The facts of this matter are aptly captured in two earlier judgments.
The first is a judgment of this court in Nherera v Shah 2015 (2) ZLR 455 (H) which granted absolution from the instance at the conclusion of the plaintiff's case. The second is a judgment of the Supreme Court, on appeal, in Nherera v Shah SC51-19 which allowed the plaintiff's appeal against the grant of absolution from the instance and remitted the matter to this court for continuation of the trial proceedings.
For completeness, and to put the matter in proper perspective, I will summarise those facts as follows:
On 30 November 2011, the plaintiff sued out a summons against the defendant claiming damages of US$100,000 for malicious prosecution and US$300,000 for malicious arrest and detention.
The plaintiff alleged, that, on 21 March 2006, and on several diverse other occasions, the defendant had reported that he had solicited for a bribe in order to facilitate the purchase of certain buses from Gift Investments (Pvt) Ltd, a company in which the defendant had an interest, by Zimbabwe United Passengers Company (“ZUPCO”), another company in which the plaintiff was the chairperson of the Board of Directors.
The plaintiff alleged, that, when making the report, the defendant knew that it was false and malicious. All he intended to do was to coerce the plaintiff and Zimbabwe United Passengers Company (ZUPCO) to purchase his company's buses without following proper tender procedures.
The plaintiff averred, that, as a result of the defendant's report, he was arrested, prosecuted for contravening a provision of the Prevention of Corruption Act [Chapter 9:16] (now repealed), and sentenced to three (3) years imprisonment of which one year imprisonment was suspended on condition of future good behaviour.
It was further alleged by the plaintiff, that, on 19 November 2009, this court quashed the conviction on appeal and set aside the sentence.
By procuring his arrest, prosecution, and imprisonment, so the plaintiff alleged, the defendant maliciously caused him injury to his reputation, dignity, and liberty thereby entitling him to damages aforesaid.
In contesting the claim, the defendant denied instigating the plaintiff's arrest, prosecution, and detention.
He however admitted placing information that he held before a police officer in good faith, in the honest and bona fide belief that the plaintiff had solicited for a bribe. The act of conveying that information, so the defendant pleaded, was neither wrongful nor as result of a subjective malicious intent to injure the plaintiff.
According to the defendant, the decision to arrest was that of the police, upon a consideration of all the relevant information, and the formulation of a reasonable suspicion that the plaintiff had committed a criminal offence. The decision to prosecute was that of the Attorney General of Zimbabwe (now the Prosecutor General), in the exercise of a Constitutional mandate, and upon consideration of all relevant facts.
The defendant further averred, that, the decision to imprison the plaintiff was that of the trial magistrate, upon consideration of all the evidence placed before her and in the discharge of her lawful mandate.
He insisted that the information conveyed to the police was true and was conveyed in good faith in the discharge of a subject's obligation to adhere to the laws of Zimbabwe.
The defendant admitted in his plea, at paragraph 5.1 thereof, that he “reported to the police” that the plaintiff had solicited for a bribe as alleged. He asserted that he did no more than place a report before the police who were not obligated to arrest the plaintiff upon the making of such report. The police could only do so upon formulating a reasonable suspicion that an offence had been committed.
Regarding the quashing of the conviction, the defendant denied that it meant that the allegations he made were false or that the plaintiff had not solicited for a bribe, or that the report he made was malicious.
The issues for trial, as determined by the parties at a pre-trial conference held before a judge and set out in the joint pre-trial conference minute they signed, are as follows:
1. Whether the report to the police was the cause of the plaintiff's arrest, prosecution, and detention.
2. Whether the said report was made in good faith or whether it was false and malicious.
3. Whether the prosecution failed.
4. What damages, if any, were suffered by the plaintiff as a result.
Only two witnesses testified during the trial. The plaintiff stood against the defendant, with each of them testifying against the other.
THE PLAINTIFF'S EVIDENCE
The evidence of the plaintiff, in support of the claim, is set out in detail in both the judgment of this court given upon an application for absolution from the instance at the close of the plaintiff's case, and in the Supreme Court judgment.
No useful purpose would be served by repeating that evidence in this judgment.
