Martin H D Simmons and Tadious Chauke v Kathrin Khumalo and Leonard Ncube

### Preamble
1
HB 210.19
HC 2285/16
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MARTIN H D SIMMONS

AND

TADIOUS CHAUKE

Versus

KATHRIN KHUMALO

AND

LEONARD NCUBE

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 18 SEPTEMBER, 19 SEPTEMBER 2019 & 9 JANUARY 2020

Civil Trial

S Tsumele, for the plaintiffs

L Maunze, for the defendants

MABHIKWA J:	The plaintiff in this matter instituted proceedings against the defendants and prayed for the following;

“a)	Payment of Special damages in the sum of US$10 000, (Ten Thousand United States Dollars) being legal costs incurred by the plaintiff in defending themselves as a result of a malicious and false accusation by the defendant that caused the arrest and subsequent trial of the plaintiffs.

b)	Payment of the sum of US$90 000.00 (Ninety Thousand United States Dollars) being general damages for humiliation, loss of reputation and good name, and subsequent economic loss as a result of the defendant’s malicious and wrongful accusation.

c)	Payment of interest on the said amount at the prescribed rate from the date of issue of summons to the date of full and final payment.

d)	An order for payment of costs of suit at attorney and client scale.

After a reading of the above prayer one is left with a sense that the plaintiffs are claiming defamation damages.

However, it must be said that in filing their law suit, it appears the plaintiffs simply took shots in the dark and threw all sorts of words and phrases such as “humiliation”, loss of good name, reputation, “economic loss” embarrassment, impaired social standing, wrongful and malicious conduct, loss of repute, good will and business and muggled them all up.  Even paragraph 12 of their declaration gives the impression that plaintiffs’ claim is one for defamation damages.  The same phrases and words are just thrown in together with no attempt to show a proper specific delict and its damages.  It is not surprising that in their plea, the defendants pointed out in limine, that it is not clear whether the plaintiffs’ claim is one for defamation, in which case publication ought to have been alleged, or one for damages for malicious prosecution.  The plaintiffs responded in their replication that it is a claim “for malicious prosecution” and not defamation.  But without a proper amendment especially to specific averments, nothing was done to cure the defective claim, although the plaintiff seemingly attempted to amend the claim in their replication.  A litigant must know and show exactly what claims he or she intends to bring to the court.  That is very trite and important.  After all, the defendant has a right to know what claim exactly he is to answer to so that he or she pleads properly to that claim.

Claims that are distinct in nature must be properly, specifically and distinctly pleaded.  In Munyai v Chikurira & Another 1992 (1) ZLR 145 (H) it was held that claims must be properly and distinctly pleaded.  In that case the plaintiff was a civil servant employed as an Executive Officer (Finance) at the Bikita District Administration office for Masvingo Province.  First defendant, one Stephen Chikasha was the District Administrator for Bikita but was at the time of commission of the offence, the Acting Provincial Administrator for Masvingo.  The second defendant was an Internal Auditor and also based at Masvingo Provincial Headquarters.  The plaintiffs were arrested tried and eventually acquitted with the defendants having played crucial and leading roles in the arrest and prosecution.  Quoting EKSTEEN J in Thompson & Another v Minister of Police and Another 1971 (1) SA 371, the judge pointed out that in a claim for damages for wrongful arrest and imprisonment, or detention as opposed to one of damages for malicious arrest and prosecution, the delict is committed by the illegal arrest of the plaintiff without the due process of the law.  That is to say, the injury lies in the arrest without legal justification.  In wrongful arrest, or false arrest as it is sometimes called, the defendant is liable when he has restrained the liberty of the plaintiffs without lawful justification and that it is not necessary for the plaintiff to allege or prove malice or probable cause on the part of the defendant.

