BERE
J: On 21 January 2010 the plaintiff
issued summons out of this court seeking to recover $150 000-00 in damages for
alleged malicious prosecution initiated against him by the defendant, his
erstwhile employer.
In
para 5 of the plaintiff's declaration the plaintiff alleged as follows:
“The damages
sought arose from the plaintiff's loss of income, pain and suffering,
discomfort, nervous insomnia, loss of ability to engage in sport, recreation,
social commitments, sexual impotence, loss of general health, change of
personality during the period of prosecution”.
At
the close of the plaintiff's case the defendant applied for absolution from the
instance. The application was strenuously opposed by the plaintiff who felt he
had at that stage made a case warranting the defendant to be put on its
defence.
The
test to be applied in deciding an application for absolution from the instance
is well settled in our jurisdiction and in this regard I can do no more than
refer to GUBBAY CJ when he stated:
“… A plaintiff
will successfully withstand such an application if, at the close of his case,
there is evidence upon which a court, directing its mind reasonably to such
evidence, could or might (not should or ought to) find for him. See Supreme SVC Station (1969) (Pvt) Ltd v Fox and Goodridge (Pvt) Ltd 1971 (1) RLR 1
(A) at SD – E; Lowrence v Rajar Dry Cleaners & Steam Laundry (Pvt) Ltd
1984 (2) ZLR 151 (S) at 158 B-E”
It
was argued by the defendant's counsel that the onus was on the plaintiff to place before the court sufficient
evidence to show malice on the part of the defendant in reporting the matter of
theft to the police which report led to the prosecution and subsequent
acquittal of the plaintiff. The defendant's counsel submitted that the
plaintiff had failed to discharge such evidence. I agree. It was critical that
the plaintiff lays down the basis upon which his claim was pivoted. The
prosecution and subsequent acquittal of the plaintiff per se would not demonstrate malice on the part of the defendant.
Facts
which could not be disputed were that the plaintiff, for quite sometime after
he had resigned from the defendant's employment continued to receive copies of
the Herald and Sunday Mail. The plaintiff himself stated that he resigned from
the defendant company in October 2008 and that he knew at the time of his
resignation that the only benefit accruing to him was his pension savings and
nothing more. He was also quite aware of the benefits which he was entitled to
upon securing employment with the defendant. These benefits, according to the
plaintiff included pension, medical aid, company vehicle fuelled and serviced
by the defendant, education assistance for his children, and the delivery of
the Herald and the Sunday Mail to his residence.
From
the plaintiff's own evidence, it is clear he appreciated he was entitled to the
above benefits as an employee of the defendant.
Upon
his resignation he was able to recover his pension savings. For some unknown
reason he continued to receive the Herald and the Sunday Mail. He speculated
that he believed management had seen it fit to reward him for his loyal service
to the organization by continuing with the supply of the two newspapers. It was
this continuous receipt of newspapers by the plaintiff when he had seized to be
an employee of the defendant which prompted the defendant to report a case of
theft leading to the prosecution of the defendant.
In
the court's view, given the plaintiff's responsible position with the defendant
company as a circulation manager, he behaved irresponsibly by continuing to
enjoy benefits from a company which he had seized to work for. He was expected
to seek clarification if he genuinely felt that the defendant had decided to
extend that benefit to him. I would draw an analogy with a civil servant who
continues to draw his salary from his bank account from the Salary Service Bereau
long after he has resigned from the service. Prima facie that conduct is theft and in the instant case the
defendant was justified to suspect the plaintiff had committed the offence of
theft hence the report to the police.
In
his evidence in chief the plaintiff was not able to demonstrate that the
defendant had acted maliciously in initiating his prosecution. When the
plaintiff was asked in cross-examination a pointed question on the alleged
malice, the plaintiff was unable to substantiate the allegations of malice on
the part of the defendant. The question and answer went along the following:
“Q: There is no single peace
of evidence before this court to show that the defendant acted out of malice.
A: I have no comment”.
The
plaintiff further compounded his case by dismally failing to produce evidence
to justify the amount of $150 000-00 in the form of damages.
It
will be noted that when the plaintiff opened his case he indicated through his
counsel that the evidence of Dr Lunga was not going to be relied upon as the
doctor was not going to be called to testify. Despite this indication, the
plaintiff continued to make reference to the letter written by the same doctor
to try and justify some of the damages he was claiming.
The
result of this patent confusion was that the plaintiff did not manage to put
evidence before the court supporting his claim for nervous insomnia, loss of
ability to engage in sport, sexual impotence, loss of general health and change
of personality during his prosecution. In a suit for damages, these claims are
not fanciful but must be supported by real evidence. Such evidence was not forthcoming.
Within
the claim of $150 000-00 was built in a claim of loss of income. No evidence
was led by the plaintiff to sustain this claim.
All
these issues about the breakdown of the plaintiff's claim are secondary, the
main issue being that he was supposed to show malice on the part of the
defendant in his prosecution.
Accepted,
the plaintiff had no duty to initiate the termination of the continued supply
of the newspapers to him after leaving the defendant's employment but I think
it is an exaggeration on his part to allege that he was justified to continue
receiving such newspapers which even upon termination of his employment he knew
he was not entitled to.
I
am satisfied that at the close of his case the plaintiff had not made some case
for the defendant to answer.
THE QUESTION OF
COSTS
The
evidence as led by the plaintiff and as reflected in exh 4 clearly show that
there was ineptitude on the part of the defendant in ensuring that the
plaintiff ceased to get supply of newspapers after he had ceased to be an
employee of the defendant. For almost close to a year after his resignation
from the defendant company, it appears there was no timeous initiation of the
process to ensure that the delivery of newspapers to the plaintiff was stopped.
This
reckless discharge of duty on the part of the defendant did not portray the
defendant in good light. For this reason they must be deprived of costs.
Consequently,
the defendant's application for absolution from the instance is granted but
with no costs.
Chibune & Associates, plaintiff's legal practitioners
Chirimuuta &
Associates, defendant's legal practitioners
