Anodya Karongwe v Shepherd Hoboya and Minister of Home Affairs

### Preamble
1
HH 487 - 25
Case No HC 704/19
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ANODYA KARONGWE

versus

SHEPHERD HOBOYA

and

MINISTER OF HOME AFFAIRS

HIGH COURT OF ZIMBABWE

MUSITHU J

HARARE: 3, 4, 27 March & 23 May 2025 & 2 September 2025

Civil Trial- Damages for physical injuries caused by assault

Mr T.M. Zenda, for the plaintiff

Ms N.L. Mabasa, for the defendants

MUSITHU J:    The plaintiff approached the court seeking delictual damages in the sum of ZW$50,000.00 against the first and second defendants jointly and severally, one paying the other to be absolved. As part of the claim, the plaintiff also sought interest on the capital amount plus costs of suit on the legal practitioner and client scale. According to the plaintiff’s papers, the genesis of the claim was that on 12 September 2018 at Kanyemba, Guruve, the first defendant, while acting in the course and scope of his employment with the second defendant, arrested the plaintiff on allegations of assault. In the course of arresting the plaintiff, the first defendant is alleged to have assaulted the plaintiff using an iron bar. He is also alleged to have poured cold water all over the plaintiff’s body.

The plaintiff claimed that the assault took place at Kanyemba Police Station, in the Charge Office, as well as the police holding cells. The plaintiff also claimed that the assault was carried out in full view of members of the public. As a result of the assault, the plaintiff had to undergo medical treatment. He was hospitalised and discharged in a wheelchair as he could no longer walk. The plaintiff’s claim was broken down as follows:

Medical expenses				ZW$1,000.00

Estimated future medical expenses	ZW$10, 000.00

Pain and suffering				ZW$30,000.00

Contumelia				ZW$9,000.00

By way of a notice of amendment issued and filed on 3 March 2025, all the above amounts were converted to the United States dollar currency, with the consent of the defendants’ counsel.

In their plea, the defendants denied the alleged assault on the plaintiff. They averred that the plaintiff was arrested after it was reported that he had stabbed his sister in law, Susan Mhetera on the head with a spear. A team of police officers who included the first defendant attended the crime scene and arrested the plaintiff. The plaintiff was detained and released the following day after Susan Mhetera declined to press charges against him.

The Issues

The matter was referred to trial on the following agreed issues:

Whether or not the plaintiff 1st defendant assaulted the plaintiff with an iron bar?

Whether or not the plaintiff suffered physical injury from the assault?

Whether or not the 2nd defendant is vicariously liable for the delicts committed by the first defendant?

Whether or not the defendants are liable to compensate the plaintiff damages as claimed by the plaintiff in his summons?

Quantum of damages.

The Plaintiff’s Case

The plaintiff gave evidence as follows. He was assaulted by the first defendant after someone lied to the police that he had assaulted his sister in law, Susan Mhetera, with a spear on the head. The plaintiff claimed that the first defendant, who was in the company of members of the neighbourhood watch committee came and took him away from his residence. They were holding button sticks. He was assaulted on the hands, buttocks and on his head such that he could no longer hear properly. At the time he was taken away from his homestead, no one told him why he was being arrested. They took him to the police station where he was detained for two days. On the third day he was again assaulted on the legs and the buttocks with metal pipes.

The assault was carried out by the first defendant who asked him to lie on the ground facing downwards. He tried to resist but he was pinned to the ground. The other officers also tried to restrain the first defendant but to no avail. He insisted that he was merely doing his job. The assault was carried out in the presence of some people from Zambia who were attending a funeral in Zimbabwe. There were about six women and five men. The plaintiff was released on the third day after the first defendant’s companion warned him that the plaintiff would die of hunger and thirsty if he was not released. Nothing was said of the allegations and neither did the police take fingerprints or record a statement from him. The alleged complainant never came to the police station.

After his release, the plaintiff went to his son’s place in Muzarabani and thereafter he was taken to St Alberts Mission Hospital for treatment. At the hospital he saw a medical doctor who diagnosed a swollen left lower limb and inability to mobilise. The X-Rays carried out showed left hip joint neck of femur fracture and left proximal tibial fracture. The doctor also noted that the plaintiff could not mobilise on his own and was in severe pain. He was being managed on pain medication and traction to help alleviate the pain. The plaintiff urgently needed specialist assessment and treatment from orthopaedic surgeons.

A medical report prepared by a Doctor Admire Chigora revealed that the injuries sustained by the plaintiff were likely caused by a blunt object, and the degree of force used to inflict the injuries was very serious. The report also noted that without proper medical management in the form of open reduction and internal fixation, the patient would never be able to walk again. The plaintiff was not able to visit an orthopaedic surgeon because of lack of funds. His son sold two beasts to assist him with some of the medical bills. Although he was still experiencing severe pain, he was no longer visiting doctors because of lack of funds.

