BERE
J:
The
OK Grand Challenge Jackpot promotion has become an exciting annual
national event to many Zimbabweans as it affords many lucky winners a
rare opportunity to win various prices ranging from motor vehicles,
residential stands and an assortment of other items. It is an event
which is aggressively advertised both in the print and electronic
media.
Having
responded to the OK Grand Challenge Jackpot Promotion in 2010, the
plaintiff landed himself in trouble. This civil suit is a direct
result of the plaintiff's desire to participate in one such a
promotion. It caused a nightmare to the plaintiff. Indeed it earned
the plaintiff quite some traumatic experience.
The
largely agreed facts in this matter can be summarised as follows:-
The
plaintiff is employed as a manager by Zimbabwe Institute of Public
Administration and is based in Darwendale, a few kilometres outside
Harare, the capital city of Zimbabwe. His duties entail being in
charge of around 100 employees and it is his sole responsibility to
oversee the day to day operations of the institute.
In
2010 and pursuant to the irresistible advertisement by the defendant
inviting customers to participate in the OK Grand Challenge Jackpot
Promotion the plaintiff went to OK Bazaars Supermarket in Marimba and
bought various groceries worth $999,98 as a result of which he got
coupons enabling him to participate in the exciting competition.
Exhibit
I on page 27 of the plaintiff's bundle of documents was produced to
confirm the transaction made by the plaintiff.
At
the conclusion of the OK Grand Challenge Jackpot Promotion, and to be
precise, on 9 June 2010, the plaintiff emerged as one of the few
lucky winners of the items on offer. The plaintiff's name appeared
in the Herald and the Chronicle (two national newspapers) as having
won a microwave.
After
attending to one or two housekeeping issues with the organizers of
the promotion, the plaintiff was confirmed as a winner and invited to
attend the prize giving ceremony which was to be held at Rainbow
Towers, Zimbabwe on 16 June 2010. Rainbow Towers is one of the
leading hotels situated in the capital city of Zimbabwe, Harare. On
16 June 2010 the plaintiff excitedly attended at the Rainbow Towers
for the prize giving ceremony. To demonstrate his excitement in
attending the grand occasion the plaintiff went to the Rainbow Towers
in the company of his family and some workmates so that they would be
witness to his rare exciting moment.
There
was a dramatic turn of events at the Rainbow Towers.
The
plaintiff was later to regret why he had ever participated in the OK
Grand Challenge Jackpot Promotion. Plaintiff and two of his
colleagues (also winners of the OK Grand Challenge Jackpot Promotion)
were lured into a car and arrested for having committed fraud in the
acquisition of the coupons which they had used in participating in
the competition.
For
the next four days the plaintiff and his colleagues were shoved from
one police station to the other starting with Braeside Police
Station, Ahmed House and Harare Central Police Station. They were
made to endure extremely difficult and painful experiences as they
were forced to sleep in squalid condition, being routinely
transferred from Ahmed House to Harare Central Police Station
barefooted and in handcuffs. The plaintiff and his colleagues were
treated as criminals. To the ordinary on looker, they were indeed
criminals on parade.
Plaintiff
and his co-accused were only released after Mawere had submitted an
affidavit which outlined the plaintiff's innocence in the whole
exercise.
THE
EVIDENCE
The
story told by the plaintiff was quite detailed and revealing.
Having
properly acquired the coupons as advertised by the defendant, the
plaintiff used the coupons to participate in the competition and in
the month that followed he was advised he was one of the lucky
winners and invited to Rainbow Towers, Zimbabwe for the prize giving
ceremony on 16 June 2010. The plaintiff attended the event with
colleagues and his family members.
Things
took a dramatic turn when the plaintiff and two other would be
winners were lured into a parked car by the defendant's risk and
services Manager, one Osborne Tariro Mawere (Mawere).