On claims based on malicious arrest or malicious prosecution, it has been held that it is essential for the plaintiff to allege and prove that the defendant acted maliciously and without reasonable and probable cause.  The distinction therefore is that in malicious prosecution, malice or lack of probable cause must be alleged and shown.  In an action for defamation, publication whether oral or written should be alleged.  It should be alleged that the plaintiff was de esteemed, had his good name tarnished or reputation and social standing soiled.  Importantly, it should be averred that a reasonably ordinary man or reader would have understood the published words in a particular context which would be defamatory of the plaintiff.  The court also has to determine whether the words are reasonably capable of bearing the meaning ascribed to them by the plaintiff.  The next stage is to decide whether reasonable readers would have understood the words that way.  Finally the court would decide whether if the words would be understood in the ascribed sense, this would have lowered the plaintiff in the estimation of reasonable listeners or readers.  This appears to be the basis of the plaintiff’s claim particularly in paragraph 12 of the declaration as read with the prayer to their claim.

However, paragraphs 5 to 11 seem to lean towards a claim for malicious prosecution. I must state that in my view and from precedent, the plaintiff must decide exactly what action it is that he institutes.  If his claim and relief consists of two (2) actions, then they must be clear and distinct, properly averred and proved.  It is not proper to just throw in all sorts of terms and phrases and leave it to guess work for the other party and the court.

The second point, which the defendants also picked and raised in limine is the issue of the payment of US$10 000.00 being legal costs incurred by the plaintiffs in defending themselves as a result of the alleged malicious and false accusation by the defendants at the police and magistrate’s court.  I agree with the defendants that there is no legal basis or legally recognizable cause of action for the plaintiffs to recover fees paid to legal practitioners of their choice in defending a criminal matter instituted by the State wherein the defendants were State witnesses.  It is true that in criminal proceedings, the state is for all intents and purposes the dominus litis, with all the unfettered discretion to commence and discontinue prosecution of course subject to the law, including whether or not it has reasonable grounds to suspect that a criminal offence was committed.  That is purely for the National Prosecuting Authority to decide.  Further, there is no authority for the justification for a delictual claim for plaintiffs’ recovery for legal fees paid to their legal practitioners under a specific legal contract of service to them.  In fact, throughout the pleadings and throughout the trial the plaintiffs did not challenge this point.  Further, the plaintiffs cannot just make a bold claim for US$10 000.00 allegedly being legal fees paid to legal practitioners for defending them, and then fail to lead evidence to prove such fees let alone produce receipts to prove such expenses which would be very easy to prove.

In Sanangura v Econet Wireless Pvt (Ltd) & Others 2012 (Z) ZLR 304 (HH 398-12 among other claims, plaintiff claimed damages for loss of earnings and US$10 000.00 for legal fees.  Plaintiff led no evidence quantifying the loss of earnings, neither did he produce any receipts relating to his payment of legal fees, nor did he call in evidence the legal practitioners involved.  The court granted absolution from the instance in respect of those two claims.  This in fact is the same position in the present case and the plaintiffs’ claim for US$10 000.00 being legal fees paid to their legal practitioners in defending them cannot succeed.

In Evidence, the 1st plaintiff Martin Henry D Simmons, testified that they bought a shelf company from Kathrin Khumalo, the 1st defendant for $250.00.  He however said the defendants did not themselves deal with the 1st plaintiff who, from the evidence, they did not even properly know.  As for the 2nd defendant it was clear throughout the trial that they did not know him as they did not mention him or his role throughout their evidence.  Their witness, Barry Knight, also did not mention him.  Nothing much was helpful in the evidence of the first witness as regards the claim and the roles of the defendants in the alleged malicious prosecution of the now plaintiffs.  The witness was jittery and nervous continuously repeating the cause of action until he apologised for nervousness saying he was not familiar with the courts.  In cross-examination, this witness admitted that although he claimed to have bought a shelf company from the 1st defendant he never met her at all.  He also admitted knowing 1st defendant’s sister, the late Christine Khumalo whom he said he only met once or twice during her lifetime.  For that reason, he hardly knew the late Christine either.  Ultimately, he admitted that the person who was present during their arrest was Christine not Katherine.  He believed they were probably sisters.  He admitted that he never saw Katherine, (1st defendant) signing the share certificate to pass shares to him.  Asked who of the two sisters he knew better, he said he did not really know either of them.  He did not even know Christine was late and it was difficult for him to differentiate the two and therefore he could easily be making a mistake.  Finally, the witness re-iterated that the plaintiffs were arrested in 2011, and after some investigations they were left to go home.  In their words, the charges were withdrawn, or they were simply told to go home and would be called should they be required.  They were never incarcerated.

