Tafadzwa Mushunje v Tracy Sihle Harry & 3 Ors

### Preamble
1
HH 465-18
HC 7369/16
---------


TAFADZWA MUSHUNJE

versus

TRACY SIHLE HARRY

and

MINISTER OF HOME AFFAIRS

and

COMMISSIONER OF POLICE

and

PROSECUTOR GENERAL

HIGH COURT OF ZIMBABWE

MUSHORE J

HARARE, 8 February 2018 & 8 August 2018

Civil Trial: damages for wrongful arrest and malicious prosecution

T Gombiro, for the plaintiff

T Mutomba, for the defendants

MUSHORE J: This is a claim for damages for unlawful arrest and malicious prosecution. Plaintiff is a 26 year old fashion model who had a thriving modelling career and had a part-time business as a Master of Ceremonies. She was also employed on a part-time basis as a show presenter on national television. This is the status in society which plaintiff enjoyed by her own hard work until the first defendant, one Tracy Shile caused her arrest and instigated her prosecution for allegedly infecting first defendant’s minor child, aged two years, with HIV. First defendant also reported that plaintiff had also physically assaulted her minor child and also made the minor child drink urine, when the child’s father was looking after the child.

Plaintiff is suing for damages for unlawful arrest and malicious prosecution and pain and suffering as a consequence of the unlawful arrest and malicious prosecution.

The plaintiff testified that sometime in February 2016, she received a telephone call from an uncle of hers during which her uncle informed her that there was an unflattering article about her circulating on social media. The story which was circulating was that the plaintiff had deliberately infected her boyfriend, Colin Kanonga’s minor child, aged two years; with HIV via a syringe and also that she had assaulted and injured the minor child. The story alleged that the plaintiff was HIV positive. The source of the story was the first defendant who is Colin Kanonga’s wife and the mother of the minor child. Having found out who the source of the story was and being upset because the story was a fabrication, plaintiff went to make a report to the Police. Plaintiff proceeded to go to Glen Norah Police Station, in the company of her boyfriend, Colin Kanonga. Plaintiff claims that when she arrived, she showed the Police the offensive article whilst making her Police report. However she was taken by surprise when the Police unexpectedly turned on her and started mocking her and laughing at her. Being somewhat shocked by the attitude of the Police, and realising that she was not being taken seriously, plaintiff left the Police Station to go back home. After about half an hour, the Police arrived at her home in the company of the first defendant and announced that they had come to arrest the plaintiff. Plaintiff testified that there were about 7 policemen. Plaintiff agreed to go back to the Police Station with the policeman. Her father insisted on accompanying her. Plaintiff narrated that at the Police Station, the Police ordered her father to leave the room and after her father had left the room, they began interrogating her much to her surprise. The Police interrogated her about the syringe asking her where she had sourced the syringe from. When she failed to answer their questions, mostly because she was in disbelief, first defendant began slapping her in the presence of the Police, and accusing plaintiff of using syringe containing HIV infected blood to inject the toddler. Plaintiff protested and denied the allegations insisting that she be tested for HIV; because plaintiff was innocent of the allegations being put to her. The police ignored her protests and instead detained her on the allegations made by the first defendant. She was kept in police detention for a further two days after which she was taken to court on the 25th February 2016 to be placed on remand. Plaintiff said that she was arrested because of first defendant’s accusations and that the police acted on those accusations by detaining her without any investigation being done. All the while plaintiff was denying the allegations.