In
a dramatic movie style manner the plaintiff and the other suspects
were bundled into a motor vehicle belonging to the defendant but
being driven by Mawere after being advised that they were under
arrest and taken straight to Braeside Police Station. It was the
plaintiff's unchallenged evidence that when they arrived at
Braeside Police Station they were surprised to learn that their
docket had been opened a few days before they were brought to the
police station. The plaintiff stated he gathered that this docket had
been opened as a result of the report made to Braeside police station
by Mawere. For the first time, Plaintiff and his co-suspects were
advised of the fraud charges allegedly committed against the
defendant and accused of having fraudulently acquired competition
coupons. The plaintiff protested his innocence to both Mawere and the
Braeside Police officers but to no avail.
It
was the plaintiff's further testimony that when he told the police
and Mawere that he had legitimately acquired the coupons Mawere
responded by saying that, that would be established later.
The
plaintiff testified that on that day he together with 30 suspects
slept crammed in a dirty room barefooted with only one blanket which
was taken by the other inmates who had been in the police cells
before him. This was the first time the plaintiff had been to a
police cell and he slept on the floor with no blankets at all in a
cold night. He was wearing a jean and a T shirt. He said he was in a
state of shock and that he never ate anything.
The
following day the plaintiff and two of his co-suspects were
transferred to CID Serious Frauds Section in handcuffs. According to
the plaintiff, their transfer was caused by the alleged seriousness
of their case. In the presence of Mr Mawere, the plaintiff said he
was questioned and continued to protest his innocence to no avail.
Mawere was said to have indicated to the CID details that he would
take the coupons to O.K Marimba to verify the explanation proffered
by the plaintiff.
The
witness testified that from CID Serious Fraud Section they were
transferred to Harare Central Police Station still handcuffed and
passing through a congested taxi rank and a bus terminus. This
movement was made around 5pm which is one of the busiest hours of the
day.
At
Central police station the plaintiff and his co-suspects were ordered
to remove their shoes and other personal items before being thrown
into the cells again. The plaintiff summed up his painful experience
in the following words;
“There
was no food at the Central Police Station. I did not have anything to
eat. I was in a state of shock and stress and could not take
anything. The whole situation of being dragged across town and
knowing I would have another night in cells, knowing I had genuinely
acquired the coupons caused me stress and shock.”
“Q.
what transpired after supper?
A.
we moved two floors to the cells, barefooted, stamping on water,
urine, on the way up.
Q.
where was this water coming from?
A.
from the ablution facilities within the cell areas .....”
The
witness went on to explain the night's ordeal – he testified they
slept on concrete slabs in the cells with no blankets at all.
When
asked by his counsel to describe the cells the witness shook his head
as if going down painful and heart-tearing memories and retorted as
follows:-
“Very
dark, no lighting, ablution facilities producing serious ordures. We
were 12 of us crammed in a single cell.”
The
witness told the court that he endured the night and the subsequent
two nights sleeping in similar conditions. It was only on the fourth
day of his arrest and detention that he and his colleagues were
advised that their case was going to be withdrawn after Mr Mawere had
confirmed that indeed the plaintiff had genuinely acquired the
coupons from O.K Marimba.
It
was the witness's testimony that instead of the plaintiff moving
swiftly to have them released, it was only on the following day that
Mr Mawere from O.K brought an affidavit which eventually secured the
plaintiff and his co-suspects' release. Their release was on 19
June 2010 after the defendant's representative had carried out
investigations which confirmed the plaintiff and his co-suspects'
innocence.
They
were, after all innocent.
The
witness concluded his testimony by saying that prior to him being
arrested and bundled into custody the defendant had made no attempt
at all to seek an explanation as regards how he had acquired the
coupons in question. All the investigations were only carried out
after the plaintiff had been deprived of his liberty on what turned
out to be false allegations.
At
the conclusion of his testimony the plaintiff said that the
defendant's representative, Mr Mawere had caused or instigated his
arrest and in his own word he stated;
“but
for the report by OK about fraud I would not have gone through what I
went through.”
The
witness's evidence was that he tried to engage the defendant with a
view to at least get an apology and his microwave which he had won as
a result of his participation in the competition but nothing came his
way.
The
witness further stated that the allegations which were falsely raised
against him portrayed him in bad light; to his family, friends and
workmates as the impression created was that despite holding a
responsible position at his workplace, he was a dishonest person.
