Nyasha Gutsire v Mathew Makanyanga and Nicholas Matsivira

### Preamble
1
HH 290-11
HC 1302/09
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NYASHA  GUTSIRE

versus

MATHEW  MAKANYANGA

and

NICHOLAS  MATSIVIRA

HIGH  COURT  OF  ZIMBABWE

KARWI J

Harare, 24 January, 2011 and 30 October, 2011

CIVIL TRIAL

Ms Magundani, for plaintiff

N Phiri, for defendants

KARWI J:  The plaintiff’s claim is for payment to him by the defendants of the sum of $3 000-00 being damages for shock, pain and suffering, contumelia and unlawful detention suffered by the plaintiff at the hands of the defendants who are alleged to have been acting in concert with each other. The defendants were sued in their personal capacities. The plaintiff also claimed interest on the said sum of money at the prescribed rate from the date of summons to the date of full and final settlement, and cost of suit.

The suit followed the events which took place on 22 June 2008 at around 8.00 pm when the plaintiff boarded a lorry on his way to a funeral. The plaintiff found the defendants on board the lorry. The defendants started asking for his political affiliation. After refusing to disclose his political affiliation, the defendants started accusing him of being a member of the MDC party. They ordered the lorry driver to divert his route and headed to the defendants political base whereat the plaintiff was assaulted.

The plaintiff gave evidence. He said that on the 22 June 2008 at about 8.00 pm he boarded a lorry that was loaded with potatoes en route to Mutare.  He was on his way to attend his father-in-law’s funeral. On board the back of the lorry the plaintiff found the defendants together with eight to ten other people who were wearing the Zanu PF regalia. This was a few days before the presidential run off elections held on 28 June 2008. After traveling for a few kilometers, the second defendant (Matsivire) asked the plaintiff to identify himself and the political party he supported. After identifying himself the plaintiff told Matsivire that he was not into politics and had no political affiliation. The witness said that on the way he narrated an assault on Zanu PF members at Nyamaropa to Matsivire which had taken place a few weeks before. It was after the narration that the defendants started accusing him of supporting the Movement for Democratic Change (MDC) Party and for being one of the people who had assaulted the Zanu PF supporters in Nyamaropa. The witness said he was shocked to find out that he was in trouble when the first defendant (Makanyanga) disembarked from the lorry on arrival at a shopping centre called Boore and talked to the driver. When the lorry got to the witness’s destination, some 800 meters from Boore, it did not stop despite his efforts to stop the driver. The driver kept on driving and ignored his pleas to stop. The plaintiff said he attempted to jump off the moving vehicle, but was held back by the belt of his trousers but Matsivire who told him that he was under arrest and was taking him away with them. The plaintiff tried to explain but the defendants could not listen. At that juncture Makanyanga joined in and also held him by the belt. Both defendants moved their positions and sat on either side of him. Makanyanga said the plaintiff was not supposed to be worried as they were taking him to an undisclosed place where they promised he would be brought back in the same lorry.

On arrival at Charamba Business Centre, he requested to relieve himself. He was allowed to disembark from the lorry. The two defendants kept on holding him. They were joined by a young man who also held him. He managed to relieve himself behind the shops while under guard by the defendants together with the young man. The lorry proceeded with the journey up to a place called Nyatondo. While on board the lorry, with Makanyanga holding him by his waist belt, Matsivire searched his pockets and removed a catapult from one of his trousers. When witness asked for his catapult, he was slapped on the face once by Matsivire. The witness said Matsivire used a lot of force to assault him. Makanyanga was encouraging Matsivire in his actions.

They eventually took him to Nyanga Community Hall where there was a group of Zanu PF members who were having a night virgil there. The group was singing revolutionary songs and there were some people who were being assaulted at the gathering. This was at Nyamhuka Community Hall in Nyanga. The group was gathered around a huge fire. The witness said that upon disembarking from the lorry he heard Matsivire saying that the gang was present. He was handed over to some men to whom Matsivire reported that the plaintiff had been denouncing the President of Zimbabwe and that he was one of the people who had assaulted members of the party at Nyamaropa. The plaintiff said that this was during the campaign for presidential run off to be held on 27 June 2008. He added that the political situation in the area was most difficult. He said people were being heavily intimidated and taken away from their homes to attend political meetings and rallies and night meetings at what was termed as bases. He said the place he was taken to was one of the Zanu PF bases. He arrived there at around 11 pm. He said there were around 35 people at the base. They were singing Zanu PF revolutionary songs and appeared rowdy. They were all gathered around a fire outside the hall and chanting Zanu PF slogans praising their party and denouncing the MDC party.

