CIVIL
TRIAL
MATHONSI
J:
The
facts of this matter are aptly captured in two earlier judgments. The
first is a judgment of this court in Nherera
v Shah
2015 (2) ZLR 455 (H) which granted absolution from the instance at
the conclusion of the plaintiff's case. The second is a judgment of
the Supreme Court on appeal in Nherera
v Shah
SC 51/19 which allowed the plaintiff's appeal against the grant of
absolution from the instance and remitted the matter to this court
for continuation of the trial proceedings.
For
completeness and to put the matter in proper perspective I will
summarise those facts as follows.
On
30 November 2011 the plaintiff sued out a summons against the
defendant claiming damages of US$100,000.00 for malicious prosecution
and US$300,000.00 for malicious arrest and detention.
The
plaintiff alleged that on 21 March 2006 and on several diverse other
occasions the defendant had reported that he had solicited for a
bribe in order to facilitate the purchase of certain buses from Gift
Investments (Pvt) Ltd, a company in which the defendant had an
interest, by Zimbabwe United Passengers Company (“ZUPCO”),
another company in which the plaintiff was the chairperson of the
Board of Directors.
The
plaintiff alleged that when making the report the defendant knew that
it was false and malicious. All he intended to do was to coerce the
plaintiff and ZUPCO to purchase his company's buses without
following proper tender procedures.
The
plaintiff averred that as a result of the defendant's report he was
arrested, prosecuted for contravening a provision of the Prevention
of Corruption Act [Chapter
9:16]
(now repealed), and sentenced to 3 years imprisonment of which one
year imprisonment was suspended on condition of future good
behaviour.
It
was further alleged by the plaintiff that on 19 November 2009 this
court quashed the conviction on appeal and set aside the sentence.
By
procuring his arrest, prosecution and imprisonment, so the plaintiff
alleged, the defendant maliciously caused him injury to his
reputation, dignity and liberty thereby entitling him to damages
aforesaid.
In
contesting the claim, the defendant denied instigating the
plaintiff's arrest, prosecution and detention. He however admitted
placing information that he held before a police officer in good
faith, in the honest and bona
fide
belief that the plaintiff had solicited for a bribe. The act of
conveying that information, so the defendant pleaded, was neither
wrongful nor as result of a subjective malicious intent to injure the
plaintiff.
According
to the defendant, the decision to arrest was that of the police upon
a consideration of all the relevant information and the formulation
of a reasonable suspicion that the plaintiff had committed a criminal
offence. The decision to prosecute was that of the Attorney General
of Zimbabwe (now the Prosecutor General), in the exercise of a
Constitutional mandate and upon consideration of all relevant facts.
The
defendant further averred that the decision to imprison the plaintiff
was that of the trial magistrate upon consideration of all the
evidence placed before her and in the discharge of her lawful
mandate.
He
insisted that the information conveyed to the police was true and was
conveyed in good faith in the discharge of a subject's obligation
to adhere to the laws of Zimbabwe.
The
defendant admitted in his plea at para 5.1 thereof, that he “reported
to the police” that the plaintiff had solicited for a bribe as
alleged. He asserted that he did no more than place a report before
the police who were not obligated to arrest the plaintiff upon the
making of such report. The police could only do so upon formulating a
reasonable suspicion that an offence had been committed.
Regarding
the quashing of the conviction, the defendant denied that it meant
that the allegations he made were false or that the plaintiff had not
solicited for a bribe, or that the report he made was malicious.
The
issues for trial, as determined by the parties at a pre-trial
conference held before a judge and set out in the joint pre-trial
conference minute they signed, are as follows:
1.
Whether the report to the police was the cause of the plaintiff's
arrest, prosecution and detention.
2.
Whether the said report was made in good faith or whether it was
false and malicious.
3.
Whether the prosecution failed.
4.
What damages, if any, were suffered by the plaintiff as a result.
Only
two witnesses testified during the trial. The plaintiff stood against
the defendant with each of them testifying against the other.
THE
PLAINTIFF'S EVIDENCE
The
evidence of the plaintiff in support of the claim is set out in
detail in both the judgment of this court given upon an application
for absolution from the instance at the close of the plaintiff's
case and in the Supreme Court judgment.
No
useful purpose would be served by repeating that evidence in this
judgment.
It
should suffice to state that the plaintiff denied having solicited
for a bribe from the defendant at all. He denied holding a meeting
with the defendant at Kensington Shopping Centre at which he was
allegedly recorded by the defendant demanding a bribe.
It
was the plaintiff's testimony that ZUPCO could not purchase buses
without going through tender procedures and without the approval of
the tender board.
