GARWE
JA
[1] After
hearing submissions from counsel, the court issued the following order:
“(1) The
appeal be and is hereby dismissed with costs.
(2) The reasons for this order are to follow.”
[2] What
follows are the reasons for the order.
FACTUAL
BACKGROUND
[3] The
appellant, OK Zimbabwe, is a company duly incorporated in terms of the laws of
Zimbabwe. It is a major player in the
retail sector and for a number of years has conducted what has come to be known
as the “OK Grand Challenge Promotion.”
That promotion provides an opportunity for a number of its customers to
win various items, such as motor vehicles, residential stands and electrical
goods.
[4] The
respondent, Eric Msundire, was employed as manager by the Zimbabwe Institute of
Public Administration situated at Darwendale just outside Harare. It was common cause at the trial that he
purchased various grocery items from the OK Bazaars Supermarket in Marimba
worth $999.98. Consequently he was given
a number of coupons which he completed and deposited into a selected container.
[5] On
9 June 2010 the appellant, through the public media, announced a list of names
of persons who had won various items in the promotion. The respondent's name was one of the names so
announced.
[6] Shortly
thereafter, the appellants' risk and services manager, one Osborne Tariro
Mawere, received what he termed an anonymous call. The caller suggested that there had been
fraud in the manner in which some of the participants had obtained coupons to
participate in the promotion. Mawere
accordingly proceeded to Braeside Police Station where he lodged a complaint
based on the anonymous call and consequently a docket was opened for the
purpose of investigating the complaint.
[7] It
is pertinent to mention that Mawere had been a police officer in the Zimbabwe
Republic Police and at the time he retired from the force occupied the rank of
Assistant commissioner. At the time of
the 2010 promotion he had been employed by the appellant for thirteen years. He also was the holder of a Bachelor of
Commerce Degree in Risk Management.
[8] The
appellant invited the winners of the promotion to attend the prize giving
ceremony at the Rainbow Towers, Harare, on 16 June 2010. It is common cause that the invitation was
intended to identify certain of the winners of the promotion and to cause their
arrest by the police. The police also
attended the ceremony at the behest of Mawere but stood some distance away,
near Mawere's vehicle, which the latter had provided to facilitate the
apprehension and conveyance of the suspects.
[9] The
respondent attended the event in the company of his family and workmates, some
of whom had also been announced as winners.
Mawere then lured the respondent and two of his colleagues to the car
where the police were waiting. At the vehicle,
it was alleged that they had been involved in the fraudulent acquisition of the
coupons used in the competition. In the
company of the police, Mawere then drove them to Braeside Police Station where
they were detained.
[10] For
a period of four days, the respondent and his colleagues were transferred from
one police station to another. They were
made to endure extremely difficult and painful conditions and in particular
were made to sleep in squalid conditions.
[11] It
was common cause at the trial that at the time of their arrest, no
investigations had in fact been carried out to ascertain whether or not the
respondent had in fact been involved in any fraudulent acquisition of
coupons. It was also common cause that
the investigations were carried out by Mawere only after the arrest of the
respondent and his colleagues. It was
also common cause that when Mawere eventually took the coupons used by the
respondent to the relevant branch for verification, he confirmed that in fact
the purchase had been in order and that the respondent had not been involved in
any wrong doing.
[12] The
respondent and his colleagues were only released after Mawere had deposed to an
affidavit in which he exonerated them of any wrong doing.
THE
PROCEEDINGS IN THE COURT A QUO
[13] The
respondent, feeling aggrieved, instituted an action in the High Court seeking
damages for defamation, inuria and
deprivation of liberty.
[14] The
appellant denied all liability, pointing out that all it had done was to make a
report to the police. The appellant also
sought to rely on an exemption clause that indemnified it against all claims of
any nature whatsoever arising out of the promotion.