After being introduced to the gang by the two defendants the witness was assaulted by a man whom he did not know. He was eventually taken to the base. The gang removed his shoes and made him to lie down on his stomach. He was assaulted with a wooden log by a man who was part of the group which was at the political base. He was assaulted five times under his feet with the log. The log was about a meter long and measured about six to seven centimeters in diameter. The man who assaulted him used severe force to assault him and was aggressive. The witness said he was assaulted twice on his buttocks with the same log. He was also kicked once in the eye with a booted foot by another man. The witness said as a result of the assault he suffered a lot of pain. Some of his toes were broken. He could not see properly with the eye which was kicked. He was forced to sit very close to a huge open fire. The assailants searched his bag after breaking its zip and scattered his clothes around. When he felt the severe heat from the open fire, he took his empty bag and sheltered himself from the excessive heat. When the assailants saw him shelter himself from the heat, they removed the bag and took it away. He felt very hot, sweated and got burnt.

The plaintiff was allowed to leave the base at around six in the morning and he went to Nyanga General Hospital for medical attention. He had to limp all the way to the hospital as some of his toes had been broken and his feet were sore. He was later taken by his brother-in-law to Harare where he was attended to by a Doctor Coric. Doctor Coric compiled a report of his injuries which was produced in court as evidence. According to the report, the plaintiff suffered a fracture of the fifth metatarsal bone in the right foot. The doctor was of the opinion that the injuries had been caused by multiple blows using severe force. The plaintiff said he was put in plaster of paris for one and a half months. At the time of the trial, the witness was not fully healed. He said he no longer could walk as he used to. He suffered pain most of the time. He could no longer wear shoes. He was limping. He used to play soccer but is now unable to do so. He said he incurred expenses being the doctor’s fees and drugs all totaling Z$97 billion.

In answer to questions in cross examination, the witness said that the two defendants were acting in common purpose of each other and of the gang to which they surrendered him. The plaintiff said that there was no doubt in his mind that the two defendants knew each other and also that they were known to the gang, part of which eventually assaulted him. He said that the whole group belonged to the Zanu PF party.

The two defendants gave evidence in their defence. First to give evidence was Makanyanga. He said he resided in the Nyanga Area and was a peasant farmer. He told the court that he was a member of the Zanu PF party and at the time of the incident complained of,  he was the chairman of Ward Thirty two and was the Secretary for Lands and Rural Resettlement in the Nyanga Disrict Committee of his party. He told the court that on the day in question he boarded a lorry which took him to attend a workshop for polling agents at Nyamhunga Primary School for the Presidential run off elections. He was in the company of Matsivire who is chairman of the youth in the Zanu PF in the area and also a member of the neighborhood watch committee and some nine other people who were on board the lorry. The witness said that while on board the lorry on their journey, Matsivire pretended to people that he was a member of the MDC in order to entice the plaintiff in disclosing his true political identity. The witness said that as a result, the plaintiff became free and started to talk about the assault of Zanu PF members by MDC members which had taken place at Nyamaropa. The plaintiff told them that he was one of the MDC members who had assaulted people at Nyamaropa. The witness said that’s when they realized that they had one of the culprits they had been looking for. The witness and Matsivire decided to arrest the plaintiff and to take him to the police at Nyanga. They made a decision not to drop him at his destination. The witness denied ever holding the plaintiff hostage but said that he was being held by Matsivire who was the Chairman and Commander of the Youth League.

The witness said that on arrival at Nyamhuka Growth Point, the lorry parked at Makinike Bar and every body disembarked. Matsivire was still holding on the plaintiff. The witness said two men who were unknown to him disembarked from a Mitsubishi truck and asked everybody to gather around. The two men asked where the people who had come on the lorry where they were coming from and demanded to see their identity documents. The witness said he and Matsivire were spared from the need to produce their identity documents. The witness said Matsivire reported to the two men that they had brought the plaintiff who was one of the people who had assaulted Zanu PF members in Nyamaropa. Matsivire then handed the plaintiff over to the two men who took him away. The two defendants then left for their party’s polling agents meeting at Nyamhuka Primary School. The witness added that he had earlier seen one of the two men at a Zanu PF meeting he had attended. The men used to drive an unmarked vehicle similar to those used by members of the Central Intelligence Organisation (CIO) and was used to patrolling the area. He said they could not ask any questions of the two men as they were afraid of the members of the CIO. He never saw plaintiff again after leaving him in the hands of the two men. The witness said that he was saddened to hear that the plaintiff was one of the people who had assaulted members of his party. He therefore supported the arrest and surrender of plaintiff.

