This is an appeal against the whole judgment of the High Court (the court a quo) handed down on 16 December 2021. The court a quo granted the respondent damages in the sum of US$30,000 for malicious prosecution and US$100,000 for malicious arrest and detention.The damages were to be paid ...
This is an appeal against the whole judgment of the High Court (the court a quo) handed down on 16 December 2021. The court a quo granted the respondent damages in the sum of US$30,000 for malicious prosecution and US$100,000 for malicious arrest and detention.
The damages were to be paid at the equivalent rate of the local currency of RTGS reckoned at the time of payment.
FACTUAL BACKGROUND
The respondent was the Chairman of the board of directors of Zimbabwe United Passenger Company ('ZUPCO'). He was also Vice-Chancellor of the Chinhoyi University of Technology and a member of the Zimbabwe Examinations Council and the Parastatals Advisory Council. He held various positions in other local and regional organisations.
The appellant had an interest in a company known as Gift Investments (Pvt) Ltd which supplied mini-buses to the Zimbabwe United Passenger Company (ZUPCO). The buses were supplied pursuant to a tender process approved by the State Procurement Board.
In November 2011, the respondent issued summons against the appellant claiming damages in the sum of US$100,000 for malicious prosecution and US$300,000 for malicious arrest and detention, interest thereon at the rate of 5% per annum and costs of suit.
The respondent averred, that, the appellant had made allegations that he had, in his capacity as the Chairperson of the Zimbabwe United Passenger Company (ZUPCO) Board of Directors, solicited for a bribe from Gift Investments (Pvt) Ltd in order to facilitate the purchase, by ZUPCO, of 17 buses from the company.
The company had previously sold some buses to ZUPCO with the authority of the State Procurement Board.
Seventeen buses, painted in the corporate colours, remained in the company's stock. The Zimbabwe United Passenger Company (ZUPCO) had not placed an order for the buses which were not covered by the authority issued by the State Procurement Board.
He contended, that, the appellant made reports on the allegations to various people, high ranking Government officials, and institutions.
As a result of these allegations against him, he was arrested by the police on 21 March 2005 and detained on charges of corruption. He was arraigned before the Regional Magistrates Court, Harare for contravening section 3(1)(a)(i) of the Prevention of Corruption Act [Chapter 9:16]. The trial magistrate found him guilty and sentenced him to 3 years imprisonment of which one year imprisonment was suspended for a period of five years on condition of future good behaviour.
The effective sentence was 2 years imprisonment.
Aggrieved, the respondent filed an appeal before the High Court against both conviction and sentence.
On 19 November 2009, the High Court quashed the conviction and set aside the sentence. By then, the respondent had served the effective sentence of two years.
The claim for damages was instituted soon thereafter.
The respondent averred in his claim, that, he was subjected to humiliation from the time of arrest up to his acquittal. As a result of his arrest, prosecution, and imprisonment, at the instance of the appellant, he suffered injury to his reputation, both locally and internationally, and injury to his dignity. He was also deprived of his liberty. He lost his positions as the Vice Chancellor of Chinhoyi University of Technology and as the Chairperson of the Zimbabwe United Passenger Company (ZUPCO) Board of Directors.
The appellant admitted, in his plea, to having made the report to the police. He however denied having done so maliciously.
He averred that he only informed the police that the respondent had solicited a bribe from him, and the information was true.
He maintained that the decision to arrest the respondent was made by the police and not by him, after the police had formulated a reasonable suspicion that an offence had been committed. He also denied causing the prosecution of the respondent. He argued that the decision to prosecute the respondent was made by the Attorney General, in the exercise of his constitutional mandate. He averred that the decision to imprison the respondent was made by the trial magistrate after due consideration of the evidence placed before her during trial.
At the trial, the appellant applied for absolution from the instance at the close of the respondent's case. The appellant submitted, that, the respondent had no prima facie case against him. The court a quo granted the application. It held that there was evidence that the respondent had solicited for a bribe. It further held that the respondent failed to show how he had arrived at the damages he was claiming.
Disgruntled by the decision, the respondent noted an appeal before this Court under SC634/19. He argued that the court a quo had misdirected itself in granting the appellant absolution from the instance. This Court determined the appeal in (Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19) (Nherera v Shah).