Under cross examination, the plaintiff stated that he was arrested on 12 September 2018. He admitted that he was arrested for the attempted murder of Susan Mhetera. He also stated that he was arrested by three police officers and four members of the neighbourhood. The plaintiff was asked to comment on the discrepancy in his version of events where in para 6 of his declaration he stated that he was assaulted in the charge office as well as the holding cells at Kanyemba Police Station, while in his evidence in chief he stated that he was also assaulted at his homestead. The plaintiff could not explain the discrepancy.

The plaintiff denied that at the time of his arrest, the police found him sleeping under a tree with a small axe. He averred that the police actually found him seated at his homestead just after he had returned from the fields to collect fresh maize mealies together with Susan Mhetera. The plaintiff also stated that upon his arrest, the police drove them to the clinic together with Susan Mhetera to have her injury treated. The nurses at the clinic confirmed that she had not been stabbed as alleged.

The plaintiff confirmed that prior to his arrest, there was no bad blood between him and the police. The plaintiff denied the averments made by the driver of the police vehicle, one James Maplan that at the time of his arrest, he had difficulties walking because he was experiencing pain in the legs and his back. He averred that he was thrown into the car like a bag of maize. The plaintiff also denied that at the time of his arrest, he had been assaulted by members of the public. Asked to explain the delay between the day of his alleged assault on 12 September 2018 and the time that he sought medical help as confirmed by the medical report by Dr Admire Chigora dated 11 October 2018, the witness stated that he waited until his son noticed that his legs were swelling. The plaintiff could not explain under cross examination why the letter of 30 October 2018, addressed to whom it may concern was written.

The plaintiff conceded under cross examination that he had not produced any proof of medical expenses incurred insisting that these were attached to his medical card which was not part of his pleadings. When asked to justify the claim for future medical expenses, the plaintiff stated that he needed to buy food since there was hunger and he was not working. He also needed to buy medication as well as seek further medical treatment.  There was no proof of the cost of the future medical expenses to be incurred.

The Defendants’ Case

The first defendant gave evidence as follows. On 15 August 2018, the Officer in Charge (OIC) of Kanyemba Police Station received any anonymous call advising that the plaintiff was drunk and violent. The police were also advised that the plaintiff had committed an attempted murder as he almost killed a woman with a spear. The OIC assigned seven officers to go and arrest the plaintiff. On arrival at the alleged scene the officers found the plaintiff sleeping under a tree with an axe by his side. The officers took away the axe and woke him up. The plaintiff looked drunk, and he had difficulties in walking, and they assumed that it was partly because of old age.

The police started to look for the person with a spear wound, and they found her along the river bed running away from the complainant. She was bleeding with an open wound across her skull. She told the police officers that the plaintiff had thrown a spear at her. The spear used in the attack was not recovered. The first defendant did not interview Susan concerning the circumstances of the assault as there was a senior officer who was in charge of the operation.

The officers brought Susan to the plaintiff’s homestead where the plaintiff was. Thereafter they took her to the clinic where she received medical attention. They asked her to accompany them to the police station to lay charges against the plaintiff but she refused. They took the plaintiff to the police station and left him by the charge office. The plaintiff was kept overnight in police cells, and was cautioned and released by the OIC the following day. He was ferried in Maplans vehicle, which was also carrying mourners from Zambia to Zimbabwe. The OIC is the one who assigned Maplan to ferry him. The first defendant was not around when the plaintiff was released.

The first defendant denied that he assaulted the plaintiff at the time of his arrested or even thereafter. His role was simply to take away the axe that was next to the plaintiff. A Constable Zuze was the one who woke the plaintiff up and handcuffed him. According to the first defendant, the plaintiff made two different complaints against him. One such complaint was made against the first defendant, Constable Gobvu and Constable Maplan. The three were arraigned before a police disciplinary hearing. During the hearing, the plaintiff changed course and stated that he was assaulted by the plaintiff alone. They were all found not guilty and acquitted. The plaintiff also made a criminal complaint of assault against the first defendant after the disciplinary proceedings, but he was found not guilty and acquitted by the Guruve Magistrates Court after a full trial.

The first defendant also averred that the plaintiff knew the reason for his arrest as the police told him at the time of his arrest. He also insisted that Susan Mhetera was actually stabbed in the forehead area and that was the reason why they took her to the clinic for medical treatment. The first defendant denied the plaintiff’s version that Susan was never injured, insisting that she actually received medical treatment on her wound at Chapoto Clinic. The police officers were present at the clinic but waiting outside when Susan was treated. The plaintiff was in the vehicle. The officers left Susan at the clinic while they took the plaintiff to the police station. It was at the clinic that Susan declined to press charges against the plaintiff. At the station, it was the senior officer who handed over the plaintiff to the OIC. The first defendant did not know who took the plaintiff to the holding cells as they left him in the OIC’s office.

