MAKONESE J:
The plaintiff filed a claim in this Honourable court seeking the
following relief :-
''(a)
Payment in the sum of R2 450 000 due for damages for detention of plaintiff by
South African Authorities for 98 days as a result of defendant having stolen
money from his employer, deposited it with a bank account of a company jointly
owned by the parties, i.e Masiqhame Trading 1356 CC and withdrawing the said
money for his own use without the knowledge of the plaintiff. The
defendant, by his actions, procured the arrest, charging and subsequent
detention, for fraud of the plaintiff and the defendant's actions in so doing
were wrongful and plaintiff suffered damages of R25 000 per day for the 98
days. Despite demand, the Defendant has refused to pay.
Or Alternatively
(b)
Payment in the sum of R2 450 000 being damages arising out of plaintiff's
detention by South African authorities for fraud arising out of Defendant's
breach of trust and duty of core bestowed on him and / or which he owed the
plaintiff in using the bank account of the parties' South African company called
Masiqhame Trading 1356 CC (Registration 2008/102749/23). The defendant,
during plaintiff's absence, without his knowledge and in breach of the said
trust in appropriately or allegedly stole money from his employer and deposited
it into Masiqhame Trading's bank account and withdrew it thereafter, for his
own use before fleeing to Zimbabwe. Despite demand the defendant has
refused to pay.
Or Alternatively
(c)
Payment in the sum of R2 450 000 due in respect of damages for embarrassment,
trauma and humiliation suffered by the plaintiff for 98 days when he was
arrested, charged and detained by South African authorities as a result of
Defendant's alleged criminal activities where it is alleged that he, without
the plaintiff's knowledge, stole money from his employers, deposited it into a
bank account of Masiqhame Trading, the parties' Closed Corporation and
thereafter withdrew it for his own use before fleeing from South Africa to
Zimbabwe. Despite demand, the Defendant has refused to pay.''
The Deputy Sheriff effected service of the summons at the
defendant's place of residence on the 25th April 2013. The
defendant entered an Appearance to defend on the 6th May 2013.
A Notice of Intention to Bar was filed and served on his legal practitioners on
the 31st May 2013. The defendant failed to file his plea and
was duly barred on the 18th June 2013. The Plaintiff has made
an application for default judgment and in his Affidavit of evidence he avers
that defendant was his friend and a co-director of Masiqhame Trading a company
registered in the Republic of South Africa. Following the incorporation
of the said entity the parties opened a Bank Account with Nedbank South Africa
(Account Number 1906492050). The plaintiff and the defendant never utilized
the bank account. The defendant worked elsewhere whilst the plaintiff was
working for another company. The plaintiff avers that during the period
31 August 2010 and 4th July 2011 the defendant fraudulently
transferred money from his employers amounting to R9 093 615.33 to the
Masiqhame Trading Nedbank account. The defendant's employers were
Barloworld Logistics and were based in South Africa. The defendant then
proceeded to withdraw all the ill-gotten funds from the Masiqhame Trading Nedbank
account for his personal use without plaintiff's knowledge. The defendant
fled from South Africa once he had finalised these illegal transactions and
never returned to South Africa. The plaintiff remained in South Africa
totally oblivious of the activities of the defendant related to the transfer of
funds from Barloworld Logistics to Masiqhame Trading account. On the 18th
January 2012 the plaintiff was picked up by the HAWKS (Commercial Crimes Unit)
of South Africa and detained in connection with the illegal transactions that
had been effected by the defendant.
The Plaintiff was questioned by the South African
authorities from 18 January 2012 to 23 January 2012. It was then that
plaintiff discovered that defendant had stolen R9 million from his employer,
transferred it to the Masiqhane Trading account before withdrawing it for his
own personal use. Plaintiff was kept in detention cells and formally
charged with the defendant in absentia. Plaintiff was released from
remand prison on 25th April 2012 after 98 days of deprivation of
liberty, when charges against him were provisionally withdrawn.
Upon his release from custody, plaintiff confronted the
defendant who did not deny his wrong doing. Inspite of his initial
promise to compensate plaintiff for the trauma and humiliation caused by his
actions, defendant eventually became hostile and refused to compensate
plaintiff. Legal proceedings were commenced against the defendant who has
been duly barred for failing to file a plea.
The plaintiff claims damages at the rate of R25 000 per day
for each day that he spent in custody as a direct consequence of defendant's
actions. Plaintiff claims that during his incarceration, he suffered
trauma, humiliation and his dignity was severely impaired. He was seen by
friends and associates as a criminal. His credit worthiness was seriously
affected as he failed to service his accounts due to the wrongful
detention. His family was deprived of a husband and a father for the
entire period. The plaintiff was subjected to severe pain and anguish for
being locked up in jail for so good cause. The Plaintiff avers that he
then suffered unimaginable trauma. It was his first time to experience
being arrested, interrogated and appearing in court under high security.
The plaintiff further indicates that the defendant had
benefited from his illegal conduct and used the proceeds of the criminal
transactions to purchase a house in Malindela, Bulawayo, 5 Toyota Quantum
vehicles, a Mercedes Benz GL, a Mercedes Benz A160, a Toyota Yaris, a Toyota
Double Cab, Toyota Hiaca vehicles, opened sports bars and other businesses in
Bulawayo. The plaintiff contends that defendant owed him a duty of care
to ensure that whatever he did with the joint Bank Account did not affect or
cause harm to him. The plaintiff further contends that the defendant's
failure to apologise and his apparent lack of contrition increases his moral
blameworthiness. The plaintiff who is a professional accountant has
become almost unemployable and his dignity and self –esteem has been heavily
detented.
