Saymore Chinyowa v Norsib Ndlovu and Nkosiyethu Ndlovu

### Preamble
1
HB 260/21
HC 1091/2
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SAYMORE CHINYOWA

Versus

NORSIB NDLOVU

And

NKOSIYETHU NDLOVU

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 14 JULY 2022 & 20 OCTOBER 2022

Civil trial

L. Chimire, for the plaintiff

T. Dube, for the defendant

DUBE-BANDA J:

Introduction

On the 8th November 2020 the plaintiff sued out a summons against the defendants praying for the following relief:

Payment of the sum of USD3 000.00 or ZWL equivalent as at the date of payment being costs incurred by the plaintiff in repairing his vehicle.

Payment of USD30 000.00 or ZWL equivalent as at the date of payment being damages for emotional distress, trauma, ill health, unlawful detention and malicious prosecution caused by the defendants.

Payment of USD 10 000.00 or ZWL equivalent as at the date of payment being damages for unlawful arbitrary deprivation of liberty due to the defendants’ unlawful and malicious conduct.

Payment of USD 700.00 or ZWL equivalent as at the date of payment being refund of the fine paid by the plaintiff after unlawful arrest, maliciously prosecution and conviction as a result of the unlawful conduct of the defendants.

Interest at the prescribed rate on the total sum claimed from the date of summons to the date of full payment.

Costs of suit at an attorney client scale.

At the trial the plaintiff testified in support of his case, and the defendants testified in their defence.

In his pleadings plaintiff averred that on the 8th October 2017 he was involved in a motor vehicle accident (collision) at the robots of Nketa Drive and Hydepark Road, Bulawayo. He averred that second defendant was the driver of the Honda Fit vehicle that was involved in a collision with the vehicle he was driving. The second defendant had no driver’s licence at the material time. The accident was caused by the sole negligence of the second defendant. The plaintiff’s vehicle was extensively damaged as a result of the accident.  The first defendant acted as the driver of the Honda Fit vehicle for the purpose of protecting the second defendant who had no driver’s licence.

The plaintiff pleaded further that he was arrested and convicted of the offence of negligent driving, and paid a fine to regain his liberty. He suffered serious humiliation, emotional distress and trauma as a result of the unlawful arrest, prosecution, conviction and detention. He further suffered a deterioration of his health due to the condition which he was put in by the malicious conduct of the defendants. He is self-employed and the arrest, detention, prosecution and ill-health caused him to suffer loss of income as he could not fend for himself and his family. The conduct of the defendants resulted in the plaintiff being arbitrary deprived of the right to liberty without justification.

The plaintiff pleaded further that the proceedings which resulted in his conviction were set-aside by the High Court. Finally, he pleaded that the defendants are liable for payment of the costs of repairing his vehicle; recovering unlawfully paid fine; damages for humiliation; emotional distress and ill-health; and loss of income and unlawful deprivation of liberty.

In their plea the defendants’ aver that plaintiff drove his motor vehicle in a negligent manner in that he failed to keep a proper lookout; failed to keep his vehicle under proper control and he drove at an excessive speed in the circumstances.  It is pleaded further that defendants and plaintiff explained the circumstances of the collision to the police officers, and after hearing both sides the officers arrested the plaintiff. It is averred that plaintiff’s arrest was caused by the evidence observed at the scene of the accident by police officers. It is denied that they caused plaintiff’s arrest. The defendants deny causing plaintiff to suffer serious humiliation, emotional distress, deterioration in health and trauma. The defendants pray that the plaintiff’s claims be dismissed with costs.

In his replication the plaintiff disputed the averments in the defendants’ plea, and persisted with his claims.

Despite the pleadings covering a wide range of issues, in the joint PTC minute the parties inexplicably identified the issues as whether or not the plaintiff’s arrest, prosecution and conviction was caused by the defendants; whether or not the plaintiff suffered damages; and whether the defendants are liable for the damages suffered by the plaintiff. It was agreed that the onus was on the plaintiff on all the issues for determination. The PTC minute does not clearly speak to the pleadings on record. It is important to state that if you define the problem correctly, you almost have the solution, however this is not what happened in this case. Notwithstanding this deficiency in the PTC minute the evidence adduced and the submissions made by the parties speak to the pleadings as a whole. It is for these reasons that I determined the matter holistically.

I propose to summarise the evidence given by all the witnesses, bearing in mind the importance of determining the matter as pleaded and holistically.