Plaintiff’s Closing Submissions

In his closing submissions, the plaintiff submitted that he had proved on a balance of probabilities that he was assaulted by the first defendant and consequently sustained very serious injuries. He was therefore entitled to damages that flowed from the first defendant’s wrongful conduct. The claim for medical expenses in the sum of US$1,000.00 was justified on the basis that he attended some medical institutions and expended those amounts. The plaintiff did not keep the requisite receipts because of ignorance, inability and old age. The plaintiff was portrayed as a reliable witness such that the court had to believe his testimony.

The estimated amount of US$10,000.00 in respect of future medical expenses was justified on the basis that plaintiff needed to make follow up visits, surgeries, physical therapy, medication and other rehabilitation services. While admitting that these expenses were often claimed and supported by expert medical testimony, it was averred that the plaintiff produced oral evidence in which he stated that he needed to travel to Zambia for specialist treatment.

The amount of US$30,000.00 in respect of pain and suffering was justified on the basis the plaintiff endured pain and suffering because of the injuries inflicted by the defendant. It was also averred that the plaintiff placed before the court, medical evidence which showed the seriousness of the injuries.

The amount of US$9,000.00 in respect of contumelia was justified on the basis that the assault was carried out in front of members of the public in a humiliating and degrading manner.

Defendants’ Closing Submissions

Ms Mabasa submitted that the issue of the defendants’ liability did not arise at all because of the discrepancies in the plaintiff’s testimony. While in the declaration the plaintiff claimed that it was the first defendant who arrested him, he conceded under cross examination that it was Tobias Zuze, a member of the Neighbourhood Watch Committee who arrested him. The plaintiff appeared not to know the person who arrested him.

It was also submitted that the plaintiff was likely to have been assaulted by members of the public prior to his arrest since he was reported to have been violent. This probably explained why he was found asleep under a tree and had difficulties in walking. The fact that he was limping at the time of his arrest was not challenged by the plaintiff.

It was further submitted on behalf of the defendant that his innocence was also confirmed by the fact this was not the first time that the plaintiff had taken the first defendant to court. The first defendant had been arraigned before the Guruve Magistrates Court on allegations of assault, but he was cleared of any wrongdoing. The Police had also instituted their own internal disciplinary proceedings which absolved the first defendant of any wrongdoing.

It was further submitted that the plaintiff’s condition worsened because he did not seek urgent medical attention as had been directed by the medical doctors who examined him. He could have sought such help from government medical facilities for no fee.

Assuming it was established that the defendants were liable, the court was still urged to dismiss the claim because the defendant had failed to prove his claims.

The Analysis

As already noted, the matter was referred to trial on the basis of five issues. I now turn to interrogate these issues in my analysis of the evidence.

Whether or not the first defendant assaulted the plaintiff with an iron bar.

The plaintiff’s claim is without doubt founded on the Aquilian action. For a party to succeed in establishing liability under the Aquilian action, they must demonstrate the following:

Patrimonial loss in the form of financial loss or physical injury;

Wrongful act or omission;

Fault which can be through intentional infliction of harm or negligence;

Causal link between the defendant’s conduct and the loss.

The defendant’s liability is only proved if all of the above elements are found to exist in the plaintiff’s claim. The liability for damages and the quantum thereof will only arise in the event that the above elements are found to exist.

It was the plaintiff’s case that the he suffered life threatening injuries as a result of the assault carried out on him by the first defendant upon his arrest. It is not in dispute that the plaintiff sustained some injuries which were confirmed by the report from the doctor who examined him at St Alberts Mission Hospital. However, for the plaintiff’s claim to succeed, he was required to place before the court, evidence which clearly showed that:

He was assaulted by the first defendant:

The assault was the proximate cause of the injuries that he sustained in respect of which he sought damages under the various heads;

That in committing the delict, the first defendant was acting within the course and scope of his employment with the second defendant.

The liability of the second defendant would be conditional upon the court making a finding that the first defendant indeed assaulted the plaintiff leading to the injuries that he sustained. The evidence placed before the court did not conclusively point to the first defendant as having committed an assault on the plaintiff. In the declaration, the plaintiff claimed that the assault took place in the charge office at Kanyemba Police Station. It was only in his evidence in chief that the plaintiff also claimed to have been assaulted at his homestead upon his arrest. Under cross examination, the plaintiff could not explain the discrepancy in his version of events. The first defendant refuted the assault allegations in their entirety, insisting that at the time he was arrested, the plaintiff was having difficulties in walking.

