PATEL
J: The
plaintiff in this matter claims general damages for malicious arrest
and detention as well as special damages in respect of his motor
vehicle. His original claim was for a total sum of US$60,860 but this
amount was reduced to US$20,600 at the trial.
The
3rd
and 4th
defendants did not enter any appearance to defend and were
consequently barred.
The
1st,
2nd,
5th
and 6th
defendants assert that the plaintiff's arrest and detention were
lawful and accordingly deny any wrongfulness on their part.
The
Evidence
David
Muyambo, the plaintiff, is a businessman with diverse businesses in
Chipinge. His evidence was as follows. On 27 September 2008, at
Veneka Business Centre, he was stopped by the 1st,
2nd
and 3rd
defendants who identified themselves as policemen. They forced the
plaintiff into his vehicle and took him to his house. At the entrance
gate, he was hand-cuffed by the 1st
defendant. The 2nd
defendant produced a rifle, cocked it and pointed it at the
plaintiff's head. His four young children and six workers were
chased out of the yard. The defendants then conducted a search of his
residence and said they were looking for firearms. This was followed
by a search of his Pajero motor vehicle and a further search in the
main house.
Having
found nothing at the residence, the defendants then took him into
their vehicle and drove to Humani Range, where he was placed in a
peacock cage while they went to meet the 4th
defendant, who was the owner or manager of the Range. Thereafter,
they took him to Mukwasine police station where the Officer-in-Charge
refused to detain him. They then proceeded to Sabi police station
where he was detained in the cells at midnight. The following
morning, he was taken to Bikita CID station and detained for two days
until his workers located him.
It
was alleged that he had killed a rhino but no formal charge was
levelled against him.
He
produced a certified copy of entries in the Detention Book at Bikita
police station [Exhibit 1] which shows the details pertaining to his
detention. According to the plaintiff, the charge cited in Exhibit 1
under CR83/09/08 is incorrect. He was released on 30 September 2008
without having been formally charged with any offence. On 3 October
2008, a meeting was held at Bikita CID Station and he was told that
no charges would be laid against him. On 4 October 2008, he lodged a
formal complaint against the 1st,
2nd
and 3rd
defendants [Exhibit 2]. The 1st
and 2nd
defendants were arrested but not subsequently prosecuted. He later
discovered that the 3rd
defendant is employed by the 4th
defendant and that the latter engineered a false charge of poaching
against him.
As
regards damages, the plaintiff claims US$2,000 for repairs to his
Pajero, as evidenced by an invoice from Mitsubishi Motors for
ZAR15,600 [Exhibit 3]. In addition, he claims US18,600 for shock,
pain and suffering, arising from his humiliation and ill-treatment by
the defendants, both in public and in front of his children and
workers. He withdrew his claim in respect of the remaining heads of
damage.
Sgt.
Cephas Chigaro was based at Chishumbanje Police Station in September
and October 2008. His evidence was that Humani Range is part of
Chiredzi Conservancy but is privately owned by the 4th
defendant. He recorded the plaintiff's statement in Exhibit 2 and
investigated the allegations of vehicle damage, unlawful detention
and impersonation against the 1st,
2nd
and 3rd
defendants. He inspected the Pajero at the plaintiff's homestead
and found that its door panels had been broken. He then located and
arrested the 1st
and 2nd
defendants and took them to his Officer-in-Charge. They ran away from
his office and he found them on the following day at Sabi Police
Station. They were evasive and refused to have their statements
recorded. He was then sent to Bikita CID Station and recorded
statements from Ass/Ins. Mapfaka and Sgt. Mawuka. They confirmed that
there were no criminal allegations against the plaintiff. They also
said that the CR No. in Exhibit 1 was assigned in order to detain the
plaintiff. The witness produced a copy of his own statement made on 5
October 2008 [Exhibit 4]. He also produced copies of the statements
recorded at Bikita CID Station a few days later [Exhibits 5 and 6].
The 1st
and 2nd
defendants were not prosecuted because the Public Prosecutor in
Chipinge said that the plaintiff's complaint was a civil matter.
Under
cross-examination, the witness conceded that Exhibit 4 referred to a
case of criminal defamation, impersonation and malicious damage to
property, but did not refer to any allegation of unlawful detention.