Plaintiff’s case

Plaintiff testified that he is self-employed and owns a company. He is in the business of repairing motor vehicles. On the 8th October 2017 at the intersection of Nketa Rd. and Old Khami Rd. he was involved in an accident with the vehicle driven by second defendant. He was driving a Fun Cargo and the second defendant was driving a Honda Fit. The accident occurred at a robot controlled intersection, and the robots were functional. He was driving along Nketa Drive and the second defendant was driving towards town along Old Khami Rd. The traffic lights were green in his favour and the second defendant failed to stop when the robot turned red against him. The point of impact was after he had driven past the intersection. His vehicle was damaged on the left side, the chassis, the fender, light and the radiator were all damaged.

After the collision the second defendant disappeared from the scene and the first defendant appeared and acted as if he was the driver of the Honda Fit that was being driven by the second defendant. He tried to explain to the police that the first defendant was not the driver of the Honda Fit, the police did not listen to his explanation. At the police station the police suggested that both parties accept a fifty percent blame for the accident, he refused. He was charged, refused to pay a deposit fine and the matter was taken to court for trial. He explained to the court officials that the person who was driving the Honda Fit was not the first defendant, the matter was then referred back to the police station for further investigations. The matter was returned to court and the first defendant was still the complainant.

At the court the plaintiff was convicted for failing to change the ownership of a motor vehicle within seven days; negligent driving; that his motor vehicle had no certificate of fitness and that he was unlawfully using a none public service vehicle to carry passengers for a fee; for negligent driving he was sentenced to a fine of USD700 or six months imprisonment. He was detained for seven hours before he was released after paying the fine in lieu of imprisonment.

After paying the fine he returned to the police station and informed the police officers that he was not happy with the manner the matter was investigated. The officers did not want to help him, and he sought assistance from the senior police officers. The senior police officers allocated the matter to another officer for investigations, the second officer arrived at the same conclusion that he was to blame for the accident. He returned to the police station and again expressed his dissatisfaction with the investigations of the matter, he was allocated a third officer to investigate. The third officer arrived at the same conclusion as the two previous officers, that is to say he was to blame for the accident. He was dissatisfied again and he escalated the matter to the offices of the Prosecutor General, the Chief Justice of Zimbabwe and the Minister of Justice. He again reported the matter to the Police Head Quarters in Harare, the matter was allocated to another officer to investigate. It was this fourth officer who finally arrested the second defendant as the driver of the Honda Fit. The second defendant admitted that on the date of the accident he was indeed the driver of the Honda Fit and that he was driving without a licence.

He produced a copy of the summary jurisdiction which shows that the second defendant was charged with the crime of driving without a driver’s licence (Ext. A4).  He further produced a copy of summary jurisdiction (Ext. A5) which shows that first and second defendants were both charged with the crime of defeating or obstructing the course of justice. He further produced a copy of an Extract from the Criminal Record Book (Ext. A6) which shows that the first and second defendants were convicted and sentenced for the crime of defeating or obstructing the course of justice. He produced a copy of the High Court order (Ext. A7) which shows that proceedings relating to his criminal trial were set aside and referred to trial de novo before a different magistrate. He was reimbursed the fine he had paid for the crime of negligent driving.

In his examination in chief the plaintiff testified that he repaired his vehicle at a cost of USD300.00. He wants this court to assist him to recover the money he used in repairing his vehicle.

He testified further that he was medically examined and on more than ten occasions he was going on medical review. He testified that he suffered trauma since it was his first time to be involved in an accident. He tendered a copy of a letter and a prescription from a Dr. F. Nyabadza dated 5 July 2019 (Ext. A1). The letter reads as follows:

Re: Saymore Chigova 34 years

The above patient was treated in September 2018 in our rooms for pneumonia following a road traffic accident.

He had severe chest pains and had difficulties in breathing. He was coughing and had blood stained secretions. Patient received oxygen, intravenous drugs and fluids. After several days his condition in improved.

We gave him several days to rest and psychological support.

The plaintiff testified further that he incurred medical expenses as a result of the accident.

He testified that he lost business during the time he was attending court. His monthly turnover before the accident was about USD$ 1600.00 to USD$1800.00. He produced an invoice with a value of USD280.00 (Ext. A3). He testified further that he incurred traveling expenses at the time he was reporting and following up on this matter.