Plaintiff testified that whilst being detained and during her conveyance to court and in between her court attendances, plaintiff kept requesting the police and the prosecution that she be tested for HIV as proof of her innocence, and each time her requests were ignored. Plaintiff stated that no witnesses were called or interviewed; no evidence accumulated and that the arrest was unlawful. She alleges that at court her lawyers made an application for bail which was granted. She was placed on remand and told to report back to the court on the 29th February 2016. After her release on bail she immediately got tested and the HIV tests came back negative. On the 28th February 2016, the magistrate insisted that the charges be withdrawn by the State for lack of evidence. She was thereafter free to go. The experience which she underwent had cost her her livelihood in that her modelling work dried up and no-one would hire her as a model or to officiate at events as a Master of Ceremonies. The Zimbabwe Broadcasting Corporation cancelled her show because of the negative publicity surrounding the plaintiff. Such was the impact of the negative articles circulating on social media that they caused her embarrassment and humiliation. She has suffered financial instability and her social standing has been negatively affected. By the time that she was at court, the story had found its way into the print media and was circulating nationwide in the newspapers much to plaintiff’s dismay, shock and embarrassment.  Plaintiff was made to look cruel and abusive in the public’s eye, with some members of the public labelling her “the biggest witch in Africa”. Plaintiff submitted that the defendants’ actions were not supported by a reasonable suspicion that she had committed an offence. There had been no investigation into the allegations made by Tracy Shile. Plaintiff stated that had the first defendant’s report to the Police been investigated, the entire fiasco would never have occurred.

Plaintiff is a slight, petite, well-spoken and well-mannered 24 year old young lady who was hardly a danger to anyone.  I was very impressed by the plaintiff’s testimony and by her composure on the witness stand. She managed to narrate her story with dignity befitting someone older than her years. She never once contradicted herself even in the face of the defendants’ counsel’s intrusive cross-examination.

First defendant did not make an appearance and default judgment was entered against her. I referred the file pertaining to the litigation against the first defendant to the unopposed roll for quantification of damages. The second and third defendants called two witnesses. The fourth defendant, the Prosecutor General did not call any witnesses. The two defence witnesses were the arresting detail, a Constable Philemon Nyaude and the Police Sergeant from the Victim Friendly Court, one Sergeant  Rheta Musiwa..

Philemon Nyaude testified that first defendant made her report before plaintiff made hers. In trying to justify his arrest of the plaintiff, he stated that he had examined the minor child for evidence of assault and that he had seen a tiny pin-prick on the child’s buttocks. He testified that he had acted on the report which had been made by the first defendant when he arrested the plaintiff for deliberately infecting the minor child with HIV. He appeared to be uncomfortable when he testified and his testimony was given with hesitancy. He failed to prove that he had investigated the charges made by the first defendant and failed to explain about what gave rise to him concluding that there was a reasonable suspicion that a crime had been committed by the plaintiff. He did not, as would have been expected of him, interview witnesses such as the minor child’s father, or obtain a medical report or to order that an HIV test be performed on the minor the child and the plaintiff prior to arresting plaintiff. He arrested and detained plaintiff based upon a police report only without any reasonable suspicion being established first.  He admitted that he had not warned and cautioned the plaintiff and that he did not compile a warned and cautioned statement although he had arrested the plaintiff. He admitted that the plaintiff was detained for two days before being brought to court. He failed to produce an investigation diary or a running diary of the arrest and investigation which is always compiled in an investigation.

The second witness, Sergeant Rheta Musiwa did not fare any better whilst giving testimony. She is a Police officer with seventeen years’ experience in the force under her belt. She also was unable to state that there was a reasonable suspicion that the plaintiff had committed the offence at the time that they had arrested the plaintiff. The Police Sergeant also confirmed the plaintiff’ testimony that the HIV test was only done after the plaintiff has been placed on remand. She stated that the doctor did not find evidence of assault on the minor child and that the HIV tests came back negative.  She also said that it was the Magistrate who had mero motu ordered that the charges be withdrawn and that the withdrawal was not inspired by the Prosecution. She stated that the docket which was prepared by the Court Prosecutor did not have any evidence in it by way of medical reports, neither did it contain a warned and cautioned statement. Thus the matter proceeded with plaintiff being placed on remand without ever having been warned and cautioned.

Both witnesses were extremely uncomfortable in their demeanour when they were faced with questioning from plaintiff’s counsel and especially when they were forced to concede that the arrest was not based upon a reasonable suspicion; and that there was no medical evidence to speak of until after the plaintiff had been granted bail whilst placed on remand.

Whether the arrest was wrongful?

