DUBE
J:
The
plaintiff's claim is for damages he suffered as an outcome of an
arrest that the defendants effected on him. The defendants are the
Co-Ministers of Home Affairs, the Commissioner General and two
arresting details. The claim against the first and second defendants
is based on vicarious liability.
The
brief facts of this case are as follows.
On
13 July 2009 the plaintiff was at High-Glen Shopping Centre when
plain clothes policemen who included the third and fourth defendants
accosted him and arrested him. The plaintiff was shot and injured
during the arrest. He was detained and charged with the offence of
armed robbery and possession of a firearm and later acquitted. The
plaintiff avers that the police were not justified in shooting him
during the arrest as he did not resist and had not committed any
offence. He claims $1,521,400-00 for special and general damages.
The
defendants defend the application. They refute that the arrest of the
plaintiff was unlawful. Their position is that they shot at the
plaintiff after he refused to comply with the instructions of the
police to stop. The plaintiff ran away resulting in the police firing
3 warning shots in the air, followed by a shot in the leg after he
failed to stop and take heed of the warning shots.
The
following issues were referred to trial:-
1.
Whether the plaintiff was unlawfully arrested
2.
Whether the plaintiff was shot at while lying on the ground
3.
Whether or not plaintiff was unlawfully detained
4.
Whether or not the third and fourth defendant unlawfully took the
plaintiff's Truimp Galaxy cell phone,$168-00 and a line
5.
Whether or not the plaintiff suffered damages and if so the quantum
of damages thereto.
The
plaintiff testified as follows. He is a farmer and resides in rural
Rusape. On 13 July 2009 he was on his way to High Glen Service
Station to pay for diesel to use in his farming activities. Diesel
was in short supply. He had come from his rural home the day before.
When he disembarked from a kombi he started walking towards the
service station. Two men who he later discovered were police officers
ordered him to stop. He complied and they ordered him to lie down and
he complied. He was shot on his left leg whilst he lay down facing
the ground. The men demanded that he produce a stolen Mercedes Belch
he had allegedly stolen the previous night. They asked him about the
whereabouts of Gift Tyres and Godzevhu whom he does not know. They
searched him and recovered a Truimp Galaxy cell phone and 168-00
which he intended to use to pay for fuel.
He
started bleeding and his leg was broken and dangling. The police
officers squeezed him into a Toyota Corolla with 5 occupants. He
recognised one of the occupants as Constable Muuya. He knows him from
as far back as 1999 in connection with a matter that took place at
his rural home in which he was the Investigating Officer. He was
taken to Harare Hospital where he was admitted for four days. He was
charged with armed robbery and placed on remand. The allegations were
that he had committed an armed robbery at T.M Supermarket in Angwa
Street, Harare.
He
testified that there was no need for the police to shoot him as when
they stopped him and ordered him to lie down he had complied. He did
not see who shot him at him as he was lying facing downwards. The
police never fired warning shots and he never tried to run away. The
bullet that hit him entered through the back of the leg and exited at
the front. The witness denies that he was in possession of a
revolver. He produced a medical report completed by Dr Vera. He was
not immediately charged with possession of a firearm. The charge was
proffered only 4 months later in December 2009.
The
police did not charge him with that offence because he was never in
possession of a gun. He was acquitted of the charge of possession of
a firearm and the charge of robbery was withdrawn after plea.
The
witness insisted under cross-examination that he was coming from his
rural home and had not committed any armed robbery. He insisted that
he had in his possession public transport tickets for the previous
day which confirmed that he had travelled from his rural home. He
later gave the tickets to his lawyer. He maintained that he was shot
whilst lying down and never resisted arrest. He thinks that the
reason why the police shot him is because he was mistaken for Gift
Tyres because they kept on asking where the Mercedes I had stolen the
previous night was. He denied that the police would look for him in
town when they knew his rural home.
The
defence called Constable Muuya as its first witness. He was with CID
Homicide at the time of the plaintiff's arrest. He was the
Investigating Officer of an armed robbery that had occurred at T.M.