Makanyanga’s evidence was truthful in most respects except his narration of events regarding allegations of assault by the plaintiff and his association with Matsivire and the group of people to whom they surrendered the plaintiff. It seems to me that Makanyanga down played his role in the manner in which the plaintiff was abducted in the lorry up to the time the defendants surrendered him to their colleagues at the base in Nyanga. It seems to me that the defendants clearly took the plaintiff into their custody by force and took him to their party members gathered at a base where they knew that the plaintiff was to be assaulted. Although there was no allegation of any assault on the plaintiff by Makanyanga, this defendant closely associated himself with the abduction and assault of the plaintiff to an extent that he could be regarded as a socio criminis. By making sure that plaintiff was arrested and kept under constant guard and eventually surrendered to people who assaulted him, Makanyanga shared the common design of Matsivire and the Zanu PF members who assaulted him. He cannot escape liability for the assault of the plaintiff in such circumstances.

Matsivire also gave evidence. He said that he was a peasant farmer who resided under Chief Saunyama in Nyanga District. He is the youth district chairman of Zanu PF in the Nyanga Disrict. He is also a member of the Neighbourhood Watch Committee. On 22 June 2008, he travelled to Nyanga on a lorry for his party’s polling agents meeting. He boarded the lorry around 7.00 in the evening in the company of Makanyanga and others. The plaintiff jumped onto the same vehicle on the way. While on the way, and on board the lorry, he started talking to himself denouncing the Zanu PF party. He said he did this because he was looking for people who had assaulted his party members at Nyamaropa. He pretended to be a member of the MDC party so that he could get members of that party whom he alleged had assaulted people. The witness told the court that following this, the plaintiff came out and told them that he was one of the people who had assaulted Zanu PF members at Nyamaropa. The witness said that when he heard this he felt very happy because he had finally got the person who had confessed to the assault. As a result he stood up from where he was seated and went to the plaintiff and effected a citizen’ s arrest and held him by the belt of his trousers. The witness and Makanyanga then decided to take the plaintiff to Nyanga and ignored the plaintiff’s pleas to disembark when the lorry got to his destination. He said Makanyanga shouted to the lorry driver not to stop at the plaintiff’s destination. The witness stressed that at all material times he was under Makanyanga’s command, as his chairman of the district. The witness told the court of the incident at Charamba Business Centre where he was requested by the plaintiff to relieve himself. The witness said he allowed the plaintiff to relieve himself behind some building which was under construction while he was continuously under his custody.

The witness said that immediately after arriving at Nyanhuka Business Centre, an unmarked vehicle also parked next to their lorry and two men emerged from it. He disembarked from the lorry together with the plaintiff and Makanyanga. He said he suspected the two men to be members of the CIO because their vehicle had no number plates and he used to see the men at their Zanu PF meetings where the two men were never introduced. Upon disembarking from the lorry, the two men asked for identity details from the rest of the people who had been on the lorry except him and Makanyanga. The witness said that he told the two men that the plaintiff was one of the people who had assaulted people at Nyamaropa. The two men appeared happy and said it was their job and wanted the plaintiff to be handed over to them. They said they would thereafter hand over the plaintiff to the police. The witness said the two men did not ask for his identity. The two men took over the plaintiff and led him away. The witness said that was the last time he saw the plaintiff as he proceeded to his meeting at Nyamhuka Primary School.

It was clear from Matsivire’s evidence that there was a lot of political violence taking place during the time of this incident in the area of Nyanga. This was a few days before the Presidential run off elections. It was common cause from the evidence of the witnesses that there was a lot of violence especially between members of the MDC and Zanu PF parties. The court got the impression from Matsivire’s evidence that he was a young man who thought subjecting members of the opposition to the type of treatment mete out the plaintiff was permissible. He was not shy to boast that he could do the same thing again. He impressed as a staunch supporter of his party who thought it was his duty to ill treat members of the opposition the way he did. Just like in the case of his chairman, the first defendant, he clearly took a leading role in the abduction and subsequent assault of the plaintiff by members of their party at their political base. I find that the two defendants acted in common purpose in the manner in which they ill treated the plaintiff. It is also clear that they both agreed to take the plaintiff to a Zanu PF base at Nyamhuka Business Centre. Although he denied it, there is no doubt that it is true that on arrival at Nyamhuka, Matsivire remarked that the gang was present, a clear indication that he was referring to the people at the base to whom he surrendered the plaintiff. Both the defendants planned to take the plaintiff to the base where they knew the gang would assault him. Although they themselves did not assault him at the base, they intended the result. They shared that common design with the individual who assaulted the plaintiff. It was like leading a cow to slaughter in circumstances where one does not slaughter but the slaughter is done by another. In Mapuranga v Mungate, 1997 (1) ZLR 64 [H] MALABA J (as he then was) held that although the doctrine of common purpose, applicable in criminal cases, has not been accepted in civil matters, a defendant will be liable for a delict committed by another where he has by his acts created the situation leading to the delict. It is my considered view that the defendants handed the plaintiff to the assailant who assaulted him well knowing that that was what was to happen. Such defendants in my view should be held equally liable for the assault as did the assailant himself. The defendants were of the same political affiliation as the assailant at the base. The defendants did not need to be introduced to the two men who met them on arrival at Nyamhuka. They knew each other. The two defendants did not accidentally end up at the base, but they went to it. They knew where it was and the gang which manned it. The assault that followed was most brutal and unprovoked. Such conduct was wrongful and unlawful. I have no hesitation in finding the defendants liable for the claim raised by the plaintiff.

