PATEL
J: The plaintiff in this matter
claims the sum of US$9798.20 as damages for unlawful assault allegedly
perpetrated by members of the Zimbabwe Republic Police (ZRP) acting within the
course and scope of their employment. The defendants admit that the plaintiff
was arrested and detained by members of the ZRP but deny that he was assaulted
during his arrest and detention.
The issues for determination are
relatively straightforward and are as follows:
(1)
Whether or not the plaintiff was
unlawfully assaulted by members of the ZRP acting during the course and within
the scope of their employment.
(2)
If so, the quantum of damages, if
any, suffered by the plaintiff as a result of the assault.
Evidence
for the Plaintiff
Monday
Bopoto Nyandoro, who is the plaintiff in this matter, testified as follows.
He is presently 63 years old and, at the time of the alleged assault, he was an
active member and office-bearer of the National Constitutional Assembly (NCA),
a non-governmental organisation based in Zimbabwe.
On 5 November 2005, he was involved in a
peaceful NCA demonstration proceeding along Robert Mugabe Road in Harare. The
NCA group of about 300 people was running and singing along the side of the
road and dropping political flyers as they proceeded, without obstructing the
traffic on the road. At the corner of Innes Terrace, members of the ZRP Support
Unit disembarked from about 6 lorries and began running towards the crowd. They
wore police uniforms and were wielding rubber batons. Most of the crowd ran
away and dispersed, but the plaintiff was caught and assaulted by about 10 to
12 policemen. He produced in evidence a photograph taken from a newspaper, The Zimbabwean (dated 11 to 17 November
2005), depicting a policeman running behind the plaintiff and brandishing a
baton within striking distance [Exh 1]. The plaintiff fell to the ground and
continued to be assaulted. He was then lifted and shoved into one of the police
lorries where he was trampled upon whilst lying down.
The
lorry was then driven to Harare Central Police Station (Harare Central) where
he was separated from the other arrestees and taken to 2 senior police officers
in the Law and Order Section. These officers took turns to assault him under
the sole of his left foot for a period of approximately 1½ hours. He was then
taken to the holding cells at Harare Central and detained for 4 days until he
was eventually released.
Thereafter,
he continued to feel severe pain in his chest, ribs and left leg. He was then
taken to Shamva Hospital where he was treated with medication as an out-patient
for two 2 weeks [Exh 2]. As his condition did not improve, he sought the
assistance of the NCA and was taken to a Dr. Coric at the Medical Centre in
Harare. After being x-rayed and scanned, he was referred to St. Anne's Hospital
where his left leg was operated upon and drained. He was subsequently
discharged and taken to Dandaro Hospital where he was admitted for 2 weeks of
rehabilitation. He produced a medical affidavit from Dr. Coric, dated 2 February 2006, detailing his injuries and
indicating the likelihood of permanent injury [Exh 3]. The affidavit, which was
compiled after his discharge from Dandaro Hospital, only mentions the injuries
to his left foot and is totally silent as to the injuries to his chest and
ribs. He was unable to explain this omission when cross-examined on the point.
After
his discharge, he continued to walk with crutches till the end of 2006. His
left leg still aches and sometimes numbs and he walks with a severe limp. He
continues to visit Dr. Coric every 2 to 3 months for examination and
prescription of pain-killers.
Before
his injuries, he was self-employed as the director of a rural supply company,
ferrying goods from Harare and selling produce from horticulture farming. He
used to derive the equivalent of US$460 to US$550 per month from both of these
occupations. He is now unable to continue with either occupation because of his
injuries. His savings have been exhausted in medical expenses, as evidenced by
receipts for part of the hospital fees and transport costs incurred by him in
2006 [Exh 4]. The quality of his life has been greatly reduced as a result of
the assault upon him and he is no longer able to assist his 3 dependant
children who are still at school.
Evidence
for the Defendants
Sergeant
Hangwane Singo has been with the ZRP for 15 years. In November 2005 he was
engaged at Harare Central with the duty of gathering security information. He
testified that he first met the plaintiff at about 4.00 p.m. on 5 November
2005, after he was arrested and brought to Harare Central. Pursuant to
instructions from his member-in-charge, he detained the plaintiff as a suspect
for investigation by the CID Law and Order Section. The plaintiff was limping
before his detention but did not complain of any injury. After detaining the
plaintiff, he did not see him again. He could not say whether or not the
plaintiff was assaulted by any member of the CID Law and Order Section.
