Joseph Mutsotso v Minister of Defence

### Preamble
1
HH 442-12
HC 1262/04
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JOSEPH MUTSOTSO

versus

MINISTER OF DEFENCE

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 20 November 2012 & 28 November 2012

Civil Trial

P. Maguchu, for the plaintiff

T.O.Dodo, for the defendant

MATHONSI J: On the night of 3 June 2003 at about 2100 hours the plaintiff had retired to bed with his beloved wife and 4 year old child at their rented lodgings being No. 6950A Western Triangle in Highfield Harare, a house he shared with another lodger, one Chipo Simango, when their house came under heavy attack. The plaintiff, then employed by Winfield Clothing Industries of Southerton as a tailor, was blissfully enjoying his sleep when the serenity and comfort of the night was abruptly and violently interrupted by heavy banging of the door and shouting.

Before the plaintiff could make out what was happening, 4 heavy blows, presumably from booted feet, landed on the door forcing it to disintegrate. In rushed about 9 men in camouflage-military fatigue similar to that used by members of the Zimbabwe National Army. Shouting at the top of their voices they demanded to know the whereabouts of the plaintiff. They were armed with baton sticks and one of them had a rifle.

The plaintiff’s wife went to meet them and, in attempt to protect the plaintiff, she told them he had gone to Marondera to attend to a sick sister. The group set upon the plaintiff’s wife viciously assaulting her. When the plaintiff, who had been hiding in the bedroom realised that his wife would be beaten to death, he jumped out announcing his presence. Whereupon the group rushed towards him, dragged him towards the door and started severely assaulting him all over the body using baton sticks.

The plaintiff says they all were dressed in the Zimbabwe National Army green camouflage uniform, barets and black boots. This incident occurred during a strike which had been organised by the Zimbabwe Congress of Trade Unions (ZCTU) and the Movement for Democratic Change (MDC) party which had been christened “the final push”. The assailants accused the plaintiff of trying to remove the government by unlawful means through “the final push”.

He says that when he tried to abscond, one of the assailants, who was armed with a rifle used it to strike him on both legs just under the knees sending him crushing to the ground. The 9 or so soldiers continued assaulting him as he lay helplessly on the ground. He screamed in vain for help but the attack continued. It lasted about 30 minutes and they only left him as they thought he was dead. He in fact had been beaten senseless and was left with no appreciation of what was happening.  He could not walk which made it impossible for him to proceed to the police station to make a report. His assailants did not identify themselves.

The following morning on 4 June 2003, he was ferried to the clinic by a friend of his by the name Maxwell Katsande.  The Daily News published a picture of the plaintiff taken when he was at the clinic which shows him with bruises all over the upper part of his body, cuts especially on the left shoulder, left arm and chest and he was spotting bandages on both forearms. The newspaper cutting was produced by consent as exh 2.

On 11 June 2003, the plaintiff was examined by Doctor Milos Coric of Medical Chambers 60 Baines Avenue, Harare who swore to an affidavit produced in court as exh 1. The doctor made the following observations:-

“Clinical and x-ray findings showed fractures of the left ulnar styloid (wrist) and left ring finger which required manipulation, painkillers and anti-inflammatory drugs, He was referred for occupational therapy. The injuries were consistent with trauma described. Number of Blows: Unknown.

In order to inflict these injuries SEVERE force would have been used. The possibility of permanent injury is likely at 6%”.

The plaintiff then instituted summons action against the defendant, as the

Minister under whose portfolio members of the national army fall, seeking damages for shock, pain and suffering in the sum of US$726,00, for contumelia in the sum of US$121-00, for loss of amenities for life in the sum of US$121-00, interest on all sums and costs of suit. He averred in his declaration that the soldiers who attacked him falsely accused him of wanting to remove a sitting government as they assaulted him aforesaid. The assault was wrongful and actionable in law. As a result of the assault he sustained injuries inter alia, 2 broken fingers, chest injuries, bruises, welts and swellings on the body.

The defendant opposed the action. In his plea he stated:-

“2.	Ad Paragraphs 3-9

The defendant herein has no knowledge of this and denies the same for the following reasons:-

2.1	During this period, there was the ZCTU and MDC Mass stay-aways and the planned march by the MDC to State House dubbed the “Final Push”.

2.2	Also during this period in question, there were some army deserters who were masquerading as Zimbabwe National Army members who went around assaulting and robbing civilians.

2.3	The defendant convened boards of inquiry to interview the plaintiff and the other claimants. However, the plaintiff did not show up and thus the authenticity of the claim cannot be ascertained.