When questioned by the Court, he accepted that Exhibit 4 made no
mention at all of his attempts to arrest the 1st
and 2nd
defendants. Moreover, he had great difficulty in recollecting certain
important dates. In particular, it was noted that Exhibit 4 was
undated, while Exhibit 5 was dated 6 April 2009 and Exhibit 6 was
dated 6 April 2008. He further indicated that his statement was made
in April 2009, when preparing the docket against the 1st
and 2nd
defendants, and not in October 2008 as stated in his
evidence-in-chief. Given that he is an experienced police officer,
his failure to reconcile the relevant dates renders his testimony
rather dubious and difficult to credit.
As
regards the defendants, none of them was available to testify at the
trial. However, the 2nd
defendant's undated report [Exhibit 7] was admitted by consent.
Thereafter, Exhibits 5 and 6 as well as Exhibit 7 were read into the
record by both counsel. It was noted that the deponents to the three
exhibits were not in court to give their testimony and that,
therefore, their statements could not be meaningfully examined.
According
to the 2nd
defendant's report, on 27 September 2008, he and the 1st
defendant received a tip-off from the 3rd
defendant, a security agent at Humani Ranch. This was to the effect
that the plaintiff, who had been spotted in the area, was a suspect
in a recent case of rhino poaching. After the plaintiff was located,
he was arrested, handcuffed and advised of the charge against him. He
was not humiliated and no firearm was pointed at his head. He was
taken to his residence, where he consented to the search of the house
and his Pajero. No damage was caused to the vehicle. He was then
taken to Mkwasine police station and Middle Sabi police station and
detained overnight. The following day he was taken to Bikita CID
station for interrogation, where Ass/Ins. Mapfaka ordered his
detention in relation to a pending case. On 5 October 2008, the 1st
and 2nd
defendants were taken to Chishumbanje police station by Sgt. Chigaro.
The plaintiff was called at night and told them about his plan to
claim damages from the 4th
defendant and that they would “share the spoils”. When they
refused to co-operate, the plaintiff threatened that he would ensure
their discharge from the ZRP. Thereafter, a docket was compiled
against the 2nd
defendant, but the charges were withdrawn before plea. As regards the
plaintiff, he had been procedurally arrested on reasonable suspicion,
as was confirmed at Bikita CID station, and he was then detained
awaiting his interrogation.
Unlawful
Arrest and Detention
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.
Moreover,
the use of force is not a prerequisite and neither is pecuniary loss.
Damages can be awarded for any affront or humiliation stemming from
the unlawful arrest and imprisonment of the plaintiff. Although this
action is usually brought against members of the police or other
uniformed force, a private individual can also be held liable for
this delict committed against another private individual. See
Mapuranga
v Mungate
1997 (1) ZLR 64 (H).
In
order to establish the lawfulness of an arrest without a warrant, the
onus lies upon the defendant to show probable cause or reasonable
suspicion. In exercising the power of arrest, he must act as an
ordinary honest man would act, on suspicions which have a reasonable
basis, and not merely on wild suspicion. See Rosseau
v Boshoff
1945 CPD 135 at 137. In other words, the arrestor must act on such
circumstances as would ordinarily lead a reasonable man to form the
suspicion that the arrestee has committed an offence. It is not the
function of the police to arrest at large and to use the
interrogatory process in order to determine whom to charge. See
Feldman
v Minister
of Home Affairs
1992 (2) ZLR 304 (S) at 309; Botha
v Zvada
& Another
1997 (1) ZLR 415 (S) at 418-419.
As
regards damages for wrongful imprisonment, as was aptly observed in
Muzonda
v Minister
of Home Affairs & Another
1993 (1) ZLR 92 (S) at 100-101, the deprivation of personal liberty
is an odious interference and constitutes a serious infraction of
fundamental rights, attracting an exemplary assessment of reparation.
Thus, in Mapuranga's
case, supra,
a plaintiff who was detained for 8 hours was awarded damages
amounting to ZW$4,000. The longer and more oppressive the period of
detention, the higher should be the quantum of damages, as in Botha's
case, supra,
where a plaintiff detained for 6 days in a crowded cell was awarded
the sum of ZW$20,000. Again, in Minister
of Home Affairs
v Bangajena
2000 (1) ZLR 306 (S), the plaintiff was awarded ZW$20,000 as general
damages after having being detained just before midnight until his
release the following midday.
Whether
Report Filed was Malicious
On
the evidence before the Court, it is difficult to ascertain whether
or not the 3rd
and 4th
defendants acted maliciously in filing the report against the
plaintiff. The evidence of the plaintiff in this regard was flimsy
and lacking in detail. However, it is fairly clear that the 3rd
and 4th
defendants instigated the plaintiff's arrest. Having done so, they
did not even care to enter an appearance to defend this action.