Inspector
Douglas Shoko has been a policeman for 19 years and was stationed at Harare
Central in the CID Law and Order Section during 2005. His evidence was that on
6 November 2005 he was instructed by his officer-in-charge to investigate the
NCA demonstration suspects. Together with 2 colleagues he took fingerprints
from the 13 suspects and recorded their profiles. Subsequently, certain defence
lawyers came to represent the suspects while their warned-and-cautioned
statements were being recorded. All of the suspects, including the plaintiff,
signed statements drafted by their lawyers. The uniform response of all the
suspects was to deny the charge against them and to state that their possession
of flyers and placards was not unlawful. Thereafter, the witness escorted all
the suspects to the holding cells for detention. He then compiled dockets in
respect of each suspect and forwarded the dockets to the Attorney-General's
Office. In compliance with the direction from that Office and after
instructions from his officer-in-charge, he released all of the suspects from
custody on the afternoon of 8 November
2005. When he saw the plaintiff for the first time, he did not seem to have
been injured. He did not notice whether the plaintiff was limping at that time.
When the plaintiff was released, he was physically well and did not appear to
be limping.
Under
cross-examination, the witness stated that the plaintiff was arrested at
approximately 11.30 a.m. on the 5th of November 2005. On that day
the witness was deployed elsewhere and only arrived at Harare Central at 8.00
p.m. He was therefore not present at the time of the alleged assault on the
plaintiff. As regards Exhibit 1, he recognised the assailant as a police
officer by virtue of his police uniform but was unable to identify him by name.
He was also unable to recognise the victim in the photograph as being the
plaintiff because the face in the photograph was unclear. Additionally, all the
suspects that he interviewed on 6 November 2005, including the plaintiff, were
wearing NCA tee-shirts and would not have been allowed to change their clothing
before being photographed.
When
questioned by the Court, the witness stated that the dockets opened for the
suspects were no longer available as they had been destroyed in 2009, after the
passage of 3 years, in accordance with Police Standing Orders. However, these
Orders are silent as to the handling of dockets where civil litigation is
pending in relation to the arrest and detention of suspects.
Sergeant
Hangwane Singo was recalled by the Court to clarify the details of Exh 1.
He identified the plaintiff in court as being the person that he met on 5
November 2005. However, he could not recall what the plaintiff was wearing on
that day as there were 13 suspects in all and not all of them were wearing NCA
tee-shirts. Moreover, he could not recognise or identify the victim in the
photograph or the assailant police officer.
Unlawful
Assault
The plaintiff's testimony is that he
was assaulted by members of the ZRP on 5
November 2005, initially, at the NCA demonstration and, subsequently, at Harare
Central after he was arrested. The evidence for the defendants is silent as to
what happened to the plaintiff, before and immediately after his arrest at
11.30 a.m. and until 4.00 p.m. when he was detained by Sergeant Singo.
It
seems reasonably clear that the assailant in the photograph [Exh 1] is a
policeman and that the person about to be assaulted is indeed the plaintiff. It
is therefore proper to infer that the plaintiff was in fact assaulted before
his arrest, as stated in his evidence. As regards the plaintiff's assertion
that he was further assaulted soon after his arrest, the defendants have
adduced nothing to gainsay his evidence of having been assaulted under his left
foot. On a balance of probabilities, his position appears to be corroborated by
Sergeant Singo's testimony to the effect that the plaintiff was limping before
his detention. It is further supported by the medical reports produced at the
trial [Exhibits 2 & 3] showing the nature and extent of his injuries.
There can be no doubt whatsoever that
the assaults upon the plaintiff's physical integrity were unlawful in that they
were perpetrated without lawful authority. They were also patently wrongful as
being demonstrably incompatible with boni
mores and the legal convictions of the community concerning the exercise of
police powers. See Musadzikwa v Minister
of Home Affairs & Another 2000 (1) ZLR 405 (H) at 416.
Vicarious
Liability
As regards the responsibility of the
defendants for the actions of its employees, it is trite that an employer is vicariously
liable for the conduct of his employees within the course and scope of their
employment, even where such conduct has not been authorised, so long as it is
closely connected with conduct which has been authorised. The employer's
liability extends to such unlawful actions of his employees, including assault,
as may reasonably be regarded as modes, although improper modes, of doing what
he has authorised. See Feldman (Pty) Ltd
v Mall 1945 AD 733 at 742-743; Zungu
v Administrator Natal & Another 1971 (1) SA 284 (D&CLD) at 285.
