Mukoko pushes Mutasa over the cliff

DEMOCRACY activist Jestina Mukoko yesterday scored a major victory against the government after Harare High Court judge, Justice Nyaradzo Munangati-Manongwa, dismissed an application by the State seeking to shield senior officials from paying compensation.

Mukoko was held incommunicado for weeks after being abducted in December 2008 and is suing former State Security minister and now opposition leader Didymus Mutasa, War Veterans ministry secretary Brigadier-General Asher Walter Tapfumaneyi and one Chief Superintendent Peter Magwenzi.

The State had made a desperate bid to shield the three from being sued in their personal capacities and to be ordered to pay Mukoko compensation.

Mutasa, Tapfumaneyi and Magwenzi had objected to being sued in their personal capacities, arguing that they acted as State agents in their official capacities.

However, Mukoko's lawyer, Beatrice Mtetwa, a member of the Zimbabwe Lawyers for Human Rights, dismissed their assertions, arguing no one was employed in his or her official capacity to commit abductions and torture.

"No explanation has been given as to why the applicants (Mutasa, Tapfumaneyi and Magwenzi) have not themselves deposed to the founding affidavit, particularly as the issue raised involves each applicant being able to say that their actions were in their official capacities," she said.

Mtetwa further argued that the Attorney-General (AG) could not be allowed to make averments on behalf of the three regarding the capacities in which they acted when the acts complained of were committed.

"It is respectfully submitted that the peculiar circumstances of this case, where the plaintiff's rights were violated by senior officials acting in clear common purpose in violation of the law, ought to be discouraged by ensuring that each individual participant in the unlawful enterprise bears personal responsibility for his actions," she added.

After the abduction and torture, Mukoko, in 2009, filed a $220 000 lawsuit against Mutasa, who at the time of her abduction served as State Security, Lands and Land Reform minister, Tapfumaneyi, Magwenzi, Defence minister Sydney Sekeramayi, Commissioner-General of Police Augustine Chihuri and the AG.

In their application, the AG, through Ephraim Mukucha, said: "I later realised that it is not proper for the purposes of Section 4 of the State Liabilities Act not to challenge the citation of fifth, seventh and eighth defendants (Mutasa, Tapfumaneyi and Magwenzi) in the personal capacities for things done or omitted to be done while within the course and scope of their official duties."

"The purpose of this application is, therefore, to seek an amendment of a plea which was filed on behalf of the applicant. I respectfully submit that the nature of the amendment sought by the applicants herein will not in any way prejudice the respondent in that the raising of a point in limine (from the outset) to challenge imputation of personal liability on the fifth, seventh and eighth defendants on what happened to the respondent (Mukoko) will not stop her from claiming damages against them in their official capacities since she had already done that."

However, in her response, Mtetwa argued such an amendment would have a ripple effect on her client's matter.