It should suffice to state, that, the plaintiff denied having solicited for a bribe from the defendant at all. He denied holding a meeting with the defendant at Kensington Shopping Centre at which he was allegedly recorded by the defendant demanding a bribe.
It was the plaintiff's testimony that Zimbabwe United Passengers Company (ZUPCO) could not purchase buses without going through tender procedures and without the approval of the Tender Board.
The defendant made false accusations against him, and went to the extent of fabricating a recording which he played to various individuals and institutions in order to cause his arrest and imprisonment.
The defendant did so after he, as the chairperson of the Zimbabwe United Passengers Company (ZUPCO) Board and other Board members, had steadfastly refused to bend to the defendant's demands to purchase his buses, which had already been painted with ZUPCO colours, without following procedure.
In the plaintiff's view, the defendant was intent on causing his arrest and imprisonment in order to get him out of the way. Without him, the defendant would clandestinely sell the buses to Zimbabwe United Passengers Company (ZUPCO) - as he later did after the plaintiff's imprisonment.
The plaintiff insisted that it was the defendant's report which instigated his arrest.
The fact that the defendant was also picked up by the police at some point was of no moment, especially as he subsequently solicited for, and obtained immunity from prosecution, and proceeded to testify against the plaintiff during his criminal trial at the Magistrates Court.
According to the plaintiff, it is not true that the defendant had been a reluctant witness at the criminal trial.
In fact, according to the plaintiff, his criminal trial commenced on 2 May 2006 with the defendant promptly taking the witness's stand to testify against him. He did so before the then Attorney General gave him immunity, and before he deposed to his lengthy witness's statement on 27 July 2006.
The plaintiff stated that he was convicted by the Magistrates Court and sentenced to three (3) years imprisonment of which one (1) year imprisonment was suspended on condition of future good behaviour. Following sentence, he was incarcerated at Harare Central Prison for a period of 1 year. The conditions at that prison were appalling. The diet was bad, the cells were bad, and the ablution facilities dehumanising.
After his stint at Harare Central Prison, the plaintiff said he was transferred to Connemara Prison in Midlands. The conditions at that prison were much better as he could even visit his family once a week.
He said he remained there until he was released in February 2008, having been given a remission of part of his effective two (2) year prison term. All in all, he served an effective sixteen (16) months imprisonment.
The plaintiff stated, that, he is a Professor of Education and currently the Pro-Vice Chancellor of Women University in Africa. He submitted his curriculum vitae detailing his professional activities. He was the founding Vice Chancellor of Chinhoyi University of Technology reporting, inter alia, to the President of Zimbabwe in his capacity as Chancellor of the University.
He stated that in that position he collaborated with other Universities, both local and abroad. He had a string of international relations with other universities, like the University of Colombo and the University of Shexiang in China, where he did collaborative research.
He had benefits that accrued to him, like a ministerial car (mercedes benz), entertainment, housing, security, fuel, and cell phone allowances as well as educational benefits for his children and wife. He enjoyed annual holiday within the region with his wife.
The plaintiff added that he is married with two children, a daughter and a son. At the time of his incarceration, his daughter had just started first year tuition at the University of Cape Town while the son was doing Form 3 at Gateway High School in Harare where his wife was a teacher.
When he was imprisoned, apart from the embarrassing treatment he was subjected to, including being stripped of the suit he had been wearing and being given tattered prison garb, he lost his job and its attendant benefits. His professional development “moved backwards”. He lost his research networks and consultancies including his chairmanship of Zimbabwe United Passengers Company (ZUPCO).
The plaintiff did not particularise his claim for damages beyond what I have stated above. He did not set out how he arrived at the figure of US$100,000 for malicious prosecution and US$300,000 for malicious arrest and detention as delictual damages.
THE DEFENDANT'S EVIDENCE
In his oral evidence in court, the defendant stuck to his defence as set out in his plea, with quite some difficulties, especially during cross examination. He adopted his plea as part of his evidence on oath.
He also adopted his testimony in the criminal proceedings as part of his evidence on oath before this court.
Apart from that, the defendant also adopted his witness affidavit deposed to on 27 July 2006 as part of his evidence before this court.
