At the end of hearing argument for both parties, the
court allowed the appeal with costs. It was indicated, at the time, that
reasons for the decision to allow the appeal would follow in due course.
These are they.
On 12 August 2011, the respondent issued out summons
in the High Court claiming damages for malicious prosecution against the first
and second appellants and damages for defamation against the third appellant.
After a full trial, the court a quo awarded the respondent the sum of US$20,000=
for general damages for malicious prosecution with interest and the sum of US$2,000=
for defamation damages with interest.
The first appellant is a company registered in terms
of the laws of Zimbabwe, dealing in the business of production and sale of
airtime recharge cards, and the second appellant is employed by the first
appellant as a Loss Control and Investigating Officer. The third appellant
is a company registered in terms of the laws of Zimbabwe, carrying out the
business of providing electronic recharge cards to dealers through terminals
that it supplies and services in terms of a dealership contract. It is a
subsidiary of the first appellant.
On 10 February 2009, the third appellant
entered into a dealership contract with a company called Flamsrock Trading
(Pvt) Ltd in terms of which the latter would buy prepaid electronic airtime
vouchers at a discount from the first appellant for resale through the third
appellant. The company was represented by the respondent, who is its Chief
Executive Officer. On 24 March 2009, the first appellant discovered that
recharge cards which had been prepared for Innscor and OK Zimbabwe, but
subsequently withdrawn before being supplied, were being sold in the open
market at very low prices ranging between $4 and $4,30c. After the recharge
cards had been withdrawn they were expected to have been deactivated before
they could be supplied to interested customers.
It appears that the responsible persons, within the
first appellant, who had access to the relevant computer, did not de-activate.
An employee within the first appellant, who had access to the computer, using a
flash stick, managed to retrieve information regarding the recharge cards.
The second appellant was tasked with investigating the
theft of the recharge cards. He started by having all the affected recharge
cards deactivated. The action resulted in an outcry from the people who had
purchased the cards. As a result of the inquiries, he was led to one David
Chimbiriri, who was involved in the sale of cards in Makoni area of
Chitungwiza. When asked about the source of the cards, David Chimbiriri
indicated that he got the cards from the respondent. At that time, 150 cards
were recovered.
The respondent was asked about the cards found in
possession of David Chimbiriri. He admitted having given them to him. He
indicated that he got the cards from a person called Tony whom he said he met
once at his Internet Café. He said he recorded the name of the person and his
Telecel number in a book. The cellphone
number which the respondent gave to the third appellant is
023 414 444. When the second appellant dialled the number, it was not
in use. Investigations with Telecel revealed that the number was false and
non-existent.
The respondent could not give full details of the
particulars of Tony.
When he was cross examined, in court, he said he did
not have the book in which he had recorded Tony's particulars. The second
appellant gave the respondent the benefit of doubt at the time, believing, as a
dealer, he would assist the first appellant to identify and apprehend Tony or
the person who had stolen the recharge cards. The respondent was given a week
within which to look for Tony, whom he had said would come to the shop to
collect the money for the 150 recharge cards.
During that week, the second appellant received a call
from Detective Assistant Inspector Dhlodhlo of Gweru Police who indicated that
they had apprehended one Joice Nyamakandi who was due to collect money from
people who were selling recharge cards belonging to Econet at low prices. The
people were complaining that the cards had been deactivated. The second
appellant indicated to the police that he was handling a case of theft of those
recharge cards. On the basis of an arrangement with the police, he drove to
Gweru and met with Joice Nyamakandi who had been arrested by the police. Joice
Nyamakandi indicated that she had been given authority to collect money by her
boyfriend, one Caleb Majiri, who resided in Harare.
The police, the second appellant and Joyce Nyamakandi
drove to Harare where Caleb Majiri was arrested. He indicated that he had been
given 100 recharge cards by the respondent. The police and the second appellant
approached the respondent at his Internet Cafe in the absence of Caleb Majiri.
When asked about the recharge cards, the respondent, again, insisted he had
obtained 150 recharge cards from one Tony.