For
all the trouble that he went through for doing nothing wrong really
except to innocently participate in a competition organised by the
defendant the plaintiff said he wanted damages broken down as
follows:
(i)
$100,000-00 for defamation;
(ii)
$50 000-00 for injuria and contumelia; and
(iii)
$200,000-00 for unlawful arrest.
The
plaintiff was subjected to an unusually brief but pointed
cross-examination whose thrust was to show that he had targeted the
wrong defendant in this case. The emphasis of the cross-examination
was to show that the plaintiff's claim did not lie against the
defendant but against the police.
The
cross-examination did not show that the defendant was in disagreement
with the plaintiff's narration of events. The only point of
divergence was the interpretation of those events.
The
closure of the plaintiff's case was followed by an application for
absolution from the instance which the court considered and dismissed
signifying the opening of the defendant's case. It was at this
stage that the claim for defamation was formerly abandoned by the
plaintiff.
The
sole witness for the defendant was Mr Oborne Tariro Mawere (Mawere),
its risk and services Manager.
He
advised the court that he has worked for the defendant for the past
13 years. He stated that following information received from an
anonymous caller he lodged a report with the police which resulted in
the arrest and subsequent detention of the plaintiff and his
co-suspects.
The
witness' narration of events leading to the arrest and detention of
the plaintiff almost tallied with the story told by the plaintiff.
He
confirmed having made the arrangements with the police to have the
plaintiff and his co-suspects arrested at the Rainbow Towers and
using his motor vehicle to transport them to Braeside police station.
His evidence took the court through the arrest, detention and the
subsequent release of the plaintiff and his colleagues.
During
his testimony, the witness's attention was drawn to a portion of
the advertisement by the defendant which was to the effort that “all
participants and winners indemnify OK Zimbabwe (the defendant), their
agencies and partners against any and all claims of any nature
whatsoever arising out of and/or from their participation in anyway
whatsoever in the promotion including as a result of any act or
omission, whether negligent, grossly negligent or otherwise on the
part of OK Zimbabwe” See exhibit 2.
The
witness testified that to the best of his knowledge the plaintiff's
participation in the Grand Challenge Jackpot Promotion was not
excluded by this rule implying that the defendant should be exempted
from liability.
Under
cross examination the witness disclosed that other than the 13 years
of his work as a risk and control manager for the defendant, he had,
prior to his engagement with the defendant been a senior police
officer with the rank of Senior Assistant Commissioner, and well
versed in police operations. He said he knew that once he had
received an anonymous call concerning the alleged fraud involving
competition coupons, it was imperative for him to carry out
investigations first.
It
was quite revealing that during cross-examination the, witness
conceded that at the time he masterminded the arrest of the
plaintiff, he had himself not carried out investigations on behalf of
the defendant.
The
witness further told the court under cross-examination that he was
surprised to see the police officers detaining the plaintiff and that
he could not remember seeing the plaintiff being handcuffed at the
time of his arrest.
Mawere
further revealed under cross-examination that he had escorted the
plaintiff from the podium at Rainbow Towers to where the police were
- 200 metres away from where the winners function was being held,
transported the plaintiff and the other suspects to Braeside police
station using his motor vehicle.
He
said it was him personally who conducted the investigations which
eventually led to the release of the plaintiff and his co-suspects.
He also confirmed that he was present at all times when the plaintiff
was being interviewed or questioned by the police.
It
was quite revealing that when questioned by the court the witness
conceded that he had not acted diligently in rushing to have the
plaintiff arrested before carrying out internal investigations not
only to verify the so called tip off from the defendant's
informant, the anonymous caller but to also check on the explanation
given by the plaintiff. Mr Mawere conceded that with the benefit of
hindsight, the plaintiff's detention could have been avoided.
At
the close of the defendant's case I requested the two legal
practitioners to file written submissions. I appreciate the detailed
and well thought submission presented.
