filing of the letters of demand were heard by Judge Zonke Magagula. Seven of them were granted by consent. Each applicant filed his or her application separately. The applicants were all represented by Human Rights Lawyer Sibusiso Nhlabatsi. The applicants, whose applications were granted were Vusi Mamba, Mzwandile Dlamini, Sanele Mkhabela, Lungelo Sihlongonyane, Sandile Simelane, Sam Sithole and Zwelithini Vilakati. One of the 10 applications, filed by Mncedisi Gumedze, was removed from the roll and it is to take its normal course while two others, by Nombuyiselo Sukati and Ciniso Nkambule, remain opposed.

In her particulars of claim, Sukati alleged in her papers that on June 29, 2021, in Matsapha, she was allegedly shot in the back and her right leg by the police. She said she was rushed to the Raleigh Fitkin Memorial (RFM) Hospital in Manzini where she was treated and discharged days later ‘as they stated that they could not remove the bullet from her body’. Sukati, who intends to sue government for E1 million, told the court that the bullet was still lodged in her body. “The shooting of the plaintiff (Sukati) by members of the Royal Eswatini Police Service was unlawful and it was a threat to her right to life as guaranteed in Section 15 of the Constitution and her right to dignity as guaranteed under Section 18 of the Constitution was undermined. “The conduct of the first respondent (Government of Eswatini) was in breach not only of the Police Act, but fundamentally, a breach of Section 14(2) of the Constitution in that they behaved in a manner that failed to respect their obligations under the Bill of Rights,” submitted Sukati. She argued that the police were acting within the course and scope of their duty as police officers.

In government’s answering papers, Lydia Dlamini, who is a Senior Deputy National Commissioner of Police said the application was time barred as the period that had lapsed was more than 24 months from the day on which the cause of action arose. Sukati, according to the deputy national commissioner, had allegedly failed/neglected to read Section 2(1) (c) of the Limitation of Legal Proceedings Against Government Act 21 of 1972. She said Section 4(1) only speaks to Section 2(1) (a) and not Section 2(1) (c). Dlamini denied that the court should condone the late filing of the claim against government. She said Sukati had admitted that the cause of action had been overtaken by the time limits.

Factory

“I deny that the plaintiff was shot twice for no reason. The applicant was among a mob that attempted to loot Yama Hashua Factory in Matsapha. The applicant tried to flee upon realising that Eswatini Umbutfo Defence Force members had entered the factory. In her possession were a blanket and a bed mattress. The applicant sustained injuries during the skirmish, and she was taken to hospital, where she was treated and discharged. She was subsequently charged for housebreaking with other suspects. The applicant is currently out on bail,” said Dlamini.
“I deny that the application has any basis at all. This application is time barred as stated in our points of law. I deny that the right guaranteed under Section 18 of the Kingdom of Eswatini Constitution only applies to the applicant, but it also extends to the shop owner who experienced degrading treatment during the raid. Section 15 (4) of the Constitution states that the use of force can be used when it is reasonably justifiable and proportionate. I submit that it was justified in casu. I deny that our conduct was in breach of the Police Act and Section 14 (2) of the Constitution.”

If the numerous other claims against government will see the light of day, the State would contend with combined lawsuits in the region of E50 million. At the end of 2022, there were about 12 claimants who were demanding a total of E26 million and their matters are still pending at the High Court. This year, the High Court initially received more than 20 claims and more others were filed. Most of the applicants were seeking condonation for not filing letters of demand timeously. Among the claimant was the chairperson of the Swaziland Victim and Survivors Association (SWAVISA), Bongani Madzabudzabu Kunene, who is demanding E1 million from government. The claimants are demanding varying amounts, which ranges from E1 million to E4 million. In the litany of applications they each alleged that they were unlawfully shot by members of the Royal Eswatini Police Service (REPS) and those from Umbutfo Eswatini Defence Force (UEDF) during the unrest.

A number of the claimants were represented by lawyers from the late Human Rights Lawyer Thulani Maseko’s law firm, T.R. Maseko Attorneys. Most of those who are now seeking condonation for late filing, alleged that they were still nursing injuries, hence the delay in filing their letters of demand. They have now jointly approached the High Court for condonation and if the court grants them leave to file their demands, the amount claimed could be even higher. In their application, they are among other prayers, seeking an order condoning the non-service of a letter of demand upon the attorney general (AG), within the period of 90 days. It is further their plea to the court that they should be granted leave to institute legal proceedings notwithstanding the provisions of the Limitation of Legal Proceedings Against the Government Act No.2 of 1972.