Supermarket, Angwa Street. There had been a spate of armed robbers
and he was tasked to investigate these. He received information that
the plaintiff and Gift Tyres and Godfrey Godzevhu and others were
involved in the robberies. On 13 July 2009 he received information
that the plaintiff was supposed to meet his accomplices at High Glen
Shopping Centre. He together with other officers went to the centre
and when the plaintiff arrived they identified themselves as police
officers. The plaintiff immediately took to his heals. He fired three
warning shots and the plaintiff did not stop. A fourth bullet was
fired by another officer identified as Madende and it hit him on the
left thigh of his leg. They were able to arrest him and they searched
him and recovered a Taurus revolver from him. He had no money. They
took him into a vehicle they had and admitted him at Harare Hospital.
He had sustained injuries as a result of the shooting. Later that
day, they persued his accomplices whom they caught up with at
Snakepark. Four of his accomplices were killed after they resisted
arrest. The plaintiff was later placed on remand for armed robbery
which occurred at T.M Supermarket. The facts of the offence outlined
on the request for remand revealed that he had 2 been found in
possession of a firearm. He was the Investigating Officer in the
robbery charge. He was subsequently acquitted on the charge of
possession of a firearm. The charge of armed robbery was withdrawn
before plea.
The
witness insisted under cross examination that the plaintiff ran away
when the police identified themselves. They fired three warning shots
and the fourth shot hit him. The police had received intelligence
that the plaintiff was armed. A high degree of alertness was required
from them otherwise they were going to be shot by the plaintiff
first.
The
witness insisted that he fired warning shots only and that the fourth
shot which hit the plaintiff was fired by Constable Madende. His
explanation for the shooting is that the plaintiff was running away
from the police. The witness gave his evidence well and remained
consistent with his story.
The
second defence witness Detective Sgt Musekiwa is the fourth
defendant. His evidence is similar in every material respect to that
of the first defence witness. He was in a team of police officers
that pursued the plaintiff to High Glen Shopping Centre. As soon as
they spotted the plaintiff, they called out to him to stop. He took
to his heels. He was shot at after he ran away. Three warning shots
were fired and the fourth shot hit him. Later they rushed him to
hospital.
The
police officers who testified on behalf of the defendants gave their
evidence well and they corroborated each other on every material
respect.
It
is common cause that the plaintiff was shot and injured during the
course of an arrest. The issue is whether the plaintiff's arrest
and detention is unlawful and whether the plaintiff is entitled to
any damages.
THE
LAW
In
Muyambo
v
Ngomaikarira
HH138/11, PATEL J defined the delict of unlawful arrest and detention
as follows,
“The
delict of unlawful arrest and detention is committed when a person,
without lawful justification, restrains the liberty of another by
arresting or imprisoning him. See Macheka
v Metcalfe & Anor HH 62-2007 (at pp. 6-7)
and the authorities there cited. As is explained by Feltoe:
A Guide to the Zimbabwean Law of Delict (2nd
ed.) at p.48,
the plaintiff need only prove that the arrest or imprisonment was
illegal and not that there was intention to act illegally or to cause
harm. In our law, unlike South African law, animus
injuriandi is
presumed and, therefore, intention is not a requirement for this
delict.”
The
judge went on to state that a defendant facing claims of unlawful
arrest and detention has the onus to show that when he arrested the
plaintiff he had probable or reasonable cause for doing so. The
suspicion that the suspect has committed an offence must be based on
reasonable suspicion and not be based on wild suspicion. In A
Guide to Administrative and Local Government Law in Zimbabwe 2007
by G Feltoe the author states that the delict is not available if the
arrest and detention is lawful in terms of the Criminal Procedure and
Evidence Act.
The
evidence of the police officers who are the arresting details reveals
that they had received information that the plaintiff was involved in
an armed robbery case that had occurred at a local supermarket. They
had received information that the plaintiff and members of his gang
would be convening at High Glen Shopping Centre with members of his
gang. They were given a description of the clothes that he was
wearing. They laid ambush on him and when they saw him arrive at the
Centre they shouted his name and asked him to stop. He did not comply
and started to run away resulting in him being shot and arrested. One
of the officers fired three warning shots but the plaintiff did not
stop. Another officer fired a fourth shot which disabled the
plaintiff. He was shot in the leg resulting in him falling down to
the ground. He was immediately arrested.