Under cross examination he testified that he bought the vehicle in 2017 for USD6 200.00. It was put to him that in his evidence in chief he said he used USD300.00 to repair his vehicle, his answer was that he had made a mistake. He testified that he used USD3000.00 to repair the vehicle. It was suggested to him that he had not shown the court how he got to the figure of either USD300.00 or USD3000.00. It was further suggested to him that the figure of USD300.00 was the correct one, his answer was USD300.00 could only buy a bonnet or bumper of the vehicle. He said the vehicle was damaged on the chassis and many parts had to be fixed.

It was suggested to him that the accident occurred on 8th October 2017, however according to Exh. A1 he sought medical treatment in September 2018, he agreed. It was put to him that he sought medical treatment eleven months after the accident, he agreed. It was further put to him that in terms of the Exh. A1 he was treated for pneumonia, he agreed. He was asked how an accident could cause pneumonia, his answer was from the time of the accident he never enjoyed good health. On the date of the accident he did not visit a doctor. He did not sustain visible injuries, but was traumatised. He was given the doctor’s prescription the day he consulted about pneumonia.

He testified that his vehicle was damaged on the left passenger side. The front bumper of his vehicle was damaged. It was suggested to him that he entered a red-robot, he disagreed. Asked the reason he was claiming damages for malicious arrest when it was the police who concluded that he was in the wrong, his answer was that the defendants bribed the police officers. It was suggested to him that in his evidence in chief he did not tell the court that the defendants bribed the police, his answer was that he told the police authorities about what happened at the scene of the accident.

Asked how he was claiming USD30 000.00 for damages for emotional distress, trauma, ill-health and humiliation he suffered due to the unlawful arrest, unlawful detention and malicious prosecution his answer was that during the time he was processing the papers to get justice he would travel to Harare and at times he would spend the nights sleeping in buses. He said he noticed that the sum of USD30 000.00 would cover his costs and his health issues.

My general view is that the plaintiff was generally a good and credible witness. He came across as a witness who had a reasonable recall of events.

The defendants' case

The first defendant

The first defendant testified that when he got to the scene of the accident he saw the plaintiff and the second defendant. The police details arrived to attend to the scene and recorded statements. The police details found the vehicles at the spot where the collision occurred. He told the police that the plaintiff caused the accident.

He testified further that the driver and the passenger doors of the Honda Fit were damaged although the vehicle could be driven from the scene of the accident to the police station. The plaintiff’s vehicle was damaged such that it could not be driven from the scene of the accident, it had to be towed to the police station. He said no one was injured as a result of the collision, including the plaintiff.

Under cross examination the first defendant testified that he was not the one who was driving the Honda Fit. Although when the accident occurred he was close to the scene. He told the police that he was the driver of the Honda Fit. He went to the police station as the driver of the Honda Fit. He told the Police that the accident was caused by the plaintiff. He conceded that he did not witness the accident. At the trial of the plaintiff he testified as the driver of the Honda Fit. He conceded that the plaintiff was convicted on the basis of his testimony. He testified that he masqueraded as the driver because he was protecting the second defendant who did not have a driver’s licence.

The first defendant was a poor witness who tried to persuade the court to find that the collision was caused by the negligence of the plaintiff when the truth is that he was not at the scene when the accident occurred. He was merely trying to shield his brother the second defendant, as he did at the police station and at the trial of the plaintiff. No reliance can be placed on his evidence.

The second defendant

The second defendant testified that on the 8th October 2017 he was the driver of the Honda Fit that was involved in a collision with the vehicle that was driven by the plaintiff. He testified that he was driving on the outer lane when he got to the robot controlled intersection. At the time the robot turned amber he was at the centre of the intersection. The plaintiff was driving at high speed and as a result he drove through a red robot which caused the collision. After the collision he called the second defendant. He then left the scene of the accident.

Under cross examination the second defendant testified that he was driving without a driver’s licence and had not attended any driving lessons. After the accident he escaped from the scene because he was scared, young and he had no driver’s licence. At the time he was 17 years old. He reiterated that the robot turned amber when he was in the middle of the intersection and that the plaintiff was over-speeding. He testified that the Honda Fit was extensively damaged and the plaintiff’s vehicle was also damaged, i.e. the radiator and the lights. He testified that the collision was caused by the plaintiff. The second defendant was also a poor witness. No reliance can be placed on his evidence.

Issues for determination

The plaintiff abandoned the claim for payment of a refund USD 700 00 or ZWL equivalent which he paid as a fine. He was reimbursed this amount. He also abandoned the claim for USD10 000.00 or ZWL equivalent being damages for unlawful deprivation of liberty on the basis that it was a duplication. No further reference shall be made to these claims.  I now turn to consider the issues for determination.