Tsumelo Tedius Chauke

His evidence was essentially similar in value to that of the 1st plaintiff.  Sufices to add that he too started reciting the cause of action and that when the two “defendants made their reports, they well knew it was false.”  But soon after that recital, he showed that he did not know what it is he meant, neither did he knew what it is that they needed to prove as the plaintiffs.  He told the court that in 2011, an attempt was made to make the same report of fraud against them at C.I.D. Bulawayo.  He was told by the C.I.D. to bring all the documentation which he had.  C.I.D. Fraud section in Bulawayo then told him that “there was no case as everything was above board.”  When asked what the defendants did or said when they (the plaintiffs) were told in 2011 that there was no case, he said he did not even see the defendants or hear about them until he was summoned again for (4) years later in 2015.  He went to Lupane police where he says he convinced the Officer-In-Charge to reduce the value of the money stolen as fraud should be $450 000 opposed to $650 000.  Thereafter, the witness goes on a discourse describing how they were seen as criminals by journalists and those that saw them being photographed at the court premises.  In cross-examination, 2nd defendant said that he really did not know the defendants properly and therefore could mix up names, all he knew is that there were two (2) Khumalos and a Ncube.

He also told the court that although “he knew” that the “person in question” is Katherine, he had never dealt with Katherine at all, neither did he knew the late Christine that much.  He too said he had probably met the late Christine only twice at the mine.  He said he never knew Katherine or Ncube (the defendants).  He only got to know them through the Police involvement.  He got their names from the Police and then only saw them when they testified.

It is clear from the above evidence by the plaintiffs themselves, that their claim suffered yet another still birth.  They hardly knew the defendants and as a result could not show that the defendant initiated the report against them and recklessly and without reasonable and probable cause instigated and followed up their prosecution with malicious intent (animunus injuriarum) up to its conclusion.  With that evidence of the plaintiffs, the evidence of the 3rd witness, Barry George Knight became largely irrelevant and inconsequential.

Barry George Knight

He told the court that Mr Simmons had told him that he had purchased a new company.  He then received a phone call and made arrangements to meet a Ms Katherine Khumalo and witness the transfer from Ms Khumalo to Mr Simmons.  He claims that he remembers that Ms Khumalo said she was selling a shelf company, which to him is nothing but a shell.  He claims to have met Ms Khumalo outside his office but at a centre parking area of all cars in the city centre to sign those allegedly important documents.

This witness did not strike the court as a credible witness.  Firstly, he was adamant that he spoke to Katherine and that she is the person who signed the transfer documents, yet it is clear from the rest of the facts and probabilities that the person who spoke to him if that is true could well have been Christine.

Secondly, he testified that he was supposed to be a State witness against the plaintiffs in the fraud case.  He however was later dropped or ignored.  He was, and still is 1st plaintiff’s accountant.  He apparently turned hostile at the criminal trial of the plaintiffs and may have contributed immensely to their acquittal.  When asked by counsel for the plaintiffs if he testified in the fraud case, he claimed that the Police had wrongly recorded in his statement that he did not know the documents before him and that they were forged.  He said he later manually cancelled that portion of the statement as being incorrect.  Thirdly, he insisted that the shelf company was bought by Mr Simmons alone and that it was transferred to him alone, yet the plaintiffs’ papers and evidence, claim that the shelf company was bought by the two (2) defendants.  Be that as it may, the court has already found that his evidence was inconsequential considering the evidence of the defendants.

The two defendants’ evidence was simple and straight forward.  1st defendant had loaned her shelf company to her sister, the now late Christine Khumalo.  According to 2nd defendant, (Leonard Ncube), the two sisters were so alike that even he as husband to one and brother-in-law to the other, had considerable difficulty telling them apart.  When she was allowed to use the shelf company, Christine had said that she would use the shelf company papers with her new found business partners.  The owner of the shelf company was not involved at all.  She did not know Eaton and Vainhat, neither did she know the two plaintiffs. It was clear from her evidence and that of the 2nd defendant (her husband), that they had no malice at all when they agreed with counsel for the plaintiffs and Mr Barry Knight that a shelf company is just a name, a shell almost valueless and were agreeably to any value attached to the company.  The fact remains that their testimony was that at some point, Christine then approached her complaining that she was being elbowed out of the company and had in fact been evicted from the mine.  She also insinuated that the Police, having looked at the shelf company and mine papers, had realised that the defendants were the directors.  Christine was not.  The police then advised Christine that for them to proceed with investigations, the defendants needed to go with her to the police so that they make a formal complainant or report, which they obliged and did.

