The OK Grand Challenge Jackpot promotion has become an exciting annual national event to many Zimbabweans as it affords many lucky winners a rare opportunity to win various prizes ranging from motor vehicles, residential Stands and an assortment of other items. It is an event which is aggressively advertised both in the print and electronic media.

Having responded to the OK Grand Challenge Jackpot Promotion in 2010, the plaintiff landed himself in trouble. This civil suit is a direct result of the plaintiff's desire to participate in one such a promotion. It caused a nightmare to the plaintiff. Indeed, it earned the plaintiff quite some traumatic experience.

The largely agreed facts in this matter can be summarised as follows:-

The plaintiff is employed as a manager by the Zimbabwe Institute of Public Administration and is based in Darwendale, a few kilometres outside Harare, the capital city of Zimbabwe. His duties entail being in charge of around 100 employees and it is his sole responsibility to oversee the day to day operations of the institute.

In 2010, and pursuant to the irresistible advertisement by the defendant inviting customers to participate in the OK Grand Challenge Jackpot Promotion, the plaintiff went to OK Bazaars Supermarket in Marimba and bought various groceries worth $999=98 as a result of which he got coupons enabling him to participate in the exciting competition.

Exhibit I…, was produced to confirm the transaction made by the plaintiff.

At the conclusion of the OK Grand Challenge Jackpot Promotion, and to be precise, on 9 June 2010, the plaintiff emerged as one of the few lucky winners of the items on offer. The plaintiff's name appeared in the Herald and the Chronicle (two national newspapers) as having won a microwave.

After attending to one or two housekeeping issues with the organizers of the promotion, the plaintiff was confirmed as a winner and invited to attend the prize giving ceremony which was to be held at Rainbow Towers, Zimbabwe on 16 June 2010. Rainbow Towers is one of the leading hotels situated in the capital city of Zimbabwe, Harare. On 16 June 2010 the plaintiff excitedly attended at the Rainbow Towers for the prize giving ceremony. To demonstrate his excitement in attending the grand occasion the plaintiff went to the Rainbow Towers in the company of his family and some workmates so that they would be witness to his rare exciting moment.

There was a dramatic turn of events at the Rainbow Towers.

The plaintiff was later to regret why he had ever participated in the OK Grand Challenge Jackpot Promotion. The plaintiff, and two of his colleagues (also winners of the OK Grand Challenge Jackpot Promotion), were lured into a car and arrested for having committed fraud in the acquisition of the coupons which they had used in participating in the competition.

For the next four days, the plaintiff and his colleagues were shoved from one police station to the other starting with Braeside Police Station, Ahmed House, and Harare Central Police Station. They were made to endure extremely difficult and painful experiences as they were forced to sleep in squalid conditions, being routinely transferred from Ahmed House to Harare Central Police Station barefooted and in handcuffs. The plaintiff and his colleagues were treated as criminals. To the ordinary onlooker, they were indeed criminals on parade.

The plaintiff and his co-accused were only released after Osborne Tariro Mawere (Mawere) had submitted an affidavit which outlined the plaintiff's innocence in the whole exercise.

THE EVIDENCE

The story told by the plaintiff was quite detailed and revealing.

Having properly acquired the coupons, as advertised by the defendant, the plaintiff used the coupons to participate in the competition and in the month that followed he was advised he was one of the lucky winners and invited to Rainbow Towers, Zimbabwe for the prize-giving ceremony on 16 June 2010. The plaintiff attended the event with colleagues and his family members.

Things took a dramatic turn when the plaintiff, and two other would-be winners, were lured into a parked car by the defendant's Risk and Services Manager, one Osborne Tariro Mawere (Mawere).

In a dramatic movie-style manner, the plaintiff and the other suspects were bundled into a motor vehicle belonging to the defendant but being driven by Osborne Tariro Mawere, after being advised that they were under arrest, and taken straight to Braeside Police Station. It was the plaintiff's unchallenged evidence that when they arrived at Braeside Police Station they were surprised to learn that their docket had been opened a few days before they were brought to the police station. The plaintiff stated he gathered that this docket had been opened as a result of the report made to Braeside police station by Osborne Tariro Mawere. For the first time, the plaintiff and his co-suspects were advised of the fraud charges allegedly committed against the defendant and accused of having fraudulently acquired competition coupons. The plaintiff protested his innocence to both Osborne Tariro Mawere and the Braeside police officers but to no avail.

It was the plaintiff's further testimony that when he told the police and Osborne Tariro Mawere that he had legitimately acquired the coupons, Osborne Tariro Mawere responded by saying that, that would be established later.

The plaintiff testified that on that day he, together with 30 suspects, slept crammed in a dirty room barefooted with only one blanket which was taken by the other inmates who had been in the police cells before him. This was the first time the plaintiff had been to a police cell and he slept on the floor with no blankets at all in a cold night. He was wearing a jean and a T-shirt. He said he was in a state of shock and that he never ate anything.

The following day the plaintiff and two of his co-suspects were transferred to CID Serious Frauds Section in handcuffs. According to the plaintiff, their transfer was caused by the alleged seriousness of their case. In the presence of Mr Mawere, the plaintiff said he was questioned and continued to protest his innocence to no avail. Mawere was said to have indicated to the CID details that he would take the coupons to O.K. Marimba to verify the explanation proffered by the plaintiff.

The witness testified that from CID Serious Fraud Section they were transferred to Harare Central Police Station still handcuffed and passing through a congested taxi rank and a bus terminus. This movement was made around 5pm which is one of the busiest hours of the day.

At Central police station, the plaintiff and his co-suspects were ordered to remove their shoes and other personal items before being thrown into the cells again. The plaintiff summed up his painful experience in the following words;

“There was no food at the Central Police Station. I did not have anything to eat. I was in a state of shock and stress and could not take anything. The whole situation of being dragged across town and knowing I would have another night in cells, knowing I had genuinely acquired the coupons caused me stress and shock.”

“Q. What transpired after supper?

A. We moved two floors to the cells, barefooted, stamping on water, urine, on the way up.

Q. Where was this water coming from?

A. From the ablution facilities within the cell areas….,.”

The witness went on to explain the night's ordeal. He testified they slept on concrete slabs in the cells with no blankets at all.

When asked by his counsel to describe the cells the witness shook his head as if going down painful and heart-tearing memories and retorted as follows:-

“Very dark, no lighting, ablution facilities producing serious ordures. We were 12 of us crammed in a single cell.”

The witness told the court that he endured the night and the subsequent two nights sleeping in similar conditions. It was only on the fourth day of his arrest and detention that he and his colleagues were advised that their case was going to be withdrawn after Mr Mawere had confirmed that indeed the plaintiff had genuinely acquired the coupons from OK Marimba.

It was the witness's testimony that instead of the plaintiff moving swiftly to have them released, it was only on the following day that Mr Mawere, from O.K, brought an affidavit which eventually secured the plaintiff and his co-suspects' release. Their release was on 19 June 2010 after the defendant's representative had carried out investigations which confirmed the plaintiff and his co-suspects' innocence.

They were, after all innocent.

The witness concluded his testimony by saying that prior to him being arrested and bundled into custody the defendant had made no attempt at all to seek an explanation as regards how he had acquired the coupons in question. All the investigations were only carried out after the plaintiff had been deprived of his liberty on what turned out to be false allegations.

At the conclusion of his testimony, the plaintiff said that the defendant's representative, Mr Mawere, had caused or instigated his arrest, and, in his own words, he stated;

“But for the report by OK about fraud I would not have gone through what I went through.”

The witness's evidence was that he tried to engage the defendant with a view to at least get an apology and his microwave which he had won as a result of his participation in the competition but nothing came his way.

The witness further stated that the allegations which were falsely raised against him portrayed him in bad light; to his family, friends, and workmates as the impression created was that despite holding a responsible position at his workplace, he was a dishonest person….,.

The plaintiff was subjected to an unusually brief but pointed cross-examination whose thrust was to show that he had targeted the wrong defendant in this case. The emphasis of the cross-examination was to show that the plaintiff's claim did not lie against the defendant but against the police.

The cross-examination did not show that the defendant was in disagreement with the plaintiff's narration of events. The only point of divergence was the interpretation of those events.

The closure of the plaintiff's case was followed by an application for absolution from the instance which the court considered and dismissed signifying the opening of the defendant's case. It was at this stage that the claim for defamation was formerly abandoned by the plaintiff.

The sole witness for the defendant was Mr Osborne Tariro Mawere (Mawere), its Risk and Services Manager.

He advised the court that he has worked for the defendant for the past 13 years. He stated that following information received from an anonymous caller he lodged a report with the police which resulted in the arrest and subsequent detention of the plaintiff and his co-suspects.

The witness' narration of events leading to the arrest and detention of the plaintiff almost tallied with the story told by the plaintiff.

He confirmed having made the arrangements with the police to have the plaintiff and his co-suspects arrested at the Rainbow Towers and using his motor vehicle to transport them to Braeside police station. His evidence took the court through the arrest, detention, and the subsequent release of the plaintiff and his colleagues.

During his testimony, the witness's attention was drawn to a portion of the advertisement by the defendant which was to the effect that “all participants and winners indemnify OK Zimbabwe (the defendant), their agencies and partners against any and all claims of any nature whatsoever arising out of and/or from their participation in anyway whatsoever in the promotion including as a result of any act or omission, whether negligent, grossly negligent or otherwise on the part of OK Zimbabwe.”…,.

The witness testified that to the best of his knowledge the plaintiff's participation in the Grand Challenge Jackpot Promotion was not excluded by this rule implying that the defendant should be exempted from liability.

Under cross examination, the witness disclosed that other than the 13 years of his work as a Risk and Control Manager for the defendant, he had, prior to his engagement with the defendant, been a senior police officer with the rank of Senior Assistant Commissioner, and well versed in police operations. He said he knew that once he had received an anonymous call concerning the alleged fraud involving competition coupons, it was imperative for him to carry out investigations first.

It was quite revealing that, during cross-examination, the witness conceded that, at the time he masterminded the arrest of the plaintiff, he had himself not carried out investigations on behalf of the defendant.

The witness further told the court, under cross examination, that he was surprised to see the police officers detaining the plaintiff and that he could not remember seeing the plaintiff being handcuffed at the time of his arrest.

Mr Mawere further revealed, under cross-examination, that he had escorted the plaintiff from the podium at Rainbow Towers to where the police were - 200 metres away from where the winners function was being held; transported the plaintiff and the other suspects to Braeside police station using his motor vehicle.

He said it was him personally who conducted the investigations which eventually led to the release of the plaintiff and his co-suspects. He also confirmed that he was present at all times when the plaintiff was being interviewed or questioned by the police.

It was quite revealing that when questioned by the court the witness conceded that he had not acted diligently in rushing to have the plaintiff arrested before carrying out internal investigations not only to verify the so-called tip off from the defendant's informant, the anonymous caller, but to also check on the explanation given by the plaintiff. Mr Mawere conceded that, with the benefit of hindsight, the plaintiff's detention could have been avoided.

At the close of the defendant's case I requested the two legal practitioners to file written submissions. I appreciate the detailed and well thought submissions presented.

The plaintiff's counsel moved the court to award the plaintiff at least $50,000= in the form of damages for the unlawful arrest whilst counsel for the defendant maintained that the defendant be exempted from liability basically on two fronts, namely, that the plaintiff had targeted the wrong defendant, and that, in any event, the plaintiff's participation was governed by the defendant's rules of indemnification. He relied on Rule 6 which was one of the rules regulating the conduct of the participants in the competition….,.

ASSESSMENT OF THE EVIDENCE

There was no real challenge posed by the evidence led in these proceedings mainly because the two witnesses who testified are generally agreed on what transpired. They differ on the interpretation of that evidence.

The plaintiff felt very strongly that the evidence justified the award of the damages as claimed or at least as requested by his counsel during submissions.

The defendant's counsel's position, from the same facts, was that the plaintiff had failed to prove its case and that, at most, it is the police officers who actually arrested the plaintiff who ought to have been sued.

It is clear to me that the evidence, as presented by the plaintiff, was truthful; his narration of events, starting with his participation in the Grand Challenge Jackpot Promotion, followed by his dramatic arrest at the Rainbow Hotel and his subsequent deprivation of liberty for the three days that followed could not be faulted.

It was quite clear from the plaintiff's testimony that his misfortune was triggered by the extremely reckless manner in which Osborne Tariro Mawere handled the alleged fraud in the acquisition of coupons for the defendant's business promotion. In the court's view, one does not blindly or religiously act on information from an anonymous source without first doing basic or elementary investigations to establish the credibility or otherwise of such a report.

The position of Mr Mawere in this case was compounded by the undeniable fact that Mr Mawere was not a lay person. The evidence showed that he is quite a sophisticated individual. He projected himself as an experienced former police officer who retired from the force holding the rank of a Senior Police Commissioner. In addition, he holds a Bachelor of Commerce in Risk Management, backed by 13 years experience as the Risk and Services Manager for the defendant.

It is further noted that at the time Mr Mawere received information concerning the alleged fraud, the witness had all the means at his disposal to carry out investigations to verify the correctness or otherwise of such potentially very serious allegations. The witness chose not to do so but to set in motion, and in a meticulous and callous manner, the events leading to the arrest of the plaintiff despite the plaintiff having protested his innocence from the very beginning.

To start with, Mr Mawere invited the plaintiff to the Rainbow Towers under the pretext that he was required to collect his prize won in the competition yet he knew that he was setting a trap for the arrest of the plaintiff. Mr Mawere himself masterminded the arrest of the plaintiff in a typical movie-style, used his motor vehicle to “deposit” the plaintiff at Braeside Police Station. Mr Mawere actively participated in interviewing or questioning the plaintiff. To demonstrate his malice, it is quite significant, that Osborne Tariro Mawere never bothered to question the plaintiff about the alleged fraud before the latter was arrested.