An arrest is prima facie wrongful unless it is legally justified. In Zimbabwe the plaintiff only needs to prove that the arrest or imprisonment was illegal. The plaintiff does not have to prove that there was an intention to cause him or her harm or to act illegally. Thus animus injuriandi is presumed to exist. S 49 of the Constitution states that arresting a person without just cause is a constitutional infringement of a person’s rights to liberty:-

“49 Right to personal liberty

(1) Every person has the right to personal liberty, which includes the right—

(a) not to be detained without trial; and

(b) not to be deprived of their liberty arbitrarily or without just cause”

The onus lies upon a defendant to prove that a reasonable suspicion existed requiring that the individual be arrested or that there was probable cause for the arrest. The Police must not act upon a mere suspicion. There must be an openness and honesty, transparency and sober mindedness in the exercise of Police discretion so that an arrest is not made irrationally. See Rosseau v Boshoff 1945 TPD 135 pp 137. The Police are certainly not supposed to arrest in order to investigate. Where the Police do make an arrest in circumstances that the investigations are ongoing, such an arrest is considered to be lawfully permissible as long as the arrest was based upon the Police having just cause to make an arrest at the time that they did.  In Botha v Zvada & Anor 1997 (1) ZLR 415 (S) the Supreme Court held that:

“Held: - For an arrest to be lawful the arresting officer has first to establish that he has reasonable grounds for suspecting that the appellant had committed the murder. But even where there are reasonable grounds for suspecting that a First Schedule offense has been committed, the power of arrest, which is a discretionary power, has to be exercised reasonably. Where a person is arrested when it is not reasonable to so arrest him, the arrest will still be unlawful.

The facts in the Botha case, (as paraphrased from the judgment itself at pages 417 [F-H] and continued on 418 [A-B]), were briefly as follows:-

“The appellant was the only one who possessed firearms at his farm. However, a few months before the death of the deceased, a neighbouring farmer had lost his gun to a thief who had not been apprehended at the time of the deceased’s death. Nor had the stolen gun been recovered. Zvada (the arresting detail) took possession of the appellant’s rifles- a .303 and a .22. The appellant assured Zvada that those were the only two weapons owned by him. Whereupon Zvada arrested the appellant on an allegation that he had murdered the deceased. He had the appellant detained at Gweru Police station with fourteen people in a cell. The appellant appeared in court for remand on Monday 23 July 1990 and was transferred to Wha Wha Prison where he stayed until he was granted bail by the High Court at the behest of his legal practitioners on 27 July 1990.

While the appellant was at Wha Wha Prison, Zvada visited the appellant to question him about the .22 rifle which, having been borrowed by the appellant’s son some time ago, the appellant forgot to disclose to Zvada as being in his possession during the relevant period.

On 6 August 1990, the appellant was remanded to appear in court on 20 August 1990. On that date the presiding magistrate ruled that no evidence had been led by the State to indicate that there was a reasonable suspicion that the appellant had committed the offence, and discharged the appellant from the charge preferred against him”

The facts which led the court to arrive at the conclusion that the appellant (Botha) had been arrested without a reasonable suspicion having been established were that:-

“1.	It had not been stablished that the fatal bullet might have been fired from either of the appellant’s guns which he surrendered that day.

2.	Indeed, though evidence was not inaccessible, it had not been established that either gun had been in recent use.

3.	A gun had been stolen by a felon from a neighbouring farmer in the preceding week, which had not been recovered;

4.	The appellant was a septuagenarian, dim of eyes, hard of hearing and handicapped by an artificial leg.

5.	The shooting occurred at night when keep eyesight is required to hit a target; if one is of steady gait; and

6.	The appellant’s house was over fifty metres from where the body of the deceased was found”

Also compare Shaaban Bin Hussein & Ors v Chong Fook Kam & Anor [1969] 3 All ER 1626 at 1630; and Sugaba v Minister of Defence & Police & Anor 1980 (3) SA 535 (TkS).

Thus in Zimbabwe, the use of force on the part of the police is not necessary for bringing a successful action for wrongful arrest. Rather it is the injury suffered by an individual as a consequence of/ or resulting from the arrest such as the degradation and humiliation that motivates an award of damages to be granted as recompense.