The
defendant made false accusations against him and went to the extent
of fabricating a recording which he played to various individuals and
institutions in order to cause his arrest and imprisonment.
The
defendant did so after he, as the chairperson of the ZUPCO Board and
other Board members, had steadfastly refused to bend to the
defendant's demands to purchase his buses, which had already been
painted with ZUPCO colours, without following procedure.
In
the plaintiff's view, the defendant was intent on causing his
arrest and imprisonment in order to get him out of the way. Without
him, the defendant would clandestinely sell the buses to ZUPCO as he
later did after the plaintiff's imprisonment.
The
plaintiff insisted that it was the defendant's report which
instigated his arrest.
The
fact that the defendant was also picked up by the police at some
point was of no moment especially as he subsequently solicited for,
and obtained immunity from prosecution, and proceeded to testify
against the plaintiff during his criminal trial at the magistrates
court.
According
to the plaintiff, it is not true that the defendant had been a
reluctant witness at the criminal trial.
In
fact, according to the plaintiff, his criminal trial commenced on 2
May 2006 with the defendant promptly taking the witness's stand to
testify against him. He did so before the then Attorney General gave
him immunity and before he deposed to his lengthy witness's
statement on 27 July 2006.
The
plaintiff stated that he was convicted by the magistrates court and
sentenced to 3 years imprisonment of which 1 year imprisonment was
suspended on condition of future good behaviour. Following sentence,
he was incarcerated at Harare Central Prison for a period of 1 year.
The conditions at that prison were appalling. The diet was bad, the
cells were bad and the ablution facilities dehumanising.
After
his stint at Harare Central Prison, the plaintiff said he was
transferred to Connemara Prison in Midlands. The conditions at that
prison were much better as he could even visit his family once a
week.
He
said he remained there until he was released in February 2008 having
been given a remission of part of his effective 2 year prison term.
All in all he served an effective 16 months imprisonment.
The
plaintiff stated that he is a professor of education and currently
the Pro-Vice Chancellor of Women University in Africa. He submitted
his curriculum vitae detailing his professional activities. He was
the founding Vice Chancellor of Chinhoyi University of Technology
reporting inter
alia
to the President of Zimbabwe in his capacity as Chancellor of the
University.
He
stated that in that position he collaborated with other Universities
both local and abroad. He had a string of international relations
with other universities like the University of Colombo and the
University of Shexiang in China where he did collaborative research.
He
had benefits that accrued to him like a ministerial car (mercedes
benz), entertainment, housing, security, fuel and cell phone
allowances as well as educational benefits for his children and wife.
He enjoyed annual holiday within the region with his wife.
The
plaintiff added that he is married with two children a daughter and a
son. At the time of his incarceration his daughter had just started
first year tuition at the University of Cape Town while the son was
doing form 3 at Gateway High School in Harare where his wife was a
teacher.
When
he was imprisoned, apart from the embarrassing treatment he was
subjected to, including being stripped of the suit he had been
wearing and being given tattered prison garb, he lost his job and its
attendant benefits. His professional development “moved backwards”.
He lost his research networks and consultancies including his
chairmanship of ZUPCO.
The
plaintiff did not particularise his claim for damages beyond what I
have stated above. He did not set out how he arrived at the figure of
US$100,000.00 for malicious prosecution and US$300,000.00 for
malicious arrest and detention as delictual damages.
THE
DEFENDANT'S EVIDENCE
In
his oral evidence in court the defendant stuck to his defence as set
out in his plea with quite some difficulties especially during cross
examination. He adopted his plea as part of his evidence on oath.
He
also adopted his testimony in the criminal proceedings as part of his
evidence on oath before this court.
Apart
from that, the defendant also adopted his witness affidavit deposed
to on 27 July 2006 as part of his evidence before this court.
The
essence of the defendant's evidence is that he did not make a
report to the police about the plaintiff having solicited for a
bribe.
This
is at variance with the contents of his plea.
According
to the defendant he had approached the then Minister of Local
Government, Dr Chombo, the then Governor of the Reserve Bank, Dr
Gono, the then Minister of State Security, Goche, and some Central
Intelligence Officers and confided in them that the plaintiff had
demanded from him a US$5,000.00 bribe per bus for ZUPCO to flight a
tender for the purchase of buses.
The
defendant stated that he had attended a meeting on 28 January 2005 at
Minister Chombo's office at which the plaintiff had been in
attendance. After the meeting the plaintiff had directed him to
follow him to Kensington Shopping Centre. Upon meeting the plaintiff
at that Vali's coffee shop, the plaintiff repeated a solitation he
had made previously, namely that the defendant should pay US$5,000.00
per bus to him for the supply of 80 buses to ZUPCO. This was a
condition the plaintiff imposed for ZUPCO to flight a tender for the
supply of the buses.