Osborne Tariro Mawere's reckless conduct went beyond maliciously causing the plaintiff's arrest. The uncontroverted evidence was that even before the plaintiff had been brought to the police station Mr Mawere had caused the plaintiff's docket to be opened at Braeside police station. Not only this, but it was also made clear to the plaintiff that he would only be released if Osborne Tariro Mawere brought an affidavit to that effect, and, indeed, it was Osborne Tariro Mawere's affidavit which led the plaintiff to regain his liberty after Osborne Tariro Mawere himself had masterminded the snatching away of that liberty.

I have no doubt in my mind that at the time the police officers detained the plaintiff they had nothing on them to show there was reasonable suspicion that the plaintiff had committed the alleged criminal offence. The plaintiff's case would have been neater if he had jointly sued the police with the defendant.

Be that as it may, I am also satisfied that it would be a reckless appreciation of the role played by Mr Mawere in the drama associated with the arrest and subsequent detention of the plaintiff to spare him. Mawere cannot, in my view, and by any stretch of the imagination, purport to have been an innocent bystander in the chain of events leading to the situation the plaintiff found himself in. In the eyes of the Court, Mawere remains the architect of the injury that stalked the plaintiff. There was no reasonable justification whatsoever for Mawere to act in the manner he did. The alleged misjoinder is not fatal to the plaintiff's case. See Order 13 Rule 87(1) of High Court Rules, 1971.

Accepted, the police might have used their discretion to arrest and detain the plaintiff but the shadow of Osborne Tariro Mawere remains visible throughout the whole episode. It was Mawere's reckless conduct which landed the plaintiff in trouble for doing nothing really except to participate in the business promotional activities of the defendant at the invitation of the defendant. It would be a very unfair law which fails to recognise the evil that Mawere did.

It is common cause that when Osborne Tariro Mawere acted in the manner he did he was acting in the cause and scope of his employment with the defendant. Vicarious liability must, by operation of law, stalk the defendant.

The conduct of Osborne Tariro Mawere is not without precedent. See the case of Mapuranga v Mungate 1997 (1) ZLR 64 and Earnest Macheka v Paul Metcalfe and Maizeland SOS HH62-07 per PARTE J….,.

It will be noted that the claim for defamation having been withdrawn during the proceedings, the plaintiff's claim remained under two headings, viz, injuria and unlawful arrest….,.

R.G. McKERRON, The Law of Delict: A treatise on the principle of liability for civil wrongs in the Law of South Africa, By R G Mckerron, 7th edition, Juta & Co. Ltd, Cape town, 1971…, in dealing with the aspect of actio injuriarum remarks as follows:

“The interests of personality protected by the actio injuriarum are those interests which every man has, as a matter of natural right, in the possession of an unimpaired person, dignity or reputation…,.

Examples of such acts are assaults of all kinds, the unjustifiable infliction of any restraint upon the liberty of another, the use of defamatory or insulting words concerning another, the malicious and unwarranted institution of criminal proceedings against another…,.”

In the case of Masawi v Chabata & Anor 1991 (1) ZLR 148 (HC) (headnote p.1) where the plaintiff was seeking damages for wrongful and unlawful arrest and imprisonment the learned judge, GREENLAND J recognised that for the purpose of the actio injuriarum an unlawful arrest had been made and maintained by threats….,.

THE INDEMNIFICATION CLAUSE

It was argued, by the defendant's counsel, that the plaintiff, having indemnified the defendant by participating in the competition, as per the rules of the competition, could not possibly bring the instant civil action against the defendant.

Heavy reliance was placed on Rule 6 of the competition which was to the following effect:

“All participants and winners indemnify OK Zimbabwe Limited, the Advertising Agencies and partners against any and all claims of any nature whatsoever in the promotion (including as a result of any act or omission, whether negligent or otherwise on the part of OK Zimbabwe).”

I note that in practice such clauses are not blindly or religiously accepted by our courts as the learned author R H CHRISTIE observes when he states:

“Obviously, the law cannot stand aside and allow such traps to operate unchecked, and the courts have protected the public from the worst abuses of exemption clauses by setting limits to the exemptions they will permit and by interpreting exemption clauses narrowly.”

The Law of Contract in South Africa, R.H. CHRISTIE, Butterworths, Durban, Pretoria 1^st ed. 1983 reprint…,.

In the same breadth, I also find the remarks by INNES CJ quite apposite when the learned judge stated:

“Hence, contractual conditions by which one of the parties engages to verify all representations for himself and not to rely upon them as inducing a contract, must be confined to honest mistake or honest representations. However wide the language, the court will cut down and confine its operations within these limits.” Wells v SA Alumenite Co. 1972 AD 69…,.

Questioned around this exemption clause during cross-examination, the plaintiff explained that he could not have thrown away his constitutional rights as afforded by the Bill of Rights by participating in the defendant's jackpot promotion.

I agree with the observation by the plaintiff.

I have already made a specific finding that Osborne Tariro Mawere was both reckless and malicious in the manner he dealt with the plaintiff and I am satisfied that the defendant must not be allowed to avoid liability by seeking refuge in clause six of the competition. Allowing it to do so would offend public policy considerations which demand that innocent and unsuspecting individuals be protected by the law.

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=.

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, exhibit 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 Mukumba 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 initially 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.

Counsel 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 Change 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.

Counsel for the defendants conceded that his estimation of the time it took to break the riot, chase the youths and re-group 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 plaintiff issued summons in this court..., seeking various damages...,.

According to her declaration, the plaintiff's claim for contumelia, as well as other damages, stem from her alleged unlawful eviction which was accompanied by assaults by the defendant, and the defendant's employees, who are alleged to have assisted the defendant in unlawfully evicting the plaintiff.

The plaintiff is a male adult resident at House Number 2365 St Marys Chitungwiza. The defendant is the Minister of Defence cited in his official capacity.

On 14 November 2003, the plaintiff filed a suit against the defendant for damages in the sum of Z$500,000. The plaintiff alleged, that, on 19 March 2003 he was asleep at his mother's house, House Number 2365 St Marys Chitungwiza when he was awakened by a knock on his door. When he went outside in response to the knock, he was assaulted by members of the Zimbabwe National Army during the course and scope of their employment with the defendant. He therefore claimed damages in the sum of Z$500,000 as a result of the injuries he sustained from the assault.

At trial, the plaintiff amended his claim. He now claimed a total of US$685 made up as follows:

1. US$311 being damages for shock, pain and suffering.

2. US$187 being damages for loss of amenities of life.

3. US$187 being damages for contumelia.

The defendant denied that any member of the Zimbabwe National Army assaulted the plaintiff on the date in question. The defendant contended, that, the Zimbabwe National Army (herein referred to as “ZNA”) members were only deployed in the plaintiff's area of residence on 20 March 2003 up to 26 March 2003.

The issues for determination were essentially two, namely:

1. Whether the plaintiff was assaulted by members of the Zimbabwe National Army (ZNA); and

2. Whether the plaintiff is entitled to the quantum of damages as per summons as amended.

The plaintiff gave evidence after which he called his wife, Rossy Domingo, as his only witness. The defendant's case was testified to by Emmanuel Matatu. At the time of the incident in question he was the Brigadier General Operations based at the ZNA Headquarters.

The plaintiff's evidence was to the effect, that, on 19 March 2003 he was asleep in the house when he was awakened by a knock on the door. Those knocking were also calling out his name. He got up and went outside. As he stood by the door he saw some soldiers. The soldiers were wearing an attire he described as their usual camouflage uniform. In further describing the attire, he said it was green; grey; cream in colour with red barets. He was able to see this because of lighting from electricity lights at the residence. He realized that these people were carrying guns he described as big guns – rifles.

When he went out of the house, the soldiers asked him whether he was Chair and he confirmed so. The same question was asked to another man who was not in uniform. He later identified that man as his friend Danmore. After confirming that he was Chair, one of the soldiers grabbed him and started assaulting him with a stick. They were also interrogating him in the process. When he got hold of the stick that was being used to assault him other soldiers joined in assaulting him. They were now assaulting him with clenched fists. At some stage, he felt as if a sjambock was also used and an iron bar. After a while, the soldiers took him and Danmore, who apparently was also in their captive, to some houses in the neighbourhood. The soldiers pointed a gun at him and ordered him to go and point out neighbours he attended meetings with.

When they got to Brenda's father's house they were ordered to lie down and were assaulted further at this house. Brenda's father was not there but his wife. From that house they went to another house. From this other house the soldiers were pointing rifles at Danmore and himself. They went to Florence's house. At this house, Danmore and himself were ordered to lie down facing down. The soldiers plucked tree branches from an avocado tree and started assaulting them with the branches. The assaults were concentrated at the back. They then went to Daniel's house which is near his mother's house where he had been sleeping. Daniel was called and assaulted. At Daniel's house, all the people that were found there were assaulted.

After that, the plaintiff, Danmore, and Florence were severely assaulted further. Towards dawn, they were ordered to stand up. It was then that he saw some motor vehicles by the gate. These were army motor vehicles as they were painted in the same colour as the uniforms of the soldiers. The motor vehicles were four in number and they looked like Pumas. He also realized that the number of soldiers had increased.

It was also his evidence that they were later ordered to board the ZNA trucks he described as similar to Pumas. In the truck, he observed benches on the sides and they sat in between the benches in the centre of the loading tray.

They were then driven and ordered off at some place along the Mbare-Chitungwiza road.

Upon disembarking, they ran away in different directions. When he returned to his residence, his wife applied hot compression on him. Later, but on that same day, 20 March 2003, he left for Shurungwi to reside with his brother.

After about three weeks he returned to St Marys. He thereafter proceeded to Harvest House in Harare where MDC top officials gave him a letter to take with him to a doctor. He confirmed that he received medication and Dr Coric examined him and compiled a medical affidavit.

The plaintiff's wife, Rossy Dimingo, gave evidence in support of the plaintiff's case. Her evidence, on the identity of the assailants, was to the effect that they were ZNA members. According to her evidence, after knocking on the door, the soldiers entered their bedroom and she saw that they were soldiers as they were clad in ZNA camouflage uniform. When they entered, she saw that they were armed with sjamboeks which they wanted to assault the plaintiff with.

She indicated that the soldiers then went out and started assaulting the plaintiff. The soldiers were clad in camouflage green; grey and brownish in colour uniform. They also were putting on red berets and black boots. After assaulting the plaintiff, the plaintiff and Danmore were taken away by the soldiers. At that time there were six soldiers.

It is pertinent to point out that the plaintiff's case had its own problems:

Whilst in his evidence in court the plaintiff and his wife referred to the guns the assailants had as rifles without any hesitation; in his summary of evidence, the plaintiff referred to the guns as service pistols.

In paragraph 3 of the summary of evidence, the plaintiff had this to say:

“Some uniformed members of the ZNA wielding service pistols forced entry into the plaintiff's bedroom.”

Nowhere, in either the declaration or the summary of evidence, did the plaintiff refer to rifles as having been used or even sighted on the night in question.

According to his declaration and summary of evidence, the assaults were perpetrated using baton sticks, fern belt, and boots; yet, in their evidence in court, both the plaintiff and his wife opted to include other weapons like sjamboek and rifles. The plaintiff went on to include avocado tree branches and an iron bar.

In paragraph 5 of the summary of evidence, the plaintiff indicated, that, after being assaulted with baton sticks, fenn belt, and boots all over the body, he was then dragged to Chitungiwza cemetery and was dumped there.

The evidence adduced did not support such an assertion at all.

The aspect of dragging was within the premises of the house he was found at, and it was as he was being assaulted. He was not dragged to the cemetery at all. He was taken to the Mbare-Chitungwiza road in a motor vehicle.

In paragraph 6 of the same summary of evidence, the plaintiff stated that:

“As a result of the assault, the plaintiff suffered excrutiating pain. He also sustained multiple bruises, cuts, and a broken right arm. He had to be detained in hospital for some time.”

Surprisingly, in his evidence in court, the plaintiff and his witness never alluded to being detained in hospital at all.

The sequence of events the two seemed agreed on was that on 20 March 2003 the plaintiff left for Shurugwi. In Shurungwi he never attended any medical institution or sought medical attention from anyone. According to the plaintiff, he spent about three weeks in Shurugwi. He then returned to St Marys. He later went to his party's Head Office at Harvest House in Harare where he saw some top officials. The top officials gave him a letter which he took to a doctor. It was then that he received some medical attention. He was thereafter referred to Dr Milos Coric an Orthopaedic Surgeon. As a result of that visit, Dr Coric compiled a medical affidavit. According to that affidavit, the examination was conducted on 14 April 2003 - a period of at least twenty five days from the date of the assault.

The plaintiff's wife seemed to confirm that the plaintiff did not seek immediate medical attention. The medical affidavit did not show the multiple bruises and cuts referred to in the summary of evidence. The affidavit simply confirms a fracture of the right ulna (forearm). The assertion that the plaintiff was detained in hospital is not supported by any evidence adduced in court.

As already alluded to, the medical affidavit, by Dr Coric, pertained to the examination done on 14 April 2003. It did not show that the plaintiff was ever detained in hospital.

Another point of concern on the medical affidavit is on the history.

In the copy of the medical affidavit dated 7 March 2007, which the plaintiff seemed to prefer, exhibit 1, under history it is stated that ”Zimbabwe National Army officers attacked this man on 19 March 2003.”

In the second copy of the same affidavit, dated 10 August 2004, exhibit 2, the same doctor endorsed the history as being that “this man was attacked by political opponents on 19 March 2003.”

The change in the identity of attackers from political opponents, as in the affidavit of 19 August 2004, to Zimbabwe National Army (ZNA) officers, as on the affidavit dated 7 March 2007, needed the deponent thereto to clarify.

Unfortunately, this was not done.

This is an irregularity that put into question the credibility of the affidavit in question. The plaintiff himself could not adequately explain that anomaly.

Whilst the plaintiff's counsel sought to downplay the anomaly, I am of the view, that, in as far as the history of a patient is concerned, it is expected to be from the patient or someone with such knowledge; such an anomaly casts a shadow of doubt on the plaintiff's credibility as well.

If, on 14 April 2003, he indicated his assailants as political opponents, why have that changed to Zimbabwe National Army (ZNA) officers in March 2007?

In any case, no reason was advanced for seeking a second medical affidavit.