FINDINGS OF THIS COURT IN NHERERA v SHAH SC51-19
The court made the following findings:
(a) In order to succeed in his claim for damages, the respondent was required to prove four requirements, being that:
(i) The arrest, prosecution, and detention were instigated or procured by the defendant;
(ii) There was no reasonable and probable cause for his arrest, prosecution, and detention;
(iii) The arrest, prosecution, or detention was actuated by malice; and
(iv) The prosecution failed.
(b) There was sufficient evidence before the court a quo, that, the appellant had instigated or procured the respondent's arrest. The appellant had admitted, in his plea, that he had informed the ZUPCO Board, the then Minister of Local Government, Dr Chombo, the then Governor of the Reserve Bank, Dr Gono, and the then Minister of State Security, Mr Goche. He had also admitted, in the plea, that he made a report to the police.
He further admitted that he was granted immunity from prosecution by the police and the Attorney General so that he would assist in the investigation of the allegations he had made against the respondent and assist in a successful prosecution of the respondent;
(c) There was no evidence suggesting that the respondent had attempted to solicit for a bribe from Gift Investments. The appellant did not, prima facie, have reasonable and probable cause for the respondent's arrest or prosecution;
(d) The court a quo seriously misdirected itself in relying on evidence adduced in the Magistrates Court during the respondent's prosecution which was not adduced and tested before it. This was particularly so where the criminal proceedings had been set aside by the High Court, on appeal, on 19 November 2009;
(e) The judgment of the High Court, quashing the respondent's conviction, was extant. The court a quo should not have ignored it. Following the judgment of the High Court, the requirement that the prosecution had failed had therefore been met;
(f) The question of malice could only be determined after the appellant's testimony in his defence. The appellant had disputed, during the cross examination of the respondent, that he had made a report to the police. There was therefore need for putting the appellant on his defence so that he would, among other issues, explain the inconsistency between his admission in his plea, that he denied under cross-examination of the respondent that he ever made a report to the police;
In the final analysis, the court held that the respondent had established a prima facie case against the appellant. It concluded that the court a quo ought to have dismissed the application for absolution from the instance. It ordered as follows:
“1.The appeal be and is hereby allowed with costs.
2. The judgment of the court a quo is set aside and in its place the following substituted:
'The application for absolution from the instance be and is hereby dismissed with costs.'
3. The matter is remitted to the court a quo for continuation of the trial proceedings.”
PROCEEDINGS BEFORE THE COURT A QUO
After the above findings by this Court in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19, the trial proceeded before the court a quo with the appellant testifying.
The appellant adopted his plea, his testimony in the criminal proceedings against the respondent in the Magistrates Court, and affidavit he deposed to on 27 July 2006 as part of his evidence on oath. His evidence was as follows:
In 2005, the respondent demanded a US$5,000 bribe, per bus, for the Zimbabwe United Passenger Company (ZUPCO) to flight a tender for the purchase of buses. He did not make a report to the police as alleged by the respondent. He, however, informed a number of people about the respondent's conduct. These included the ZUPCO Board, the then Minister of Local Government, Dr Chombo, the then Governor of the Reserve Bank, Dr Gono, the then Minister of State Security, Mr Goche, and some Central Intelligence Officers.
He informed the police, sometime in April 2005, that the respondent had solicited for a bribe in 2003 to facilitate the renewal of a lease agreement between Gift Investments and ZUPCO. He had paid the respondent and Bright Matonga a total of $20,000. The respondent was arrested in relation to the 2005 solicitation after he made reports to the Government officials.
DETERMINATION BY THE COURT A QUO
At the conclusion of the trial, the court a quo made the following findings:
The findings by the Supreme Court in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19 were binding on it.
The Supreme Court had determined that the appellant placed information before a police officer that the respondent had solicited a bribe from him leading to the arrest, prosecution, and detention of the respondent. He did not, prima facie, have any reasonable and probable cause for doing so. The prosecution of the respondent had failed when his conviction was quashed on 19 November 2009. The respondent had, therefore, established a prima facie case on these issues.
The appellant was required to rebut the prima facie case.
As regards the appellant's testimony, the court a quo made the following findings:
The appellant was not a credible witness. He had admitted in his plea (which was now part of his evidence-in-chief) to making the report to the police leading to the arrest, prosecution, and detention of the respondent.
His oral evidence was inconsistent with his plea. The oral evidence was also at variance with his evidence during the respondent's criminal trial where he again admitted making the report.