In the present matter, the law was set in motion by the first defendant reporting the matter without reasonable suspicion. She had first spread the unfounded allegations on social media which she would have been aware would attract much attention; and then she acted spitefully in that on the basis of her own fabricated story, she went on to made an unfounded report to the Police. I mention in passing that a suit for wrongful arrest is also available against an individual person such as the first defendant in the present matter. See: Mauranga v Munangate 1997 (1) ZLR 64 (H).

The police arrested the plaintiff on the basis of a mere report only. They would have appreciated that it was necessary to examine the toddler and obtain an HIV test before they acted irrationally and excitedly by proceeding to arrest the plaintiff. There was no need for seven police officers to go to the plaintiff’s home to arrest plaintiff. Oddly the police ignored the plaintiff’s report about the defamatory publications on social media. They also inexplicably allowed the first defendant to assault the plaintiff in their presence. The police displayed animosity and vindictiveness against the plaintiff. In their testimony the police officers did not provide evidence of a reasonable suspicion that the plaintiff had committed the offences in question.

The arrest of the plaintiff was also unconstitutional in that the plaintiff was arbitrarily detained without proper cause in terms of section 49 of the Constitution of Zimbabwe (Amendment) Act, 2013 which I adverted to above.

The Police also trampled on the plaintiff’s rights in terms of section 50 of the Constitution which provides as follows:-

“50. Rights of arrested and detained persons

(1) Any person who is arrested—

(a) must be informed at the time of arrest of the reason for the arrest;

(b) must be permitted, without delay—

(i) at the expense of the State, to contact their spouse or partner, or a relative or legal practitioner, or anyone else of their choice; and

(ii) at their own expense, to consult in private with a legal practitioner and a medical practitioner of their choice; and must be informed of this right promptly;

(c) must be treated humanely and with respect for their inherent dignity;

(d) must  be  released  unconditionally  or  on  reasonable  conditions,  pending a  charge  or  trial,  unless there are compelling reasons justifying their continued detention; and

(e) must be permitted to challenge the lawfulness of the arrest in person before a court and must be released promptly if the arrest is unlawful.

(2) Any person who is arrested or detained—

(a) for the purpose of bringing him or her before a court; or

(b) for an alleged offence; and who is not released must be brought before a court as soon as possible and in any event not later than forty-eight hours after the arrest took place or the detention began, as the case may be, whether or not the period ends on a Saturday, Sunday or public holiday.

(3) Any person who is not brought to court within the forty-eight hour period referred to in subsection (2) must be released immediately unless their detention has earlier been extended by a competent court.

(4) Any person who is arrested or detained for an alleged offence has the right—

(a) to remain silent;

(b) to be informed promptly—

(i) of their right to remain silent; and

(ii) of the consequences of remaining silent and of not remaining silent;

(c) not to be compelled to make any confession or admission; and

(d) at the first court appearance after being arrested, to be charged or to be informed of the reason why their detention should continue, or to be released’

The police behaved as a law unto themselves and even actively participated in ridiculing the plaintiff in her vulnerable state and stood by watching the first defendant assault the plaintiff without intervening. They subjected the plaintiff to inhuman and degrading treatment contrary to the spirit of the Constitution. Section 53 of the Constitution reads:-

“53 Freedom from torture or cruel, inhuman or degrading treatment or punishment

No person may be subjected to physical or psychological torture or to cruel, inhuman or degrading treatment or punishment”

At the same time the Police disregarded the plaintiff’s constitutional right to have her dignity protected per section 51 of the Constitution which states;-

“51 Right to human dignity

Every person has inherent dignity in their private and public life, and the right to have that dignity respected and protected”

Whether the prosecution was malicious?

The onus to show that the prosecution was not malicious falls on the fourth defendant. It is common cause that the fourth defendant proceeded with a prosecution of the plaintiff for the deliberate infection of HIV in terms of section 79 of the Criminal (Codification and reform) Act [Chapter 9:23] which reads as follows:-

“79 Deliberate transmission of HIV

(1) Any person who

(a) knowing that he or she is infected with HIV; or

(b) realising that there is a real risk or possibility that he or she is infected with HIV; intentionally does anything or permits the doing of anything which he or she knows will infect, or does anything which he or she realises involves a real risk or possibility of infecting another person with HIV, shall be guilty of deliberate transmission of HIV, whether or not he or she is married to that other person, and shall be liable to imprisonment for a period not exceeding twenty years.