Whether or not the plaintiff’s arrest, prosecution and conviction was caused by the defendants.

The cause of action in a claim for malicious prosecution is the actio iniuriarum. To establish this claim a plaintiff must establish that the defendant set the law in motion (instituted or instigated the proceedings); acted without reasonable and probable cause and; acted with malice (animo iniuriandi) i.e. with intent to injure the defendant in his good name; and that the prosecution failed. See: Bande v Muchinguri 1999 (1) ZLR 476 (H); Minister of Safety and Security v Lincoln (Case no 682/19) [2020] ZASCA 59 (5 June 2020) para 20.

Reasonable and probable cause means an honest belief founded on reasonable grounds that the prosecution was justified. This imports both an objective element (reasonable grounds) and a subjective element (honest belief).  See: Prinsloo and Another v Newman 1975 (1) SA 481 (A) 495G-H. Animo iniuriandi in this sense means that the defendant, aware that no reasonable grounds for the prosecution exist, nonetheless initiates the proceedings. If reasonable grounds are absent but the defendant honestly believes that the plaintiff is guilty or that there are reasonable grounds, wrongfulness is lacking. This would also occur in the event of a mistake on the part of the defendant. See: Neethling, Potgieter Visser Law of Delict 5 ed at 318.

The onus to prove these requirements rests on the plaintiff. Where a defendant is proved to have initiated a prosecution without reasonable grounds, it does not follow that he or she acted dishonestly, nor does it necessarily imply that he or she did so animo iniuriandi. However, in the absence of any other evidence the natural inference is that the plaintiff has established both. The defendant thus bears an evidential burden to rebut this inference regarding his state of mind, including any mistake that would exclude his liability.    See: Moaki v Reckitt & Colman (Africa) Ltd and Another 1968 (3) SA 98 (A) at 105B-C.

In Nherera v Shah 2015 (2) ZLR 455 (H) @ 465 the court said:

In our law, the action for malicious prosecution has always been available to a person acquitted of a criminal charge instituted by another, the defendant, with an improper motive. The learned authors J Neething, JM Potgieter and PJ Visser Law of Delict (3rd ed. Butterworths, Durban, 1999) at p 350 set out the requirements for malicious prosecution as follows:

Presently, the following requirements must be met before a plaintiff may succeed with an action on the ground of malicious prosecution:

The defendant must have instigated the proceedings;

The defendant must have acted without reasonable and probable cause;

The defendant must have acted animo iniuriandi; and

The prosecution must have failed.

In casu the first defendant duped the police and the criminal court that he was the driver of the Honda Fit. He was not. The driver was the second defendant. The first defendant was not at the scene at the time of the accident. He emerged after the accident only to masquerade as the driver of the Honda Fit. The statement he gave to the police about the cause of the accident was false. The testimony he gave in court which resulted in the conviction and sentence of the plaintiff was false.

It should be noted that in respect of instigation, it must be shown that the first defendant acted with the purpose of having the plaintiff prosecuted and a prosecution resulted from his actions. The question is was the first defendant instrumental in making or prosecuting the charge? The test is whether the defendant did more than tell the police details the facts and leave them to act on their own judgment: See: Nherera v Shah 2015 (2) ZLR 455 (H). The first defendant instigated the arrest of the plaintiff. At the scene of the accident he lied to the police that he was the driver of the Honda Fit. When he was not the driver nor was he in the vehicle at the time of the accident. He was not even at the scene of the accident. The prosecution of the plaintiff resulted from the actions of the first defendant. At the trial he lied that he was the driver and his lies resulted in the conviction of the plaintiff. The plaintiff was convicted on the basis of the evidence of the first defendant, which was all false. The first defendant did not have such information as would lead a reasonable man to conclude that the plaintiff was probably guilty of the offence of negligent driving. The first defendant acted without reasonable and probable cause.

As pointed out earlier, once it is found that there was no reasonable or probable cause for initiating the prosecution of the plaintiff, the first defendant attracted an evidential burden to rebut the natural inference that he acted animo iniuriandi. In the absence of any evidence from him as to his state of mind he faced an almost insurmountable hurdle to rebut this inference. He knew that he was not the driver of the Honda Fit. He knew that he was not even a passenger in the Honda Fit. He knew that he was not even at the scene of the accident when it occurred. He was merely peddling falsehoods. The first defendant did not have an honest belief founded on reasonable grounds that the institution of proceedings was justified. He did not have an honest belief that the facts available to him at the time constituted an offence and that a reasonable person could have concluded that the plaintiff was guilty of such an offence.  He merely fabricated a false version.

