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, ...
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 SC51-19 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 for malicious prosecution and US$300,000 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 Zimbabwe United Passengers Company (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he was arrested, prosecuted for contravening a provision of the Prevention of Corruption Act [Chapter 9:16] (now repealed), and sentenced to three (3) years imprisonment of which one year imprisonment was suspended on condition of future good behaviour.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 paragraph 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 Zimbabwe United Passengers Company (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 Zimbabwe United Passengers Company (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 Zimbabwe United Passengers Company (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 three (3) years imprisonment of which one (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 two (2) year prison term. All in all, he served an effective sixteen (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 Zimbabwe United Passengers Company (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 for malicious prosecution and US$300,000 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 bribe per bus for Zimbabwe United Passengers Company (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 per bus to him for the supply of 80 buses to Zimbabwe United Passengers Company (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 Zimbabwe United Passengers Company (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 Bright Matonga a total of $20,000 to renew a lease Gift Investments (Pvt) Ltd 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 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 for each bus Zimbabwe United Passengers Company (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 for the renewal of the Gift Investments (Pvt) Ltd lease with Zimbabwe United Passengers Company (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 Bright 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 Zimbabwe United Passengers Company (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 Johannes Tomana, deliberately compromised the case in favour of the plaintiff....,.
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.”