The
defendant stated that he recorded the conversation on his cell phone.
The recording was later given to the police but not before he had
played it to Minister Chombo and other officials including the ZUPCO
Board at a meeting convened by Minister Chombo on 21 March 2005.
Although
he had pleaded that he had placed information to the police and
indeed reported to the police that the plaintiff had solicited for a
bribe from him, the defendant stated in his viva
voce
evidence that he did not do so.
Instead,
riding on the evidence he had given at the criminal trial of the
plaintiff, the defendant stated that around 10 April 2005, the police
had picked him up and taken him to the police station for purposes of
charging him with corruption. It was during interrogation by the
police, who beat him up and tortured him in the process, that he
disclosed to them that the plaintiff had solicited for a bribe in
2003 as a result of which he paid him and Right Matonga a total of
$20,000.00 to renew a lease Gift Investments had.
After
his release he left the country and was not prepared to return
because of the manner of the police had treated him.
It
was only a year later that Gula Ndebele, then the Attorney General,
started calling him entreating him to return to the country to assist
with the case involving, inter
alia,
the plaintiff. For him to do so he demanded assurance that he would
not be subjected to further abuse at the hands of the police. He
later demanded full immunity from prosecution and would not settle
for anything less than the immunity granted by the Attorney General
himself.
The
one given by Superintendent Magwenzi in a letter dated 24 April 2006
was, according to the defendant, not enough.
I
mentioned in passing though that when he testified at the criminal
trial on 2 May 2006, the only immunity letter given to him was that
of Superintendent Magwenzi. The one given by Attorney General Gula
Ndebele was only written on 20 July 2006 just a few days before the
defendant submitted his lengthy witness's statement. He said that
statement was for the purpose of prosecuting others including
Minister Chombo and Bright Matonga.
The
defendant insisted that in 2005 the plaintiff again solicited for a
bribe from him.
This
time, as already stated, he wanted to be paid $5,000.00 for each bus
ZUPCO was to purchase from the defendant's company.
Although
he did not pay the bribe, this is the information he disclosed to the
authorities leading to the plaintiff's arrest.
According
to the defendant, the case involving the bribe of US$20,000.00 for
the renewal of the Gift Investment (Pvt) Ltd lease with ZUPCO has
come before this court. It was the finding of TSANGA J, who presided
over that case which finding was upheld by the Supreme Court on
appeal, that the defendant had been involved in a corrupt
relationship with the plaintiff and Matonga.
He
has accepted that finding.
As
to whether the prosecution of the plaintiff failed, the defendant
stated that it did not. According to him, the involvement of Johannes
Tomana, who had been a Board member and legal advisor of ZUPCO at the
material time, the legal practitioner of the plaintiff when he
instituted a defamation claim against the defendant in 2006 and an
active defence witness at the plaintiff's criminal trial, meant
that the concession made by the State was tainted. The State, which
in 2009 when it conceded the plaintiff's appeal against conviction
and sentence was led by Tomana, deliberately compromised the case in
favour of the plaintiff.
Issues
for determination
I
have already outlined the issues that were placed before this court
for determination at the trial.
The
determination of those issues has now been affected by the judgment
of the Supreme Court which has made quite pointed findings which are
binding on this court by virtue of the doctrine of stare
decisis.
This
court is therefore restricted by those findings to the extent that
most of the issues have now been determined. What remains to be
determined now is very narrow indeed.
I
now proceed to examine the issues on turn.
Whether
the defendant's report to the police was the cause of the
plaintiff's arrest, prosecution, and detention
It
is common cause that the plaintiff was arrested, prosecuted and
imprisoned following accusations of soliciting for a bribe levelled
against him by the defendant. In response to the plaintiff's claim,
the defendant filed a plea in which he made unequivocal admissions.
(i)
Firstly, the defendant admitted placing information before a police
officer that the plaintiff had solicited for a bribe. His defence was
that his act of conveying that information to the police was not
wrongful and not malicious.
(ii)
Secondly, the defendant specifically pleaded another admission in
para 5.1 of his plea, namely that he reported to the police that the
plaintiff had solicited for a bribe. His defence, following the
admission, was that he had done no more than place a report before
the police but the police were under no obligation to act upon the
report. The police could only act once a reasonable suspicion that an
offence had been committed was formulated.
None
of the admissions made by the defendant were withdrawn neither was
there any attempt to amend the plea. More importantly, the defendant
did not explain in his evidence or in his closing address why what
was clearly a confessionary pleading could be contradicted by viva
voce
evidence given by the same pleader.
The
impression created by the defendant is that an admission made in
pleadings could be cast away by the presentation of evidence
contradicting it.