The next question is whether the prosecution of the plaintiff failed? The criminal trial of the plaintiff was set aside by the High Court. It was ordered that the matter be remitted to the Magistrates’ Court for trial de novo. This trial started on the 14th July 2022, almost three years from the date the criminal proceedings were set aside. The plaintiff has not been prosecuted for three years, my view is that such must be considered as a failure of the prosecution. Therefore my view is that the prosecution has failed. The plaintiff has proved this aspect of his claim on a balance of probabilities as against the first defendant.

Regarding the second defendant he escaped from the scene immediately after the accident. He did not give a statement to the police. He did not testify at the trial of the plaintiff. He was not present at the trial of the plaintiff. There is no evidence to suggest that he told the first defendant what to say in his police statement and to testify in court. In the circumstances of this case I cannot find that he caused the arrest and the prosecution of the plaintiff.

The issue whether or not the plaintiff’s arrest, prosecution and conviction was caused by the defendants is answered in favour of the plaintiff as against the first defendant only.

What remains to be undertaken is what quantum of damages to award to or in favour of the plaintiff. Plaintiff suffered damages as a result of his arrest, prosecution and conviction which was based on false and fabricated evidence. In the assessment of damages for unlawful arrest and detention, it is important to bear in mind that the primary purpose is not to enrich the aggrieved party but to offer him or her some much -needed solatium for his or her injured feelings. It is therefore crucial that serious attempts be made to ensure that the damages awarded are commensurate with the injury inflicted. According to the authorities the correct approach is to have regard to all the facts of the particular case and to determine the quantum of damages on such facts.

The first defendant was not the driver of the Honda Fit which was involved in a collision with the vehicle driven by the plaintiff. He masqueraded as the driver of the Honda Fit. Gave a statement to the police as the driver of the Honda Fit. His statement led to the plaintiff being charged, prosecuted and convicted for negligent driving. He testified in the plaintiff’s criminal trial as the driver of the Honda Fit. He was not.  As a result of his false testimony the plaintiff was convicted for negligent driving and sentenced to a fine of USD700 or six months imprisonment. He was detained for seven hours before he paid the fine and released.  In the circumstances, I intend to award damages in the sum of USD500.00 for malicious prosecution against the first defendant.

Ill health

I need to mention that this case was poorly pleaded. It is not clear whether the damages sought under this head are for pain and suffering, permanent disability, disfigurement or loss of amenities. The claim is just for ill health. However in Mtuda v Ndudzo 2000 (1) ZLR 710 (H) at 719B- F, GARWE J, as he then was, held that where an issue is not raised in the pleadings but has been identified for determination at a pre-trial conference and fully canvased at the trial, even if an amendment is not moved, a court is entitled to adjudicate on it. This effectively means that a defective pleading will be cured by evidence.  In this case the evidence shows that the claim for damages for ill health is in essence a claim for pain and suffering.

The plaintiff testified that he was medically examined and on more than ten occasions he was going on medical review. He tendered a copy of a letter and a prescription from a Dr. F. Nyabadza dated 5 July 2019 (Exh. A1). Exh. 1 shows that he was treated in September 2018 for pneumonia following a road traffic accident. He had severe chest pains and had difficulties in breathing. He was coughing and had blood stained secretions. He received oxygen, intravenous drugs and fluids. After several days his condition improved. The doctor gave him several days to rest and psychological support. Plaintiff testified that he incurred medical expenses as a result of the accident.

In cross-examination the plaintiff testified that the accident occurred on the 8th October 2017. He did not sustain visible injuries but was traumatised. On the date of the accident he did not seek treatment. He did not seek treatment until in September 2018, i.e. eleven months after the accident.  He confirmed that Exh. A1 shows he was treated for pneumonia and doctor’s prescription was for pneumonia. The theme of Mr Dube’s argument was that injuries arising from a motor accident cannot cause pneumonia. This resonates with counsel’s cross examination of the plaintiff.

The onus is on the plaintiff to persuade this court that he is entitled to succeed in this claim. On the date of the accident he did not seek treatment. He did not seek treatment until in September 2018, i.e. eleven months after the accident and he was treated for pneumonia and prescription was for pneumonia. The Internet dictionary defines pneumonia “as a form of acute respiratory infection that affects the lungs.” After the accident the plaintiff did not have any injuries and he did not seek medical treatment. He was treatment for pneumonia eleven months after the accident. The prescription he was given was for pneumonia.  No connection has been shown between the accident and the pneumonic infection. This is a case where the plaintiff should have called the doctor to explain the connection between the accident that occurred eleven months ago with a pneumonic infection or adduced some other evidence to create the connection.  The failure to call the doctor to testify or to adduce some other evidence to create the connection on this crucial issue is fatal to this aspect of the claim.