It was common cause that the respondent was arrested, prosecuted, and imprisoned after the accusations of soliciting for a bribe were levelled against him by the appellant.
The appellant failed to disprove the prima facie case found to have been established by the respondent, on appeal, in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19.
He had caused the arrest of the respondent without reasonable and probable cause and had done so in bad faith. His report to the police was therefore malicious.
The court a quo further held that the appellant's liability had been proved and the requirements for delictual damages satisfied.
It further held that the respondent suffered humiliation, ill-treatment in prison, and lost his employment due to the arrest, prosecution, and imprisonment.
The court a quo found, that, the respondent had not led evidence on how the sums of US$100,000 for malicious prosecution and US$300,000 for malicious arrest and detention were arrived at. It however held, that, it still could make an award on the strength of relevant principles on the assessment of damages evolved from the jurisprudence coming out of our courts.
It held that the claim for $100,000 for malicious prosecution was extremely excessive, and, in its stead, awarded the respondent US$30,000. It also found the claim of US$300,000 for malicious arrest and detention to be excessive and awarded the respondent US$100,000 instead.
The court a quo further concluded that the damages would be paid in RTGS dollars at the interbank rate prevailing on the date of payment.
Aggrieved by the court a quo's decision, the appellant noted an appeal to this Court on the following grounds of appeal:
GROUNDS OF APPEAL
1. The court a quo erred and misdirected itself in law in holding that the dicta of this Court in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19, that there was, at the close of the plaintiff's case, a prima facie case (a test in any event not applicable to absolution from the instance) mitigating against the grant of absolution from the instance meant that if, in the court's opinion, the appellant had not controverted “the prima facie evidence of the plaintiff mutated to proof of the plaintiff's case on a balance of probabilities” in entertaining the first respondent's application as a court of first instance.
2. The respondent, having relied on the appellant's affidavit statement to the police, a statement that the appellant also adopted in his evidence before the court a quo in circumstances in which the High Court had found, on the basis of the same affidavit statement, in Zimbabwe United Passenger Company v Shah, which judgment was upheld on appeal to this Court, that the appellant had in fact paid a bribe to the respondent with whom he had a corrupt relationship, the court a quo erred in holding that the appellant had not controverted the “prima facie” evidence of the respondent.
3. A fortiori in holding as impugned in ground of appeal number 2 above, the court a quo infringed the appellant's right to the protection of the law guaranteed in section 56 of the Constitution of Zimbabwe.
4. For even the stronger reason, the court a quo erred in finding that the appellant's statement was not given in good faith and did not constitute reasonable and probable cause, but constituted a malicious and act wrongful instigating (sic) criminal proceedings against the respondent.
5. The court a quo, having held that the respondent had not led evidence on the financial prejudice he allegedly suffered in his defence of the criminal proceedings, or how he arrived at the sums claimed as damages, erred, in any event, in not granting absolution from the instance at the close of the trial in respect of the damages claimed.
6. The court a quo, having made a finding of the fact, and held in Nherera v Shah 2015 (2) ZLR 455 at 470C-D (H) that the respondent “did not attempt to show how the damages claimed were arrived at” which judgment was set aside on a different basis, and no further evidence having been led by the respondent since this finding, erred and misdirected itself and acted arbitrarily in awarding any damages.
7. In proceedings as complained of in grounds of appeal 5 and 5 (sic) above, the court a quo breached the appellant's right to the protection of the law protected and guaranteed in section 56(1) of the Constitution as well as the dictates of a fair trial contemplated in section 69(1) of the Constitution.
8. The court a quo erred in any event in awarding damages that are inconsistent with those awarded in comparable cases, and are, on the facts of the case, so outrageous that no court acting properly would have awarded the quantum of damages, and in a currency other than the legal tender of the Republic of Zimbabwe.
PROCEEDINGS IN THIS COURT
Submissions by the Appellant
The appellant abandoned grounds 3 and 7 which were raising constitutional issues not dealt with in the court a quo.
Counsel for the appellant submitted, that, notwithstanding the decision in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19, the respondent did not establish his case on a balance of probabilities at the close of his case a quo.
Counsel argued, that, the Supreme Court had applied a wrong test in determining whether the appellant was entitled to absolution from the instance.
He argued that the respondent was required to establish whether, at the close of his case, there was evidence upon which a reasonable court, acting carefully, might have given judgment for the respondent on the issues before the court.