The essence of the defendant's evidence is that he did not make a report to the police about the plaintiff having solicited for a bribe.
This is at variance with the contents of his plea.
According to the defendant, he had approached the then Minister of Local Government, Dr Chombo, the then Governor of the Reserve Bank, Dr Gono, the then Minister of State Security, Goche, and some Central Intelligence Officers and confided in them that the plaintiff had demanded from him a US$5,000 bribe per bus for Zimbabwe United Passengers Company (ZUPCO) to flight a tender for the purchase of buses.
The defendant stated, that, he had attended a meeting on 28 January 2005 at Minister Chombo's office at which the plaintiff had been in attendance. After the meeting, the plaintiff had directed him to follow him to Kensington Shopping Centre. Upon meeting the plaintiff at that Vali's Coffee Shop, the plaintiff repeated a solitation he had made previously, namely, that the defendant should pay US$5,000 per bus to him for the supply of 80 buses to Zimbabwe United Passengers Company (ZUPCO). This was a condition the plaintiff imposed for ZUPCO to flight a tender for the supply of the buses.
The defendant stated, that, he recorded the conversation on his cell phone. The recording was later given to the police, but, not before he had played it to Minister Chombo and other officials, including the Zimbabwe United Passengers Company (ZUPCO) Board at a meeting convened by Minister Chombo on 21 March 2005.
Although he had pleaded that he had placed information to the police and indeed reported to the police that the plaintiff had solicited for a bribe from him, the defendant stated, in his viva voce evidence, that he did not do so.
Instead, riding on the evidence he had given at the criminal trial of the plaintiff, the defendant stated, that, around 10 April 2005, the police had picked him up and taken him to the police station for purposes of charging him with corruption. It was during interrogation by the police, who beat him up and tortured him in the process, that he disclosed to them that the plaintiff had solicited for a bribe in 2003 as a result of which he paid him and Bright Matonga a total of $20,000 to renew a lease Gift Investments (Pvt) Ltd had.
After his release, he left the country and was not prepared to return because of the manner of the police had treated him.
It was only a year later that Gula Ndebele, then the Attorney General, started calling him entreating him to return to the country to assist with the case involving, inter alia, the plaintiff.
For him to do so, he demanded assurance that he would not be subjected to further abuse at the hands of the police. He later demanded full immunity from prosecution and would not settle for anything less than the immunity granted by the Attorney-General himself.
The one given by Superintendent Magwenzi, in a letter dated 24 April 2006, was, according to the defendant, not enough.
I mentioned, in passing, though, that, when he testified at the criminal trial, on 2 May 2006, the only immunity letter given to him was that of Superintendent Magwenzi. The one given by Attorney General Gula Ndebele was only written on 20 July 2006, just a few days before the defendant submitted his lengthy witness statement. He said that statement was for the purpose of prosecuting others, including Minister Chombo and Bright Matonga.
The defendant insisted, that, in 2005, the plaintiff again solicited for a bribe from him.
This time, as already stated, he wanted to be paid $5,000 for each bus Zimbabwe United Passengers Company (ZUPCO) was to purchase from the defendant's company.
Although he did not pay the bribe, this is the information he disclosed to the authorities leading to the plaintiff's arrest.
According to the defendant, the case involving the bribe of US$20,000 for the renewal of the Gift Investments (Pvt) Ltd lease with Zimbabwe United Passengers Company (ZUPCO) has come before this court. It was the finding of TSANGA J, who presided over that case, which finding was upheld by the Supreme Court on appeal, that the defendant had been involved in a corrupt relationship with the plaintiff and Bright Matonga.
He has accepted that finding.
As to whether the prosecution of the plaintiff failed, the defendant stated that it did not.
According to him, the involvement of Johannes Tomana, who had been a Board member and legal advisor of Zimbabwe United Passengers Company (ZUPCO) at the material time, the legal practitioner of the plaintiff when he instituted a defamation claim against the defendant in 2006, and an active defence witness at the plaintiff's criminal trial, meant that the concession made by the State was tainted.
The State, which in 2009, when it conceded the plaintiff's appeal against conviction and sentence was led by Johannes Tomana, deliberately compromised the case in favour of the plaintiff.