It was after he was confronted with the information that
he had given the recharge cards to Caleb Majiri that the respondent admitted to
having obtained 450 more recharge cards from Tony. He denied giving Caleb
Majiri 600 recharge cards. At that time, Tony still had not come to collect the
money from the respondent, suggesting that he was non-existent. On the basis of
the unreliable information on the identity of Tony, the false Telecel number
which he gave, the insistence that he had obtained only 150 cards from Tony,
and the denial of having given the 600 recharge cards to Caleb Majiri, the police
decided to charge the respondent with the offence of theft.
The respondent was detained at Rhodesville Police
Station in Harare on the orders of Detective Sergeant Mazenyere, the
Investigation Officer. The next day he was taken to Gweru in one of the first
appellant's cars since the police had no transport.
A statement was recorded from the second appellant at
Gweru Police Station. The respondent appeared at Gweru Magistrates Court
charged with the offence of the theft of the recharge cards from the first
appellant on 6 April 2009. He applied for bail which was opposed by the State.
He was granted bail on 8 April 2009. He was placed on remand on the ground that
there was reasonable suspicion that he had committed the offence. The charge
was withdrawn before plea on 17 August 2009 and the recharge cards, recovered
as exhibits, were released into the custody of the respondent.
The first and the second appellants were not happy
with the withdrawal of the charge. The Investigation Officer had not been
consulted by the public prosecutor. The first appellant was of the view that
the respondent, on the facts, had a case to answer, for receiving stolen
property, the possession of which he had failed to explain. The first appellant
wrote to the Director of Public Prosecution expressing dissatisfaction with the
withdrawal of the charge.
On 28 April 2010, the Director of Public Prosecution
wrote to the first appellant's legal practitioners in the following terms:
“I have communicated with our Gweru office and are
proceeding to have the accused, Sanangura, and another, prosecuted by way of
Summons as charges had already been withdrawn.
The accused persons have a case to answer and we are
therefore resuscitating the matter.
I have therefore directed that the accused be summoned and
taken to court for prosecution as soon as possible.”
When the respondent was brought to court, he was
acquitted at the end of the State case. The reasons for the acquittal are not
known. The first appellant was unhappy with the respondent's acquittal because it
believed that there was failure to place appropriate weight on the facts
showing that the respondent had received stolen property for which he failed to
give a satisfactory explanation.
In the meantime, the third appellant had, on 12 May
2009, written a letter to Flamsrock Trading (Pvt) Ltd terminating the contract
for supply of prepaid airtime which the parties had entered into. The letter of
termination reads as follows:
“This letter serves to advise you that your contract
with Transaction Payment Solutions has been terminated with immediate effect.
The decision follows the fraudulent activities on your
account that prejudiced Econet Wireless Zimbabwe (Pvt) Ltd of prepaid airtime.
We can confirm we have retrieved the two TPS terminals from your site.
We regret that our relationship had to be prematurely
terminated under such circumstances.”
After the acquittal, the respondent issued summons
claiming damages for malicious prosecution and defamation. He alleged that the
first and the second appellant instigated his prosecution when they
had no reasonable cause to do so.
He alleges that there was no evidence that he had
stolen recharge cards from the first appellant. He was not employed there and
had no access to passwords to the computer where those cards were stored. He
said that his prosecution was instituted because of malice. He further alleged
that there was bad blood between his family and that of the second appellant.
He, however, did not give reasons for the alleged sour relationship. He only stated
the nature of the relationship was that his mother and the second appellant
shared the same totem. Needless to say, the second appellant denied the
allegation of a family relationship going beyond the mere fact that the
respondent's mother shared the same totem with him. The second appellant had
indicated that he had met the respondent when he was investigating another case
of theft of recharge cards at Econet. The said charge was later withdrawn
against the respondent.
The respondent said the second appellant had
threatened that he would rot in jail if he did not admit the theft of the
recharge cards. Although the respondent tried to use these allegations to prove
the element of malice, the second appellant denied them. The second appellant
said if indeed there was malice, he would not have let the respondent go free
after the first interview when he admitted receiving stolen property belonging
to the first appellant.
On the question of lack of reasonable cause for the
institution of the prosecution, the respondent said that it was instituted when
the prosecutor in Gweru had made up his mind to withdraw the charge. He also
said that his acquittal, at the end of the State case, proved that the first
and the second appellant had no case against him….,.