If the assailants were Zimbabwe National Army (ZNA) officers, and the plaintiff knew that as of fact, that should have been reflected from the onset.

In as far as the only difference between the first medical affidavit and the second medical affidavit is on the history and date, one is tempted to believe that the second medical affidavit was obtained to tie up the medical affidavit to the plaintiff's claim.

It must be remembered that as was held in Matiza v Pswarayi 1999 (1) ZLR 140 (S)…, where there are mutually destructive stories the court must be satisfied that the version given by the party on whom the onus rests is true and the other false. Unless this can be found, the plaintiff cannot be said to have discharged the onus on him.

For a party's version to be found to be true, there should be some consistency in his version. Discrepancies may be overlooked where such discrepancies do not seriously affect the party's credibility in version of events.

Where, as in this case, the plaintiff's version, as contained in papers filed of record, is inconsistent with the plaintiff's evidence in court on material aspects relevant to the issue at hand it is difficult to find that the plaintiff has discharged the onus.

In Matiza v Pswarayi 1999 (1) ZLR 140 (S), the court was faced with a similar situation whereby the plaintiff on whom rested the onus of proof, gave three versions. The first version in the declaration, another version in a letter tendered, and a third version in his evidence in court. The trial court made a finding that he had not discharged the onus on him.

On appeal, the Supreme Court…, also concluded that:

“It cannot be said that the appellant's version is true and that the respondent's version is false. The appellant did not, therefore, prove his claim on a balance of probabilities.”

See also S v Nicolle 1991 (1) ZLR 211…,.

In casu, the factors that the plaintiff alluded to in identifying the assailants were quite common. He indeed referred to the attire as “the usual uniform”. Clearly, this would not have been his first time to see such a uniform with such colors. This camouflage uniform for the Zimbabwe National Army (ZNA) is common. Being able to describe the camouflage uniform that is commonly worn by ZNA members cannot, on its own, be an indication that he indeed saw the soldiers on the night in question. This has to be taken together with other factors. Even his wife's description was a common description of the usual uniform.

The two did refer to the soldiers putting on red barets as well.

As Emmanuel Matatu indicated, these are worn by members of the military police. He also indicated that members of the military police are not deployed on such operational duties.

It was thus pertinent to rebut that.

The discrepancies in the plaintiff's evidence do point to someone intent on either embellishing his evidence or simply not being candid with the court at all.

The medical affidavit confirms the desire to shift blame for what may have befallen the plaintiff on the night of 19 March 2003 from his political opponents to being members of the Zimbabwe National Army.

In the light of all these discrepancies, I am not satisfied that the plaintiff has proved, on a balance of probabilities, that his assailants were members of the Zimbabwe National Army.

Accordingly, the plaintiff's claim is hereby dismissed with costs.

The plaintiff in this matter claims the sum of US$9,798=20 as damages for unlawful assault allegedly perpetrated by members of the Zimbabwe Republic Police…, acting within the course and scope of their employment. The defendants admit that the plaintiff was arrested and detained by members of the Zimbabwe Republic Police but deny that he was assaulted during his arrest and detention.

The issues for determination are relatively straightforward and are as follows -

(1) Whether or not the plaintiff was unlawfully assaulted by members of the Zimbabwe Republic Police acting during the course and within the scope of their employment.

(2) If so, the quantum of damages, if any, suffered by the plaintiff as a result of the assault.

Evidence for the Plaintiff

Monday Bopoto Nyandoro, who is the plaintiff in this matter, testified as follows. He is presently sixty three (63) years old, and, at the time of the alleged assault, he was an active member and office-bearer of the National Constitutional Assembly…, a non-governmental organisation based in Zimbabwe. On 5 November 2005, he was involved in a peaceful National Constitutional Assembly demonstration proceeding along Robert Mugabe Road in Harare. The National Constitutional Assembly group of about 300 people was running and singing along the side of the road and dropping political flyers as they proceeded without obstructing the traffic on the road. At the corner of Innes Terrace, members of the Zimbabwe Republic Police Support Unit disembarked from about six lorries and began running towards the crowd. They wore police uniforms and were wielding rubber batons. Most of the crowd ran away and dispersed, but the plaintiff was caught and assaulted by about ten to twelve policemen. The plaintiff fell to the ground and continued to be assaulted. He was then lifted and shoved into one of the police lorries where he was trampled upon whilst lying down. The lorry was then driven to Harare Central Police Station…, where he was separated from the other arrestees and taken to two senior police officers in the Law and Order Section. These officers took turns to assault him under the sole of his left foot for a period of approximately 1½ hours. He was then taken to the holding cells at Harare Central Police Station and detained for four days until he was eventually released.

Evidence for the Defendants

Sergeant Hangwane Singo has been with the Zimbabwe Republic Police for fifteen years. In November 2005 he was engaged at Harare Central Police Station with the duty of gathering security information. He testified that he first met the plaintiff at about 4.00 p.m. on 5 November 2005, after he was arrested and brought to Harare Central Police Station. Pursuant to instructions from his Member-in-Charge, he detained the plaintiff as a suspect for investigation by the CID Law and Order Section. The plaintiff was limping before his detention but did not complain of any injury. After detaining the plaintiff, he did not see him again. He could not say whether or not the plaintiff was assaulted by any member of the CID Law and Order Section.

Inspector Douglas Shoko has been a policeman for nineteen years and was stationed at Harare Central Police Station in the CID Law and Order Section during 2005. His evidence was that on 6 November 2005 he was instructed by his Officer-in-Charge to investigate the National Constitutional Assembly demonstration suspects. Together with two colleagues he took fingerprints from the thirteen suspects and recorded their profiles. Subsequently, certain defence lawyers came to represent the suspects while their warned-and-cautioned statements were being recorded. All of the suspects, including the plaintiff, signed statements drafted by their lawyers. The uniform response of all the suspects was to deny the charge against them and to state that their possession of flyers and placards was not unlawful. Thereafter, the witness escorted all the suspects to the holding cells for detention. He then compiled dockets in respect of each suspect and forwarded the dockets to the Attorney-General's Office. In compliance with the direction from that Office, and after instructions from his Officer-in-Charge, he released all of the suspects from custody on the afternoon of 8 November 2005. When he saw the plaintiff for the first time, he did not seem to have been injured. He did not notice whether the plaintiff was limping at that time. When the plaintiff was released, he was physically well and did not appear to be limping.

Under cross-examination, the witness stated that the plaintiff was arrested at approximately 11.30 a.m. on the 5^th of November 2005. On that day the witness was deployed elsewhere and only arrived at Harare Central Police Station at 8.00 p.m. He was therefore not present at the time of the alleged assault on the plaintiff. As regards Exhibit 1, he recognised the assailant as a police officer by virtue of his police uniform but was unable to identify him by name. He was also unable to recognise the victim in the photograph as being the plaintiff because the face in the photograph was unclear. Additionally, all the suspects that he interviewed on 6 November 2005, including the plaintiff, were wearing National Constitutional Assembly tee-shirts and would not have been allowed to change their clothing before being photographed. When questioned by the Court, the witness stated that the dockets opened for the suspects were no longer available as they had been destroyed in 2009, after the passage of three years, in accordance with Police Standing Orders. However, these Police Standing Orders are silent as to the handling of dockets where civil litigation is pending in relation to the arrest and detention of suspects.

The plaintiff herein claims the sum of US$150,000= as damages for malicious misconduct allegations brought against him by the defendant in April 2008. The defendant denies any malice or illegality on its part. 

Consequently, the principal issue for determination in this case is whether or not the misconduct allegations and proceedings brought against the plaintiff were motivated by malice, prejudice and without legal basis.

The second issue is whether or not the plaintiff suffered any damages, and, if so, the quantum thereof.

Evidence for the Plaintiff

Luke Jim Davies, the plaintiff, testified as follows. He joined the defendant company in June 2006 as its Procurement Manager and was promoted to the post of Administration Manager in August 2007. Throughout 2007 he received good performance appraisals from his superiors and his performance reviews contained no allegations of misconduct. Again, an independent external group audit was conducted from June to August 2007 and an internal audit followed from November to December 2007. Neither of these audits implicated the plaintiff as regards his work-related activities in 2007. From March 2008, he reported to Mr. Vambe, the Acting Chief Finance Officer. At that time, a secret investigation was carried out into his department by the internal audit unit. This was instigated by Mr. Chigogwana, the Managing Director, and Ms. Nyamupachitu, the Chief Human Resources Officer, both of whom saw the plaintiff as an obstacle to their self-serving fraudulent activities. The plaintiff was not consulted during the investigation and neither he nor his staff participated in the process. In April 2008, he was served with an Administration Department Investigations Report focusing on the performance of his duties in 2007…,. The findings contained in the Report were false and unfounded. Mr. Vambe handed the Report to the plaintiff and asked him to respond. He did so in detail as regards the six charges levelled against him…,. Later that month, despite his detailed responses which showed that there was no good cause for disciplinary proceedings, he was served with a notice to attend a hearing to answer charges of misconduct…,. The hearing was conducted at the end of April and the minutes of that hearing were produced in early May…,. Later, in May, he received the determination of the Hearing Officer…,. He was found guilty on one out of the six charges and sentenced to a severe written warning valid for six months. He then appealed against that finding through his lawyers at the end of May…,. The appeal was conducted in mid-June and minuted the next day…,. The determination of the Appeals Officer, which was received a few days later, upheld the original finding of guilt as well the penalty imposed….,. Thereafter, the plaintiff appealed to the Labour Office and the matter was referred to compulsory arbitration. The arbitration hearing was held in October and the arbitral award was handed down in November 2008…,.  The arbitrator set aside the finding of guilt and ordered the cancellation of the written warning.

According to the plaintiff, Ms. Nyamupachitu's malice was evident from two letters that she wrote in November 2007 confirming his appointment to the post of Administration Manager…,. She was malicious because his promotion diluted her position in the Human Resources Department, as appears from the organogram attached to Exhibit 10B. She also benefited from the unprocedural purchase of her company car by having it under-priced. Together with Mr. Chigogwana, she orchestrated the allegations against the plaintiff. Mr. Chigogwana himself engaged in various corrupt and fraudulent activities involving the over-priced procurement of computer equipment and luxury cars for the defendant company. Following several independent audits he was dismissed from the company in 2009. In November 2008, the defendant unilaterally terminated the plaintiff's employment contrary to his wishes…,. The estimated equivalent of his earnings at that time was circa US$3,000= per month, including salary and various executive allowances. Thereafter, the defendant has declined to issue a certificate of service, thereby preventing him from access to other jobs through employment agencies. Such certificate is essential as a rule for employment in the financial sector.

The plaintiff is qualified as a Chartered Buyer, through the United Kingdom Chartered Institute of Purchase and Supply and holds an MSc degree in Strategic Management from the University of Derby. He also holds various Board positions, including Finance Deacon of the Celebration Church and Chairman of the Zimbabwe Chartered Institute of Purchase and Supply from 2006 to 2008. Although the allegations against him were not publicised outside the defendant company, they not only undermined his position within the company but also penetrated and prejudiced his public life through word-of-mouth. The allegations were also discussed at the AGM of the Zimbabwe Chartered Institute of Purchase and Supply in November 2008. Consequently, he lost his re-election to the chairmanship of that body and also had to defend himself before the United Kingdom Institute….,.

Under cross-examination, the plaintiff admitted that he received his full pay and benefits throughout the disciplinary proceedings. He also conceded that he did not raise the question of malice before the Hearing Officer and the Appeals Officer, nor did he object to Mr. Chigogwana chairing the appeal proceedings. This was despite the fact that he was legally represented at both hearings. He further accepted that his acquittal by the arbitrator was based on certain procedural weaknesses in the internal disciplinary proceedings.

Evidence for the Defendant

Prisca Nyamupachitu has been employed by the defendant as its Chief Human Resources Officer since September 2003. She holds two diplomas in Education and Training Management as well as a BSc Degree in Sociology from the University of Zimbabwe and an MBA degree from the Zimbabwe Open University. Her evidence was as follows.

She was involved in hiring the plaintiff in 2006 and has worked with him until 2008. She did not encounter any problems in her working relationship with the plaintiff at any time. The plaintiff was promoted to the post of Administration Manager with two other managers; the Fleet Manager and the Procurement Manager becoming his subordinates. Before that, these two managers reported to the Chief Operating Officer and not to the witness as claimed by the plaintiff. The witness wrote Exhibit 10A, citing the 1^st of September 2007 as the effective date of the plaintiff's promotion, that being the date initially fixed by the Chief Finance Officer, Mr. Chimbera. She then received an instruction from Mr. Chimbera that the plaintiff's promotion date was to be the 1^st of August 2007. Consequently, she wrote Exhibit 10B superseding Exhibit 10A, simply revising that date in accordance with Mr. Chimbera's instruction. As regards disciplinary proceedings generally, the initial investigation is carried out by Internal Audit, Security and Investigations or the relevant Head of Department, depending on the nature of the allegations concerned. The matter is then referred to Human Resources, and, if there are reasonable grounds for instituting disciplinary proceedings, that department appoints a Hearing Officer with the requisite disciplinary training to hear the matter. Exhibit 1 resulted from a Reserve Bank of Zimbabwe…, audit of the defendant from April to June 2007.The Reserve Bank of Zimbabwe issued a Corrective Order in November 2007 ordering the removal of certain staff and requiring the tightening of control systems in all departments. This called for an audit of all departments within the defendant company, including the plaintiff's department. The Administration Department was initially audited in November 2007. This was followed up by another audit resulting in Exhibit 1. It was not necessary for the internal auditors to advise or consult the plaintiff in these investigations. Thereafter, he was duly called upon to respond to the issues raised in Exhibit 1. Following the plaintiff's responses, the Acting Chief Finance Officer, Mr. Vambe, felt that the plaintiff had not satisfactorily addressed certain issues and that there were reasonable grounds for disciplinary proceedings. He then approached Human Resources, and, having analysed all the papers, that department agreed that there were reasonable grounds to prefer misconduct charges. The witness then appointed the Head of Personal Banking, Mr. Makombe, as the Hearing Officer. The latter acquitted the plaintiff on five charges but found him guilty on one charge. The plaintiff appealed and the appeal was heard by Mr. Chigogwana, who was one of two Managing Directors, the other not having been available at that time. The Chief Executive Officer, Mr. Hounsell, decided that Mr. Chigogwana should be the Appeals Officer in this case. In November 2008, the arbitrator overturned the finding of guilt and the penalty imposed upon the plaintiff. Consequently, the witness pulled out the written warning from the plaintiff's personal file and sent a memorandum to him confirming that fact, thereby implementing the arbitrator's decision. Soon afterwards, Mr. Hounsell forwarded Exhibit 11 to the witness, who then processed the plaintiff's terminal benefits and deposited them into his current account. Subsequently, the plaintiff referred his termination to the Labour Office and then to arbitration on several grounds. The arbitrator determined that his contract of employment had been lawfully terminated. The witness was not aware of any appeal against that determination.