Both parties did not call any further witnesses in order to corroborate their respective version of events. It became the plaintiff’s word against that of the first defendant. For a claim to succeed under such circumstances, the plaintiff as the dominus litis, and the party with real control and interest in the outcome of his claim, must have gone a step further and placed before the court such evidence which left little doubt in the mind of the court that he was indeed assaulted by the first defendant. The plaintiff claimed that the assault was carried out in the full view of the public, mainly some mourners who were enroute to Zimbabwe from Zambia to attend a funeral. None of the members of the public who allegedly witnessed the assault was invited to testify.

Further, while the medical affidavit by Dr Admire Chigora stated that the injuries suffered by the plaintiff were caused by a blunt object and that the degree of force used in inflicting them was very serious, still the report was inconclusive to the extent that it did not state whether such injuries may have been a result of an assault in the mould described by the plaintiff, and the number of blows that may have been thrust. Further, the report was not clear on how old those injuries were so as to attribute them to the alleged assault by the first defendant. None of the doctors who generated the affidavit and the letter addressed to “whom it may concern” was called to testify and help clarify the medical findings.

What further compounds the uncertainties afflicting the plaintiff’s claim is that following his arrest and the alleged assault, the plaintiff made a complaint of assault against the first defendant and his other two colleagues. A police disciplinary enquiry was instituted against the three and they were all cleared. In addition, the plaintiff further escalated his grievance to a criminal complaint which saw the first defendant being arraigned before the Guruve Magistrates Court on assault charges. He was found not guilty and acquitted.

Although the outcome of these two separate processes does not impinge upon an objective determination of the present dispute, the court cannot lightly dismiss the outcome of those processes. The fact that the complaints arose from the same incident, persuades the court to conclude that they were probably unsuccessful because of the same evidentiary deficiencies that afflicted the plaintiff’s claim in the present matter.

The court concludes that the plaintiff failed to discharge the onus reposed upon him to prove on a balance of probabilities that he was assaulted by the first defendant and as a result of that assault, that he suffered injuries that founds his claim herein.

Whether or not the plaintiff suffered physical injury from the assault

This issue is related to the first. It is not in dispute that the plaintiff suffered some injuries. How he suffered those injuries is what is not clear. On the evidence before the court, there is nothing to connect the first defendant to those injuries. In the absence of evidence of the alleged assault on the plaintiff by the first defendant, this court cannot hold the first defendant responsible for the injuries sustained by the plaintiff. This court cannot merely on the basis of conjecture, impute those injuries to an assault allegedly committed by the first defendant, when there is no evidence of such an assault. Further, as observed in the analysis of the first issue, the medical evidence placed before the court was inconclusive as to whether the injuries were inflicted through an assault, and whether they would have been inflicted at the same time that the plaintiff claimed to have been assaulted by the first defendant.

There were so many unplugged holes in the plaintiff’s case that made his task of satisfying the requirements of the Aquilian action all the more formidable. His case fell on the first rung. He failed to establish the existence of wrongful or unlawful conduct on the part of the first defendant which caused him some damage and the consequential loss. Delictual claims that are brought under the Aquilian action are no stroll in the park. They require meticulousness and diligency in the identification of the cause of action, putting together the evidence and thoroughness in the preparation of the pleadings. Most of the claims as in casu, require the production of medical evidence through the relevant experts, given that such claims are by their nature sui generis. The decision of the court is at the end of the day, heavily influenced by medical evidence.

Having determined that the plaintiff failed to prove wrongful or unlawful conduct on the part of the first defendant, and by extension that the injuries that he suffered were caused by the first defendant, it becomes unnecessary for the court to traverse and determine the remaining three issues. This is because their determination was conditional upon the court making a finding that the defendant’s conduct was the proximate cause of the damages suffered by the plaintiff.

Costs of suit

The general rule is that a successful party is entitled to costs of suit at a scale determined by the way litigation was handled and the manner in which the parties conducted themselves.  The plaintiff is clearly a man in distress. He is advanced in age and evidently in pain. He was driven by the quest to attain justice by all means, but his endeavours fell short of what is required in claims of this nature. His claim would probably have been successful had it been approached differently, and with the meticulousness that must precede its launch. I find it fitting to order that each party bears its own costs of suit.

Resultantly, it is ordered that:

The plaintiff’s claim is hereby dismissed for lack of merit.

Each party shall bear its own costs of suit.

Musithu J: ………………………………………………….

Hungwe & Partners, legal practitioners for the plaintiff

Civil Division of the Attorney General’s Office, legal practitioners for the first and second defendants