Therefore, whether or not they were actuated by malice, they must be
held accountable together with the 1st
and 2nd
defendants for the plaintiff's arrest.
Whether
Arrest, Search and Detention were Unlawful
As
I have already stated, none of the defendants was present at the
trial to testify in their defence. Consequently, apart from the 2nd
defendant's written report, there is nothing else before the Court
to support the reasonableness of the defendants' suspicions leading
to the plaintiff's arrest. In particular, there is no explanation
from the defendants as to when, where or how the rhino in question
was allegedly hunted by the plaintiff, or as to who saw the plaintiff
in the vicinity of the crime. There is in fact no nexus linking the
plaintiff to the commission of the alleged offence, other than the
“tip-off” from the 3rd
defendant. Moreover, the 1st
and 2nd
defendants arrested and handcuffed the plaintiff without first
interrogating him. In short, the nature and extent of the suspicion
that the defendants acted upon cannot be tested. Having regard to the
undisputed fact that no charges were subsequently laid against the
plaintiff, the only conclusion one can draw is that the defendants
acted without reasonable and probable cause in arresting the
plaintiff.
As
for the alleged ill-treatment and humiliation of the plaintiff, his
general demeanour when testifying in this regard suggested that he
was exaggerating for effect and was not being entirely truthful.
Moreover, his evidence on this aspect was not corroborated by any
other witness, for instance, any member of the public or his workers
and children who he claims witnessed his ill-treatment by the
defendants. In any event, the 2nd
defendant denies any such maltreatment. He explains in his report
that the plaintiff was co-operative and that his arrest and the
search of his residence and vehicle were properly conducted. His
version of the relevant events is no less credible than that of the
plaintiff. In my view, on a balance of probabilities, the plaintiff
has failed to establish his assertions in this respect.
Turning
to the plaintiff's detention, it is common cause that he was
arrested on 27 September 2008 and detained at several places before
being released on 30 September 2008. In this regard, there is no
explanation from the defendants as to why the plaintiff was detained
at Bikita CID Station for two days, without being interrogated, only
to be released without having been formally charged. Even if one were
to accept that he was lawfully arrested on reasonable suspicion, the
length of his detention simply cannot be justified on the facts
before the Court.
Claim
for General Damages
On
the foregoing findings, the plaintiff is clearly entitled to general
damages for unlawful arrest and detention. The only issue in this
respect is the appropriate quantum of damages that should be awarded.
The plaintiff claims an amount of US$18,600.
Apart
from the illegality of his arrest, the plaintiff was detained
approximately 300 kilometres away from his residence for a relatively
protracted period of 3 days. In the absence of any other aggravating
features, and having regard to the amounts awarded in the cases cited
earlier, I would consider the sum of US$3,000 as representing a fair
and equitable measure of damages on the facts of this case.
Claim
for Special Damages
The
plaintiff claims the sum of US$2,000 as special damages in respect of
repairs to his motor vehicle. In support of this claim, he tenders an
invoice for ZAR16,500 from a South African firm.
However,
his claim is beset with several difficulties.
The
first difficulty is the absence of any evidence to the effect that
the vehicle was in good condition before it was searched by the
defendants. Secondly, the invoice does not indicate which vehicle was
to be repaired, as it does not reflect any registration or other
details identifying it as the plaintiff's vehicle. Thirdly, the
date of the invoice (17 September 2008) predates the day when the
search was conducted and, in any event, does not tally with the date
stamped on the invoice (17 November 2008). The plaintiff was unable
to explain these discrepancies. Fourthly and most importantly, he was
unable to produce any receipts to demonstrate that the repairs in
question had in fact been paid for. This failure is inexplicable
given that the plaintiff's schedule of documents, filed on 1
September 2010, specifically lists “invoices and receipts for
vehicle repairs”. For all of these reasons, the plaintiff's claim
for special damages cannot be sustained and must be dismissed.
Disposition
In
the result, judgment is granted in favour of the plaintiff as against
the defendants as follows.
It
is ordered that the defendants shall jointly and severally, the one
paying the others to be absolved, pay to the plaintiff:
(a)
the sum of US$3,000 (as general damages for unlawful arrest and
detention) together with interest thereon at the prescribed rate from
the date of the Summons to the date of payment in full;
(b)
the costs of suit.
Muza
& Nyapadi,
plaintiff's legal practitioners
Civil
Division of the Attorney-General's Office,
1st,
2nd,
5th
and 6th
defendants' legal practitioners