In July 2008, in keeping with the defendant's motor vehicle policy, the witness exercised her right to purchase her company car, a second-hand Mercedes Benz. The Fleet Manager, Mr. Chideya, who was the plaintiff's subordinate, obtained three market value quotations and sent an e-mail to the witness…,. This e-mail was copied to the plaintiff as the Administration Department Manager and he was therefore involved in, or aware of, the process. The Chief Executive Officer then fixed the price at US$31,250= which was the highest quoted price. This was converted to the Zimbabwe Dollar equivalent of $846 trillion, using the bank rate, and reflected in the Vehicle Purchase Agreement between the defendant and the witness…,.

As regards certificates of service, the defendant's standard form shows when the employee joined the Group, the position held, the date of termination and the reason for termination…,. It does not contain any other detail or reference. In any event, the plaintiff did not at any time request the witness or anyone else in Human Resources to furnish a certificate of service.

Under cross-examination, the witness insisted that Exhibit1 as read with Exhibits 2A-2F, on an objective and bona fide assessment, contained sufficient grounds to prefer misconduct charges against the plaintiff. It was not her function to determine allegations of misconduct but simply to advise whether there were reasonable grounds to proceed with a disciplinary hearing. The decisions of the Hearing Officer and Appeals Officer would have been more informed decisions based on all the evidence and not the papers alone.

Malicious Allegations and Proceedings

According to Feltoe: A Guide to the Zimbabwean Law of Delict (2006), the delict of malicious prosecution or proceedings is committed-

“When D maliciously, and without reasonable and probable cause, brings legal proceedings against another. Every citizen has a right to use legal proceedings legitimately for the purpose of upholding and protecting his rights. He or she does not, however, have the right to abuse the legal process for the purpose, not of upholding and furthering his or her rights, but instead solely for the purpose of causing harm to P because he or she has malice towards P. Thus, it constitutes a delict if D, actuated by malice and with no reasonable and probable grounds for doing so, does any of the following:

(i) Procures the arrest or detention of P by the proper authorities (malicious arrest or detention); or

(ii) Institutes against P unsuccessful civil or criminal proceedings resulting in injury to reputation or pecuniary loss (malicious prosecution); or

(iii) Issues execution against P's property, which writ has been set aside (malicious execution).

…,. As regards malicious prosecution, the case of Bande v Muchinguri (1999) points out that the term 'malice' did not here mean spite or ill-will or a spirit of vengeance; it had a wider connotation. It included any motive different from that which is proper for the institution of criminal proceedings, which is to bring an offender to justice and thereby aid in the enforcement of the law.”

The plaintiff's claim is an actio iniuriarum for malicious proceedings or abuse of legal proceedings. For present purposes, the essential elements of this delict are that:

(i) The defendant set the law in motion against the plaintiff;

(ii)  In doing so, the defendant acted without reasonable and probable cause, viz. without any objective basis;

(iii) The defendant's conduct was actuated by malice or improper motive;

(iv) The proceedings were terminated in favour of the plaintiff; and

(v) The plaintiff suffered damages as a result of the proceedings.

See Beckenstrater v Rottcher & Theunissen 1955 (1) SA 129 (A)….,; Van der Merwe v Strydom 1967 (3) SA 460 (A)…,.

It is common cause that disciplinary proceedings were instituted by the defendant's officers against the plaintiff and that those proceedings were eventually terminated by the arbitral award in the plaintiff's favour.

What is in dispute is whether these officers acted without reasonable and probable cause and whether their conduct was actuated by malice or improper motive.

As regards good cause, the plaintiff's position is that the defendant has failed to prove that Exhibit 1 resulted from any Corrective Order issued by the Reserve Bank of Zimbabwe. Again, by failing to call the author of the misconduct charges (Mr. Vambe) to testify, the defendant has further failed to show good cause for the misconduct proceedings. In light of the plaintiff's detailed and well-documented responses to Exhibit 1, there was no reasonable basis for those proceedings to have ensued. This is demonstrated by the plaintiff's internal acquittal on five of the six charges against him and his eventual acquittal on all charges. As for malice, the defendant's employees deliberately excluded the plaintiff from the investigations culminating in Exhibit 1, in clear breach of the Labour (National Employment Code of Conduct) Regulations 2006 (S.I.15 of 2006). Thereafter, their improper motive was also evidenced by their persisting with misconduct charges despite overwhelming documentary evidence to the contrary.

In rebuttal, the defendant's position is that it instituted the disciplinary proceedings against the plaintiff in accordance with the Labour (National Employment Code of Conduct) Regulations 2006 (S.I.15 of 2006). In so doing, the defendant acted with reasonable and probable cause and followed due process in conducting and concluding the proceedings. The onus of proof in relation to the absence of good cause and the allegations of malice fell squarely on the plaintiff. Having regard to the defendant's evidence countering those allegations, the plaintiff has failed to prove the requisite malice to establish his case….,.

In the instant case, the investigation into the plaintiff's department appears to have been conducted pursuant to the Reserve Bank of Zimbabwe Corrective Order as an incident of the requirement to carry out random periodic checks on all of the defendant's departments. The investigation took place without the plaintiff's participation and before any disciplinary action was taken. Although the plaintiff's involvement in the investigation process might have been desirable, I do not think that its absence rendered the investigation irregular. In any event, the plaintiff was asked to respond to the allegations contained in the investigation report, and he did so, comprehensively and in great detail. Subsequently, his superior officer, in consultation with the Head of the Human Resources Department, considered all the papers and decided that there should be a hearing to determine the allegations of misconduct. They then appointed a colleague to hear the matter and there is nothing to suggest that this person was anything other than neutral. At the hearing, the plaintiff was legally represented and afforded a full opportunity to present his case. He was exonerated on five of the six charges against him and this decision was upheld on internal appeal. Ultimately, the finding of guilt on the sixth charge was set aside by the arbitrator, who then ordered the defendant to cancel the penalty imposed upon the plaintiff and expurgate it from his record.

In hindsight, given that the plaintiff was entirely absolved of all the charges against him, it is arguable whether there was good cause to believe that he had committed any act of misconduct. However, there is nothing in the evidence before me to dislodge the defendant's assertion that the decision to institute misconduct proceedings was taken on an objective assessment of the papers and that the internal hearings were conducted in accordance with the rules of natural justice. In my view, the fact that the defendant was eventually acquitted does not necessarily mean that there was no reasonable ground from the outset for instituting misconduct proceedings. It seems to me that the genuine purpose of those proceedings was to formally adjudicate the allegations of misconduct that had been preferred in order to determine the plaintiff's guilt or innocence. In this regard, it is also apposite to consider the specific findings of the arbitrator. Very significantly, he did not dismiss the possibility of some nexus between the internal audits and the charges levelled against the plaintiff. In essence, he acquitted the plaintiff because of “poor workmanship on the minutes of the hearing and determination handed down in this matter” viz. because of procedural and technical defects rather than substantive deficiencies.

As regards malice, it is important to note that the plaintiff did not raise the question of malice or victimisation throughout the disciplinary proceedings, even though he was legally represented. Moreover, the defendant did not, at any stage, as it was procedurally entitled to do, suspend the plaintiff or prevent him from performing his functions. On the contrary, he remained on full pay and benefits from the beginning to the conclusion of the disciplinary proceedings.

As for ulterior motives, it is common cause that Mr. Chigogwana was dismissed by the defendant in 2009, apparently in compliance with the Reserve Bank of Zimbabwe Corrective Order. However, there was no evidence to sustain the plaintiff's assertion that Mr. Chigogwana actively instigated the disciplinary proceedings in casu. Again, in Prisca Nyamupachitu's case, there is nothing to show that she bore any grudge or ill-will against the plaintiff. His promotion to the post of Administration Manager did not in any way undermine her authority as Chief Human Resources Officer, and her explanation regarding his letters of appointment was perfectly plausible and acceptable. With respect to the acquisition of her company car, it is abundantly clear that this was an arms-length transaction, carried out in full compliance with the defendant's motor vehicle policy and with the plaintiff's knowledge.

Disposition

The plaintiff, aged 67, is a retired pastor in the Evangelical Lutheran Church of Zimbabwe. He is a farmer at Jonsyl Farm, West Nicholson. The first defendant is also a farmer and neighbour of the plaintiff.  The second defendant is also a farmer resident at Dwala Resettlement area in West Nicholson.

On 3 May 2008, the two defendants, together with other persons unknown to the plaintiff, approached the plaintiff. They accused him of being a member of the Movement for Democratic Change political party. For allegedly being a member of the Movement for Democratic Change, the defendants, and others, severely assaulted the plaintiff with sticks and logs on the buttocks. The assault caused the plaintiff pain and suffering. As a result of the assault, the plaintiff was unable to walk from the scene of the assault.  The plaintiff was conveyed from his farm in West Nicholson to Bulawayo by his brother. He was taken to Galen House Casualty Unit and at the health institution he was attended by Dr. J. G. M. Ferguson who observed and opined as follows:

“…., when first seen, the left buttocks demonstrated very severe bruising. Over a period of days, the condition continued to deteriorate and it became evident that sloughing process was setting in and the skin was becoming gangrenous. Mr Mlotshwa, a consultant surgeon was called in and the patient taken to Lancet Theatre for de-sloughing under general anesthesia. He then underwent a period of days while the injury site was treated in preparation for skin grafting. During this time he was confined to bed in the Mater Dei Hospital and still in considerable pain. Eventually, the injury was considered suitable for skin grafting and he was taken to theatre, when [sic] an extensive graft was taken from his thigh and transferred to the injury site. There following a period of immobility when he had to be confined to the bed in hospital to allow the graft to establish itself to the new site. He was thought fit for discharge from hospital, and very limited activity, on the 26^th June, a period of fifty three days following the assault. The graft has now taken well and is gradually becoming robust, which is a necessary development, as sitting on it is traumatic and further damage can be sustained. The Reverend Vela had undergone a period of great suffering as a result of this very serious assault. He is gradually being restored to activity and to health but he will never be fit for the physical activity which he was able to indulge in prior to being injured. He will continue to suffer pain in the region for a long time to come.

It is fortunate that this man is emotionally very strong and has come through his ordeal in a most admirable way.

On 8 December 2010, at around 1700 hours, and in Avonlea Drive, the plaintiff was approached by the defendant who was in the company of other officers of the Criminal Investigation Department. The defendant ordered the plaintiff to disembark from the motor vehicle where he was sitting. He ordered the plaintiff to lie on the ground on his back.

The defendant accused the plaintiff of having stolen the motor vehicle he was in. The plaintiff protested his innocence. The defendant, who was standing directly above the plaintiff, fired several shots aimed at the plaintiff's legs. He proceeded to handcuff the complainant and drove around with him for several hours before dropping him off at Harare Hospital. He did not remove the handcuffs. The defendant did not take the plaintiff to any police station for charges to be laid against him.

A total of six bullets were fired into the plaintiff's legs. As a result, he sustained numerous injuries from which he;

(a) Endured and still experiences excruciating pain;

(b) Had to have four steel plates surgically inserted in his right leg;

(c) Had to have an above the knee amputation of his left leg;

(d) Suffered contumelia as he was subjected to cruel, inhuman and degrading treatment....,.

The defendant was served with the summons and did not enter appearance to defend. The matter was set down on the unopposed roll for the plaintiff to establish his claim.

In his affidavit of evidence, the plaintiff detailed how he was shot, the injuries he sustained, some of the procedures he underwent, and the medical expenses he incurred in respect of the procedures.

He then concluded in affidavit with a statement that he is entitled to the damages in the summons and declaration as the shooting was unjustified and unprovoked.

On the 2^nd of March 2012, the plaintiff issued summons against the defendant claiming the following relief:

(a) Payment of US$10,000= being general damages for pain and suffering.

(b) Payment of US$120= being special damages for medical expenses.

(c) Payment of interest and costs of suit…..,.

The plaintiff brought the matter on the unopposed roll and I directed that detailed Heads of Argument be filed to justify the claim for damages as set out in the summons and declaration.

This claim arises out of an assault inflicted upon the plaintiff by the defendant on the 2^nd of September 2011. The plaintiff and the defendant were both teachers at Inyathi High School at the relevant time. The plaintiff is a female adult and the defendant is a male adult person. A dispute arose between the parties over the occupation and use of a certain cottage at the aforesaid school. This resulted in the defendant assaulting the plaintiff all over the body with clenched fists. The defendant suffered a swollen face and bruises on the left shoulder. A medical report prepared by a Doctor revealed that the injuries were serious and the degree of force used in the assault was moderate. There was no possibility of permanent injury. The plaintiff alleges, in her Heads of Argument, that as a result of the assault she sought medical attention and was forced to purchase and wear spectacles because her vision was damaged permanently as direct consequences of the assault. The plaintiff further complained that she now has permanent and recurrent migraine headaches which require her to constantly take medication in order to control them. 

The defendant has not apologised for his conduct.

The defendant paid an admission of guilt in the sum of US$10= for contravening section 41(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] for conduct likely to provoke the breach of the peace. It is not clear why the defendant was not charged with the more serious offence of assault but that aspect is not relevant to the issues before the court.