This
court was simply told that the plaintiff was suspected to have been
involved in the armed robbery, and had been identified as the
suspect. It was not suggested that there was any evidence that led
the police to believe that he was linked to the commission of the
offence. It appears that the informant told them that the plaintiff
had been involved in the commission of the robbery and other offences
but the basis for such suspicion was not given. There was no evidence
led to support the fact that he had indeed been involved in any
robberies. The defendants seem to have arrested and shot at him
simply because he was classified as a dangerous and armed criminal
and was suspected to have been involved in the robbery. The basis of
the suspicion is not known. The court is not satisfied that the
police officers who arrested the plaintiff had reasonable suspicion
that he had committed the offence in issue. The plaintiff was later
acquitted of the armed robbery charge as well as the charge of
possession of a firearm. This supports the assertion that the police
had no reasonable suspicion of commission of an offence. I am not
satisfied that the defendants had reasonable or probable cause for
arresting the plaintiff.
Where
an informant gives information to the police involving commission of
an offence, the police are only expected to act on the information
and cause an arrest where they are satisfied that the information
given is reliable and discloses that a suspect has committed the
offence. The persons effecting the arrest should first be satisfied
that there is reasonable suspicion of commission an offence before
they effect an arrest.
In
a claim based on an unlawful arrest, the person who effected an
arrest must show that the arrest was lawful and that he had
reasonable and probable cause for doing so. The arresting detail is
expected to furnish sufficient details linking the suspect to the
particular offence. He is expected to give a basis for formulating
the impression that an offender had committed an offence. It is not
good enough to arrest a suspect purely on the basis that a finger has
been pointed at him and based on simply an indication from formation
that a suspect was linked to a syndicate in the habit of committing
offences of a similar nature in the neighbourhood.
CLAIM
FOR GENERAL DAMAGES
The
plaintiff claims general damages for pain and suffering, contumelia
and loss of amenities of life and permanent disability and
disfigurement in the sum of $1,500,000-00 and $21,000-00 for special
damages.
Under
the category of general damages, he claims for pain and suffering,
contumelia,
loss of amenities of life and permanent disability and disfigurement.
A cell phone, $168-88 and a line, loss of income, compensation for
loss of revenue from the plaintiff's farming activities are claimed
under special damages. The total claimed in damages is $1,521,400-00.
The
plaintiff is entitled to general damages. General damages are not
meant as punishment but are compensatory in nature. The rationale is
to replace the injured party as far as possible in the position he
would have occupied if the wrongful act causing injury to him had not
been committed. See Union
Govt v
Warneck 1911
at 651
for
that approach.
In
Law
of Delict, PQR
Boberg vol 1 1984 at p 15 the author states the following about pain
and suffering;
“Compensation
may be awarded not only for actual pain but also shock, discomfort
and mental suffering, disfigurement, loss of amenities of life and
disability and loss of expectation of life for convenience we speak
simply of 'pain and suffering'. But the concept embraces all
those non pecuniary misfortunes - past and future of an injured
person. Nor is the list a closed one.”
The
claim for permanent disability and disfigurement is for $200,000=.
The
plaintiff produced a report from Dr Vera which shows that he suffered
damages and his percentage disability is 35 per cent. The report
describes the injuries he suffered but does not suggest that he was
permanently disfigured. By the time this matter was tried, the wound
had healed the court was shown a scar on his left thigh that remained
as a result of the shooting. He still walked well and was not
limping. There were no indications that he has any permanent
disability that ensued. I find no justification for an award under
this category.
The
plaintiff has suggested a figure of $100-00. In considering the
appropriate award, the court has considered the sentiments expressed
in Minister
of Defence v
Jackson
1990
(2) ZLR (1) 7 where at p8 the court remarked thus,
“It
must be recognized that translating personal injury into money is
equating the incommensurable; money cannot replace a physical frame
that has been permanently injured. The task therefore of assessing
damages for personal injury is one of the most perplexing a court has
to discharge. This is not withstanding certain broad principles that
have been laid down which govern the obligation.”