Issues for Determination
I have already outlined the issues that were placed before this court for determination at the trial.
The determination of those issues has now been affected by the judgment of the Supreme Court which has made quite pointed findings which are binding on this court by virtue of the doctrine of stare decisis.
This court is therefore restricted by those findings to the extent that most of the issues have now been determined. What remains to be determined now is very narrow indeed.
I now proceed to examine the issues on turn.
Whether the defendant's report to the police was the cause of the plaintiff's arrest, prosecution, and detention
It is common cause that the plaintiff was arrested, prosecuted, and imprisoned following accusations of soliciting for a bribe levelled against him by the defendant. In response to the plaintiff's claim, the defendant filed a plea in which he made unequivocal admissions.
(i) Firstly, the defendant admitted placing information before a police officer that the plaintiff had solicited for a bribe. His defence was that his act of conveying that information to the police was not wrongful and not malicious.
(ii) Secondly, the defendant specifically pleaded another admission in paragraph 5.1 of his plea, namely, that he reported to the police that the plaintiff had solicited for a bribe. His defence, following the admission, was that he had done no more than place a report before the police but the police were under no obligation to act upon the report. The police could only act once a reasonable suspicion that an offence had been committed was formulated.
None of the admissions made by the defendant were withdrawn, neither was there any attempt to amend the plea. More importantly, the defendant did not explain, in his evidence or in his closing address, why what was clearly a confessionary pleading could be contradicted by viva voce evidence given by the same pleader.
The impression created by the defendant is that an admission made in pleadings could be cast away by the presentation of evidence contradicting it.
The law relating to admissions must be taken as settled in this jurisdiction.
A party to civil proceedings may not, without the leave of the court, withdraw an admission made, nor may it lead evidence to contradict any admission the party has made. By the same token, a party cannot be allowed to attempt to disprove admissions it has made.
This is by virtue of section 36 of the Civil Evidence Act [Chapter 8:01] which also makes it unnecessary for any party to civil proceedings to disprove any fact admitted on the record of proceedings. Subsection (4) of section 36 of the Civil Evidence Act also makes it clear that it shall not be competent for any party to civil proceedings to disprove any fact admitted by him on the record of proceedings.
The remarks made by this court in Wamambo v Municipality of Chegutu 2012 (1) ZLR 452 (H)…, are apposite in this regard:
“It is therefore mysterious that the defendant led evidence which had the effect of withdrawing a confessionary pleading without attempting to amend such pleading, and, ultimately, without any leave of the court. No explanation whatsoever was given for doing so. Even if I was inclined to do so, I am unable to exercise the discretion reposed upon me to allow the defendant to withdraw the admission, because, as stated earlier, I have not been requested to do so.
The admissions made by the defendant amount to a confessionary pleading, and, as such, they are taken for granted, making it unnecessary for the plaintiff to prove them: Adler v Elliot 1988 (2) ZKLR 283 (S) at 288C; Copper Trading Co. (Pvt) Ltd v City of Bulawayo 1997 (1) ZLR 134 (S) at 143H-144B and 144G.”
Accordingly, the fact that the defendant placed information before a police officer, and that he made a report that the plaintiff solicited a bribe from him, is taken for granted. The plaintiff did not have to prove that fact. Equally, it was not competent for the defendant to attempt to disprove what was in fact admitted by him on the record of proceedings.
In any event, whatever my views may have been on the admission made would have counted for nothing because the Supreme Court has already made conclusive findings on it. In its judgment, Nherera v Shah SC51-19, the Appeal Court stated:
“[49] In this plea to the appellant's claim before the High Court, whilst denying instigating the plaintiff's arrest, detention, and prosecution, the respondent accepted that he placed information before a police officer in the bona fide belief that the plaintiff had solicited for a bribe. In para 5.1 of his plea, he admitted reporting to the police.
[50] In his evidence before the court a quo, the appellant stated that the respondent had made allegations to all and sundry that he, the appellant, had solicited for a bride. He stated that the respondent made a report not only to senior Government officials but also the Attorney-General's Office and to the police. He further stated, that, the respondent had gone to the extent of manufacturing a tape recording which he alleged contained evidence of the solicitation. He also testified that the respondent had even approached the Reserve Bank Governor and had been given the sum of US$5,000 in order to entrap the appellant.