(2) It shall be a defence to a charge under subsection (1) for the accused to prove that the other person concerned—

(a) knew that the accused was infected with HIV; and

(b) consented to the act in question, appreciating the nature of HIV and the possibility of becoming infected.”

This is how the charges were framed in CRB 3551/16 (The State v Tafadzwa Mushunje):-

“DELIBERATE TRANSMISSION OF HIV AS DEFINED IN SECTION 79 (1) OF THE CRIMINAL LAW (CODFICATION AND REFORM) ACT [CHAPTER 9:23]

In that on 31st January 2016 and at number 2048 Glen Norah A, Harare TAFADZWA MUSHUNJE unlawfully committed and intentionally infected MUBARSIRI KANONGE  a two year old juvenile with HIV knowing that she was infected with HIV or realising that there was a real risk or possibility that she was infected with HIV.”

The Prosecutor General would have needed to reasonably suspect that the plaintiff was infected with HIV. It is my view that in order that such a reasonable suspicion existed, a medical test would have been the minimal standard of proof required before proceeding to open a court record for the purposes of proceeding to court to place the plaintiff on remand. In the absence of such proof, a reasonable prosecutor would have remitted the docket back to the police on the basis that they furnish the prosecutor with the required HIV test result.

The record of proceedings which was part of the plaintiff’s bundle of documents shows that during the initial remand proceedings, the state prosecutor made an application in terms of section 302 of the Criminal Procedure and Evidence Act [Chapter 9:07] for the plaintiff to be tested for HIV. However it is important to note that an application for an HIV test in court per section 302 of the Criminal Procedure and Evidence Act, pertains only to a charge of sexual transmission of HIV, or transmission of HIV on a charge of incestuous sexual relations. In the aforementioned cases it makes sense that the police would immediately arrest an individual charged with a sexual crime in which an HIV infection may have been transmitted, in order to separate a victim from the offendor. However those are not the facts in the present matter. It was grossly incompetent on the part of the State to initiate a prosecution without such medical evidence.

The other allegation which the plaintiff was facing was a charge of assaulting the minor child. This is how the charge was framed:-

“CONTRAVENING SECTION 89 OF THE CRIMINAL (CODIFICATION AND REFORM) ACT [CHAPTER 9:23]

In that on the 31st January 2016 and at 2048 Glen Norah A TAFADZWA MUSHUNJE unlawfully and intentionally committed an assault upon MUBATSIRI KANONGE a two year old juvenile by injecting him with a syringe filled with her blood, making him to drink her urine and assaulted him on his body by other unknown means intending to cause MUBATSIRI KANONGE a bodily harm or realising that there as a real risk or possibility that bodily harm might result”

The details of the alleged attack on the toddler are vague in the actual pleadings in this matter. The defendants had to prove that it had a reasonable suspicion that the plaintiff had infected the toddler with HIV; thus it follows logically that a reasonable suspicion would be founded upon establishing that the minor child had actually been infected with HIV by way of the blood test. A medical report ought to have been obtained for proving bodily injury on the child. Plaintiff was adamant that she had never been left alone with the child when her boyfriend was exercising his custodial rights to the toddler. She was unshaken under cross-examination on this very issue. In both the pleadings and in the testimony given during the trial in this matters, both witnesses for the second and third defendant were ignorant of what type of assault was allegedly perpetrated by the plaintiff. Thus at the time that the State placed the plaintiff on remand on allegations of having assaulted the minor child, the prosecutor did not know what part of the body the child was assaulted, what object was used to carry out the assault on the child or the injuries suffered, etc. There was no medical evidence in the docket which supported such an allegation and this was very evident when the Police officers gave evidence and were apparently ambushed by that very simple question as to how the plaintiff allegedly assaulted the toddler. When he was corned by counsel for the plaintiff on the purported evidence of assault, Constable Philemon Nyaude mentioned that he had seen a minute pinprick on the child’s buttocks which then led him to assume that the child had been assaulted. I asked the witness to draw a sketch of his observation on a piece of paper, and he took a ballpoint pen and placed a dot with the tip of the pen on the piece of paper which is Exhibit 2 of the record. It appears that he understood the foolishness of his answer because he immediately explained that he was not a medical doctor and therefore was unable to state whether categorically if the child had been assaulted at all. Thus at the time that the State proceeded to place the plaintiff on remand for assault, the State prosecutor had no prima facie proof that the toddler had been assaulted, despite the toddler having been available for a medical examination. It was clear that the Prosecutor founded its reasonable suspicion based upon the first defendant’s malicious and unverified attacks on social media.