The
law relating to admissions must be taken as settled in this
jurisdiction.
A
party to civil proceedings may not, without the leave of the court,
withdraw an admission made, nor may it lead evidence to contradict
any admission the party has made. By the same token, a party cannot
be allowed to attempt to disprove admissions it has made.
This
is by virtue of section 36 of the Civil Evidence Act [Chapter
8:01]
which also makes it unnecessary for any party to civil proceedings to
disprove any fact admitted on the record of proceedings. Subsection
(4) of section 36 also makes it clear that it shall not be competent
for any party to civil proceedings to disprove any fact admitted by
him on the record of proceedings.
The
remarks made by this court in Wamambo
v Municipality of Chegutu
2012 (1) ZLR 452 (H) at 458D-F are opposite in this regard:
“It
is therefore mysterious that the defendant led evidence which had the
effect of withdrawing a confessionary pleading without attempting to
amend such pleading, and ultimately without any leave of the court.
No explanation whatsoever was given for doing so. Even if I was
inclined to do so, I am unable to exercise the discretion reposed
upon me to allow the defendant to withdraw the admission because, as
stated earlier, I have not been requested to do so.
The
admissions made by the defendant amount to a confessionary pleading
and as such they are taken for granted, making it unnecessary for the
plaintiff to prove them: Adler v Elliot 1988 (2) ZKLR 283 (S) at
288C; Copper Trading Co (Pvt) Ltd v City of Bulawayo 1997 (1) ZLR 134
(S) at 143H-144B and 144G.”
Accordingly,
the fact that the defendant placed information before a police
officer and that he made a report that the plaintiff solicited a
bribe from him is taken for granted. The plaintiff did not have to
prove that fact. Equally, it was not competent for the defendant to
attempt to disprove what was in fact admitted by him on the record of
proceedings.
In
any event, whatever my views may have been on the admission made
would have counted for nothing because the Supreme Court has already
made conclusive findings on it. In its judgment cited above the
Appeal Court stated:
“[49]
In this plea to the appellant's claim before the High Court, whilst
denying instigating the plaintiff's arrest, detention and
prosecution, the respondent accepted that he placed information
before a police officer in the bona
fide
belief that the plaintiff had solicited for a bribe. In para 5.1 of
his plea, he admitted reporting to the police.
[50]
In his evidence before the court a quo, the appellant stated that the
respondent had made allegations to all and sundry that he, the
appellant, had solicited for a bride. He stated that the respondent
made a report not only to senior government officials but also the
Attorney-General's Office and to the police. He further stated that
the respondent had gone to the extent of manufacturing a tape
recording which he alleged contained evidence of the solicitation. He
also testified that the respondent had even approached the Reserve
Bank Governor and had been given the sum of US$5,000 in order to
entrap the appellant.
[51]
Contrary to the findings of the court a quo, the respondent himself
accepts that he made a report to the police. That
plea, weighed against the evidence given by the appellant, prima
facie
established that the appellant (sic) not only reported the matter to
the authorities, but that he involved himself further in attempts to
incriminate the appellant.
[52]
Going by the cross-examination of the appellant by counsel for the
respondent, it is apparent that the respondent's stance is that
since he did not personally approach the police to make a report, he
could not have procured or instigated the arrest of the appellant.
In
my view that cannot be correct. If a person approached the National
Prosecuting Authority alleging corruption on the part of an accused
person, and the person so accused is consequently arrested by the
police, the former can hardly be heard to state that the arrest was
not a consequence of the report he made to the Authority. The arrest
would be regarded as being the result of the report made to the
Authority.
The
fact that the report was made indirectly would, in my view, not alter
the fact that the arrest was set in motion by such person. On the
basis of the evidence given before it, the court a quo should, in my
view, have concluded that the respondent prima
facie
set in motion the events that led to the arrest of the appellant.”
(The underlining is for emphasis)
The
foregoing conclusion by the Appeal Court settles the issue
completely.
The
defendant was therefore required to demonstrate, in his evidence in
rebuttal, that the prima
facie
case found by the Appeal Court could be and was rebuttable by his own
account.
Yet
the defendant expended a lot of energy and spent all his time
repeating the same story that even though he reported to high ranking
officials that the plaintiff solicited for a bribe, it was not his
business that the plaintiff was subsequently arrested.
In
his view, because he did not personally approach the police, this
exonerated him from wrong doing.
The
defendant is wrong in that regard.
The
Supreme Court has said so and the prima
facie
evidence of the plaintiff mutated to proof of the plaintiff's case
on a balance of probabilities.