The plaintiff produced a medical report detailing the nature and extent of the injuries he sustained following the assault. The report showed that the plaintiff suffered a fracture of the fifth metatarsal bone in the right foot. The doctor who examined him observed that the injury was inflicted through multiple blows and that severe force was used. The plaintiff also suffered an injury in his eye after he was kicked with a booted foot. He was also forced to sit very close to an open fire and got burnt in the process. These injuries were not disputed and the court accepts them as proved.

The plaintiff’s claim is for $1500-00 for shock, pain and suffering. Neethling, Potgieter & Visser, Law of Delict 3rd Ed , Butterwoths at pp 253 to 254 outline four aspects that are relevant in the quantification of damages in a case of non patrimonial loss. Firstly, the quantum of damages for pain and suffering must bear relation to the extent of the loss suffered. The amount of money awarded should be in direct proportion to the extent of the loss. The extent of the physical and mental harm may usually be equal to the product of the intensity or affective impairment of feelings, and the nature and duration thereof. See Radebe v Hough 1949 (1) SA 380. In addition to the extent of the loss, the object of an award in a particular case is also of importance, for example, the fact that the damages are to counterbalance the unhappiness caused to the plaintiff, or that they must provide satisfaction to the injustice caused to him. A further consideration is fairness and conservatism. The court must take all relevant circumstances into account which discloses the extent of the injury to personality and it must ignore the irrelevant factors such as undue sympathy towards the plaintiff. It should also be noted that the inquiry is a subjective one, that is, the pain and suffering actually undergone by the plaintiff as an individual. The fact that he is more sensitive to pain than the average person does not disentitle him from claiming damages for the full amount of his suffering. It is the physical and mental make up of the individual plaintiff which must be considered in assessing his pain and suffering. Another important consideration in the quantification process is the consideration of previous awards in comparable cases.

The plaintiff also claimed $1000-00 for unlawful arrest and $500-00 for contumelia. It is apparent from the defendants’s evidence that they were of the view that they had arrested the plaintiff for assaulting members of their party. The general principle which is derived from case law is that a person is under arrest as soon as there is an assumption of control over his movements. In Masawi v Chabata & Anor, 1991 (1) ZLR 148 at 154 it was held:

“Shorn of technical trimmings a lawful arrest is constituted by ….verbally

and if necessary physically subjecting a person to his control. The

Element of control is decisive.”

It is evident that indeed by abducting him in the manner they did, the defendants had indeed arrested the plaintiff. The question which needs to be answered is whether that arrest was lawful or not. According to s 30 of the Criminal Procedure and Evidence Act, “any private person may without warrant arrest any other person upon reasonable suspicion that such person has committed any offence specified in the First Schedule” and that in terms of s 32 (2) of the same Act a person so arrested without warrant shall as soon as possible be brought to a police station or charge office. It seems to me that the arrest in this case was unlawful in that the plaintiff was restrained from disembarking from the lorry when he reached his destination. He was held by the belt of his trousers and was never taken to a police station or charge office. He was instead taken to a place were he was severely assaulted in the presence of a lot of people at a political base. He was detained and prevented from leaving the base for almost nine hours. There is also no doubt in my mind that the plaintiff’s dignity was impaired by the unlawful actions of the defendants and their fellow party members. I find his claim for shock, pain and suffering and also for unlawful arrest and detention and for contumelia to have been proved.

It is therefore ordered:

That defendants, jointly and severally, one paying the other to be absolved, pay the plaintiff the sum of $3000-00 being damages for shock, pain and suffering, contumelia and unlawful arrest and detention.

Both defendants are to pay interest on the said sum at the prescribed rate from

the date of summons to date of full and final payment.

The defendants are to pay cost of suit.

Zimbabwe Human Rights NGO Forum (Public Interest Unit), plaintiff’s legal practitioners

Mugadza, Mazengero & Dhliwayo, defendants’ legal practitioners