Further there were no witness statements in the docket. It is standard that witness statements are recorded for a prosecutor to assess whether there is reliable evidence that a crime has taken place. The first defendant was not asked to make a statement. There was no such statement in the docket when it came from the Police. It is baffling that the Prosecutor believed that it had a reasonable suspicion to proceed with plaintiff’s prosecution for the charges of infecting the child with HIV or assault. This is what the fourth defendant stated in its plea regarding its justification for proceeding with the prosecution.

“5. Ad paragraph 10

This is denied. The facts were not extracted from cyber-bullying activities. The facts presented on the Request for Remand (Form 242) show that there was reasonable suspicion that the plaintiff had committed the offence.

6. Ad paragraph 11

It is admitted that charges were ultimately withdrawn. It is denied that a reasonable prosecutor ought not to have initiated the prosecution initially (sic). It is trite that evidence required for placing an accused on remand is different from that required to proceed to trial. Having placed the plaintiff on remand based upon a reasonable suspicion, the police carried out further investigations in a bid to clarify issues which were outstanding. After considering all the available evidence in the docket when investigations had been concluded, the 3rd defendant rightly formulated an opinion that there was insufficient evidence to warrant prosecution. Charges were therefore accordingly withdrawn”

The averments in the fourth defendant’s plea do not help the fourth defendant’s case for the following reasons:-

Firstly, a request for Remand form is not the sole basis of initiating a prosecution. The request for remand form is a summary of the position of the investigations to the extent that a prosecution can be initiated. It is not a sworn statement and neither is it evidence as would be the medical evidence and witness statements required in a case such as the present one. It is a standard form which is filled in by the police but such a form is only prepared by the Police when they believe that they have cause to compile a docket in order that a prosecution be initiated the State. Fourth defendant is wrong in justifying its actions on the basis that it glanced at a request for remand form.

Secondly, the fourth defendant admitted that further investigations were necessary after initiating the prosecution. As I have said earlier, the evidence ought to have preceded the initiation of the Prosecution and not the other way around especially as it was the plaintiff had been pleading for an HIV test to be done from the moment that she was arrested by the Police.

Thirdly, contrary to the averment in paragraph 6 of the plea, it was not the fourth defendant who made the decision that the charges against the plaintiff be withdrawn because it was the court which brought sanity to the proceedings by insisting that the charges be withdrawn by the State.

Fourthly, the infamous request for remand form upon which the fourth defendant placed reliance for its reasonable suspicion was never discovered by the fourth defendant for use at the trial in this matter.

It is trite that a person is presumed to be innocent until proved guilty.

Section 70 (1) of the Constitution of Zimbabwe provides that:-

“70 Rights of accused persons

(1) Any person accused of an offence has the following rights—

(a) to be presumed innocent until proved guilty;

(b) to be informed promptly of the charge, in sufficient detail to enable them to answer it;

(c) to be given adequate time and facilities to prepare a defence” {inter alia}

The charges preferred against the plaintiff are very serious charges, with the first charge attracting jail time of around 20 years. That is no laughing matter. The initiation of the prosecution was clearly unconstitutional. Proceeding to place plaintiff on remand was grossly incompetent. There is just no rhyme or reason to explain the reason why the Police and the State proceeded to court without any legal justification and without an investigation. The fourth defendant’s apparent inability to have produced a witness and provide the documents which the State relied upon in the trial in the present matter is reason enough to ascribe an improper motive on the part of the State. The State acted with a:-

“….callous disregard or recklessness concerning plaintiff…………… which is deserving of the label malice”

STEYN J in Solomon Visser & Anor 1971 (2) PH J41 (C): 1971 (2) SA 327 (O)

The actions of the defendants “made a restraint upon the plaintiff’s freedom an act of law” Stambolie v Commissioner of Police 1989 (3) ZLR 287 (SC)

It is my considered view that the fourth defendant acted with improper motive and malice against the plaintiff.