I
conclude that the defendant's report, whether to high ranking
government officials or to the police, was the cause of the
plaintiff's arrest, his prosecution on a charge of corruption and
his incarceration.
Whether
the said report was made in good faith or whether it was false and
malicious
Subsumed
in this issue for trial is the pertinent question of whether there
was reasonable and probable cause for filing a report that the
plaintiff had solicited for a bribe.
In
a case where no other witnesses, except the antagonists, testified
the whole case centre on the plaintiff's word against that of the
defendant.
Sight
must, however not be lost of the fact that the onus of proof very
well rests on the plaintiff to prove his case, but the entire case
emanates from the defendant's accusations against the plaintiff.
It
is the defendant who pointed an accusing finger against the plaintiff
that he was a bribe-monger.
It
is that accusation that anchored the State case in the criminal
prosecution. So the defendant was also required to establish the
solicitation for the prosecution to succeed.
Other
than the defendant's word that there was solicitation which the
plaintiff vehemently denied, the only other piece of evidence relied
upon as proving it was the audio recording. The recording was not
produced in this court.
Reliance
was only placed on its transcript produced at the criminal trial. The
transcript presented everyone, including the defendant himself, with
some difficulties.
To
begin with, its source was shrouded in mystery.
The
defendant initially claimed that he had recorded the conversation on
his laptop. That is what he told the police. At the criminal trial,
he swung round to say he had recorded it using a Dictaphone device in
his Siemen cellphone.
He
was taken to task in cross-examination before this court on the
source of that evidence.
I
can only say that his prevarication did not paint him in good light.
That
is not all.
The
recording itself was said to be inaudible by the majority of the
witnesses at the criminal trial. Yet the defendant vouched for the
correctness of the transcript of the criminal proceedings when he had
the opportunity to present his case before this court.
The
Supreme Court was unequivocal in its rejection of the audio
recording.
With
that rejection also went any semblance of evidence that the plaintiff
had solicited for a bribe. The court stated:
“[61]
The second issue is whether, prima
facie,
he had reasonable and probable cause. This is of course, a question
of fact. The appellant denied ever soliciting for a bribe and stated
that this whole episode was fabricated in order to get him out of the
way.
This
was a case of one person's word against that of the other.
It
was common cause that ZUPCO had not, at that stage, ordered any buses
from Gift Investments and that no tender procedures had been
followed.
The
tape recording did not incriminate the appellant. It was largely
inaudible. Other than the respondent's mere say so, there is no
other evidence which suggests that the appellant may indeed have
attempted to solicit for a bribe.
It
was the appellant's testimony that the respondent was desperate to
offload, onto ZUPCO, a number of buses which were already painted in
ZUPCO colours, even though no tender board approval had been sought
or granted; prima facie, therefore, on the basis of the evidence
given by the appellant a
quo,
there was no reasonable or probable cause for the arrest and
prosecution of the appellant. This was not an issue that could be
determined in favour of the respondent at the stage of absolution and
required that the respondent, as defendant, be put on his defence.”
The
defendant indeed had an opportunity to rebut the plaintiff's case
when he was put to his defence.
His
evidence in this regard was entirely unhelpful to his cause. He did
not improve on his inaudible audio recording.
Apart
from that, he was an extremely poor witness whose testimony was
thrown into disarray even before he was cross-examined.
In
the end I was left in no doubt that the defendant possessed no
evidence whatsoever, other than his own word, that the plaintiff
solicited for a bribe.
This
being a case to be determined on a preponderance of probabilities, I
cannot help but conclude that the probabilities weigh heavily against
the defendant.
What
business person imports into the country buses already painted in a
potential buyer's colours before the latter has even flighted a
tender for those buses?
Apart
from that, so desperate was he to have the tender flighted (as if it
was guaranteed he would win it), that he did not hesitate
pressurising the Minister to fire the plaintiff for not authorising
the tender.
This
is a person who was already leasing space right at the potential
buyer's premises to warehouse the same buses.
It
occurs to me that the probabilities are that at that stage the
defendant would have done anything to offload the buses, including
fabricating the story of the bribe.
I
come to the conclusion that the defendant has done nothing in his
testimony to disgorge the prima
facie
case found to having been established by the plaintiff on appeal.
Therefore that case has become proof of the absence of reasonable and
probable cause for the arrest of the plaintiff.
In
our law the existence of malice is inferred from the absence of
reasonable and probable cause for prosecuting the plaintiff.
I
have no hesitation in finding that the defendant did not lodge a
report against the plaintiff in good faith. Quite to the contrary,
the report was not only false it was also malicious. He set about to
abuse the legal process maliciously and without reasonable and
probable cause for bringing criminal proceedings against the
plaintiff.