It was argued, that, the court had erroneously stated that the respondent needed to and had established a prima facie case.
It was further argued, that, the appellant had led evidence, in the form of a judgment of the High Court in Zimbabwe United Passenger Company v Jayesh Shah & Gift Investments (Private) Limited HH238-17 in which a finding had been made that the respondent had solicited from and was paid a bribe by the appellant.
It was further argued, that, this Court also held in Gift Investments (Private) Limited v Zimbabwe United Passenger Company & Jayesh Shah SC99-20, that, the appellant had bribed the respondent and the then Chief Executive Officer of ZUPCO, in a bid to induce the renewal of a lease between Gift Investments (Private) Limited and ZUPCO from 01 January 2004 to 31 December 2009.
It was submitted, that, the facts in that case were centred on the same issues as in the present appeal.
It was further submitted, that, the findings in both Zimbabwe United Passenger Company v Jayesh Shah & Gift Investments (Private) Limited HH238-17 and Gift Investments (Private) Limited v Zimbabwe United Passenger Company & Jayesh Shah SC99-20 constituted sufficient evidence to rebut the respondent's prima facie case.
It was argued, that, the findings in both matters established that there was a relationship of corruption between the appellant and the respondent.
Counsel argued, that, the appellant had rebutted the respondent's prima facie case and established, on a balance of probabilities, that, he had not maliciously instigated the respondent's arrest and subsequent prosecution and imprisonment.
Counsel for the appellant further contended, that, the court a quo erred in granting the respondent damages in circumstances where the respondent did not lead evidence justifying the quantum of such damages.
He argued, that, when the matter was remitted a quo, the respondent did not lead further evidence, and, particularly, on the damages that he sought.
It was further argued, that, the award for damages contravened the law in that it was denominated in United Dollars which was not the legal tender in use in Zimbabwe.
It was submitted that section 3(2)(b) and (c) of the Exchange Control (Exclusive Use of Zimbabwe Dollar for Domestic Transactions) Regulations 2019, Statutory Instrument 212 of 2019, SI212 of 2019 (the Regulations) proscribed settlement of any obligation, and demand of the payment of anything, in foreign currency.
Submissions by the Respondent
Per contra, counsel for the respondent argued, that, the respondent was not a party to Zimbabwe United Passenger Company v Jayesh Shah & Gift Investments (Private) Limited HH238-17 and Gift Investments (Private) Limited v Zimbabwe United Passenger Company & Jayesh Shah SC99-20.
It was further argued, that, the findings in those cases were not therefore applicable moreso as the respondent never had an opportunity to defend himself.
It was submitted that the findings related to the appellant's own confession to have paid the respondent a bribe. It was further submitted that the respondent could not be bound by the appellant's confession.
It was submitted, that, the judgment in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19, being a judgment of the Supreme Court, was binding on the court a quo. The court a quo therefore did not misdirect itself when it held that it was bound by the Supreme Court judgment.
Counsel for the respondent submitted, that, the award of damages, by the court a quo, was made on the basis of the evidence on record as to the harm suffered by the respondent. He further argued, that, there was no need to lead evidence on the quantification of the damages as they could not be arrived at with mathematical precision.
He submitted, as regards the applicable currency, that the law does not preclude the granting of an award in foreign currency.
ISSUES FOR DETERMINATION
1. Whether or not the court a quo misdirected itself in holding that it was bound by the judgment in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19.
2. Whether or not the court a quo misdirected itself in holding the appellant liable for damages for malicious arrest, prosecution, and detention.
3. Whether or not the court a quo misdirected itself in awarding damages in favour of the respondent in the absence of evidence from the respondent on how the damages were computed.
4. Whether or not it was competent for the court a quo to award damages denominated in United States dollars.
ANALYSIS
Whether or not the court a quo misdirected itself in awarding damages in favour of the respondent in the absence of evidence from the respondent on how the damages were computed
The appellant submitted, that, the court a quo erroneously awarded damages to the respondent in circumstances where the respondent had not adduced evidence justifying the quantum of such damages.
He also argued, that, the court a quo quantified the damages in spite of its finding that no evidence on quantification had been adduced.
It was contended, that, absolution from the instance ought to have been the appropriate judgment of the court a quo.
It is trite that damages for the cause of action brought by the respondent cannot be computed with mathematical precision.