There are only two issues for determination in this matter, viz;

(a) The quantum of general damages for pain and suffering.

The plaintiff issued summons in July 2007 against the defendant claiming for:

(a) Permanent injury and disfigurement - $500 million

(b) Pain and suffering -                             $250 million

(c) Loss of amenities in life -                     $150 million

(d) Medication and medical bills -             $  11 million

(e) Transport -                                           $  15 million

(f)  Loss of production at farm -                 $  27 million

                                                    Total =   $953 million

The plaintiff also claimed interest at the prescribed rate from the date of the summons and costs of suit at an attorney and client scale.

In his declaration, the plaintiff said he is a resettled farmer, and the defendant is a farmer who carried on farming activities adjacent to the plaintiff's plot. He said on the 1^st of June 2005, at Vergnoug Farm, Kezi, the plaintiff and the defendant engaged in a dispute over cattle grazing rights as the two share a common boundary. During the dispute, and without any provocation, the defendant wrongfully and unlawfully assaulted the plaintiff with a pick handle; physically assaulted him all over the body with fists and booted feet. He said as a result of the assault he suffered the following injuries:

(i) Cuts and bruises all over the body.

(ii) Compound fracture on the right tibia,

(iii) 8mm wound on the left leg as will morefully appear from the medical report annexed.

He said this was as a result of an unprovoked attack on him by the defendant. The defendant has since been charged and convicted on a competent verdict of assault with intent to cause grievous bodily harm on the 19^th of June 2007 at the Gwanda Magistrates' Court. He referred to a copy of the indictment as an annexure on the papers - but there was none.

The respondent entered appearance to defend. His plea was that the plaintiff was stealing the defendant's cattle and it is the plaintiff who attacked the defendant and those in his company.

In his evidence, the plaintiff said he has been settled on Sub-division 1 of Buluma Farm for 9 years. He is not using the farm and it is being used by the original owner - the defendant. He said on June 1, 2005, together with others who had been settled on Vergnoug Farm they drove out the defendant's cattle towards the defendant's farm. A red vehicle approached them. In his group were about 20 people. The vehicle approached at high speed and the cattle ran off the road to the left side. When the vehicle stopped, the defendant was carrying a firearm and he fired a shot then handed the firearm to his son. He said he was 7 metres away from the defendant.The defendant then took either a pick-handle or knobkerrie and came face to face with the plaintiff. He demanded to know what his cattle had done. The plaintiff said they were taking the cattle to the defendant's farm. All of a sudden, the defendant started assaulting him with the weapon he was carrying. He hit the plaintiff three (3) times with a log. The plaintiff tried to block the blow with a stick. The defendant hit him on the hands and he fell down. As he lay down he tried to hold the defendant and he was hit on the arm by the two employees. The defendant hit him with something like a knobkerrie on the right leg. That was how he sustained a fracture on the tibia bone. He later noticed a deep cut on the left leg. He had a swollen face. The defendant's son fired a shot pointing at where they were and directed another shot in the air. No one came to intervene other than verbally. He said after the firing of the shot those assaulting him left and he was left for dead. He regained consciousness at Maphisa Provincial Hospital. An ambulance took him to the United Bulawayo Hospital for treatment. He stayed at the United Bulawayo Hospital for a week. After his discharge he continued to attend for treatment. He said as a result of the injuries he now walks with a limp and sometimes feels pain on the right side of the body. Doctors advised him never to run in his life.

Under cross examination, it was put to the plaintiff that he hit the defendant first. He denied. It was put to him that he tripped the defendant and both fell. He said that could be true as he was in danger of being killed and was trying to defend himself. He denied that the rest of his group attacked the defendant. He said the defendant's employees helped the defendant to assault him. When it was put to him that the defendant hit him on the leg as he had locked the defendant with his legs he said that was a lie. Asked if he had claimed to have been shot he said “yes” because a shot had been fired and raised dust close to where they were. He said he was not sure what caused the injury on his leg. Asked why he told the police that he had been shot he said he suspected that it was a bullet wound. Asked if it turned out to be a bullet wound he said he did not know. He said people who were there would tell the court what happened. He said that he did not see the defendant bleeding as he was left for dead. He denied that he was left standing. He said when he met the defendant he had been holding a switch. Asked if he was sure of who injured him on the leg he said it was the defendant and his team….,.

In his defence, the defendant said he owns four (4) ranches. On the 1^st June, somebody removed cattle from his farm. He met people chasing cattle off the farm. He had previously got a report of cattle being chased out of the farm on 31 May. He phoned the police but they were not helpful. They said they were having tea and could not come. He went with his workers and his son and met some cattle and two young men with axes. He proceeded and came across his cattle. He took pictures of the cattle and people behind the cattle. He walked towards them. He then realized he had left two rifles in the vehicle and he returned, removed them, and then locked the vehicle. His son, Dillen, carried one rifle and his worker, Dlamini, carried the other rifle. They met the group of people and he asked Ndiweni, the plaintiff, who was right in front and nearest to him. He knew Ndiweni, the plaintiff. The plaintiff started insulting him saying; “You.., makhiwa” (Europeans) and the plaintiff hit him with a stick on the left ear. Thhe defendant had a hoe handle and he hit back. The handle is longer than a pick handle and he uses it as a walking stick, approximately (1½ metres long indicated.) He hit the plaintiff on the side on the thigh. The plaintiff fell and the stick broke. He stood near the plaintiff and the plaintiff grabbed him with his feet. He could not walk. He fell. Once on the ground, the plaintiff, who had two (2) sticks, hit him on the body. He tried to turn but the plaintiff was hitting him with the stick on the body. One of his workers tried to take the stick from the plaintiff but failed. The rest of the gang got onto the worker and he had to retreat. The defendant was then fighting other people who had knobkerries. The defendant's son, at that time, fired two (2) shots into the air. The defendant picked up a knobkerrie and hit the plaintiff on the legs, possibly 6 to 7 times. He says this was the only way to get the plaintiff to release his legs after which the defendant managed to get on his knees and the fight was over. He asked one Sibanda why all that. While he spoke to Sibanda the plaintiff got up. They went back to the car and left the plaintiff talking to Sibanda. He said it was possible that the plaintiff got injured on the legs, not on the body, because he could not reach the plaintiff's body. He was not aware that the plaintiff was fractured on the leg but he left the plaintiff seated - not unconscious. At the hospital, he saw a statement which said police removed a bullet from the leg and that the plaintiff was shot by a pistol, but nobody had a pistol. He said the settlers came there in 2001 and he had no problems with them till the arrival of the plaintiff. He mentioned some disputes with the settlers and that he had refused to leave the farm.

He said he did not hit the plaintiff first but hit back when the plaintiff took him by surprise. Asked later, under cross-examination, he said he normally carries the handle when driving cattle and uses it as a walking stick.

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 care 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.''…,.

In his Affidavit of Evidence, the plaintiff avers that the 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 4^th 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 the 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 18^th 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 the plaintiff discovered that the defendant had stolen R9 million from his employer, transferred it to the Masiqhane Trading account before withdrawing it for his own personal use. The plaintiff was kept in detention cells and formally charged with the defendant in absentia. The plaintiff was released from remand prison on 25^th April 2012 after 98 days of deprivation of liberty, when charges against him were provisionally withdrawn.

Upon his release from custody, the plaintiff confronted the defendant who did not deny his wrongdoing. In spite of his initial promise to compensate the plaintiff for the trauma and humiliation caused by his actions, the defendant eventually became hostile and refused to compensate the 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 the defendant's actions. The 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 no 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 the 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. McKERRON in his Law of Delict, 7^th Edition…, 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.

This is an action wherein at the close of the plaintiff's case the defendants applied for absolution from the instance. I allowed the parties to file heads of argument.

 In the action, the plaintiff prayed for the following relief:-

“(a) Payment of the sum of (US$20,000=) twenty thousand United States Dollars for damages for malicious, wrongful arrest and detention of Plaintiff by Police Officers from Braeside Police Station on or about 25^th February 2011 for 17 hours with an intention to cause suffering and prejudice caused and instigated by 1^st and 2^nd Defendants a consequence of which arrest and detention Plaintiff suffered contumelia and was deprived of his liberty as amplified in his declaration hereto attached; 

(b) Interest calculated at the prescribed rate from 25^th February 2011 (date of delict) to date payment in full; 

(c) Costs of suit.”

The facts of the case were that on 25 February 2011, the first defendant caused the arrest of the plaintiff on the ground that the plaintiff had assaulted him. The plaintiff alleged that the arrest was at the instigation of the second defendant who was the employer of the first defendant. He also alleged that the report of assault was false and malicious. Following the arrest, the plaintiff was incarcerated in a cell at Braeside Police Station in an overcrowded cell for 17 hours. The plaintiff said during the incarceration one of his testicles was injured when an inmate fell on him.

It is on the basis of the above facts that the plaintiff made his claim against the defendants.

On 7 December 2012, the parties filed a joint pre-trial conference minute wherein the agreed issues for determination were listed as follows:-

“1. Whether or not 1^st Defendant made the police report at the instance of 2^nd Defendant?

2. Whether or not Plaintiff suffered injuries as a result of his arrest and in police custody?

3. Whether or not Defendants are liable for injuries sustained by Plaintiff? 

4. What is the quantum of damages due to Plaintiff by Defendants viz a viz injuries sustained?

5. What is the quantum of damages due to Plaintiff by defendants viz a viz unlawful arrest and detention.”

In the joint pre-trial minute, there was an admission of the fact that the first defendant accepted liability for laying a false charge against the plaintiff. The false charge was, however, not disclosed to the court. However, in his declaration, the plaintiff states:-

“In or about February 2011, and at Harare, 1^st Defendant, in the course and scope of his employment with 2^nd Defendant, made a report to the Zimbabwe Republic Police, Braeside Police Station, alleging that Plaintiff had assaulted him.

Plaintiff avers that such a report was made by the 1^st Defendant acting on the directions of the 2^nd Defendant.

The said report was false and malicious in that both 1^st Defendant and 2^nd Defendant, as represented by its Directors, Anisha, whose full particulars are known to Plaintiff and R Kiservan also whose full particulars are not known to Plaintiff were all well  aware that 1^st Defendant had not been assaulted nor threatened in any manner by the Plaintiff.

On 25^th February, and at Harare, 1^st Defendant, as directed by 2^nd Defendant, caused and instigated Police Officers from Braeside Police Station, led by one Constable Tarisai, to arrest and detain Plaintiff within holding cells at Braeside Police Station. When laying this false charge and giving this false information, 1^st Defendant had no reasonable or probable cause for doing so nor did the 2^nd Defendant have any belief in the truth of information given.

The said arrest and detention were, in all the circumstances, malicious, wrongful and without justification or excuse and all intended to cause suffering and prejudice to Plaintiff as the report upon which they were premised was malicious and false and carefully planned to absent Plaintiff from a disciplinary hearing upon which the 2^nd Defendant later discharged Plaintiff from its employ.

On 26^th February 2011, the 1^st Defendant then proceeded to withdraw his complaint although plaintiff had already been incarcerated for 17 hours without giving Plaintiff an opportunity to be heard before a court of law nor leaving the law to take its course.”

Furthermore, in his amended summary of evidence filed on 25 June 2012, the plaintiff stated that:-

“2^nd defendant requested that Plaintiff attend a disciplinary hearing, and, on the date of the said hearing, plaintiff was arrested by two police officers who told him that the first defendant had complained that plaintiff had assaulted him and threatened him with death.”

The above pleadings give reasons for the arrest. However, in his evidence, the plaintiff said he was never told of the reason for his arrest until released. Be that as it may, at the end of the trial the plaintiff said he no longer had any issue with the first defendant. He saw no need to proceed against the first defendant.

Contrary to his claim for US$375= in respect of medical expenses, and as contained in his amended declaration, the plaintiff conceded that he had paid only US$180=. He further went on to say instead of claiming US$19,500= as damages for future specialist medical treatment the correct amount was US$2700-00.

The plaintiff produced a medical report and an affidavit dated 01 October 2012 and 9 October 2012 respectively. Those reports, coming after over a year following the injuries in police cells, required further expert evidence to link them to the injuries (i.e. injuries sustained on 25 February 2011).

The plaintiff also went on to produce an unauthenticated document purporting to be a police report dated 11 March 2011. The report, in full, read:-

“Reference of report made to Police on 25 February 2011 on CR175/02/11, a result of investigations carried out: Case was withdrawn by complainant.”

The report did not bear an official stamp of Braeside Police Station and did not spell out what the case was and the persons involved.

It was on the basis of the above discrepancies in the plaintiff's evidence that the defendants found it necessary to apply for absolution from the instance. They were, in my view, justified to do so because the plaintiff has indeed failed to present a prima facie case before the court….,.

The second defendant agreed that it provided transport to the arresting details as they took the plaintiff to the police station. The plaintiff also agreed that there was nothing wrong with the second defendant co-operating with the police.

The plaintiff's evidence was far from establishing that the first defendant, whatever report he made to the police, had been instigated by the second defendant. Even assuming that the exonerated first defendant had made a false report, the said report was not before the court. Furthermore, according to his own evidence, the plaintiff was never told the reasons for his arrest. The plaintiff can therefore proceed against those who arrested him for no reason (i.e. the police whom he did not cite).

This is an appeal against the decision of the High Court, Harare, dismissing with costs a claim for delictual damages arising out of the unlawful eviction of the appellant from certain rented premises in Harare and attachment of its tools of trade. 

The High Court, whilst finding for the appellant on the question of wrongfulness, concluded that there was insufficient evidence on whether the respondent had acted negligently in causing the eviction of the appellant and consequently dismissed the claim.

FACTUAL BACKGOUND

A. Adam & Company (Private) Limited (“the respondent”) instituted two separate actions in the High Court for the eviction of Ritenote Printers (Private) Limited (“the first appellant”) from two premises it had rented out to the first appellant on the basis that the first appellant had breached the lease agreement in failing to pay rentals. The actions were subsequently withdrawn and re-instituted in the Magistrates' Court. The Magistrates' Court granted an order, inter alia, for the eviction of the first appellant from the two premises.