Whether
the prosecution failed
In
my view, following the pronouncement of the Supreme Court on appeal
against the grant of absolution from the instance at the close of the
plaintiff's case, this is no longer a live issue for determination
at this trial.
I
say so because there was nothing really that the defendant could do
in his evidence to respond to the Appeal Court's finding that the
plaintiff's prosecution failed.
To
that extent, no amount of evidence led by the defendant before this
court could upset the definitive finding that the common cause facts
established the final requirement for a successful claim for
malicious arrest, prosecution and detention that the prosecution
instigated by the defendant failed.
The
Supreme Court found that the order granted by two judges of this
court on 19 November 2009 allowing the plaintiff's appeal against
both conviction and sentence “fully and finally” quashed the
conviction and sentence of the plaintiff. The Appeal Court concluded:
“[63]
Finally, that the prosecution failed is not in doubt. The
Attorney-General's Office gave detailed reasons why it did not
support the conviction, consequent upon which both conviction and
sentence were set aside.”
The
pronouncement by the Supreme Court that the prosecution failed is
binding on this court it being final and definitive in respect of
that issue. The issue has therefore been resolved. When the defendant
went on and on in his evidence about how the involvement of Tomana
had polluted the resolution of the appeal, he was engaged in an
exercise in futility, the issue having ceased to be alive one.
What
damages, if any, were suffered by the plaintiff as a result?
This
court has found that the defendant's report was the cause of the
plaintiff's arrest, prosecution and detention. As a result of that
report, the plaintiff spent 16 months enduring, initially, very
appalling and humiliating prison conditions.
This
court has also found that there was no reasonable and probable cause
for the arrest of the plaintiff. Accordingly the report made by the
defendant could not have been made in good faith and it was false. As
a result the existence of malice on the defendant's part is
inferred from the absence of reasonable and probable cause by
operation of law.
The
failure of the prosecution triggered by the defendant's report, has
been finally and definitively determined on appeal.
What
all this means is that the requirements grounding delictional damages
have been satisfied.
The
liability of the defendant is proved.
As
a corollary to that, the plaintiff is entitled to damages for the
delict committed against him. What remains to be determined is the
quantum
of those damages.
Damages
are simply a sum of money given as compensation for loss or harm of
any kind. See Munkama, Exall, Munkman
on Damages1.
The
process of assessment requires the court to determine the general
standard or measure of damages to be awarded. What has gained
notoriety is that it is impossible to determine the actual
consequences of an event without comparing the position before the
event.
In
respect of compensatory damages for delict, the purpose of an award
is to place the plaintiff in the position he would have been in if
the wrong had not been committed. In the words of Lord Backburn in
Livingstone
v Rawyards
(1880)
5 App Case 25 at 39:
“Where
any injury is to be compensated by damages, in settling the sum of
money to be given for reparation of damages you should as nearly as
possible get at that sum of money which will put the party who had
been injured or who has suffered, in the same position as he would
have been in if he had not sustained the wrong for which he is now
getting his compensation or reparation.”
Certain
broad principles in the assessment of damages generally have evolved
from the jurisprudence coming out of our courts.
In
Minister
of Defence and Anor v Jackson
1990
(2) ZLR 1 (S) the Supreme Court set out some of the guidelines and
principle to be followed when assessing damages. Though not
exhaustive and the case dealt with bodily injury they include the
following:
(a)
General damages are not a penalty but compensation. The award is
designed to compensate the victim and not punish the wrongdoer.
(b)
Compensation must be so assessed as to place the injured party, as
far as possible, in the position he or she would have occupied if the
wrongful act causing the injury had not been committed.
(c)
Since no scales exist by which pain and suffering can be measured,
the quantum of compensation can only be determined by the broadest of
general considerations.
(d)
The court is entitled, and it has a duty, to heed the effect its
decision may have upon the course of awards in the future.
(e)
The fall in the value of money is a factor which should be taken into
account in terms of purchasing power but not with such adherence to
mathematics as may lead to an unreasonable result.
(f)
Awards must reflect the state of economic development and current
economic conditions of the country.
In
Muzeya
v Marais and Anor
2004 (1) ZLR 326 (H) at 337G-338A CHINHENGO J advocated the adoption
of the principle of nominalism in dealing with all obligations
sounding in money on the basis that a departure from the principle
will create such uncertainty in the law that the whole system will
become unworkable. He concluded:
“Therefore
a debt sounding in money must be paid in terms of the nominal value
of the currency irrespective of any fluctuations in its purchasing
power. In any event, I think the principle of nominalism is
even-handed because it places the risk of deprecation of currency on
the creditor and that of appreciation on the debtor.”