In
the instant case, the assaults on the plaintiff were carried out by members of
the ZRP acting within the course and scope of their employment, albeit
improperly, in performing their duties and powers of arrest and detention. It
follows that the defendants must be held vicariously liable for those assaults.
General
and Special Damages
As regards general damages, the
broad purpose of an award for non-patrimonial loss is to enable the claimant to
overcome the effects of his injuries and to provide psychological satisfaction
for the injustice done to him. Since pain and suffering cannot be accurately
measured, the quantum of compensation to be awarded can only be measured by the
broadest general considerations. See Sandler
v Wholesale Coal Suppliers Ltd 1941 AD 194 at 199; Southern Insurance Association Ltd v Bailey N.O. 1984 (1) SA 98 (A)
at 117-119.
More
specifically, the compensation awarded should be assessed so as to place the
injured party, as far as is possible, in the position he would have been in if
the wrongful act causing him injury had not been committed. See Union Government v Warnecke 1911 AD 657
at 665. However, general damages do not constitute a penalty but are designed
to compensate the victim and not to punish the wrongdoer. The court is entitled
and has a duty to heed the effect its decision may have upon the course of
awards in the future. Moreover, awards generally must reflect the state of
economic development and current economic conditions of the country. Consequently,
they should tend towards conservatism lest some injustice be done to the
defendant. See Sigournay v Gillbanks
1960 (2) SA 552 (A); Bay Passenger
Transport Ltd v Franzen 1975 (1) SA 269 (A) at 274-275; Sadomba v Unity Insurance Co Ltd &
Another 1978 (3) SA 1094 (R) at 1097; Minister
of Defence & Another v Jackson 1991 (4) SA 23 (ZSC) at 27-28.
In
this context, no regard is to be had to the subjective value of money to the
injured party and, therefore, the award cannot vary according to whether he is
a millionaire or a pauper. Thus, the courts are not concerned with the probably
erroneous value that a person would put on his own life and limbs, but with the
dispassionate and neutral value which society at large would deem appropriate
on the basis of the prevailing value of money in that society. See Munkman: Damages for Personal Injuries and Death
(16th ed.) at p. 18; Radebe v
Hough 1949 (1) SA 380 (A) at 386.
In
determining prospective loss, all the contingencies must be considered,
including facts known at the date of the trial, in deciding whether or not
there is a reasonable probability of pecuniary loss occurring in the future.
See Feltoe: A Guide to the Zimbabwean Law
of Delict (2006) at p. 84. In assessing pain and suffering, regard may be
given to the age of the claimant because an older person has less resistance to
pain than a younger person. See Visser & Potgeiter: The Law of Damages (1993) at pp. 399-400.
With
respect to loss of amenities of life, these were described in Administrator-General SWA & Others v
Kriel 1988 (3) SA 275 (A) at 288:
“as those
satisfactions in one's everyday existence which flow from the blessings of an
unclouded mind, a healthy body and sound limbs. The amenities of life derive
from such simple but vital functions and faculties as the ability to walk and
run; the ability to sit or stand unaided; the ability to read and write
unaided; the ability to bath, dress and feed oneself unaided; and the ability
to exercise control over one's bladder and bowels. Upon all such powers
individual human self-sufficiency, happiness and dignity are undoubtedly highly
dependent”.
The
aspect of contumelia is as important
as pain and suffering and it is necessary to take into account the public and
private embarrassment suffered by the plaintiff as a result of the wrongful
conduct. See Robinson v Fitzgerald
1980 ZLR 508 at 510. As for disfigurement, this includes, inter alia, scars and limping caused by a leg injury. See Visser
& Potgeiter, supra, at p. 91.
Quantum
of Damages
The
plaintiff claims both special and general damages in respect of hospital and
transport costs, loss of income, pain and suffering, contumelia, loss of amenities of life, and permanent disability and
disfigurement. His total claim is for the sum of US$9789.20.