FINDINGS
BY THE COURT A QUO
[15] The
facts giving rise to the delictual claim were found by the court to be largely
common cause. It was Mawere who had
personally conducted the investigations and was present at all times when the
respondent was being interviewed. The
court found that Mawere had handled the investigations in an “extremely reckless”
manner and had caused the arrest of the respondent without verifying the
authenticity of the anonymous call or carrying out investigations into the
allegations, even after the respondent had protested his innocence.
[16] The
court further found that it was Mawere who had “masterminded” the arrest, used
his vehicle to “deposit” the respondent at Braeside Police Station, actively
participated in the interrogation and that, at the time the police officers
detained the respondent, they personally had no reasonable suspicion that the
latter had committed an offence and appeared content to leave everything in the
hands of Mawere. The court also found
that whilst it would have been more prudent for the respondent to have sued the
police as well, such non-joinder was not fatal.
[17] The
court a quo was also of the view that
owing to the reckless and malicious manner in which Mawere had conducted
himself, the exemption clause had to be restrictively interpreted in order to
protect members of the public such as the respondent against blatant abuses of
exemption clauses. The court a quo accordingly found that the
appellant could not exempt itself from Mawere's reckless and unacceptable
conduct in causing the unnecessary arrest of innocent members of the public
before carrying out even the most basic of investigations.
[18] In
the result the court awarded judgment in favour of the respondent in the sum of
$8 500.00 for unlawful arrest, interest thereon at the prescribed rate and
costs of suit.
[19] It
is against that order that the appellant has appealed to this Court. The appellant's grounds of appeal raise four
issues. These are:-
19.1 that
the court a quo erred in concluding
that the appellant had restrained the liberty of the respondent or had directed
that this be done.
19.2 that
the court erred in concluding that the appellant had acted with animus injuriandi.
19.3 that
the court a quo erred in finding that
the appellant was liable for the acts of the police who arrested and detained
the respondent in the exercise of their own discretion.
19.4 alternatively,
that the court a quo erred in not
finding that the appellant's liability was excluded by the exclusionary clause
contained in the rules of the competition.
COURT
A QUO MADE FINDINGS OF FACT
[20] The
facts before the court a quo were
largely common cause. Based on those
facts the court found that Mawere did not simply report a suspected fraud. He had in fact fully participated in stage - managing
the award winning event in order to identify the respondent and others and
cause their arrest. He had no iota of evidence that the respondent had
committed an offence. Indeed the police
had no such evidence and were happy to allow Mawere to lead the
investigations. In short, although the
police detained the respondent, this was at the instance of Mawere, in
circumstances where neither Mawere nor the police officers had reasonable
suspicion that an offence had been committed.
For an arrest to be lawful, the arresting detail has to show that he had
reasonable grounds for suspecting that the accused had committed an
offence. Botha v Zvada & Anor 1997(1) ZLR 415 (S), 419 A-B.
WHETHER
THE COURT A QUO ERRED
[21] It
is important to reiterate that the findings made by the court a quo were consistent with the facts
which were generally agreed by the parties.
Consequently, in the absence of a suggestion that the court a quo misdirected itself in making those
conclusions, this Court, as an appellate court, has no power to interfere with
those findings. My view of the matter is
that not only is there no basis upon which this Court can interfere with the
findings of fact made by the court a quo
but also that the findings were in fact consistent with the proven facts.
[22] The
finding by the court a quo that the
appellant, through Mawere, together with some members of the police force,
unlawfully detained the respondent cannot be impugned.
[23] The
position is now settled that whist the action for unlawful arrest and detention
is usually brought against the police or other uniformed forces, a private
individual can also commit this delict – Feltoe, A Guide to the Zimbabwe Law of
Delict, 3rd Edition 2001, p56.
THE
QUESTION OF ANIMUS INJURIANDI
[24] The
position is also settled that in our law, unlike South Africa, once unlawful
arrest or imprisonment are proved, animus
injuriandi is presumed and intention is not a requirement for this delict –
Feltoe, op cit, at page 56.
The
submission by the appellant that the court a
quo erred in finding that the appellant had acted with animus injuriandi consequently is without merit.