The
plaintiff counsel moved the court to award the plaintiff at least
$50,000 in form of damages for the unlawful arrest whilst counsel for
the defendant maintained that the defendant be exempted from
liability basically on two fronts, namely, that the plaintiff had
targeted the wrong defendant and that in any event the plaintiff's
participation was governed by the defendant's rules of
indemnification. He relied on Rule 6 which was one of the rules
regulating the conduct of the participants in the competition.
Further,
the defendant's counsel argued that there was improper splitting of
claims by the plaintiff by separately claiming for injury on one hand
and secondly framing another claim under unlawful arrest.
I
will deal with these legal issues later in this judgment after
assessing the evidence that was adduced in this case.
ASSESSMENT
OF THE EVIDENCE
There
was no real challenge paused by the evidence led in these proceedings
mainly because the two witnesses who testified are generally agreed
on what transpired. They differ on the interpretation of that
evidence.
The
plaintiff felt very strongly that the evidence justified the award of
the damages as claimed or at least as requested by his counsel during
submissions.
The
defendant's counsel's position from the same facts was that the
plaintiff had failed to prove its case and that at most it is the
police officers who actually arrested the plaintiff who ought to have
been sued.
It
is clear to me that the evidence as presented by the plaintiff was
truthful, his narration of events starting with his participation in
the Grand Challenge Jackpot Promotion, followed by his dramatic
arrest at the Rainbow Hotel and his subsequent deprivation of liberty
for the three days that followed could not be faulted.
It
was quite clear from the plaintiff's testimony that his misfortune
was triggered by the extremely reckless manner in which Mawere
handled the alleged fraud in the acquisition of coupons for the
defendant's business promotion. In the court's view one does not
blindly or religiously act on information from an anonymous source
without first doing basic or elementary investigations to establish
the credibility or otherwise of such a report.
The
position of Mawere in this case was compounded by the undeniable fact
that Mawere was not a lay person. The evidence showed that he is
quite a sophisticated individual. He projected himself as an
experienced former police officer who retired from the force holding
the rank of a Senior Police Commissioner. In addition, he holds a
Bachelor of Commerce in Risk Management, backed by 13 years
experience as the Risk and Services Manager for the defendant.
It
is further noted that at the time Mawere received information
concerning the alleged fraud, the witness had all the means at his
disposal to carry out investigations to verify the correctness or
otherwise of such potentially very serious allegations. The witness
chose not to do so but to set in motion and in a meticulous and
callous manner the events leading to the arrest of the plaintiff
despite the plaintiff having protested his innocence from the very
beginning.
To
start with, Mawere invited the plaintiff to the Rainbow Towers under
the pretext that he was required to collect his prize won in the
competition yet he knew that he was setting a trap for the arrest of
the plaintiff. Mawere himself masterminded the arrest of the
plaintiff in a typical movie style, used his motor vehicle to
“deposit” the plaintiff at Braeside Police Station. Mawere
actively participated in interviewing or questioning the plaintiff.
To demonstrate his malice, it is quite significant, that Mawere never
bothered to question the plaintiff about the alleged fraud before the
latter was arrested.
Mawere's
reckless conduct went beyond maliciously causing the plaintiff's
arrest. The uncontroverted evidence was that even before the
plaintiff had been brought to the police station Mawere had caused
the plaintiff's docket to be opened at Braeside Police Station. Not
only this but it was also made clear to the plaintiff that he would
only be released if Mawere brought an affidavit to that effect, and
indeed it was Mawere's affidavit which led the plaintiff to regain
his liberty after Mawere himself had masterminded the snatching away
of that liberty.
I
have no doubt in my mind that at the time the police officers
detained the plaintiff they had nothing on them to show there was
reasonable suspicion that the plaintiff had committed the alleged
criminal offence. The plaintiff's case would have been neater if he
had jointly sued the police with the defendant.
Be
that as it may, I am also satisfied that it would be a reckless
appreciation of the role played by Mawere in the drama associated
with the arrest and subsequent detention of the plaintiff to spare
him. Mawere cannot, in my view, and by any stretch of imagination
purport to have been an innocent bystander in the chain of events
leading to the situation the plaintiff found himself in. In the eyes
of the Court, Mawere remains the architect of the injury that stalked
the plaintiff. There was no reasonable justification whatsoever for
Mawere to act in the manner he did. The alleged misjointer is not
fatal to plaintiff's case. See order 13 Rule 87(1) of High Court
Rules, 1971.