This
court also dealt with that issue in Fabiola
v Mvudura Louis
HH 25/09 where MAKARAU JP (as she then was) ruled that the court has
a discretion to award judgment in the currency that will redress the
injury and adequately compensate the plaintiff for the loss. See also
Makwindi
Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe (Pvt)
Ltd
1989 (3) SA 191; Zimbabwe
Express Services (Pvt) Ltd v Nuanetsi Ranch (Pvt) Ltd
2009 (1) ZLR 326.
Regarding
the time at which to measure delictual damages, the general rule is
that the time at which to measure them is ordinarily the date of the
delict because that is when the plaintiff's patrimony is reduced.
See Parish
v King
1992 (1) ZLR 216 (S) at 225D-G; 226A-D; Phillip
Robinson Motors (Pty) Ltd v N.M. Danda (Pty) Ltd
1975 (2) SA 420 (A) at 429F-G.
That
rule is however not cast in stone.
It
is a flexible one depending on the type of loss and also on the
overriding principle that in awarding damages, the court should try
to assess an amount which is fair to the plaintiff and to the
defendant. In doing so, the court is not obliged to follow one or
other method of calculation. See General
Insurance v Summons Nhlumayo
1987 (3) SA 577 (A) (quoted with approval in
Parish v King,
supra).
The
primary consideration is to award the wronged party the value of his
order or her loss.
In
assessing damages this court is constrained by the fact that the
plaintiff only claimed two globular figures of US$100,000.00 for
malicious prosecution and US$300,000.00 for malicious arrest and
detention. Having done so, he did not lead evidence breaking down how
these sums are arrived at.
The
closing submissions made by counsel are equally unhelpful in that no
breakdown is given and neither is there any method of calculation
given. It is as if the plaintiff left everything in the hands of the
court after laying out the details of the suffering.
For
his part, the defendant did not let out anything at all.
While
it was apparent from the judgment of the Supreme Court that it was
“game over” in so far as liability was concerned, the defendant
chose not to make any concessions be it in respect of liability or
the quantum
of damages. He was content to doggedly deny all form of liability.
The
task of quantification is therefore onerous indeed.
However
the relevant considerations in assessing the damages, as the
authorities cited above show, start from the listing of what the
plaintiff was immediately before the event causing his loss occurred.
Then there was the event of his arrest, prosecution and detention. It
caused what the plaintiff became at the time of his release from
prison which determined the reduction inter
alia
of his patrimony and his good image in the eyes of both the public
and members of his family.
I
have already set out what the plaintiff was before the event. As a
result of it, he lost his prestigious and well-paying job as the Vice
Chancellor of Chinhoyi University of Technology. While he did not
lose his qualifications, he lost his benefits and income. These
include the use of his personal issue Mercedes Benz motor vehicle,
entertainment, housing, security, fuel and cell phone allowances. He
also lost educational benefits for his two children and wife.
This
court will have to estimate what it was worth to see her daughter
through the remaining years at University of Cape Town and his son to
progress from form 3 at Gateway until completion of University
education.
No
evidence was given on how the children progressed after his arrest.
This
court will also have to estimate how much the plaintiff lost in
earnings at Chinhoyi University of Technology. He said at the
material time he was earning in Zimbabwe currency “in excess of
three million Zimbabwe dollars.” I take it to be an annual income.
After
spending 16 month in prison it took him another 6 months to get a job
initially at Urban Development Cooperation where he rose to the
position of Acting Chief Executive Officer.
The
plaintiff did not prove the rest of the earnings he lost either as
Board Chairman of ZUPCO or as consultant of universities.
I
am unable to take any of these into account.
I
consider that in actual monitory terms the income he lost may be
gleaned from his letter of appointment as Acting Pro Vice Chancellor
dated 8 January 2003. On terms of that letter:
“Your
salary will be paid at the rate of $2,040,000 per annum. You will
also receive the following taxable monthly allowances:
(i)
A representation/entertainment allowance payable at the rate of
$10,000 per month.
(ii)
Telephone allowance of $4,000.00 per month.
(iii)
Housing allowance of $15,000 per month.”
I
have had to rely on the breakdown of his income as Pro Vice
Chancellor because the plaintiff did not submit his letter of
elevation to Vice Chancellor which he says happened about the same
time because he went there as Acting Pro Vice Chancellor performing
the duties of Vice Chancellor.
While
it is not clear why the plaintiff's evidence in the regard is
vague, I am prepared to accept that as substantive Vice Chancellor he
earned salary and benefits of $3,000,000.00 which he stated.
This
is because his evidence was not challenged in that respect.
In
the almost 2 years that he was either in prison or out of work, he
would have earned $6,000,000.00 in Zimbabwe currency. No evidence was
led as to how much this would have been in United States Dollars.