WHEREFORE the defendant prays for the dismissal of the plaintiff’s claim with costs”.

At the pre-trial conference the parties identified the issues for trial as:-

Whether or not members of the Zimbabwe National Army assaulted the plaintiff.

Whether or not the plaintiff is entitled to the quantum of damages claimed or at all.

The plaintiff gave evidence in court which I have set out earlier in this

judgment. I have done that mainly because that story has not been challenged at all by the defendant. He stated that he identified his assailants as members of the Zimbabwe National Army by their attire, the green camouflage tunic, the barets they wore on their heads, the black boots and the rifle one of them was armed with. He was helped by a street tower light located nearby which shone the area. As far as he is concerned only army officers dress like his assailants.

During the assault he did not see any police officers among the assailants. After he was left for dead, he was never arrested or charged with any offence of trying to remove the government by unconstitutional means. He was only punished and the matter ended there. He did not receive any assistance from the state after the assault.

The plaintiff stated that after a while his employer discovered that he was no longer able to perform his duties because of the injuries and the fact that if he steps on the pedal of a sewing machine, he feels electricity shocks on his body. He lost employment and now relies for livelihood on his wife who is a vegetable vendor.

The plaintiff gave his evidence very well and was indeed an impressive witness. Most of his evidence was not contested by the defendant and I have no reason to disbelieve him. His evidence was corroborated by Chipo Simango, a 45 year old woman, who at the time was also a lodger at No 6950A Western Triangle, Highfields Harare. She testified that when the soldiers broke into the house they immediately dragged her outside the house and started assaulting her accusing her of being given money to topple the government. The same accusations were levelled against the plaintiff.

Simango stated that the assailants numbered about 10 and some 3 or so of them remained assaulting her when the rest went for the plaintiff and assaulted him as well. She heard the blows as they landed on the plaintiff and he cried out for help. She also identified the assailants as soldiers because of their uniforms and rifle carried by one of them.

Simango was also a good witness who gave her evidence well. I accept her evidence.

The defendant led evidence from Major Enoch Chivhima who joined the army in 1992. At the time of the events forming the subject of this litigation in June 2003, he held the rank of captain and was one of the soldiers assigned to assist the Zimbabwe Republic Police (ZRP) during the strike action referred to as “the final push”. He testified that as the army they are enjoined by the constitution of Zimbabwe to “use military aid to civilian powers”. Under that, they were requested by ZRP to assist quell any riots arising from the “final push”. This meant that the soldiers were placed on standby at their barracks waiting for the time when violence broke out at which they would assist the police.

During any such deployment the army would be led by the police and would only protect the police when quelling the violence. There was no way army officers would be deployed on their own without the police. Major Chivhima went on to say that members of the army were deployed in “sections” of 9 members which would have police details. However the need to go and assist the police did not arise and therefore the army generally remained at the barracks.

It was Major Chivhima’s evidence that it is not only members of the army who use the camouflage military fatigue. The police also use it when fighting violence although they do not use army barets. He denied that any soldiers were deployed in Highfield on 3 June 2003. He however stated that in terms of army operations, ZNA has full responsibility for the uniforms it issues out. It also has a responsibility, together with ZRP, to bring any defectors to book. For that reason military police are always on patrol looking for any elements using army uniforms improperly. He testified that some rogue soldiers at times steal army uniforms and some were arrested in Mbare.

I was not impressed by the testimony of Major Chivhima. He stated that they did receive the complaint of the plaintiff against the army and investigated it. However, they looked for him at Zimbabwe Lawyers For Human Rights (ZLHR) and when they did not find him they assumed that the complaint was baseless. It is not clear why they looked for the plaintiff at ZLHR when that firm did not represent him.

If indeed there were rogue soldiers and defectors roaming the streets and robbing civilian as claimed by the defendant, which the army did not account for and allowed them to continue their illegal activities, surely the army was failing the nation which it is sworn to protect.

If the only other group that uses army tunic is ZRP but it does not use army barets, how then can Major Chivhima deny that those who attacked the plaintiff, and were donning army barets, were members of the army.  Even when a formal complaint was made, the army chose to go on a goose chase looking for the plaintiff at the wrong place before promptly abandoning the investigation.

What we have here is a case in which the plaintiff was viciously assaulted by armed people putting on uniforms only used by the army. This happened at a time when members of the army had been deployed to assist the police quell potential violence. Such members of the army were operating in what the witness called “sections” of 9 members, about the same number of people that visited the plaintiff’s home and attacked him.