The reasonableness element in wrongful arrest and malicious prosecution.

PATEL J, (then) made the following observation when commenting on reasonableness in Cornelius Musukwe v Minister of Home Affairs & 3 Others HH 83/2013 when he said:-

“In order to establish the lawfulness of an arrest, the arresting officer needs to show that he had reasonable grounds for suspecting that the arrestee has committed an offence. Additionally, even if there are reasonable grounds for arrest, he must show that his discretion to arrest and hold the arrestee in custody was exercised reasonably, either to prevent the arrestee’s escape or the commission of some further crime or interference with Police powers.

…………… Thus a decision to arrest is judicially reviewable where it is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question would have arrived at it”

The State initiated a prosecution without one iota of evidence. Both the Police and the State acted irrationally.

DAMAGES

Plaintiff has claimed damages under three heads being (a) damages for unlawful arrest; (b) damages for malicious prosecution and (c) damages for pain and suffering.

All three heads of damages are damages for non-patrimonial loss.

Damages for pain and suffering

An action for pain and suffering is part of the Acquilian action for non-patrimonial loss. In Guardian National Insurance Co. Ltd v Van Gool NO, JOUBERT JA drew attention to the view that the Dutch jurists allowed an injured person to claim non-patrimonial loss for pain, (dolor, smert), scars (cicatries) and disfigurement (deformitis). The nature of a claim for pain and suffering is a claim for wounded feelings under the actio injuriarum. The difference between claims for patrimonial loss as opposed to a claim for a non-patrimonial loss is that non-patrimonial loss is extinguished upon the demise of the claimant. In other words, where the claimant in such an action dies, no-one else can be compensated for those injured feelings. The claim of injury undergoes its demise when the claimant dies. The claimant’s survivors or beneficiaries cannot be compensated for such a loss which they never suffered.

Pain and suffering is acknowledged in claims for unlawful arrest and malicious prosecution as contumelia.  In Ngonidzashe Sanangura v Econet Wireless (Pvt) Ltd and 2 Others HH 398/12 a case in which KUDYA J awarded the plaintiff damages in the amount of $20,000-00 for malicious prosecution, the learned Judge observed that effectively contumelia and pain and suffering comprise the elements present in either injury when he said that:-

“The claims for pain and suffering and contumelia fall under general damages. They arise from injury to the personality of the plaintiff. They are often referred to as infringements or impairments to the reputation and dignity of a plaintiff. They cover the pain arising from both physical and psychological injury to his personality. The plaintiff claimed the sum of US$220,000-00 for pain and suffering and humiliation caused to his dignity, and personality by the malicious prosecution”

And on contumelia for unlawful arrest, KUDYA J had this to say:-

“According to Bande’s case the actual detention and prosecution accompanied by a serious denial of rights to personal liberty of the plaintiff without reasonable or proper cause aggravates the damages”

In the case at hand the plaintiff did not need to classify damages for pain and suffering under a separate Head of damages because pain and suffering is in effect determined by the same criteria by which contumelia is determined in actions for unlawful arrest and malicious prosecution. I thus  intend to determine the sum to be awarded to the plaintiff  for damages for unlawful arrest and malicious prosecution,  with pain and suffering having been subsumed under the criteria of damages for contumelia.

Damages for wrongful arrest.