Dissatisfied with the outcome, the first appellant appealed against that order to the High Court.

Believing that the noting of the appeal would not suspend the order of eviction, the first appellant accordingly filed an application for the stay of execution pending the determination of the appeal. The magistrate, erroneously believing that the common law principle that the noting of an appeal automatically suspends the operation of the order appealed against, dismissed the application on the basis that the applicant could not apply for the stay of execution of an order which had already been stayed by the noting of the appeal.

Section 40(3) of the Magistrates' Court Act [Chapter 7:10] provides that where an appeal has been noted, the Court may direct either that the judgment shall be executed upon notwithstanding the appeal or that the execution thereof shall be suspended pending the determination of the appeal.

The corollary to this provision is that a party that seeks to have the discretion exercised in its favour has to make an application justifying the grant of such discretion.

Contrary to the above provision, the respondent, through its legal practitioners, did not apply for leave to execute the judgment granted in its favour following the noting of the appeal. The respondent's legal practitioners simply instructed the Messenger of Court to proceed to evict the first appellant and attach its property, with which instruction the Messenger of Court complied.

Upon eviction, the first appellant applied to the High Court for an order setting aside the eviction and attachment of its property. The High Court, having noted that the Magistrates' Court was not a court of inherent jurisdiction, came to the incorrect conclusion that since the noting of the appeal did not suspend the judgment of the Magistrates' Court, the respondent was entitled to execute the judgment.

In a judgment between the parties handed down as SC15-11, CHIDYAUSIKU CJ came to the conclusion that the High Court was wrong in the above regard and that the respondent was, in terms of the law, obliged to make an application to execute notwithstanding the noting of the appeal. Not having made such an application, the respondent was not entitled to execute. Consequently, the learned Chief Justice made an order restoring the first appellant's occupation of the leased premises and directing the respondent not to sell any of the attached items pending the determination of the appeal.

On 6 July 2011, this Court allowed the appeal filed by the appellants with costs, set aside the judgment of the High Court and substituted the same with an order granting the provisional order sought. In August 2012, the appellants then instituted an action for payment of delictual damages before the High Court. 

The action was not successful and is the subject of the present appeal.

PROCEEDINGS BEFORE THE HIGH COURT

Before the High Court, the appellants averred that the eviction of the first appellant from the leased premises was wrongful, unlawful and intentional. They further averred that, consequent upon such eviction and attachment of some of the first appellant's tools of trade, the appellants had suffered certain patrimonial losses and, in respect of the second appellant, certain damages for inuria. They accordingly sought payment of various delictual damages by the respondent.

In its plea, the respondent denied acting either intentionally or negligently. It further averred that it did not, in any event, foresee any harm being occasioned as it genuinely believed in the validity and competence of the order of the Magistrates' Court. The respondent also denied having been aware of the invalidity of the writ of ejectment issued at the instance of its legal practitioners.

During the trial before the High Court, the respondent's Director told the court that the respondent had been represented in the Magistrates' Court by a legal practitioner who had failed to appreciate the need to apply for leave to execute before instructing the Messenger of Court to proceed with the execution. He told the court that he did not himself handle the legal issues of the company but left this in the hands of their legal practitioner. As Director of the respondent, he assumed that the practitioner was competent and consequently relied on his advice. At no stage did he, or anyone else representing the respondent, know that the grant of leave was a pre-requisite to the execution. Whatever was done was at the instance of the respondent's legal representative.

In its judgment, the court a quo accepted that the respondent had left all issues legal in the hands of its legal practitioner and that the eviction was the result of a lack of appreciation, on the part of the legal practitioner, of the requirement to seek leave to execute first before such execution was effected. The court further found that it was wrongful of the respondent to evict the first appellant in these circumstances, notwithstanding that such wrongful conduct was based on ignorance of the law and reliance on the advice of its legal practitioner. On the fault requirement, the court was of the view that this was neither specifically pleaded nor proved. No averment of intention or negligence had been made. No evidence had been led to show deliberate infliction of harm with full knowledge that the eviction would result in harm. Consequently, the court a quo reached the conclusion that the summons and declaration did not disclose a cause of action cognisable at law and accordingly dismissed the claim with costs. 

Hence this appeal.

GROUNDS OF APPEAL

In their grounds of appeal, the appellants allege that the court a quo erred in four respects.

(i) Firstly, it misdirected itself in concluding that the appellants had not pleaded and proven fault when the appellant had, in fact, pleaded and proved intention, which is an element of fault;

(ii) Secondly, it erred in failing to come to the conclusion that the unlawful eviction of the first appellant was deliberate and therefore intentional;

(iii) Thirdly, it erred in failing to appreciate that the respondent had acted through its legal practitioner and therefore could not be absolved from the consequences of the actions of the legal practitioner; and

(iv) Lastly, it erred in failing to appreciate that there was an evident distinction between the claim brought by the first appellant and that brought by the second appellant.

APPELLANTS' SUBMISSIONS ON APPEAL

In submissions before this Court, the appellants have argued that there are two issues that fall for determination;

(i) The first is whether fault was alleged and proved in the court a quo.

(ii) The second is whether the actions of the legal practitioner of the respondent are attributable to the respondent itself.

They have submitted that the declaration clearly states that the respondent wrongfully, unlawfully and intentionally procured the eviction of the first appellant. Since the respondent is liable for its legal practitioner's conduct in effecting an unlawful eviction, the court a quo was therefore wrong in separating the actions of the respondent from those of its legal practitioner when the relationship between the two was one of principal and agent. The appellants further submitted that, in terms of the law, the respondent is liable for the conduct of its lawyer. It is the legal practitioner who proceeded to flout laid down procedures in executing a decision which had been appealed against without the leave of the Court.

RESPONDENT'S SUBMISSIONS ON APPEAL

In its submissions before us, the respondent has accepted that the court a quo was wrong in stating that the element of fault was neither specifically pleaded nor proved. Fault, in the form of intention was indeed pleaded in respect of the claim under the Aquilian action but not in respect of the claim under the actio injuriarum, which lacked the level of particularity required by the law. The respondent further submitted that it was not proper for the appellant to allege both intention and negligence, as one excludes the other.  In its pleadings, the first appellant based its claim on intention as a fault factor but in evidence relied on negligence.

The respondent has also argued that the court was fettered from making a finding of fault based on either negligence or intention on the part of the respondent's legal practitioner because the latter was not party to the suit. Such misjoinder was therefore fatal.

Lastly, the respondent drew the attention of the court to the fact that the appellants had conceded that the eviction had emanated from the advice of its legal practitioner. However, fault on the part of the respondent's legal practitioner, or the respondent itself, was not pleaded or proved. Moreover the relationship between the respondent and its lawyers was not simply one of principal and agent but rather one of mandate.

ISSUES FOR DETERMINATION

There are two central issues that fall for determination in this appeal. The issues are;

(i) Firstly, whether the respondent is delictually liable for the misconduct of its legal practitioner; and

(ii) Secondly, whether the appellants pleaded and proved the two important elements under the Aquilian action, namely, wrongfulness and fault….,.

THE APPELLANT'S CLAIM A QUO WAS BASED ON THE LEX AQUILIA AND ACTIO INJURIARUM

The appellant's claim in the court a quo was for payment of various amounts in damages for unlawful eviction. It is clear that the first appellant's claim was based on the lex Aquilia whilst the second appellant's claim was based on both the lex Aquilia and the actio injuriarum.

The requirements for the Aquilian action are well established. They are:

(i) Voluntary conduct which is

(a) Unlawful or wrongful (wrongfulness);

(b) Capacity;

(c) The conduct must have led to physical harm to person or property and thereby to financial loss or have caused purely financial loss which does not stem from any physical harm to person (loss);

(d) The loss must have been inflicted intentionally or negligently (fault or culpa); and

 (e) There must be a casual link between the conduct and the loss (causation).

Under the actio injuriarum, the plaintiff must plead, and prove, an intentional infringement of a personality right. Inuriae which occur regularly have come to be known by specific names, such as defamation, wrongful attachment of property, abuse of legal proceedings, etc, but essentially remain species of the genus inuria.

Both intention and wrongfulness must also be pleaded….,.

It is also apparent from the papers filed in the court a quo that both appellants sought to claim the damages jointly. No attempt was made to separate the first appellant's claim from that of the second appellant. For example, the claim for losses suffered by reason of the failure to trade are claimed by both appellants. So too is the claim for payment of the sum of $450,000= being the diminution in the value of the first appellant's business.

The position is now settled that a plaintiff claiming delictual damages under the lex Aquilia must not only allege but prove, inter alia, culpa. In alleging such culpa, the party must give sufficient particulars of the mental status of the offending party so that the latter knows what case he has to meet. Failure to allege culpa or to provide particulars of such culpa is fatal as the claim would not disclose the plaintiff's cause of action – Border Timbers Ltd v Zimbabwe Revenue Authority 2009 (1) ZLR 298 (S) 131 (H), 139 D-E; Metallon Corp Ltd v Stanmaker Mining (Pvt) Ltd 2007 (1) ZLR 298 (S), 299 E-G.

WHETHER WRONGFULNESS AND CULPA WERE ALLEGED AND PROVED

I agree with the respondent that the appellants alleged, in the declaration, that the respondent had wrongfully, unlawfully and intentionally procured their eviction.

However, no particulars of such wrongfulness or intention were provided.

The eviction was further said to have been a deliberate, wrongful, and intentional affront to the person of the second appellant and that it constituted an inuria.

Again, no particulars were provided in this regard and the specific inuria allegedly committed by the respondent was neither pleaded nor identified.

Clearly, the bald averments made on behalf of the appellants were not sufficient to inform the respondent of the case that he was being called upon to meet.

The defendant filed a counterclaim in which he alleged that on 20 January 2011 the plaintiff maliciously and wrongfully set the law in motion by laying false charges against him of fraud and contravening Exchange Control Regulations with the police. In particular, the defendant accused the plaintiff of complaining to the police that he had secured a loan of USD4 million by means of making a false representation to him and that the defendant had not obtained Exchange Control authority for the borrowing.

The defendant averred that when the plaintiff made these complaints he had no reasonable/probable cause for doing so and he did not have any reasonable belief in the truth of the information that he gave to the police. As a result of the plaintiff's conduct, the defendant was arrested and arraigned before the Magistrate's Court and indicted for trial before the High Court on 1 July 2013. The defendant was detained in custody until his admission to bail on 4 July 2013. He was tried and acquitted by the High Court on 12 September 2013.

The defendant's claim for damages for contumelia, deprivation of freedom and discomfort was in the sum of USD$300 00-00. He also claimed a sum of USD$50,000= for his legal costs.

On 20 November 2014, the plaintiff filed his replication to the defendant's special plea, in which he denied that the proceedings in HC4221/08 were currently still pending and denied that the parties were the same in both matters or that the cause of action was the same. In the replication to the plea on the merits, the plaintiff denied that the agreement between the parties violated Exchange Control Regulations and joined issue with the defendant. The plaintiff's plea to the defendant's counterclaim was an admission that he laid charges against the defendant and a denial that he maliciously set the law in motion, or that the charges were false, or that the information given was false. The plaintiff prayed that the defendant's counterclaim be dismissed with costs….,.

The following issues were referred to trial in the defendant's counter-claim:

1. Did the plaintiff lay fake criminal charges with the police against the defendant?

2. Did the laying of the fake charges by the plaintiff cause the arrest, detention, and prosecution of the defendant?

3. What amount of damages, if any, did the defendant suffer as a result of his arrest, detention and prosecution?…,.

With regards to the defendant's counterclaim, the issue that falls for determination is whether the complaint raised by the plaintiff to the police against the defendant was deliberately and intentionally based on falsehoods, the aim being to cause the arrest, detention and prosecution of the defendant, knowing full well that such arrest, detention and prosecution was unjustified….,.

The plaintiff said the defendant never intended to pay back the money which he borrowed so he misrepresented himself giving rise to the criminal charges. He did not mention where the funds were going or what he would use them for. He paid a total of USD$400,000=. At one stage he tried to pay USD$3,500,000= by depositing it into an offshore account in Jersey but the payment was returned by the Bank because the source of the funds was not clear at a time when the defendant was under investigation by the Serious Frauds Squad. Thereafter, the defendant said that all his funds were blocked because he had been placed on the sanctions list. The defendant's trustees then wrote a letter in which they said that he had instructed them that the payment had been made in error…,. When the trustees confirmed that the defendant had no intention to pay, that played a part in the consideration of pressing a criminal complaint. The criminal complaint was placed after legal advice from Mr Samkange….,. The defendant was only detained for one or two days at the most.

During cross examination, the plaintiff said that he knew nothing about the defendant being denied bail and confirmed that he never asked for proof of the legal costs….,. On the criminal prosecution of the defendant, the witness confirmed that the defendant took money from him with no intention of paying, based on the misrepresentation that he needed a loan and that he was willing to re-pay. He disputed the assertion that the e-mail from the Maitland Trustees, which he relies on as proof that the defendant did not intend to pay, was written well after he had already laid the criminal complaint. He denied that the police advised him that this was a civil matter or that they had refused to prosecute the defendant for this reason. He denied that he had pursued a civil matter using the criminal process….,.

Mr Jonathan Samkange, who testified on behalf of the plaintiff, said the defendant made many promises to pay after the deadline expired in February 2013. Mr Chagonda wrote several letters in which assets were said to be in the process of liquidation to settle the debt. When it became clear that the defendant was not a man of his words, and the Attorney General (AG) now had evidence that the defendant had not told the truth about his involvement with our army in the Democratic Republic of Congo (DRC), he recommended that the plaintiff lodge a criminal complaint for fraud against the defendant…,. The AG was now prepared to prosecute. The basis of the criminal complaint was that the defendant had misrepresented to the plaintiff that he wanted a loan when he never had any intention of paying back the money….,.