The two defendants were adamant that at the time Christine went to make a report to the police, the company directors had not yet changed and Christine also had papers bearing their names as the directors.  At some later stage however, it was discovered that the names of Directors had been changed hence the allegations of fraud and that the company had been stolen.  The issue of whether a shelf company has value or is just a worthless shell incapable of being stolen was and still remains a matter of argument not relevant to this judgement.  Equally so, the values of US$250.00, US$450.00 or US$650 000.00 are not relevant for the purposes of this judgement.  The defendants were clear and emphatic that their sister Christine was the aggrieved party and was demanding her “property back.”  They really had no interest in the mining operations.  They only went to the police at the invitation of the police because they were the directors of the company on the papers.  When it was later discovered that the directors’ names of the company had been changed, there was suspicion and probable cause to believe that a criminal offence had been committed.  From the evidence on record, it appears that when Christine made the initial report in 2011, the directors’ names had not yet changed.  The defendants only got to know of the fraudulent change of directorship in 2015.  Christine brought papers that had been altered.  1st defendant remained steadfast that she did not know Eaton, Vainhart, Simmons, Chauke or Barry Knight.  She had no reason to instigate criminal proceedings against any of them or to falsely incriminate them.  As already stated above, they went to the police, prosecutors and the court only when required to.  Christine was the most aggrieved party and would usually be the one to advise them whenever they were required.  She even refuted claims by Barry that he was interviewed by the prosecutors in her presence.  She said the interviews were done individually in the absence of other witnesses.  She was interviewed first, her sister Christine next and so on.  Second defendant (Leonard Ncube on his part also stressed the point that after the initial report by Christine and moreso after the discovery of the change of directors’ names, he was convinced that there was some fraud that was being committed and was eager to know  how he had been removed from the directorship and who had changed the names anyway.  He left it to the police to find out.  He did not direct the investigations and does not know how they were carried out.  He did not decide who was to be charged and with what offence exactly.  He does not know who decided to prosecute.  He said all he knows is that he was surprised when the names of the culprits happened to be those of people he had never seen before and those were then said to have committed the crime of fraud.

The evidence by the defendants as shown above was credible and devoid of any malice.  The court has no reason to disbelieve it as the truth of what transpired.  On the other hand, the plaintiffs’ claim in the final analysis is solely premised on and buoyed by the fact of their acquittal.  Legal practitioners and litigants alike should be reminded that it has been stated in a plethora of decided cases that an acquittal does not necessarily entitle one to damages, whether for wrongful arrest and imprisonment or for malicious prosecution.  The plaintiff in fact has an onerous task and burden to prove his entitlement to any damages.  He has to go further than the mere fact of acquittal and mere retical of certain common phrases.  The rational is a matter of common sense and public policy.  It would be bad for justice and bad precedence if anyone acquitted of a crime would then be entitled to sue the former complainant and or other state witnesses as of right or routine and be awarded damages.  Society, especially the weak would surely be afraid to assert their rights in the courts even if they genuinely believed they have been wronged, lest in trying to assert their rights, the accused somehow gets acquitted and turns the table claiming huge sums in damages simply on the fact of his acquittal.  It would also lead to a situation where society members are afraid to report a crime or testify in a crime they may have witnessed being committed in case the accused gets acquitted and then bay for their blood by way of damages.  This would potentially lead to quite an undesirable lawlessness.

In Abu-Basutu v Moyo 2013 (Z) ZLR 716 HB 173-13 the defendant and plaintiff were co-directors of a company registered in South Africa.  A bank account was opened in the company’s name.  The defendant, who was working for another business, fraudently transferred money from his employer’s to the company’s account.  He then proceeded to withdraw all the ill-gotten funds from the account for his personal use without the plaintiff’s knowledge.  He then fled from South Africa and went to Zimbabwe, where he spent the funds.  The plaintiff was arrested by the South African police and detained for 98 days before the charges of fraud brought against him were withdrawn.  He brought an action against the defendant for malicious prosecution, basing the damages on a fixed amount per day.