Accepted,
the police might have used their discretion to arrest and detain the
plaintiff but the shadow of Mawere remains visible throughout the
whole episode. It was Mawere's reckless conduct which landed the
plaintiff in trouble for doing nothing really except to participate
in the business promotional activities of the defendant at the
invitation of the defendant. It would be a very unfair law which
fails to recognise the evil that Mawere did.
It
is common cause that when Mawere acted in the manner he did he was
acting in the cause and scope of his employment with the defendant.
Vicarious liability must by operation of law stalk the defendant.
The
conduct of Mawere is not without precedent. See the case of Mapuranga
v Mungate
and Earnest
Macheka
v Paul
Metcalfe and Maizeland SOS.
Let
me at this stage deal with the issues of law raised by the two
counsels in this matter.
It
will be noted that the claim for defamation having been withdrawn
during the proceedings, the plaintiff's claim remained under two
headings, viz, injuria and unlawful arrest.
THE
ALLEGED IMPROPER SPLITTING
Counsel
for the defendant argued very strongly that the plaintiff's claims
under these two separate headings amounted to improper splitting of
claims. The argument was that the plaintiff could only claim under
either head of damages but not both.
R.G.
Mckerron
in dealing with the aspect of actio
injuriarum
remarks as follows:
“The
interests of personality protected by the actio
injuriarum
are those interests which every man has, as a matter of natural
right, in the possession of an unimpaired person, dignity or
reputation....
Examples
of such acts are assaults of all kinds, the unjustifiable infliction
of any restraint upon the liberty of another, the use of defamatory
or insulting words concerning another, the malicious and unwarranted
institution of criminal proceedings against another....”
In
the case of Masawi
v Chabata
& Anor
where the plaintiff was seeking damages for wrongful and unlawful
arrest and imprisonment the learned judge, GREENLAND J recognised
that for the purpose of the actio
injuriarum
an unlawful, arrest had been made and maintained by threats.
It
occurs to me that in a claim for damages one may not refer to
unlawful arrest without triggering the aspect of the injury to the
plaintiff's feeling caused by such an act.
In
other words damages for unlawful arrest are awarded in recognition of
the injuria associated with that unlawful conduct. If this position
is accepted, it appears to be quite superfluous in a civil suit to
claim for
injuria
under one heading and unlawful arrest under another heading. The
claim should basically be under one heading and I take the point that
there may have been improper splitting in the plaintiff's claim. I
intend to address this anomaly by awarding one globular figure for
damages.
THE
INDEMNIFICATION CLAUSE
It
was argued by the defendant's counsel that the plaintiff, having
indemnified the defendant by participating in the competition as per
the rules of the competition, could not possibly bring the instant
civil action against the defendant.
Heavy
reliance was placed on rule 6 of the competition which was to the
following effect:
“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).”
I
note that in practice such clauses are not blindly or religiously
accepted by our courts as the learned author R H CHRISTIE observes
when he states:
“Obviously
the law cannot stand aside and allow such traps to operate unchecked,
and the courts have protected the public from the worst abuses of
exemption clauses by setting limits to the exemptions they will
permit and by interpreting exemption clauses narrowly.”
In
the same breadth, I also find the remarks by INNES CJ quite apposite
when the learned judge stated:
“Hence
contractual conditions by which one of the parties engages to verify
all representations for himself and not to rely upon them as inducing
a contract, must be confined to honest mistake or honest
representations. However
wide the language, the court will cut down and confine its operations
within these limits.”
(My emphasis)
Questioned
around this exemption clause during cross-examination, the plaintiff
explained that he could not have thrown away his constitutional
rights as afforded by the Bill of Rights by participating in the
defendant's jackpot promotion.
I
agree with the observation by the plaintiff.