The court a quo found that the respondent had not
established the existence of a sour relationship between his family and that of
the second appellant. The allegation of
malice had not been proved.
Notwithstanding that finding, the court a quo held that the first and
the second appellants instigated the prosecution of the respondent.
The court a quo concentrated its mind on the question
whether there was evidence produced by the appellants of the respondent having
stolen the recharge cards from the first appellant. It found that the recharge
cards could have been stolen by an employee of the first appellant because the
respondent had no access to the computers. On that ground, the court came to
the conclusion that the prosecution had no reasonable cause….,.
The law on the delict of malicious prosecution is
clear.
In Luke Davies v Premier Finance Group Limited
HH235-10, PATEL J…, said…,:
“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.
…,. 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.'”
In order for one to succeed in an action for malicious
prosecution, one must prove four requirements, namely:
(i) That the prosecution was instigated by the
defendant;
(ii) It was concluded in his favour;
(iii) There was no reasonable and probable cause for
the prosecution; and
(iv) That the prosecution was actuated by malice.
See Mohamed Amin v Jogendra Kummar Bannerjee 1947 AC 322 (PC) 330; Minister of Justice &
Constitutional Development v Moleko 2008
(3) All SA 47 (SCA)…,.
Placing of information and facts before the police
does not, in itself, amount to instigating prosecution. It would amount to
instigation if, besides giving information, the defendant proceeds to lay a
charge or overbears on the police to institute proceedings which they would not
otherwise commence or institute.
In Bande v Muchinguri 1999 (1) ZLR 476, MALABA J…,
said…,:
“The question is whether Mr Muchinguri instigated the
institution of the prosecution against the plaintiff. J G FLEMING, The Law of
Torts 7 ed at p 582 states that:
'The defendant must have been actively instrumental in
setting the law in motion. Simply giving a candid account, however
incriminating, to the police…, is not the equivalent of launching a
prosecution: the critical decision to prosecute not being his 'the stone set
rolling [is] a stone of suspicion only.' But, if besides giving information,
he proceeds to lay a charge, this amounts to an active instigation of
proceedings which he cannot shrug off by saying that they were, in the last
resort, initiated at the discretion of the public authority.'…,.
In Baker v Christine 1920 WLD 14, BRISTOWE J said the
"test" 'is whether the defendant did more than tell the detective the
facts and leave him act on his own judgment.'
The principle that giving an honest statement of fact
to the police, on which the prosecution is then instituted, is not
"instigating" a prosecution, was referred to with approval by PRICE J
in Madnitsky v Rosenberg 1949 (1) PH J5 at pp 15-16. See also Waterhouse v
Shields 1924 CPD 155 at 160; Prinsloo & Anor v Newman 1975 (1) SA 481 (A).”
Although the court a quo found that the first and the
second appellants instigated the prosecution of the respondent, the finding is
not supported by evidence.
The second appellant was called upon by the police in
Gweru to give them a statement after they had decided upon their own
investigation that there was a reasonable suspicion of the respondent having
had committed the offence. The facts, in any case, show that any reasonable
person faced with the same facts would have believed that the respondent had
committed the offence of receiving stolen property. He had been found in possession of property
belonging to the first appellant and had given a patently false statement of
how he had acquired the property.
The finding by the court a quo that the first and the
second appellants instigated the resuscitation of the charge withdrawn is
contrary to the letter of the Director of Public Prosecutions. In the letter,
she shows that she exercised her independent mind to have the charge
resuscitated. She clearly states that she believed that the respondent had a
case to answer. There is no doubt, therefore, that the first and the second
appellants strongly believed, on the facts, that the respondent had a case to
answer, at least on the allegation of receiving stolen property.
They did not have to produce evidence which would
prove the respondent's guilt beyond reasonable doubt. It is sufficient for the
test of reasonable and probable cause that the
respondent was placed on remand by the Gweru Magistrates Court on the ground
that there was a reasonable suspicion of him having committed the offence.