On the criminal prosecution, Mr Samukange said, in cross-examination, his recommendation that the plaintiff place criminal charges was based on the contents of the letter from the trustees not on the plaintiff's instructions. He said that the defendant could have made alternative arrangements to pay the USD$3.5million that was returned by the plaintiff's Bank if he was sincere in his intention to re-pay the money. Mr Samkange denied that he was instrumental in using the criminal route to recover money from the defendant. He said he disagreed with the judgment of the Criminal Court which expressed misgivings at the use of the criminal sanction in what it described as a purely civil matter….,.

The defendant said he was prosecuted and acquitted in 2013 after being arrested and taken to prison. He was put in a cell with one toilet and 79 people who were smoking all night and some of whom behaved aggressively towards him. He was in custody for 3-4 days. He had had double bypass heart surgery and was denied his medication which he should take every morning and evening….,.

On the malicious prosecution allegations, the defendant said that because he was put in jail and the plaintiff has approached his friends and family and bad-mouthed him, and continues to do so, he should be paid damages. He admitted that the police arrested and incarcerated him not the plaintiff, but insisted that the plaintiff instructed his lawyers to set the criminal sanction in motion. The witness was hazy on the details of what actually happened or how many days he was incarcerated for due to his faulty memory. He referred questions on the legal fees incurred to his legal practitioners of record.

The defendant said that he has not paid the plaintiff because he has no access to cash. He is cash poor because he has remained on the sanctions list and lost significant assets in the United States. He admitted that he sold his mine in the Democratic Republic of Congo (DRC) for USD$35 million and denied that in light of this fact his failure to pay the plaintiff was criminal….,.

The court must determine whether the plaintiff caused the malicious prosecution of the defendant giving rise to a claim for damages in the sum claimed by the defendant….,.

The last issue for determination is that of the claim in reconvention.

In determining this claim, it has been submitted that the court should consider whether the evidence before it establishes a cause of action. A cause of action has been defined as;-

“…, the entire set of facts which gives rise to an enforceable claim and includes every fact which is material to be proved to entitle a plaintiff to succeed in his claim. It includes all the plaintiff must set out in his declaration in order to disclose a cause of action”. See Abrahamse & Sons v SA Railways & Harbours 1933 CPD 626; Peebles v Dairiboard Zimbabwe (Pvt) Ltd, Patel v Controller of Customs & Excise 1982 (2) ZLR 82 (H), Denton v Director of Customs & Excise HH216-89; Hodgson v Granger & Anor HH133-91; Dube v Banana 1998 (2) ZLR 92 (H).

See Mukahlera v Clerk of Parliament & Ors 2005 (2) ZLR 365 (SC), where the court relied on the case of Dube v Banana 1998 (2) ZLR 92 (H) in which it was held that;

“…, the cause of action means the combination of facts that are material for the plaintiff to prove in order to succeed…,.”

So, in order for there to be a 'cause of action', every fact which gives rise to a successful claim must be present. Every act which is relevant to the plaintiff's claim, if the plaintiff is to succeed in its claim, must be present before it can be said that there is a 'cause of action'. See also Peebles v Dairiboard Zimbabwe supra.

The cause of action, in an action for a claim of damages caused by malicious criminal or civil proceedings, is the actio iniuriarum. The plaintiff bears the onus in respect of all the elements of the delict, including that of animus iniuriandi. See Amler's Precedents of Pleadings 7^th ed, HARMS…,; Van der Merwe v Strydom [1967] 3 All SA 281 (A); Beckenstrator v Rottcher Theunissen [1955] 1 All SA 146 (A); Rudolph v Minister of Safety & Security [2007] 3 All SA 271 (T).

To succeed with a claim for malicious prosecution, a claimant must allege, and prove, that:

(a)The defendant set the law in motion, instigated or instituted the proceedings;

(b) The defendant acted without reasonable or probable cause;

(c) The defendant acted with malice or animo iniuriandi; and

(d) The prosecution has failed.

See Minister for Justice and Constitutional Development v Moleko [2008] 3 All SA 47 (SCA); Bande v Muchinguri 1999 (1) ZLR 476 (H). See also Econet Wireless & Ors v Sanangura SC52-13; and Luke Davies v Premier Finance Limited HH235-10.

The plaintiff must allege, and prove, that the defendant instituted the proceedings, that the defendant actually instigated or instituted them. The mere placing of information or facts before the police, as a result of which proceedings are instituted, is insufficient. See Lederman v Moharal Investments (Pty) Ltd [1969] 1 All SA 297 (A). The test is whether the defendant did more than tell the detective the facts and leave him to act on his own judgment. At pp197, the court stated that:

“Inherent in the concept 'set the law in motion', 'instigate or institute the proceedings', is the causing of a certain result, i.e. a prosecution which involves the vexed question of causality. This is especially a problem where, as in most instances, the necessary formal steps to set the law in motion have been taken by the police and it is sought to hold someone else responsible for the prosecution.

AMERASINGHE, Aspects of the Actio Injuriarum in Roman-Dutch Law, recognises that 'the problem is essentially one of causation' and suggests (at p. 20):

'The principle is that where a person acts in such a way that a reasonable person would conclude that he (i.e. the defendant) 'is acting clearly with a specific view to a prosecution of the plaintiff and such prosecution is the direct consequence of that action, that person is responsible for the prosecution.'”

The plaintiff must allege and prove that the defendant instituted the proceedings without reasonable or probable cause, a phrase which means 'an honest belief founded on reasonable grounds that the institution of proceedings is justified.' The concept involves an objective and a subjective element. See Beckenstrater v Theunisen [1955] 1 All SA 146 (A).

In the context of animus iniuriandi, malice means animus inuiriandi and is not a separate element of the delict. See Moaki v Reckitt & Coleman (Africa) Ltd [1968] 3 All SA 242 (A). Malice, in this context, does not mean ill-will or a spirit of vengeance; it has a wider connotation. It includes any motive different from that which is proper for the institution of criminal proceedings, which is to bring an offender to justice and thereby aid in the enforcement of the law. See a Guide to the Zimbabwean Law of Delict (2006), FELTOE; Bande v Muchinguri 1999 (1) ZLR 476 (H).

The plaintiff testified that he had received advice from his legal practitioners that the defendant had perpetrated a fraud on him and that he made a report to the police based on this advice. Mr Samukange confirmed that the plaintiff had acted on his advice.

In this case, it is common cause that the proceedings in S v Bredenkamp 2013 (2) ZLR 288 (H) were terminated when the now defendant was discharged at the close of the State case. Did the plaintiff do more than give the police information and leave them to decide whether to prosecute the defendant?

The defendant argues that there is no doubt that the plaintiff instigated the criminal proceedings against him and was malicious. The defendant relies on the letter from the plaintiff's legal practitioners, dated 25 March 2013, in which it is observed that the defendant's conduct of borrowing the money with no intention of returning it fits the definition of fraud in the Criminal Code and establishes all the elements of fraud. The defendant relies, further, on the finding made in S v Bredenkamp 2013 (2) ZLR 288 (H)…, that the defendant had made two payments of USD$200,000= in 2001 and a further payment of USD$3,5 million in 2006 after he had sold his mine in the Democratic Republic of Congo. There was also a finding made…, that 'the driving force behind the prosecution was the complainant (Plaintiff). The Prosecutor General succumbed to the pressure from the complainant to prosecute an apparently civil matter and therefore act in complicity with the complainant to use a Criminal Court to put pressure on the accused in order to collect a civil debt'.

See also Ngonidzashe Sanangura v Econet Wireless HH398-12. It was submitted that these findings pointed to a motive different from that which is proper for the institution of criminal proceedings - which is to bring an offender to justice and thereby aid in the enforcement of the law.

It was submitted, on behalf of the plaintiff, that a person who has not been paid for ten years cannot be said to abuse court process in seeking the prosecution of the fraudster, that this was the plaintiff's motivation and that this does not exhibit any malice at all in the sense of pushing the police. The plaintiff maintains that he acted on Mr Samukange's advice at the time and it was only when the defendant breached the undertaking that he had made to pay that a police report of fraud was made. The plaintiff had knowledge that the defendant had the money after the attempt to pay USD$3.5 million to his account in Jersey was made. The e-mail from the Maitland Trustees confirmed that the defendant no longer intended to pay the plaintiff after the money was returned because of his instructions to the trustees that he had authorized them to pay in error.

I accept that this evidence was not placed before my sister Judge CHATUKUTA in S v Bredenkamp 2013 (2) ZLR 288 (H). The Criminal Court did not hear the evidence of the defendant or verify it through cross-examination since the matter was dismissed at the close of the State case.

I am unable to accept that the plaintiff caused the prosecution of the defendant in the sense of doing more than merely report that a crime had been committed….,.

We find that the report made to the police by the plaintiff was not fake, as in based on false information. We find that the plaintiff did not do anything more than what is required to cause a perceived perpetrator of a crime to be brought to book. We find that the plaintiff could not have been motivated by malice, as in motivated by the desire to induce the defendant to pay, alone The defendant had already caused USD$3.5 million to be deposited into the plaintiff's bank account in Jersey. It was the defendant's counter-instructions to the Maitland Trustees not to make any further attempts to pay that triggered the report of fraud - not an intention to induce the defendant to pay.

The claim in reconvention must fail because it is this court's view that the evidence does not support the assertion that the plaintiff caused the prosecution of the defendant without reasonable or probable cause. We find that the plaintiff had 'an honest belief, founded on reasonable grounds, that the institution of proceedings was justified when he saw the email from the trustees which his lawyer advised him was evidence that defendant no longer wished to re-pay the money borrowed after undertaking to do so.'…,.

1….,.

2….,.

3….,.

4. The claim in reconvention is dismissed with costs on legal practitioner and client scale.

The plaintiff's claim is for damages he suffered as an outcome of an arrest that the defendants effected on him. The defendants are the Co-Ministers of Home Affairs, the Commissioner General and two arresting details….,.

The brief facts of this case are as follows.

On 13 July 2009, the plaintiff was at High-Glen Shopping Centre when plain clothes policemen, who included the third and fourth defendants, accosted him and arrested him. The plaintiff was shot and injured during the arrest. He was detained and charged with the offence of armed robbery and possession of a firearm and later acquitted. The plaintiff avers that the police were not justified in shooting him during the arrest as he did not resist and had not committed any offence. He claims $1,521,400= for special and general damages.

The defendants defend the application.

They refute that the arrest of the plaintiff was unlawful. Their position is that they shot at the plaintiff after he refused to comply with the instructions of the police to stop. The plaintiff ran away resulting in the police firing three (3) warning shots in the air followed by a shot in the leg after he failed to stop and take heed of the warning shots.

The following issues were referred to trial:-

1. Whether the plaintiff was unlawfully arrested.

2. Whether the plaintiff was shot at while lying on the ground.

3. Whether or not the plaintiff was unlawfully detained.

4. Whether or not the third and fourth defendants unlawfully took the plaintiff's Truimp Galaxy cell phone,$168=, and a line.

5. Whether or not the plaintiff suffered damages, and, if so, the quantum of damages thereto.

The plaintiff testified as follows.

He is a farmer and resides in rural Rusape. On 13 July 2009 he was on his way to High Glen Service Station to pay for diesel to use in his farming activities. Diesel was in short supply. He had come from his rural home the day before. When he disembarked from a kombi he started walking towards the service station. Two men, who he later discovered were police officers, ordered him to stop. He complied and they ordered him to lie down and he complied. He was shot on his left leg whilst he lay down facing the ground. The men demanded that he produce a stolen Mercedes Belch he had allegedly stolen the previous night. They asked him about the whereabouts of Gift Tyres and Godzevhu whom he does not know. They searched him and recovered a Truimp Galaxy cellphone and $168= which he intended to use to pay for fuel.

He started bleeding and his leg was broken and dangling. The police officers squeezed him into a Toyota Corolla with five (5) occupants. He recognised one of the occupants as Constable Muuya. He knows him from as far back as 1999 in connection with a matter that took place at his rural home in which he was the Investigating Officer. He was taken to Harare Hospital where he was admitted for four days. He was charged with armed robbery and placed on remand. The allegations were that he had committed an armed robbery at TM Supermarket in Angwa Street, Harare.

He testified that there was no need for the police to shoot him as when they stopped him and ordered him to lie down he had complied. He did not see who shot him as he was lying facing downwards. The police never fired warning shots and he never tried to run away. The bullet that hit him entered through the back of the leg and exited at the front. The witness denies that he was in possession of a revolver. He produced a medical report completed by Dr Vera. He was not immediately charged with possession of a firearm. The charge was proffered only four (4) months later in December 2009.

The police did not charge him with that offence because he was never in possession of a gun. He was acquitted of the charge of possession of a firearm and the charge of robbery was withdrawn after plea.

The witness insisted, under cross-examination, that he was coming from his rural home and had not committed any armed robbery. He insisted that he had in his possession public transport tickets for the previous day which confirmed that he had travelled from his rural home. He later gave the tickets to his lawyer. He maintained that he was shot whilst lying down and never resisted arrest. He thinks that the reason why the police shot him is because he was mistaken for Gift Tyres because they kept on asking where the Mercedes I had stolen the previous night was. He denied that the police would look for him in town when they knew his rural home.

The defence called Constable Muuya as its first witness.

He was with CID Homicide at the time of the plaintiff's arrest. He was the Investigating Officer of an armed robbery that had occurred at T.M. Supermarket, Angwa Street. There had been a spate of armed robbers and he was tasked to investigate these. He received information that the plaintiff and Gift Tyres and Godfrey Godzevhu and others were involved in the robberies. On 13 July 2009 he received information that the plaintiff was supposed to meet his accomplices at High Glen Shopping Centre. He, together with other officers, went to the Centre and when the plaintiff arrived they identified themselves as police officers. The plaintiff immediately took to his heels. He fired three warning shots and the plaintiff did not stop. A fourth bullet was fired by another officer identified as Madende and it hit him on the left thigh of his leg. They were able to arrest him and they searched him and recovered a Taurus revolver from him. He had no money. They took him into a vehicle they had and admitted him at Harare Hospital. He had sustained injuries as a result of the shooting.