The Legal Position
The delict of malicious prosecution and detention has
usually been brought against government institutions where a person's liberty
and freedom is wrongfully deprived. I am of the firm view that in
appropriate circumstances actions for wrongful arrest and detention can also be
brought against individuals. The test ought to be that where a party's
direct or indirect conduct leads to the wrongful arrest of another, the person
whose liberty has been infringed is entitled to recourse against the party
causing such arrest and detention.
Mc Kerronin his Law of
Delict, 7th Edition at page 259 and 260 states that:
''It is also an actionable
wrong to procure the imprisonment or arrest of anyone by setting the law in
motion against him maliciously and without reasonable cause''.
The plaintiff has established the essential requirements in
claims based on malicious arrest and prosecution, that is the need to allege
and prove that:-
(i) the
Defendant set the law in motion.
(ii) the
defendant acted maliciously and;
(iii) without
reasonable and probable cause and,
(iv) he acted without a
duty of care towards the plaintiff
See: THOMPSON & ANOTHER
v MINISTER OF POLICE 1971(1) SA 371
It is beyond dispute that the defendant by utilizing the
company's bank account for his illicit dealings acted maliciously and set the
law in motion against the plaintiff without reasonable and probable
cause. The defendant fled South Africa where he went on a spending spree
in Zimbabwe well aware that he was exposing the plaintiff to the risk of arrest
and detention. The defendant was well aware of the consequence of his
actions. As co-directors the defendant owed a special duty of care to the
plaintiff not to utilise the company account in a manner that would not
endanger the plaintiff in any manner whatsoever. The defendant not only
broke the trust between himself and the plaintiff but also breached the duty of
care to operate the company's Bank account for lawful means. Plaintiff's
arrest and detention was a direct consequence of the defendant's nefarious
activities and plaintiff is entitled to compensation for the unwarranted
deprivation of his liberty. Plaintiff's life was needlessly disrupted by
the incarceration. He was prevented from carrying out his normal duties
and his daily activities. His loss of income for the 98 days he was in
detention is not capable of easy ascertainment.
In the case of Botha v Zvada 1997 (1) ZLR
415 it was held that:
''As regards the quantum of
damages ... our courts have quite properly taken the stance that deprivation of
liberty is a very serious infraction of fundamental rights''
In casu, the plaintiff's imprisonment was injustified and
unfortunate. Once the defendant had executed his illegal transactions and
fled to Zimbabwe, the plaintiff remained as a sitting duck in South
Africa. He had to fight to prove that there was no wrongdoing on his
part. When the plaintiff was released by the South African authorities he
confronted the defendant who showed no remorse. Any award of damages
against the defendant should take into account the defendant's unrepentant
attitude.
In support of his claim for damages the plaintiff has cited
a number of cases which are not helpful as regards an appropriate award of
damages. All the cases involve legal suits for damages brought against
institutions, more particularly the Home Affairs Ministry or Commissioners of
Police. In the case of MINISTER OF SAFETY & SECURITY v SEYMOUR
2006 (5) SA 495, a 65 year old chairman of a Small Scale Farmers
Association and Managing Director of a co-operation was awarded R90,000 per day
as damages for wrongful arrest.
The plaintiff is claiming a sum of R25 000 per day as
damages. The plaintiff has not set out the basis upon which he arrives at
the said daily rate. It seems to me that the figure being claimed per day
has not been arrived at upon a rational basis. In fact there is no
cognisable formula upon which the figure has been based. I propose to
approach the quantum of damages by awarding a global figure based on what I
perceive to be a fair reflection of an award that would adequately compensate
the plaintiff. There is a need in all the circumstances of the case to
award exemplary damages regard being had to the following factors:
(a) the award
must be fair and reasonable.
(b) the award
must provide adequate compensation to the injured party.
(c) the award
must penalise the defendant for his malicious and reckless conduct.
(d)
the award must be exemplary, in that the defendant has benefited financially
whilst placing the plaintiff at serious risk.
(e)
the defendant has tendered no apology to the injured party.
In articulating the principle and basis upon which the
quantum of damages showed be determined, GREENLAND J, in the case of
MASAWI v CHABATA 1991 (1) ZLR 148(H), stated at page 159 A-B:
''As regards quantum it must
be borne in mind that the primary object of the action injuriam is to punish
the defendant by the infliction of a pecuniary penalty, payable to the
plaintiff as solatium for the injury to his feelings. The court has to
relate the moral blame worthiness of the wrongdoer to the inconvenience,
physical discomfort and mental anguish suffered by the victim. Because of
the various subjective aspects involved, which must necessarily be peculiar to
the case, precedence can only be of general assistance.''
As already pointed out most of the cited cases are not
helpful because the circumstances of those cases are materially
different. This action is being brought against an individual and not a
state institution. In this case I note that the defendant benefited to an
amount of R9 million. He has acquired various assets and is living
large. He has also invested some of the proceeds of the crime to set up
sports bars which no doubt are generating some revenue for him. On the
basis of the observations I have made above and the principles which I have set
out I now turn to make the award in this matter. The plaintiff is
claiming the sum of R 2 450 000 being damages arising out of his wrongful
arrest and detention. This amount translates to approximately US$ 245
000. This is a high award which is unprecedented in this
jurisdiction. I am satisfied that adopting the approach I have set out
above, a figure in the sum of US$30 000 would appropriately compensate the
plaintiff for the wrongful arrest and detention for the period of 98 days
caused by defendant's wrongful conduct.
In the result I make the following order:
1.
The plaintiff is awarded damages in the sum of US$30 000 for wrongful arrest
and detention.
2.
Interest on the said amount at the prescribed rate from the date of judgment to
date of final payment
3.
Defendant is ordered to pay costs of suit.
Messrs Moyo & Nyoni,plaintiff's
legal practitioners
S K
M Sibanda & Partners,defendant's legal
practitioners
