KUDYA J: The plaintiff
issued summons against the defendants seeking damages in local
currency arising from an assault perpetrated against her by members
of the police riot squad during disturbances that occurred in
Budiriro on 24 March 2002.
At the commencement of trial I granted with the defendants' consent
the amendment to the claim in the sum of US$4,368-00.
The plaintiff holds the defendants vicariously liable for the delict
committed by one of their employees. The defendants deny all
liability.
The plaintiff and her daughter Theresa Mukumba testified on what
transpired on the day in question.
She was a member of the Movement for Democratic Change and was in her
house. At around 6pm she requested her son who was in grade 6 at the
time to latch the metal sliding gate to her residence. A stick of six
policemen in full riot gear forced their way into the premises and
house. They were dressed in blue combat trousers, grey shirts and
helmets with visors. They wielded baton sticks. The police threw tear
smoke canisters on her verandah. The smoke filtered into the house
causing her eyes to tear and her nose to run. She was pushed aside
and one of them proceeded to her bedroom where her 82 year old
invalid mother was being fed by Kundai, one of her daughters. She
cried as she recounted the senseless assault on her bed-ridden
mother. Kundai was taken outside the house to the garden where she
was beaten up. She followed behind asking the policeman why he was
doing so. Other policemen were simultaneously taking out other
members of her family like Theresa and her husband and some tenants
who lived at the premises to the garden and beating them up. One
policeman clapped her on both her ears ten times with both his hands.
A baton stick was used to beat her on the shoulders. The assaults
left her ears ringing and her head and body in excruciating pain.
She was ferried by an ambulance to a house in the Avenues in the city
centre for three consecutive days where she was treated by Dr.
Frances Lovemore. The medical report, exh 1, showed that she
complained of a headache, deafness and ringing in both ears; painful
shoulders and generalized body pain. On examination the doctor found
tenderness on her upper back. She did not observe any visible
injuries. She treated her with simple pain-killers. She could not
ascertain the number of blows delivered or the extent of the force
used and concluded that there was no possibility of permanent injury.
Theresa confirmed the plaintiff's testimony on how the police
forced their way into the premises and house and how they used brutal
force to indiscriminately assault all the people who were in the
premises. While she agreed with her mother that a tear smoke canister
was fired in the premises, she differed with her on when this was
done. Her mother said it was done when the police initial entered the
premises but she said it was done as they were leaving in a bid to
smoke out rioters they suspected were hiding in the avocado trees
that abound on the premises.
Mr Gutu,
for the defendants, contended that both witnesses' evidence was
inconsistent with the declaration, their respective summaries of
evidence and with each other. In both their evidence in court, the
two witnesses omitted to mention as they had in their plea and
summaries that the policemen carried guns.
Assistant Inspector Edmore Chirume, who was the sole witness for the
defendants, stated that members of the riot squad who attended the
Budiriro political disturbances carried amongst other equipment and
weaponry riot guns and AK 47s.
In her testimony, the plaintiff stated that tear smoke canisters were
thrown on her verandah while Theresa described the short booming
sound made by a tear smoke gun before tear smoke started filtering
into the house. In my view therefore, there was no real discrepancy
between the declaration and their summaries of evidence on the one
hand and their evidence in chief on the other. The second attack was
that the plaintiff in her summary of evidence stated that the door to
the main house was broken down while in her evidence in chief she
averred that it was the door on the sliding gate that was broken
down. Again, the discrepancy was not a material one. A door was
broken down as the police forced their way into her premises. The
last discrepancy was the averment by the plaintiff that tear smoke
was thrown as soon as the police arrived at the premises which
contradicted Theresa's version that it was thrown as a parting
shot. I did not find this discrepancy material. The fact of the
matter was that tear smoke was used at the premises in question. The
after effects of the tear smoke that were described by the
defendants' witness were experienced by the plaintiff.
I found the plaintiff and her witness credible witnesses who related
what transpired at their home on the day in question. They had no
reason to mislead the court. They did not exaggerate the events.
At the time they did not believe they could seek compensation for
what had happened, which they ascribed to misfortune. She filed the
present claim at the instigation of a local human rights
organization. The probabilities confirm their testimony.
The police were in the vicinity at that time dispersing rowdy youths
affiliated to the Movement for Democratic Change who were stoning a
house in the neighbourhood and hurling insults at them. They gave
chase to these youths. It accords with the probabilities that in
giving chase these policemen mistakenly believed that the youths had
sought refuge on her premises.
The defendants led evidence from Assistant Inspector Edmore Chirume
who was a sergeant at the time. He took part with 19 other members of
the riot squad in quelling the riotous behaviour of some rowdy youths
affiliated to the Movement for Democratic who were stoning a house in
Budiriro 2. He confirmed that the incident took place about the same
time that the plaintiff was assaulted by men in riot gear. He stated
that some of his colleagues gave chase to the youths. He alleged that
the breaking of the riot took about 5 minutes. He denied that any
members from his company entered the plaintiff's premises and
caused the mayhem described by the plaintiff.
He was not a credible witness. He was guarded in his responses. He
was visibly unease in the witness box. He deferred most of the
questions that were asked to his section commander who was not called
to testify. His evidence on how the riot was broken lacked candor.
He stated that his troop
patrolled the area until midnight. Mr Gutu
conceded that his estimation of the time it took to break the riot,
chase the youths and regroup was an exaggeration. The inescapable
conclusion being that he gave false testimony in this regard in a bid
to dissociate some of his colleagues from the conduct attributed to
them by the plaintiff.