[51] Contrary to the findings of the court a quo, the respondent himself accepts that he made a report to the police. That plea, weighed against the evidence given by the appellant, prima facie established that the appellant (sic) not only reported the matter to the authorities, but that he involved himself further in attempts to incriminate the appellant.
[52] Going by the cross-examination of the appellant by counsel for the respondent, it is apparent that the respondent's stance is that since he did not personally approach the police to make a report, he could not have procured or instigated the arrest of the appellant.
In my view, that cannot be correct. If a person approached the National Prosecuting Authority alleging corruption on the part of an accused person, and the person so accused is consequently arrested by the police, the former can hardly be heard to state that the arrest was not a consequence of the report he made to the Authority. The arrest would be regarded as being the result of the report made to the Authority.
The fact that the report was made indirectly would, in my view, not alter the fact that the arrest was set in motion by such person. On the basis of the evidence given before it, the court a quo should, in my view, have concluded that the respondent prima facie set in motion the events that led to the arrest of the appellant.”…,.
The foregoing conclusion by the Appeal Court settles the issue completely.
The defendant was therefore required to demonstrate, in his evidence in rebuttal, that the prima facie case found by the Appeal Court could be, and was, rebuttable by his own account.
Yet, the defendant expended a lot of energy and spent all his time repeating the same story, that, even though he reported to high ranking officials that the plaintiff solicited for a bribe, it was not his business that the plaintiff was subsequently arrested.
In his view, because he did not personally approach the police, this exonerated him from wrongdoing.
The defendant is wrong in that regard.
The Supreme Court has said so and the prima facie evidence of the plaintiff mutated to proof of the plaintiff's case on a balance of probabilities.
I conclude, that, the defendant's report, whether to high ranking Government officials or to the police, was the cause of the plaintiff's arrest, his prosecution on a charge of corruption, and his incarceration.
Whether the said report was made in good faith or whether it was false and malicious
Subsumed in this issue for trial is the pertinent question of whether there was reasonable and probable cause for filing a report that the plaintiff had solicited for a bribe.
In a case where no other witnesses, except the antagonists testified, the whole case centres on the plaintiff's word against that of the defendant.
Sight must, however, not be lost of the fact that the onus of proof very well rests on the plaintiff to prove his case, but, the entire case emanates from the defendant's accusations against the plaintiff.
It is the defendant who pointed an accusing finger against the plaintiff that he was a bribe-monger.
It is that accusation that anchored the State case in the criminal prosecution. So, the defendant was also required to establish the solicitation for the prosecution to succeed.
Other than the defendant's word that there was solicitation, which the plaintiff vehemently denied, the only other piece of evidence relied upon as proving it was the audio recording.
The recording was not produced in this court.
Reliance was only placed on its transcript produced at the criminal trial. The transcript presented everyone, including the defendant himself, with some difficulties.
To begin with, its source was shrouded in mystery.
The defendant initially claimed that he had recorded the conversation on his laptop. That is what he told the police. At the criminal trial, he swung round to say he had recorded it using a dictaphone device in his Siemen cellphone.
He was taken to task in cross-examination before this court on the source of that evidence.
I can only say that his prevarication did not paint him in good light.
That is not all.
The recording itself was said to be inaudible by the majority of the witnesses at the criminal trial. Yet, the defendant vouched for the correctness of the transcript of the criminal proceedings when he had the opportunity to present his case before this court.
The Supreme Court was unequivocal in its rejection of the audio recording.
With that rejection also went any semblance of evidence that the plaintiff had solicited for a bribe. The court stated:
“[61] The second issue is whether, prima facie, he had reasonable and probable cause. This is of course, a question of fact. The appellant denied ever soliciting for a bribe and stated that this whole episode was fabricated in order to get him out of the way.
This was a case of one person's word against that of the other.
It was common cause that ZUPCO had not, at that stage, ordered any buses from Gift Investments and that no tender procedures had been followed.