I
have already made a specific finding that Mawere was both reckless
and malicious in the manner he dealt with the plaintiff and I am
satisfied that the defendant must not be allowed to avoid liability
by seeking refuge in clause six of the competition. Allowing it to do
so would offend public policy considerations which demand that
innocent and unsuspecting individuals be protected by the law.
QUANTUM
Having
concluded that the defendant cannot escape liability in this case I
must now move to consider quantum for such damages.
As
I have already highlighted elsewhere in this judgment, I am fully
cognisant of the fact that in arresting and detaining the plaintiff,
the police, who for some strange reason have not been joined in these
proceedings clearly abused their discretion. Be that as it may, I do
not consider the non joinder of the police to be fatal to the
plaintiff's case because the conduct of Mawere can be clearly
separated from that of the police.
Causing
the unnecessary arrest of an individual has its attendant
consequences and the injuria caused to the victim is something the
courts frown at.
The
plaintiff in this case was punished for doing nothing but to
participate in an activity of the defendant at the invitation of the
defendant. In quantifying damages in this case I am guided by the
remarks of GREENLAND J in the case of Masawi
v Chabata
where the learned judge stated:
“As
regards quantum it must be borne in mind that the primary object of
the actio
injuriarum is
to punish the defendant by the infliction of a pecuniary penalty,
payable to plaintiff as a solatium
for the injury to his feeling. The court has to relate the moral
blameworthiness of the wrongdoer to the inconvenience, physical
discomfort and mental anguish suffered by the victim.”
In
casu
the plaintiff explained in greater detail how Mawere masterminded his
arrest right in front of his wife and colleagues who had come to join
him in celebrating his moment of joy as one of the winners in the
competition.
He
explained how Mawere remained firmly in charge of the whole episode
from the time of his arrest up until his release. I have not the
slightest doubt that Mawere's moral blameworthiness remained
significantly high. His overzealousness and evil arm remained visible
throughout the pain endured by the plaintiff.
Given
the aspect of dollarization, there is very little that can be derived
from cases of a similar nature in terms of quantum
as
the
majority of the awards were made in the Zimbabwe dollar.
However,
I consider the figures proposed by the plaintiff's counsel as
overzealously high and unacceptable.
In
my endeavour to arrive at a fair quantum for damages I have had to
consider the awards made in the following cases and converting the
amounts awarded from Zimbabwe dollars into United States dollars
using the ruling market rate at the time;
(1)
Masawi v Chabata and Anor
1991 (1) ZLR 148 (HC);
(2)
Karimazondo and Anor v Minister of Home Affairs
2001 (2) ZLR 363 (H);
(3)
Minister of Home Affairs and Anor v Bangajena 2000 (1) ZLR 306 (SC);
(4)
Botha v Zvada and Anor 1997 (1) ZLR 415 (SC); and
(5)
Ernest Macheka v Paul Metcalfe and Maizeland SOS HH62-2007.
I
consider that taking into account all the factors in this case a
figure of $8,500 as damages would be appropriate.
Order
In
the result it is ordered that:
1.
Judgment be and is hereby granted in favour of the plaintiff against
the defendant for:-
(a)
Payment of the sum of $8,500-00 as damages for action
injuriarum.
(b)
Interest thereon at the prescribed rate calculated from 7 October
2011 to date of payment in full; and
(c)
Costs of suit.
Messrs
Mtombeni, Mukwesha Muzawazi,
legal practitioner for the plaintiff
Messrs
Atherstone and Cook,
legal practitioner for the defendant
1.
1997 (1) ZLR 64
2.
HH62-2007 per PARTE J
3.
The
Law of Delict:
A treatise on the principle of liability for civil wrongs. In the
Law of South Africa, By R G Mckerron, 7th
edition, Juta & Co. Ltd, Cape town, 1971 at p.53
4.
1991 (1) ZLR 148 (HC) (headnote, p.1)
5.
The Law of Contract in South Africa, R.H Christie, Butterworths,
Durban, Pretoria 1st
ed. 1983 reprint. Pp188-189
6.
Wells v SA Alumenite Co. 1972 AD 69 at 72
7.
Masawi v Chabata 1991 (1) ZLR 148 (HC) at 159