The first issue referred to trial was whether or not the plaintiff
was assaulted by members of the Zimbabwe Republic Police in the
course and scope of their employment.
Assistant Inspector Chirume admitted that it was unlawful for members
of his squad to enter a private home and mete out instant justice on
law abiding citizens who were minding their own business.
It is clear that the plaintiff took no part in the disturbances. She
could not even at the time pass for a youth. I am satisfied from the
evidence led that the plaintiff was assaulted by members of the riot
squad. I answer the first issue in the plaintiff's favour.
The next issue concerns the
amount of damages due to the plaintiff.
She is bound by her pleadings and cannot be granted the figure of
US$10,000.00 which she sought in her evidence in chief without first
amending her pleadings.
The cases that I was referred to
took place during food riots which rocked Harare in January 1998
resulting in the shooting of the plaintiffs in those cases. These
were Musakidzwa v
Minister of Home Affairs & Anor
2000 (1) ZLR 405 (H);
Mugadza v Minister of Home Affairs & Anor
2001 (2) ZLR 134 (H) and Chirinda
v Minister of Home Affairs & Anor
HH 150/2003. Musakidzwa was awarded general damages in the sum of
$40,000.00 on 29 March 2000; Mugadza was granted general damages in
the sum of $100,000.00 on 22 August 2001 while Chirinda was granted
general damages in the sum of $1.5 million on 17 September 2003.
These cases had far more serious repercussions to the plaintiffs than
the present one.
In Mapuranga
v
Mungate 1997 (1) ZLR
64 (H) at 77D-E MALABA J, as he then was, stated thus on assault:
“Every person's body is however
sacred and inviolable. No other man has a right to meddle with it in
the slightest manner except in the circumstances prescribed by the
law. The person assaulted is entitled to damages even though he
suffered no severe pain or any damage at all other than the insult of
having his bodily integrity interfered with: O'Kelly
v Jamieson 1906 TS
822, Stoffberg v Elliot
1923 CPD 152.”
Mapuranga did not receive serious physical injuries. His forehead was
swollen. He was given pain killer tablets and discharged from
hospital on the same day that he visited it for treatment. He was
awarded damages for assault of $500.00 on 8 January 1997. The
injuries sustained by the plaintiff in the present case were more
serious than those suffered by Mapuranga.
In Terera
v The Minister of Defence
HH21/2007, the plaintiff an elderly woman who was beaten by soldiers
who had been deployed to thwart the Final Push in the security of her
home on 4 June 2003 was awarded $4 million in assault damages on 28
March 2007. She was beaten by rifle butts, baton sticks and booted
feet. She had tell-tale signs of assault on her buttocks and body. In
Mugwagwa v Minister of
Home Affairs & Anor HH183/2004,
the plaintiff was beaten by plain clothes police officers with baton
sticks as he lay on the ground on the buttocks, under the soles of
his feet and groin. He was beaten on his way to the police station
and at the police station until he fell unconscious. Mugwagwa was
awarded damages for pain and suffering in the sum $210,000.00 and
punitive damages in the sum of $90,000.00 on 24 November 2004.
When damages were awarded in
Mapuranga v
Mungate, in January
1997 $10.50
in local currency was equivalent to US1.00. When Musakidzwa
v Minister of Home Affairs & Anor
was decided in 2000 the exchange rate was $38.00 to US$1.00; Mugadza
v Minister of Home Affairs & Anor in
2001 it was $55.00 to US$1.00; Chirinda
v Minister of Home Affairs & Anor
in September 2003 it was $824.00 to US$1.00. When Mugwagwa
v Minister of Home Affairs & Anor was
determined in November 2004 the exchange rate had deteriorated to
$5,730.00 to US$1.00 and by March 2007 when Terera was awarded $4
million the exchange rate should have been $250,000.00 to US1.00 but
stood at $250.00 to US$1.00 after the revaluation of the local
currency by the removal of three zeroes with effect from 1 August
2006 in terms of the Presidential Powers (Temporary Measures)
(Currency Revaluation) Regulations SI 199/2006.
Mapuranga's award was
equivalent to US$50.00; Musakidzwa's was equivalent to US$1,052.00;
Mugadza's to US1,818.00 and Chirinda's
to US$1,820.00.
The cases of Mugwagwa and Terera
are almost comparable to the present matter though the facts have
extensive variations. In United States dollars, the two were awarded
damages equivalent to US$52.00 and US$16.00. I have also considered
the eight criteria suggested in Minister
of Defence & Anor v Jackson 1991
(4) SA 23 (S) at 27E-28A to guide me estimate a fair and just award
of damages. General damages are not a penalty against the wrongdoer
but compensation for the victim. In addition the award must reflect
the state of economic development and current economic conditions in
the country.
I estimate that the damages due to the plaintiff for pain, suffering
and shock to be in the sum of US200.00. It was improper, undesirable
and unlawful for members of the riot squad to invade the residence of
a peaceful and law abiding citizen and fire tear smoke canisters
before indiscriminately assaulting all the occupants at the
plaintiff's residence. Punitive damages in the sum of US$100.00
will go some way towards underscoring the outrageous nature of their
conduct.
Accordingly, there will be an order for the plaintiff against the
defendants jointly and severally, the one paying the other to be
absolved, for:
(a) Payment of the sum of
US$200.00 for pain and suffering.
(b) Payment of the sum of
US$100.00 being punitive damages.
(c) Costs of suit.
Zimbabwe Human Rights NGO Forum, plaintiff's legal
practitioners
Civil Division of the Attorney-General's Office, defendants'
legal practitioners