THE
EXEMPTION CLAUSE
[25] The
exemption clause that formed part of the promotion read:
“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)”
[26] The
appellant argued in the court a quo
that based on this clause, it was not liable in delict for the misfortunes that
befell the respondent, such liability having been indemnified by the respondent
in deciding to participate in the promotion on that basis.
[27] The
court a quo, relying on various
authorities, concluded that such clauses are not religiously accepted and that
where a party seeks to indemnify itself against the reckless and malicious
conduct of its employees, such indemnification must be curtailed and the party
may not seek to avoid liability as a consequence thereof.
The
question is whether the court a quo
was correct in this regard.
[28] In
general, parties to a contract are at liberty to exempt each other from the
consequences flowing from a breach of the contract. For this reason, corporate entities and
public institutions providing a particular service or engaged in a contractual
relationship with another exempt themselves from liabilities they would
otherwise incur. In general if both
parties are aware of the exemption no real difficulties are encountered. However, such an exemption can be an
expensive trap for an unwary client.
[29] For
the above reason, the courts, in order to protect the public, have set limits
to the exemption that they will permit by interpreting such a clause
narrowly. In doing so the court
endeavours to ascertain what the parties intended the exemption to cover. However an exemption that is contra bonos mores will not be
permitted. For example a party may not
exempt himself from his own fraud.
[30] The
approach of the courts is to adopt a narrow interpretation of exemption clauses
and adopt the principle that, unless the scope of the exemption is clearly
expressed, it must be interpreted as giving minimum protection to the party in
whose favour it operates.
[31] In
Tubb (Pvt) Ltd v Mwamuka 1996 (2) ZLR
27 (S), this Court had occasion to restate the principles applicable in
exemption clauses. These may be
summarised as follows:
- the
words of the exemption clause must be read as part of the contract and must be
sufficiently clear and comprehensive for a court to give effect to them.
- any
ambiguity as to meaning and scope of the exemption must be interpreted against
the proferens unless he proves that
the words used embraced the contingency that has arisen.
- if
there is not an express reference to negligence in the exemption, the court
must consider whether the words are wide enough to cover negligence on the part
of the defendant or his servants and if so whether the claim for damages may be
based on some ground other than negligence.
- where
the existence of an exemption excluding liability for negligence is not in
dispute, the burden of establishing any other possible ground for liability
such as gross negligence or dolus,
rests upon the claimant.
- the
exemption must be within the knowledge of the other party at the time the
contract is entered into.
- a
party cannot exempt himself from liability for wilful misconduct, or criminal
or dishonest activity of himself, his servants or agents or from damage
resulting from gross negligence on his part or that of his servants.
[32] In
a related context, the Consumer Contracts Act [Chapter 8:03], provides that where a court finds a consumer
contract to be unfair, it may, inter alia,
cancel the whole or part of a contract, vary the contract, enforce part only of
the contract, declare the contract enforceable for a particular purpose only,
order restitution or reduce any amount payable under the contract. Such power may be exercised by a court mero motu or on application by any
affected party. A court is, inter alia, entitled to find a contract
to be unfair if, in all the circumstances, the contract is unreasonably
oppressive.
[33] Whilst
participation in a promotion might not constitute a “consumer contract” as
defined, and I make no firm pronouncement in this regard, it is clear that the
general principles applicable to exemption clauses have been captured in the
Act.
DISPOSITION
[34] I
agree with the court a quo that
Mawere was both reckless and malicious.
He was acting within the scope of his duties as a risk and loss
manager. It would be unconscionable for
the appellant to seek to be exempted from liability in these circumstances.
[35] For
the above reasons the appeal was found to be without merit and was dismissed
with costs.
ZIYAMBI JA: I
agree
HLATSHWAYO JA: I agree
Atherstone
& Cook, appellant's legal practitioners
Mtombeni, Mukwesha, Muzawazi & Associates, respondent's legal
practitioners