It is trite that the court remains the trier of fact.  Adjudication of the dispute before it is the expertise of the court, not the expertise of a doctor, who does not even testify but only submit document which itself requires to be explained. In the circumstances, I take the view that the plaintiff has failed to prove his claim for damages for what he called ill-health, which is in fact pain and suffering. In the circumstances this claim must fail.

Loss of income

At law a plaintiff may claim damages for earnings actually lost as a result of the delict committed by another person. This may take the form of lost salary, wages or income not earned or lost profits. In each instance the onus is on the plaintiff to produce sufficiently detailed and reliable evidence to prove the lost earnings. See: SA Eagle Insurance Co. Ltd v Hartley 1990 4 SA 833; Commercial Union Assurance Co. of SA v Stanley 1973 1 SA 699 (A); Sandler v Wholesale Coal Suppliers Ltd. 1941 AD 194; Sigourmay v Gilbanks 1960 2 SA 552 (A).

The plaintiff claims damages in the sum of USD5000. 00 for loss of income. He testified that he lost business during the time he was attending court. He was making about USD$ 1600.00 to USD$1800.00 per month. He produced an invoice of USD280.00 (Exh. A3). He incurred traveling expenses at the time he was reporting and following up on this matter.

The amount of USD5000.00 was just plugged from the air as it were. The production of an invoice of USD280.00 does not assist his case. Apart from his ipso dicta there is no evidence that he was making USD1600.00 to USD1800.00 per month. No monthly bank statements were produced. No tax returns were produced. No books of accounts were produced. No evidence of the number of days he attended court. No sufficiently detailed and reliable evidence to prove the lost earnings have been produced. In the circumstances, I take the view that the plaintiff has failed to prove his claim for damages for loss of business. In the circumstances this part of the claim must fail.

Damages for repairing motor vehicle

Mr Chimire counsel for the plaintiff in his closing submissions attempted to refer to documents that are in the buddle of documents but which were not evidential material before court. The fact that a document has been discovered and is in the buddle of documents does not make it an exhibit before court. For such a document to constitute evidence before court, it must be properly received as an exhibit. It can either be received by consent of the litigants or order of court. It was on this basis that I declined to consider documents in the bundle which have not been received as exhibits.

On the evidence I find that the accident was caused by the negligence of the second defendant. The plaintiff claims USD3000. 00 for the cost of repairing his vehicle. The vehicle was damaged on the left side, the chassis, the fender, the light and the radiator were damaged. In his evidence in chief the plaintiff testified that the repairs cost him USD300.00. In cross examination he said the amount of USD300.00 was a mistake. Apart from his ipse dixit there is no evidence of the repairs and the costs thereof. I take note that the amount of USD300 00 was not seriously contested.

The first plaintiff was not the driver of the Honda Fit vehicle. The driver was the second defendant. It is the second defendant who must be held liable for the cost of the repairs to the plaintiff’s vehicle.

Mr Dube in his closing submissions appeared to accept the amount of USD300.00. In the circumstances, I intend to award the plaintiff, as against the second defendant the sum of USD300.00 being damages for the cost of the repairs to his vehicle.

Costs

The general trend by our courts which have become trite is to award the costs to a successful party, save only in exceptional cases where a deviation from the general rule is allowed.  The present case does not fall within the ambit of those exceptions and I have no reason to deviate from the general rule.  In my view, as the plaintiff has partially been successful, there is no reason to deprive him of his costs as against the defendants.

In the result, I order as follows:

The first defendant to pay damages for malicious prosecution in the sum of USD500 or ZWL equivalent at the interbank rate as at the date of payment.

The second defendant to pay damages for the cost of repairing the plaintiff’s vehicle the sum of USD300 or ZWL equivalent at the interbank rate as at the date of payment.

The defendants to pay interest at 5% per annum from the date of judgment to the date of final payment.

The plaintiff’s claim for damages for pain and suffering be and is hereby dismissed.

The plaintiff’s claim for damages for loss of income be and is hereby dismissed.

The defendants to pay costs of suit.

Liberty Mcijo & Associates plaintiff’s legal practitioners

Ncube& Partners defendants’ legal practitioners