The
court went on to lay out the considerations the court has to take
into account which may be summarised as follows,
1.
That the damages are not a penalty but compensation.
2.
Compensation must be assessed as to replace the injured party as far
as possible in the position he would have occupied if the wrongful
act had not been committed.
3.
No scales exist by which pain and suffering can be measured and the
quantum of compensation can only be determined by the broadest
general consideration.
4.
The court is entitled and has the duty to heed the effect an award
may have upon the course of awards in the future.
In
assessing damages the court has considered that the plaintiff was
deprived of his personal liberty for 14 months whilst he awaited the
finalisation of his trial. He also had to nurse a gunshot wound while
on remand. I have considered awards granted in cases of a similar
nature. In the Muyambo
case (supra),
an award of $3000-00 was made for damages for unlawful arrest and
detention. An award for both special and general damages was made in
Nyandoro
v Minister of Home affairs HH196\2010. I
am satisfied that award of $2000-00 for general damages will meet the
justice of this case.
CLAIM
FOR SPECIAL DAMAGES.
Where
a court is being called upon to assess the quantum of monetary damage
sustained, sufficient evidence to support the claims should be placed
before it. In Hershman
Shapiro & Co 1926
TPD367 at 379-80, the court remarked thus,
“....monetary
damage having been suffered, it is necessary for the court to assess
the amount and make the best use it can of the evidence before it.
There are cases where the assessment by the court is very little more
than an estimate; but even so if it is certain that pecuniary damage
has been suffered, the court is bound to award damages.....”
The
plaintiff claims that he lost his job after the incarceration. He
claims for loss of income in the sum of $5,400-00.
It
is unclear how this figure was arrived at. The plaintiff alleges in
his closing submissions that he was employed as a sales
representative at Tynserve earning $450-00 a month. No evidence was
led to prove that he worked at Tynserve. His earnings were not proved
as no payslips were produced. Instead he testified that he was a
farmer in rural Rusape and that if the police had wanted to interview
him in connection with this offence, they would have found him there
if they had looked for him there. He claims compensation for loss of
revenue from farming activities. The exact nature of the income
generating activities he was involved in at the farm are not known.
No evidence of how much he earned and the justification for the
amount claimed is not known. The claim of $16,000-00 has no support
on the evidence. It is not good enough to claim that you are a farmer
then pluck figures to support a claim for loss of revenues from the
air and hope that the court will find in your favour.
I
am not satisfied that he has proved that part of the claim.
The
plaintiff has not proved that he incurred any medical expenses in
treating his wound.
The
police testified that after the arrest, the police searched the
plaintiff and found a Nokia 5110 cell phone on him and a Taurus
revolver. The plaintiff did not suggest in evidence that he lost a
cell phone line. His evidence was simply that he lost $168-00 and a
cell phone. The police deny that they recovered that type of cell
phone from plaintiff or any money. I believe the third and fourth
defendants when they testified that they recovered a Nokia and not a
Trium Galaxy phone. I see no reason why the defendants would say that
they recovered a Nokia when they recovered a Trium Galaxycell phone.
No motive for lying that they recovered a Nokia was suggested. No
value was placed on that cell phone and hence its value is not known.
The defendants did not rebut the plaintiff's assertion that he had
money on his person which the police recovered during the search.
The plaintiff is entitled to the $168-00 that he lost during the
arrest. The plaintiff also claims the cost of a cell phone line. It
is expected that the cell phone would be having a line. However, the
plaintiff has not placed a value of the line. That claim fails. I am
satisfied that the plaintiff had proved part of his claim on a
balance of probabilities.
In
the result it is ordered as follows.
The
defendants are ordered jointly and severally, the one paying the
other to be absolved, to pay the following,
1.
The sum of $2000-00 as general damages.
2.
Payment of $168.00.
3.
Costs follow the event.
Zimbabwe
Lawyers for Human Rights,
applicant's legal practitioners
Civil
division of Attorney General's Office,
defendant's legal practitioners