It was held, that the delict of malicious prosecution and detention is usually brought against Government institutions where a person’s liberty and freedom is wrongfully deprived.  In appropriate circumstances, actions for wrongful arrest and detention can also be brought against individuals.  The test is that where a party’s direct or indirect conduct leads to the wrongful arrest of another, the person whose liberty has been infringed is entitled to recourse against the party causing such arrest and detention.

The essential requirements in claims based on malicious arrest and prosecution at that;

The defendant set the law in motion;

He acted maliciously and without reasonable and probable cause.

He acted without a duty of care towards plaintiff.

I would add that;

He may have acted on incorrect facts, did not care to verify them and was reckless as regard their correctness and the consequences of his actions.

Apart from initiating and setting the prosecution in motion, he was insistent and pushing the prosecution, including misleading the police and the prosecution or court officials generally.  That is to say animus injuniandi must be shown.

Further, and in the circumstances of this case, particularly Barry Knight’s evidence that his own police recorded statement initially contained the evidence that he did not know the transfer documents changing directorship that were shown to him and that they had been forged,  surely, that statement, whether he later had it cancelled as he claims and whether he himself was later ignored as a State witness, it gave to the defendants a reasonable suspicion and probable cause to believe that fraud had been committed.  This was practically the situation in Munyai v Chikurira & Another (supra) where in considering whether or not the defendants had instigated the institution of the criminal investigations, it was also necessary to consider at the same time the question of the suspicion on the basis of which it was made to see whether it was reasonable in the circumstances. In January 1988, books for the Food for Work programe for Bikita District in Masvingo reflected a shortfall of $1000.00.  Mr Munyai was responsible for the Chiefs’ account which included the funds for the Food for Work programe.  He was requested by the District Administrator to make report concerning the shortfall which he indeed compiled.  In his handwritten report, Mr Munyai stated that it seemed to him that “the money met a mystery.”  Dissatisfied with Mr Munyai’s explanation of what happened to the money, the District Administrator reported the matter to the Zimbabwe Republic Police at Bikita for the matter to be investigated.    The reaction of the police however, was that they needed an audit report to fully investigate the matter.

A Mr Simon Moyo (2nd respondent) was tasked with instructions to carry out an audit inspection of the Food for Work program and produce an audit report which he did.  Mr Moyo’s audit inspection revealed a shortfall of $2 284.00.  Mr Moyo believed that this was a proper case for the police to investigate and insisted that Mr Munyai (plaintiff) was guilty of theft or fraud.  A copy of Mr Moyo’s audit report was handed to the police.  Thereafter, the matter had its up and downs and at one stage a second audit report by a different auditor revealed a shortfall of $1 060.00.  At some stage the case was withdrawn before plea.  It appears that when the matter finally went to trial, Plaintiff was asked in cross-examination to explain what he meant by saying in his hand-written report that “the money met a mystery”.  He replied that he meant that “the money was missing” and he could not account for it.  The court held that right from the word go, plaintiff himself admitted that some money was missing.  It was held that in the circumstances, the defendants were justified in approaching the police to investigate.  There could be no better suspicion and probable cause than Munyai’s own admission that the money was missing.

In casu, there could be no better suspicion and probable cause, not withstanding that he later asked the police to cancel certain portions of his earlier statement, than plaintiffs’ accountant’s own admission that the transfer certificate was a fraud.  The issue, both in Munyai (supra) and in the current case, is whether or not when the police arrested, detained and had the now plaintiffs prosecuted, they did so on the direction, command or orders of the defendants.  The simple answer is no.

The plaintiff must prove all the particulars on which they base their claims.  They cannot, as already stated elsewhere above, use only the fact of their acquittal as the reason for their entitlement to damages.  In my view, they failed to discharge the onus on them.

In the result, both plaintiffs’ claims are dismissed with costs of suit.

Dube-Banda, Nzarayapenga & Partners, plaintiffs’ legal practitioners

Dube, Mguni & Dube, defendants’ legal practitioners