The
globular figure claimed is a thumb suck.
In
my view, the court has to draw on experience and surmise in the
absence of evidence. I find support in adopting that approach from
the remarks of GUBBAY JA (as he then was) in Minister
of Defence & Anor, supra,
where he said:
“What
is essential is for a trial court to draw on its own experience in
making an assessment of damages – an exercise which is necessarily
dependent upon some degree of surmise, conjecture and imagination,
for general damages are not capable of exact arithmetic
calculations.”
The
remarks may have been made in the context of general damages for
bodily injury but they have equal application to what this court is
called upon to assess.
I
have deliberately adverted to loss of income and other benefits to
assist put figures on part of the plaintiff's loss. However, they
do not encompass all of the damage he sustained.
Having
said all that, I now turn to apply the foregoing principles to the
two claims.
The
plaintiff claims $100,000.00 for malicious prosecution.
The
law on this delictional claim was discussed in the earlier judgment
by this court. In short, the delict occurs when the defendant has
maliciously and without reasonable and probable cause instituted
criminal proceedings against the plaintiff.
The
damages are designed to compensate the plaintiff for being subjected
to unwarranted criminal proceedings which are, in this jurisdiction,
held in public.
During
the course of such proceedings the plaintiff suffers both financial
prejudice and injuria
in being paraded in public to answer charges. In doing so, the
plaintiff loses time and money.
Again,
no evidence was led on the financial prejudice he sustained in
defending himself during the lengthy prosecution as well as in
fighting the conviction and sentence in this court.
I
am however of the view, drawing from 'experience' from 'surmise'
from 'conjecture' and from 'imagination' that the claim for
$100,000.00 is extremely excessive.
In
my view an award of US$30,000.00 under this head will meet the
justice of the case.
Regarding
the claim of US$300,000.00 for malicious arrest and detention, it
should be recalled that the delict occurs when there is no reasonable
or probable cause for the allegation of criminal conduct.
The
institution of proceedings constitutes an abuse of the right to lay
genuine complaints.
In
such circumstances the complaint by the defendant, as has been shown
above, is without foundation and intended to cause harm or injury to
the plaintiff.
The
plaintiff suffered ill-treatment in prison where he endured poor
prison conditions and diet. He was taken away from his family and
lost his job and other contacts. In fact, the loss of liberty in its
self is such deprivation of a constitutional right that it cannot be
countenanced where the basis for it is malice.
I
have related to the financial loss which the plaintiff had to bear
over and above all else to show that indeed considerable compensation
is called for.
Again
drawing on the factors set out in the authorities mentioned above
including the duty thrust on the court to bear in mind inter
alia
the effect any award may have on future awards in similar cases and
indeed economic development or the economic conditions of this
country, I have no doubt that the claim of US$300,000 is again
excessive.
We
live in a small economy where such claims may not be sustainable at
all.
Taking
into account all the circumstances of the case, I am of the view that
a third of what the plaintiff claims, will meet the justice of the
case. Accordingly I award US$100,000.00 under the rubric of malicious
arrest and detention.
Finally
I have to deal with the issue of the currency of the awards.
I
do not agree with the defendant that the award should be expressed in
United States Dollars “but paid in RTGS at a one as to one rate.”
That
submission is a product of a misreading of section 54(1)(d) of SI
33/19 and sections 20 and 22 of The Finance (No.2) Act of 2019 as
well as the judgment in Zambezi
Gas (Pvt) Ltd v N.R Barber & Anor
SC 3/20.
What
has to be paid in the local currency at the parity rate are assets
and liabilities due immediately before 22 February 2019.
In
this case nothing was due to the plaintiff immediately before that
date.
He
had filed a claim which was being contested. The court was yet to
determine both the issues of liability and quantum.
Accordingly,
while the law preludes this court from issuing a judgment sounding in
foreign currency, it does not proscribe the grant of damages in
foreign currency to be paid at an equivalent RTGS dollar reckoned at
the interbank rate at the time of payment.
In
the result it be, and is hereby ordered as follows:
1.
Judgment be and is hereby entered in favour of the plaintiff against
the defendant in the sum of US$30,000.00 for malicious prosecution
and in the sum of US$100,000.00 for malicious arrest and detention.
2.
Interest on both amounts at the prescribed rate from the date of
service of summons to date of full payment.
3.
The sums of US$30,000.00 and US$100,000.00 together with interest
thereon shall be paid in RTGS dollars at the interbank rate
prevailing on the date of payment.
4.
The defendant shall bear the costs of suit.
Hove
and Associates,
plaintiff's legal practitioners
Uriri
Attorneys at Law,
defendant's legal practitioners