The tape recording did not incriminate the appellant. It was largely inaudible. Other than the respondent's mere say so, there is no other evidence which suggests that the appellant may indeed have attempted to solicit for a bribe.
It was the appellant's testimony, that, the respondent was desperate to offload, onto ZUPCO, a number of buses which were already painted in ZUPCO colours, even though no Tender Board approval had been sought or granted; prima facie, therefore, on the basis of the evidence given by the appellant a quo, there was no reasonable or probable cause for the arrest and prosecution of the appellant. This was not an issue that could be determined in favour of the respondent at the stage of absolution and required that the respondent, as defendant, be put on his defence.”
The defendant, indeed, had an opportunity to rebut the plaintiff's case when he was put to his defence.
His evidence in this regard was entirely unhelpful to his cause. He did not improve on his inaudible audio recording.
Apart from that, he was an extremely poor witness whose testimony was thrown into disarray even before he was cross-examined.
In the end, I was left in no doubt that the defendant possessed no evidence, whatsoever, other than his own word, that the plaintiff solicited for a bribe.
This being a case to be determined on a preponderance of probabilities, I cannot help but conclude that the probabilities weigh heavily against the defendant.
What business person imports into the country buses already painted in a potential buyer's colours before the latter has even flighted a tender for those buses?
Apart from that, so desperate was he to have the tender flighted (as if it was guaranteed he would win it), that he did not hesitate pressurising the Minister to fire the plaintiff for not authorising the tender.
This is a person who was already leasing space right at the potential buyer's premises to warehouse the same buses.
It occurs to me, that, the probabilities are that, at that stage, the defendant would have done anything to offload the buses - including fabricating the story of the bribe.
I come to the conclusion, that, the defendant has done nothing in his testimony to disgorge the prima facie case found to having been established by the plaintiff on appeal. Therefore, that case has become proof of the absence of reasonable and probable cause for the arrest of the plaintiff.
In our law, the existence of malice is inferred from the absence of reasonable and probable cause for prosecuting the plaintiff.
I have no hesitation in finding, that, the defendant did not lodge a report against the plaintiff in good faith. Quite to the contrary, the report was not only false it was also malicious. He set about to abuse the legal process maliciously and without reasonable and probable cause for bringing criminal proceedings against the plaintiff.
Whether the prosecution failed
In my view, following the pronouncement of the Supreme Court, on appeal against the grant of absolution from the instance at the close of the plaintiff's case, this is no longer a live issue for determination at this trial.
I say so because there was nothing really that the defendant could do in his evidence to respond to the Appeal Court's finding that the plaintiff's prosecution failed.
To that extent, no amount of evidence led by the defendant before this court could upset the definitive finding, that, the common cause facts established the final requirement for a successful claim for malicious arrest, prosecution, and detention that the prosecution instigated by the defendant failed.
The Supreme Court found that the order granted by two judges of this court, on 19 November 2009, allowing the plaintiff's appeal against both conviction and sentence “fully and finally” quashed the conviction and sentence of the plaintiff.
The Appeal Court concluded:
“[63] Finally, that the prosecution failed is not in doubt. The Attorney-General's Office gave detailed reasons why it did not support the conviction, consequent upon which both conviction and sentence were set aside.”
The pronouncement by the Supreme Court, that the prosecution failed, is binding on this court, it being final and definitive in respect of that issue. The issue has therefore been resolved.
When the defendant went on and on in his evidence about how the involvement of Johannes Tomana had polluted the resolution of the appeal, he was engaged in an exercise in futility, the issue having ceased to be alive one....,.
This court has also found, that, there was no reasonable and probable cause for the arrest of the plaintiff.
Accordingly, the report made by the defendant could not have been made in good faith and it was false. As a result, the existence of malice, on the defendant's part, is inferred from the absence of reasonable and probable cause by operation of law.
The failure of the prosecution triggered by the defendant's report, has been finally and definitively determined on appeal.
What all this means is that the requirements grounding delictional damages have been satisfied.
The liability of the defendant is proved.
As a corollary to that, the plaintiff is entitled to damages for the delict committed against him.
What remains to be determined is the quantum of those damages.