Later that day, they pursued his accomplices whom they caught up with at Snakepark. Four of his accomplices were killed after they resisted arrest. The plaintiff was later placed on remand for armed robbery which occurred at TM Supermarket. The facts of the offence outlined on the Request for Remand revealed that he had been found in possession of a firearm. He was the Investigating Officer in the robbery charge. He was subsequently acquitted on the charge of possession of a firearm. The charge of armed robbery was withdrawn before plea.

The witness insisted, under cross-examination, that the plaintiff ran away when the police identified themselves. They fired three warning shots and the fourth shot hit him. The police had received intelligence that the plaintiff was armed. A high degree of alertness was required from them otherwise they were going to be shot by the plaintiff first. The witness insisted that he fired warning shots only and that the fourth shot, which hit the plaintiff, was fired by Constable Madende. His explanation for the shooting is that the plaintiff was running away from the police….,.

The second defence witness, Detective Sgt Musekiwa, is the fourth defendant. His evidence is similar in every material respect to that of the first defence witness. He was in a team of police officers that pursued the plaintiff to High Glen Shopping Centre. As soon as they spotted the plaintiff they called out to him to stop. He took to his heels. He was shot at after he ran away. Three warning shots were fired and the fourth shot hit him. Later, they rushed him to hospital.

The police officers who testified on behalf of the defendants gave their evidence well and they corroborated each other on every material respect.

It is common cause that the plaintiff was shot and injured during the course of an arrest. The issue is whether the plaintiff's arrest and detention is unlawful and whether the plaintiff is entitled to any damages.

THE LAW

In Muyambo v Ngomaikarira HH138-11, PATEL J defined the delict of unlawful arrest and detention as follows;

“The delict of unlawful arrest and detention is committed when a person, without lawful justification, restrains the liberty of another by arresting or imprisoning him. See Macheka v Metcalfe & Anor HH62-07 (at pp. 6-7) and the authorities there-cited. As is explained by FELTOE: A Guide to the Zimbabwean Law of Delict (2^nd ed.) at p.48, the plaintiff need only prove that the arrest or imprisonment was illegal and not that there was intention to act illegally or to cause harm. In our law, unlike South African law, animus injuriandi is presumed, and, therefore, intention is not a requirement for this delict.”

The judge went on to state that a defendant facing claims of unlawful arrest and detention has the onus to show that when he arrested the plaintiff he had probable or reasonable cause for doing so. The suspicion that the suspect has committed an offence must be based on reasonable suspicion and not be based on wild suspicion. In A Guide to Administrative and Local Government Law in Zimbabwe 2007, by G FELTOE, the author states that the delict is not available if the arrest and detention is lawful in terms of the Criminal Procedure and Evidence Act.

The evidence of the police officers, who are the arresting details, reveals that they had received information that the plaintiff was involved in an armed robbery case that had occurred at a local supermarket. They had received information that the plaintiff and members of his gang would be convening at High Glen Shopping Centre with members of his gang. They were given a description of the clothes that he was wearing. They laid ambush on him and when they saw him arrive at the Centre they shouted his name and asked him to stop. He did not comply and started to run away resulting in him being shot and arrested. One of the officers fired three warning shots but the plaintiff did not stop. Another officer fired a fourth shot which disabled the plaintiff. He was shot in the leg resulting in him falling down to the ground. He was immediately arrested.

This court was simply told that the plaintiff was suspected to have been involved in the armed robbery and had been identified as the suspect. It was not suggested that there was any evidence that led the police to believe that he was linked to the commission of the offence. It appears that the informant told them that the plaintiff had been involved in the commission of the robbery and other offences but the basis for such suspicion was not given. There was no evidence led to support the fact that he had indeed been involved in any robberies. The defendants seem to have arrested and shot at him simply because he was classified as a dangerous and armed criminal and was suspected to have been involved in the robbery. The basis of the suspicion is not known.

The court is not satisfied that the police officers who arrested the plaintiff had reasonable suspicion that he had committed the offence in issue.

The plaintiff was later acquitted of the armed robbery charge as well as the charge of possession of a firearm. This supports the assertion that the police had no reasonable suspicion of commission of an offence. I am not satisfied that the defendants had reasonable or probable cause for arresting the plaintiff.

Where an informant gives information to the police involving commission of an offence, the police are only expected to act on the information and cause an arrest where they are satisfied that the information given is reliable and discloses that a suspect has committed the offence. The persons effecting the arrest should first be satisfied that there is reasonable suspicion of commission an offence before they effect an arrest.

In a claim based on an unlawful arrest, the person who effected an arrest must show that the arrest was lawful and that he had reasonable and probable cause for doing so. The arresting detail is expected to furnish sufficient details linking the suspect to the particular offence. He is expected to give a basis for formulating the impression that an offender had committed an offence. It is not good enough to arrest a suspect purely on the basis that a finger has been pointed at him and based on simply an indication from formation that a suspect was linked to a syndicate in the habit of committing offences of a similar nature in the neighbourhood.

The plaintiff in this matter claims general damages for malicious arrest and detention as well as special damages in respect of his motor vehicle. His original claim was for a total sum of US$60,860= but this amount was reduced to US$20,600= at the trial….,.

The first, second, fifth and sixth defendants assert that the plaintiff's arrest and detention were lawful and accordingly deny any wrongfulness on their part.

The Evidence

David Muyambo, the plaintiff, is a businessman with diverse businesses in Chipinge. His evidence was as follows. On 27 September 2008, at Veneka Business Centre, he was stopped by the first, second and third defendants who identified themselves as policemen. They forced the plaintiff into his vehicle and took him to his house. At the entrance gate, he was hand-cuffed by the first defendant. The second defendant produced a rifle, cocked it, and pointed it at the plaintiff's head. His four young children and six workers were chased out of the yard. The defendants then conducted a search of his residence and said they were looking for firearms. This was followed by a search of his Pajero motor vehicle and a further search in the main house.

Having found nothing at the residence, the defendants then took him into their vehicle and drove to Humani Range where he was placed in a peacock cage while they went to meet the fourth defendant, who was the owner or manager of the Range. Thereafter, they took him to Mukwasine police station where the Officer-in-Charge refused to detain him. They then proceeded to Sabi police station where he was detained in the cells at midnight. The following morning, he was taken to Bikita CID station and detained for two days until his workers located him.

It was alleged that he had killed a rhino but no formal charge was levelled against him.

He produced a certified copy of entries in the Detention Book at Bikita police station [Exhibit 1] which shows the details pertaining to his detention. According to the plaintiff, the charge cited in Exhibit 1, under CR83/09/08, is incorrect. He was released on 30 September 2008 without having been formally charged with any offence. On 3 October 2008, a meeting was held at Bikita CID Station and he was told that no charges would be laid against him. On 4 October 2008, he lodged a formal complaint against the first, second and third defendants [Exhibit 2]. The first and second defendants were arrested but not subsequently prosecuted. He later discovered that the third defendant is employed by the fourth defendant and that the latter engineered a false charge of poaching against him….,.

Sgt. Cephas Chigaro was based at Chishumbanje Police Station in September and October 2008. His evidence was that Humani Range is part of Chiredzi Conservancy but is privately owned by the fourth defendant. He recorded the plaintiff's statement in Exhibit 2 and investigated the allegations of vehicle damage, unlawful detention and impersonation against the first, second and third defendants. He inspected the Pajero at the plaintiff's homestead and found that its door panels had been broken. He then located and arrested the first and second defendants and took them to his Officer-in-Charge. They ran away from his office and he found them on the following day at Sabi Police Station. They were evasive and refused to have their statements recorded. He was then sent to Bikita CID Station and recorded statements from Ass/Ins. Mapfaka and Sgt. Mawuka. They confirmed that there were no criminal allegations against the plaintiff. They also said that the CR No. in Exhibit 1 was assigned in order to detain the plaintiff. The witness produced a copy of his own statement made on 5 October 2008 [Exhibit 4]. He also produced copies of the statements recorded at Bikita CID Station a few days later [Exhibits 5 and 6]. The first and second defendants were not prosecuted because the Public Prosecutor in Chipinge said that the plaintiff's complaint was a civil matter.

Under cross-examination, the witness conceded that Exhibit 4 referred to a case of criminal defamation, impersonation and malicious damage to property but did not refer to any allegation of unlawful detention. When questioned by the Court, he accepted that Exhibit 4 made no mention at all of his attempts to arrest the first and second defendants. Moreover, he had great difficulty in recollecting certain important dates. In particular, it was noted that Exhibit 4 was undated, while Exhibit 5 was dated 6 April 2009 and Exhibit 6 was dated 6 April 2008. He further indicated that his statement was made in April 2009, when preparing the docket against the first and second defendants, and not in October 2008 as stated in his evidence-in-chief. Given that he is an experienced police officer, his failure to reconcile the relevant dates renders his testimony rather dubious and difficult to credit.

As regards the defendants, none of them was available to testify at the trial. However, the second defendant's undated report [Exhibit 7] was admitted by consent. Thereafter, Exhibits 5 and 6 as well as Exhibit 7 were read into the record by both counsel. It was noted that the deponents to the three exhibits were not in court to give their testimony and that, therefore, their statements could not be meaningfully examined.

According to the second defendant's report, on 27 September 2008, he and the first defendant received a tip-off from the third defendant, a security agent at Humani Ranch. This was to the effect that the plaintiff, who had been spotted in the area, was a suspect in a recent case of rhino poaching. After the plaintiff was located, he was arrested, handcuffed and advised of the charge against him. He was not humiliated and no firearm was pointed at his head. He was taken to his residence where he consented to the search of the house and his Pajero. No damage was caused to the vehicle. He was then taken to Mkwasine police station and Middle Sabi police station and detained overnight. The following day he was taken to Bikita CID station for interrogation where Ass/Ins. Mapfaka ordered his detention in relation to a pending case. On 5 October 2008, the first and second defendants were taken to Chishumbanje police station by Sgt. Chigaro. The plaintiff was called at night and told them about his plan to claim damages from the fourth defendant and that they would “share the spoils”. When they refused to co-operate, the plaintiff threatened that he would ensure their discharge from the ZRP. Thereafter, a docket was compiled against the second defendant but the charges were withdrawn before plea. As regards the plaintiff, he had been procedurally arrested on reasonable suspicion, as was confirmed at Bikita CID station, and he was then detained awaiting his interrogation.

Unlawful Arrest and Detention

The delict of unlawful arrest and detention is committed when a person, without lawful justification, restrains the liberty of another by arresting or imprisoning him. See Macheka v Metcalfe & Anor HH62-07…, and the authorities there-cited. As is explained by FELTOE: A Guide to the Zimbabwean Law of Delict (2^nd ed.)…, the plaintiff need only prove that the arrest or imprisonment was illegal and not that there was intention to act illegally or to cause harm.

In our law, unlike South African law, animus injuriandi is presumed, and, therefore, intention is not a requirement for this delict.

Moreover, the use of force is not a prerequisite and neither is pecuniary loss. Damages can be awarded for any affront or humiliation stemming from the unlawful arrest and imprisonment of the plaintiff. Although this action is usually brought against members of the police or other uniformed force, a private individual can also be held liable for this delict committed against another private individual. See Mapuranga v Mungate 1997 (1) ZLR 64 (H).

In order to establish the lawfulness of an arrest without a warrant, the onus lies upon the defendant to show probable cause or reasonable suspicion. In exercising the power of arrest, he must act as an ordinary honest man would act, on suspicions which have a reasonable basis and not merely on wild suspicion. See Rosseau v Boshoff 1945 CPD 135…,. In other words, the arrestor must act on such circumstances as would ordinarily lead a reasonable man to form the suspicion that the arrestee has committed an offence. It is not the function of the police to arrest at large and to use the interrogatory process in order to determine whom to charge. See Feldman v Minister of Home Affairs 1992 (2) ZLR 304 (S)…,; Botha v Zvada & Another 1997 (1) ZLR 415 (S)…,.

Whether Report Filed was Malicious

On the evidence before the Court, it is difficult to ascertain whether or not the third and fourth defendants acted maliciously in filing the report against the plaintiff. The evidence of the plaintiff in this regard was flimsy and lacking in detail. However, it is fairly clear that the third and fourth defendants instigated the plaintiff's arrest. Having done so, they did not even care to enter an appearance to defend this action. Therefore, whether or not they were actuated by malice, they must be held accountable together with the first and second defendants for the plaintiff's arrest.

Whether Arrest, Search and Detention were Unlawful

As I have already stated, none of the defendants was present at the trial to testify in their defence. Consequently, apart from the second defendant's written report, there is nothing else before the Court to support the reasonableness of the defendants' suspicions leading to the plaintiff's arrest. In particular, there is no explanation from the defendants as to when, where, or how the rhino in question was allegedly hunted by the plaintiff, or as to who saw the plaintiff in the vicinity of the crime. There is, in fact, no nexus linking the plaintiff to the commission of the alleged offence other than the “tip-off” from the third defendant. Moreover, the first and second defendants arrested and handcuffed the plaintiff without first interrogating him. In short, the nature and extent of the suspicion that the defendants acted upon cannot be tested. Having regard to the undisputed fact that no charges were subsequently laid against the plaintiff, the only conclusion one can draw is that the defendants acted without reasonable and probable cause in arresting the plaintiff.

As for the alleged ill-treatment and humiliation of the plaintiff, his general demeanour when testifying in this regard suggested that he was exaggerating for effect and was not being entirely truthful. Moreover, his evidence on this aspect was not corroborated by any other witness, for instance, any member of the public or his workers and children who he claims witnessed his ill-treatment by the defendants. In any event, the second defendant denies any such maltreatment. He explains, in his report, that the plaintiff was co-operative and that his arrest and the search of his residence and vehicle were properly conducted. His version of the relevant events is no less credible than that of the plaintiff. In my view, on a balance of probabilities, the plaintiff has failed to establish his assertions in this respect.

Turning to the plaintiff's detention, it is common cause that he was arrested on 27 September 2008 and detained at several places before being released on 30 September 2008. In this regard, there is no explanation from the defendants as to why the plaintiff was detained at Bikita CID Station for two days, without being interrogated, only to be released without having been formally charged. Even if one were to accept that he was lawfully arrested on reasonable suspicion, the length of his detention simply cannot be justified on the facts before the Court.