The
plaintiff's uncontested evidence is that he suffered excruciating pain as a
result of the assaults upon him and that he underwent a surgical operation to
correct the effects of the leg injury that he sustained. Moreover, Dr. Coric'a
medical affidavit [Exh 3] indicates that the force used to inflict that injury
was severe. Again, the fact that the plaintiff was hospitalised for a prolonged
period demonstrates the gravity of his injury, while his relative age would
have diminished his capacity to resist pain. As for the future, the plaintiff
testified that he still walks with a severe limp and is periodically prescribed
pain-killers to assuage his pain.
In
contrast to the evidence relating to the plaintiff's leg injury, there is
nothing to substantiate the alleged injuries to his chest and ribs. The
out-patient record from Shamva Hospital dated 10 January 2006 and Dr. Coric's affidavit
of 2 February 2006 [Exhibits 2 & 3] are silent in this regard and the
plaintiff failed to produce any other medical evidence to support his claim. As
for the injury to his leg, the plaintiff only sought treatment at Shamva
Hospital some 2 months after he sustained this injury. It can therefore be
fairly inferred that the extended pain that he suffered would have been
aggravated by his delay in seeking professional medical attention. With respect
to future pain and suffering, the plaintiff claims the same amount as he claims
for the period before the trial. However, apart from his evidence as to the use
of pain-killers, there is nothing to suggest that the extent of his pain and
suffering before and after the trial are similar or comparable so as to justify
the same award in respect of both periods.
As
regards the loss of amenities of life, the plaintiff's claim is based on his
inability to assist his children as he was able to do when he was of sound and
healthy body. While it might be granted that the plaintiff's sense of
helplessness in this respect has reduced his self-esteem, it cannot be accepted
that it impinges on the simple but vital functions and faculties described in Kriel's case (supra) to such an extent as to entail substantial diminution in the
full pleasure of living.
With
reference to the claim for contumelia,
it is clear from the newspaper photograph [Exh 1] that the plaintiff was
initially assaulted in a public place in full view of his NCA colleagues and
passers-by. The photograph was also published in The Zimbabwean for all of its readers to see. Moreover, the assault
was aggravated by the fact that it was committed by members of the ZRP who are
State servants paid from public funds. The plaintiff was consequently
humiliated and embarrassed and must therefore be entitled to appreciable
damages for contumelia.
The
plaintiff's claim for disfigurement is also clearly established, not only from
his testimony but also from Dr. Coric's affidavit [Exh 3] which evinces the
likelihood of permanent injury to the plaintiff's left foot. He still suffers
from a limp and his prospect of recovery is slimmer because of his advanced
age. However, there is nothing in the evidence before the Court to show that
the surgery on his leg resulted in permanent scarring.
Turning
to the claim for special damages, the plaintiff is undoubtedly entitled to
recover his proven transport costs and medical expenses as per the receipts
[Exhibit 4] produced at the trial. However, it is not clear how the amount of
his claim for hospital expenses incurred at Shamva Hospital in the sum of
ZW$260,000 has been converted into the figure of US$494. Moreover, the
plaintiff did not produce any documentary evidence of the expenses that he
might have incurred at the other clinics and hospitals where he received
medical treatment.
As
for loss of earnings, the injury to the plaintiff's leg must have reduced his
capacity to carry out his erstwhile occupation but could not have entirely
incapacitated him from earning a living. Nevertheless, he must be compensated
in some measure for his diminished capacity in the immediate aftermath of his
injury.
Disposition
Having regard to the foregoing
findings and the legal guidelines applicable to the plaintiff's specific
claims, as well as the conditions prevailing in our economy, I am inclined to
award the following amounts as special and general damages:
·
Transport costs US$20
·
Hospital expenses US$80
·
Loss of income US$400
·
Shock, pain and suffering US$1500
·
Future pain and suffering US$750
·
Contumelia US$1500
·
Loss of amenities of life US$250
·
Disability and disfigurement US$500
·
TOTAL US$5000
In
the result, judgment is granted in favour of the plaintiff as against the
defendants for the payment of:
(i)
US$5,000 as special and general
damages for unlawful assault;
(ii)
interest on the foresaid sum at the
prescribed rate of 5% per annum calculated from the date of the Summons to the
date of full and final payment;
(iii)
costs of suit.
Zimbabwe
Human Rights NGO Forum PIU, plaintiff's legal practitioners
Civil Division of the Attorney-General's Office, defendants' legal practitioners
