Hilary Muza 
THE State is a fictional entity that is represented by various departments be they government, parliament or the judiciary. At the time of writing, the writer foraged through a mountain of statues in search of a legal definition of the word ‘State’ to no avail.
Even the State Liabilities Act [Chapter 8:40] (“the Act”) does not define what the State is. The same goes for the Interpretation Act [Chapter 1:01]. Yet the State in its daily existence, has a close business nexus with various individuals and corporates who supply it with goods and services for its requirements. Government requires its vehicles to be repaired by private vehicle repairs. It sources its stationery and computer hardware from various companies dotted around the country.
As a matter of fact, there are just too many examples to mention of the State-business interactions. As in every business relationship, it so often happens that certain contractual breaches may be committed by the State. Further, huge and small liabilities may also be incurred against suppliers of goods and services. The transacting public must understand that the State or government as a particular example, is not to be treated like any of the ordinary debtors against whom you can just wake up and issue out court process to recover your dues.
The Act exists to cushion the State against a barrage of civil attacks from the transacting public.
In my introduction above, I raised query with the fact that there is no clear definition of what the State is under our law, but however, a perusal of the Act appear to suggest that what it refers to as the State are government ministers and various departments falling under them. Crucially, this law recognises that the State is a legal entity that can sue and be sued for any cause of action like any priDoing business with the State Legal Matters with VOTE MUZA vate individual. Such causes of action would have arisen as a result of acts of commission or omission by officers or employees of the State as the case may be.
When intending to sue a ministry or department of a ministry, the Minister responsible is supposed to be made the nominal defendant. If such a ministry or department has been assigned to the Vice-President (VP), then the VP may be the nominal defendant or respondent. It is anomalous therefore to cite, say “the Ministry of Defence” or “Presidential Guard” or even “32 Infantry Battalion”, as a defendant or respondent. What one has to simply do when issuing out court process, is to cite the relevant minister. For procedural convenience, particularly in cases involving the police, the police commissioner and an officer in charge of a police station may also be cited together with the responsible minister. When suing the president, VP, Minister or public official (case in point is the commissioner of Mines), one has to cite such a party by his official title and not by name.
The rationale, as I believe, is to avoid the embarrassment of having to amend your court documents one time or another since government officials, and particularly government ministers, come and go on a regular basis. Where one is claiming for money whether arising out of contract, delict or any other cause of action, or for delivery or release of any goods, it is peremptory to give notice in writing of the intention to sue at least 60 days before the institution of the court proceedings. The written notice must be served on each person against whom the claim is related. It must also set out the grounds of the claim. Where the claim arises out of goods sold and delivered or services rendered, it shall specify the date and place of the sale or rendering of services and shall have attached to it copies of any relevant invoice and requisition where available.
Where the claim is against or in respect of an act or omission of any officer or employee of the State, it shall specify the name, official post, rank or number and place of employment or station of the officer or employee. Certain exemptions are provided in the Act where the giving of written notice may not be necessary and illustrations are where there is a counterclaim against the State or where by order of court, a claim has been declared urgent. In the event of successfully suing the State and obtaining judgment sounding in money, no writ of execution shall be issued out against a nominal defend of the State, such as a government Minister or head of department. Claims against the Reserve Bank of Zimbabwe for example, which falls under the Ministry of Finance, cannot be recovered through a writ of execution.
The same would apply for claims against the Ministry of Home Affairs that has gained notoriety because of various civil right breaches by errant police officers. The Act provides that once a nominal defendant has been served with an order of court compelling him to pay, then he should cause such payment to be paid from the Consolidated Revenue Fund. In practice, many plaintiffs have had a hard time trying to recover from the State due to political arrogance by government officials. It is therefore, important under our present circumstances, to desist from going into dealings that may end up causing one to sue government or a department of the State.
Muza is a Harare-based legal practitioner. He writes in his personal capacity.