In the Cornelius Musukwe case PATEL J said:-

“The courts have perennially denounced the deprivation of personal liberty as an odious interference and a serious infraction of fundamental rights, warranting an award of exemplary damages to deter would-be offendors”

In VISSER AND POTGIETER’s book, “The Law of Damages 3rd Edition” , the learned authors provide criteria which can guide a court in arriving at an award of damages for wrongful arrest when they state at page 15:-

“Factors which play a role are the circumstances under which the deprivation of liberty took place; the harsh conduct of the defendants; the duration and nature (e.g. solitary confinement or humiliating nature) of the deprivation of liberty; the presence or absence of an apology or satisfactory explanation; the status, health, age, standing and disability of the plaintiff; the extent of the publicity given to the deprivation of liberty; the effects of inflation; the facts that contributed to the plaintiff’s misfortune; the effect the award may have on the public purse…”

When applying the facts in the case at hand to these criteria, it becomes clear that the award of damages must be exemplary to the extent that it should carry some type of punitive value. No apology or reasonable explanation has been offered to the plaintiff by the defendants for having put her through the torrid experience. In fact the plaintiff’s suffering has endured beyond the time of her imprisonment in that she had to bring this suit just to seek recompense for an infringement of her constitutional rights. The Police officers who testified appear to have been numb as to the depths of harm these events have had on the plaintiff. When they were testifying they were trying to avoid accountability for their actions. It seemed as though they were so far removed from the damage they had cause plaintiff’s life, reputation and livelihood. To have the Police detain an individual and whilst holding her hostage stand by and laugh at the spectacle of her being assaulted by the very person who she sought their protection from shows the degree of their disregard of the harm they were subjecting the plaintiff to.

It aggravation, plaintiff was deprived of her constitutional rights in the process with the Police having determined the plaintiff’s guilt even before she stepped into the Police station. Plaintiff’s career and reputation have been damaged. The plaintiff did not contribute to her misfortune.

I believe that an exemplary award for damages in the amount of US$20,000-00 wrongful arrest, will meet the justices of the case.

Damages for malicious prosecution.

Messrs VISSER AND POTGIETER suggest that the following criteria be used for assessing damages for malicious prosecution:

“ …the seriousness of the crime  for which the plaintiff was prosecuted and the severity of the penalties in the case of a conviction; the period of incarceration; the period during which the charge hung over the plaintiff’s head; the fact that the charge was not withdrawn but proceeded until the plaintiff was acquitted at the end of the State’s case; malice on the part of the defendant; that plaintiff had the right to be compensated for personal insult, indignity, humiliation and inevitable defamation; the absence of an apology on the part of the defendant; and previous comparable cases (taking inflation into account)’

The plaintiff should never have been prosecuted. It is worth repeating that a diligent and reasonable prosecutor who would have seen to it that a proper investigation needed to be done first before opening a court record. Contrary to the averment which the fourth defendant made in its plea that the fourth defendant withdrew the charges, the facts as they are, are that the Court pressed the prosecution for a withdrawal of the prosecution for lack of evidence.

Plaintiff is reliving the events of February 2016 because of this suit, and the repeated public focus of this case constitutes a continued attack on the plaintiff’s reputation and dignity.  An exemplary award of damages in the amount of US$25,000-00 is called for.

At this juncture, I need to pose a question that being how can a public trust a Police force which uses its uniform to victimise innocent civilians at the expense of the public purse which is used to pay out awards of compensation to wronged individuals? This is an abuse of power by Police Officers who believe that it is their right to be above the law.

As for the Prosecutor General’s office, as lawyers, their duty to the public is to curb the excesses of the Police force. They were derelict in the performance of that duty.

In the result I order as follows:-

Second and third defendants, be and are hereby ordered to pay the plaintiff, the one paying and the other to be absolved, the sum of US$20,000-00, being damages for wrongful arrest.,

Fourth defendant, be and is hereby ordered to pay the plaintiff, the sum of US$25,000-00, being damages for malicious prosecution.

Interest on the amounts in 1 and 2 (above) is to be calculated at the prescribed rate from the date of this order to the date of payment in full.

Second, third and fourth defendants are ordered to pay the plaintiff’s costs, with the one paying, the other to be absolved.

Mberi, Chimwamurombe Legal Practice, plaintiff’s legal practitioners