The phrase "reasonable
and probable cause for a prosecution" refers to an honest belief in the
guilt of the accused based on a full conviction, founded upon reasonable
grounds, of the existence of a state of circumstances, which, assuming them to
be true, would reasonably lead any ordinarily prudent and cautious man, placed
in the position of an accuser, to the conclusion that the person charged was
probably guilty of the crime imputed.
The judgment in Relyant Trading (Pty) Limited v Shongwe & Anor 2007 (1) ALL SA 375 (SCA) is
instructive in this regard. MALAN AJA said…,:
“Malicious prosecution consists in the wrongful and intentional assault on
the dignity of a person comprehending also his or her good name and privacy. The requirements are that the arrest or prosecution be
instigated without reasonable and probable cause and with 'malice' or animo iniuriarum. Although the expression 'malice' is used, it means, in
the context of the actio iniuriarum, animus iniuriandi. In Moaki v Reckitt &
Colman (Africa) Ltd and Another WESSELS JA said:
'Where relief is
claimed by this action, the plaintiff must allege and prove that the defendant
intended to injure (either dolus directus or indirectus). Save to the extent that it might afford evidence of
the defendant's true intention or might possibly be taken into account in
fixing the quantum of damages, the motive of the defendant is not of any
legal relevance.'”
The acquittal of the respondent was not, in the
circumstances, evidence of lack of ground for his prosecution.
As explained by MALAN AJA
in Relyant Trading (Pty) Limited v Shongwe & Anor 2007
(1) ALL SA 375 (SCA), a defendant will not be
liable if he/she held a genuine belief in the plaintiff's guilt founded on
reasonable ground. In effect, where reasonable and probable cause for the
arrest or prosecution exists, the conduct of the defendant, in instigating it,
is not wrongful. The Acting Judge of Appeal said that the requirement of
reasonable and probable cause "is a sensible one" since "it is
of importance to the community that persons who have reasonable and probable
cause for a prosecution should not be deterred from setting the criminal law in
motion against those whom they believe to have committed offences, even if in
so doing they are actuated by indirect and improper motives.”
The finding that the first and the second appellants
had reasonable cause to institute the prosecution against the respondent
establishes absence of malice on their part.
In Mabona
v Minister of Law and Order 1988 2 SA
654 (SE)…, JONES J held that the person claiming malicious arrest or malicious
prosecution must not only allege but must go further to prove that the
defendant acted maliciously and without probable cause. See also Gellman v
Minister of Safety & Security 2008 1 SACR 446 (W)…,; Le Roux v Minister of
Safety & Security 2009 4 SA 491 (KZP) 498…,.
In Bande v Muchinguri 1999 (1) ZLR…, the court states:
“Has the plaintiff proved that the defendant was
actuated by malice? The plaintiff does not have to prove spite or ill-will on
the part of the defendant. The fact that the defendant had no reasonable and
probable cause for the prosecution may, in an appropriate case, justify an
inference that he was actuated by malice in the sense of being driven by an
improper or indirect motive.
Fleming op cit at p 590 states that:
'At the root of it (malice) is the notion that the
only proper purpose for the institution of criminal proceedings is to bring an
offender to justice and thereby aid in the enforcement of the law and that a
prosecutor who is primarily animated by a different aim steps outside the pale
if the proceedings also happen to be destitute of reasonable cause. 'Malice'
has therefore a wider meaning than spite, ill-will or a spirit of vengeance,
and includes any other improper purpose, such as to gain a private collateral
advantage."
In Brown v Hawkes (1891) AC 718…, CAVE J said:
'Now, malice, in its widest and vaguest sense, has
been said to mean any wrong or indirect motive, and malice can be proved,
either by showing what the motive was and that it was wrong, or by showing that
the circumstances were such that the prosecution can only be accounted for by
imputing some wrong or indirect motive to the prosecutor.'”
This is particularly the case, since the court a quo
found that the allegation by the respondent, of the existence of a sour
relationship between families, was unfounded. The respondent failed
to prove that the first and the second appellants acted without reasonable and
probable cause or that their conduct was actuated by malice or improper motive….,.
For these reasons, the appeal was allowed with costs and the judgment of
the court a quo set aside and substituted with the order that the claims be
dismissed with costs.