Because the damages are not capable of precise calculation, the determination of the quantum of damages is within the discretion of the court, which must be satisfied that the quantum to be awarded is just and fair.
It is therefore not always necessary that a party leads evidence to establish the quantum.
In Minister of Defence and Another v Jackson 1990 (2) ZLR 1 (S) GUBBAY JA remarked that:
“What is essential is for a trial court to draw on its own experience in making an assessment of damages: an exercise which is necessarily dependent upon some degree of surmise, conjecture, and imagination, for general damages are not capable of exact arithmetic calculations.”…,.
In Minister of Police v Page (CA 231/19) [2021] ZAECGHC 22…, it was held that:
“It is trite that in cases involving deprivation of liberty, the quantum of damages to be awarded is in the discretion of the trial court: to be exercised fairly, and generally calculated according to what is equitable and good, and on the merits of the case itself (ex aequo et bono). As a result, an Appeal Court should be slow to interfere, unless there are specific reasons to do so.”
The factors that a court should consider in assessing the damages are spelt out in VISSER & POTGIETER, Quantum of Damages for Injury to Personality, 3rd ed, 2012. It is stated at p545-548 that:
“15.3.9 Unlawful and malicious deprivation of liberty or arrest
In deprivation of liberty, the amount of satisfaction is in the discretion of the court and calculated ex aequo et bono.
Factors which can play a role are the circumstances under which the deprivation of liberty took place: absence of improper motive or 'malice' on the part of the defendant; the harsh conduct of the defendants, the duration and nature (eg solitary confinement or humiliating nature) of the deprivation of liberty; the status, standing, age, health and disability of the plaintiff; the extent of the publicity given to the deprivation of liberty; the presence or absence of an apology or satisfactory explanation of the events by the defendant; awards in comparable cases; the fact that in addition to physical freedom, other personality interests such as honour and good name as well as constitutionally protected fundamental rights have been infringed; the high value of the right to physical liberty; the effects of inflation, the fact that plaintiff contributed to his or her misfortune; the effect an award may have on the public purse; and, according to some, the view that the actio injuriarum also has a punitive function.”
The assessment of damages for malicious prosecution is again discretionary, taking into consideration the same factors as in the assessment of damages for malicious arrest and deprivation of liberty: see VISSER & POTGIETER, Quantum of Damages for Injury to Personality, 3rd ed, 2012….,.
The court a quo was mindful of its discretion, and the factors to be considered in the exercise of that discretion.
After referring to relevant authorities, such as Minister of Defence and Another v Jackson 1990 (2) ZLR 1 (S) and Fabiola v Mvudura Louis HH25-09, it remarked at p14 that:
“However, the relevant considerations in assessing the damages, as the authorities cited above show, start from the listing of what the plaintiff was immediately before the event causing his loss occurred. Then, there was the event of his arrest, prosecution, and detention. It caused what the plaintiff became at the time of his release from prison which determined the reduction, inter alia, of his patrimony and his good image in the eyes of both the public and members of his family.
I have already set out what the plaintiff was before the event. As a result of it, he lost his prestigious and well-paying job as the Vice Chancellor of Chinhoyi University of Technology. While he did not lose his qualifications, he lost his benefits and income. These include the use of his personal issue Mercedes Benz motor vehicle, entertainment, housing, security, fuel, and cell phone allowances. He also lost educational benefits for his two children and wife.”
It further remarked at p16 that:
“Regarding the claim of US$300,000 for malicious arrest and detention, it should be recalled that the delict occurs when there is no reasonable or probable cause for the allegation of criminal conduct. The institution of proceedings constitutes an abuse of the right to lay genuine complaints. In such circumstances, the complaint by the defendant, as has been shown above, is without foundation and intended to cause harm or injury to the plaintiff.
The plaintiff suffered ill-treatment in prison, where he endured poor prison conditions and diet. He was taken away from his family and lost his job and other contacts. In fact, the loss of liberty, in itself, is such deprivation of a constitutional right that it cannot be countenanced where the basis for it is malice. I have related to the financial loss which the plaintiff had to bear over and above all else to show that indeed considerable compensation is called for.”
The court a quo exercised its discretion judiciously as it took into account the relevant factors requisite in the assessment of general damages for malicious arrest, prosecution, and detention.
The reference by the court a quo to lack of evidence to establish the quantum of damages is, therefore, of no moment.