The evidence has shown that in addition to the army tunic the assailants were putting on, they also had barets which are the exclusive attire of the army. They acted with impunity noisily attacking civilians without any sign of fear of reprisals and got away with their unlawful activity. Although they accused the plaintiff of crime, absolutely nothing was done to prosecute the plaintiff suggesting that, using the cover of darkness those who perpetrated this attack, were merely punishing him extra- judicially.

The evidence also shows that at the same time army members were also frolicking among civilians robbing them with no firm action being taken against them. It is difficult to accept that these were defectors because if they were, the army would have been quick to neutralise them and bring them to book.

In answer to the first issue, whether members of the national army assaulted the plaintiff, I conclude that they did because, on a balance of probabilities, the evidence points to no other group.

Regarding the 2nd question whether the plaintiff is entitled to the quantum of damages claimed, I am of the view that he is entitled to far more than he has claimed. The plaintiff was subjected to a gang attack at night after he had retired to bed. The experience of having soldiers break into the house at that time of the night before attacking him the way they did must have been traumatic on its own, quite shocking indeed.

Added to that, he was assaulted in front of his wife and 4 years old child and suffered contumelia. He was left sprawling on the ground with severe injuries which have been shown to have led to permanent disability. He has now been forced out of work and relies on his wife for support. Those that assaulted him got away without the slightest of censure and their conduct was at variance with what is expected of our disciplined forces. What is shocking is that the plaintiff’s counsel settled for such small sums of money thereby trivialising the unlawful assault perpetrated on the plaintiff. Mr Siyakurima for the plaintiff did not advance any meaningful argument as to why they settled for the claim before the court. To his credit Mr Dodo for the defendant conceded that the claim by the plaintiff was on the low side and did not contest the quantum. That is as it should be.

As stated by GUBBAY CJ in Minister of Defence and Anor v Jackson 1990(2) ZLR(S) 7G-H and 8A-G:-

“It must be recognised that translating personal injuries into money is equating the incommensurable; money cannot replace a physical frame that has been permanently injured. The task therefore of assessing damages for personal injury is one of the most perplexing a court has to discharge. This notwithstanding, certain broad principles have been laid down which govern the obligation These are:

General damages are not a penalty but compensation. The award is designed to compensate the victim and not to punish the wrongdoer.

Compensation must be so assessed as to place the injured party, as far as possible, in the position he would have occupied if the wrongful act causing him the injury had not been committed. See Union Government v Warnecke 1911 AD 651 at 665.

Since no scales exist by which pain and suffering can be measured, the quantum of compensation to be awarded can only be determined by the broadest general considerations. See Sandler v  Wholesale Coal Suppliers Ltd 1941 AD 194 at 199

The court is entitled; and it has the duty, to heed the effect its decision may have upon the course of awards in the future. See Sigournay v Gillbanks 1960(2) SA 552(A) at 555 H.

The fall in the value of money is a factor which should be taken into account in terms of purchasing power ‘but not with such an adherence to mathematics as may lead to an unreasonable result’….

No regard is to be had to the subjective value of money to the injured person, for the award of damages for pain and suffering cannot depend upon, or vary, according to whether he be a millionaire or a pauper. See Radebe v Hough 1949(1) SA 380(A) at 386.

Awards must reflect the State of economic development and current economic conditions of the country. ……

For that reason, reference to awards made by the English and South African Courts may be an inappropriate guide, since conditions in those jurisdictions, both political and economic, are different.

The formulation of further principles in the assessment of damages for personal injury is no easy matter. Overall what is to be sought is a compensation which is fair in the eyes of society”.

Surely the small amounts claimed by the plaintiff given the purchasing power of the currency currently in use in Zimbabwe, cannot possibly compensate the plaintiff adequately for his injuries.

Unfortunately, I can only award the plaintiff what he has claimed as my hands are tied by what is contained in the pleadings. I am of the view that indeed the plaintiff has succeeded in proving damages for shock, pain and suffering, contumelia and loss of amenities for life against the defendant under whose jurisdiction the army falls. He is therefore liable for the delicts committed during deployment.

Accordingly it is ordered that:-

Judgment be and is hereby entered in favour of the plaintiff against the defendant in the following sums;

US$726-00 for shock, pain and suffering.

US$ 121-00 for contumelia

US$ 121-00 for loss of amenities for life.

Interest on all sums at the prescribed rate from 30 January 2004, which is the date of issue of summons, to date of payment.

Costs of suit.

Zimbabwe Human Rights NGO Forum, plaintiffs’ legal practitioners

Civil Division of the Attorney General’s Office, defendant’s legal practitioners