Professor Charles Nherera v Jayesh Shah

### Preamble
Judgment No. SC 51/19
1
Civil Appeal No. SC 634/15
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REPORTABLE	(51)

PROFESSOR     CHARLES     NHERERA

v

JAYESH     SHAH

SUPREME COURT OF ZIMBABWE

GWAUNZA JA, GARWE JA & MAVANGIRA JA

HARARE:	NOVEMBER 9, 2017 & JUNE 13, 2019

T. Magwaliba, for the appellant

L. Uriri, for the respondent

GARWE JA

[1]	In action proceedings instituted before the High Court of Zimbabwe, the appellant, as plaintiff, sought an order against the respondent for payment of damages in the sums of US$100,000 for malicious prosecution and US$300,000 for malicious arrest and detention. At the close of the plaintiff’s case, the respondent, as defendant, applied for absolution from the instance. The High Court found for the respondent and, consequently, granted absolution from the instance, with the appellant paying the costs of suit.  It is against that order that an appeal has been noted to this Court.

FACTUAL BACKGROUND

[2]	The appellant is the holder of a Doctor of Philosophy Degree in Education from the University of London. In 2002, he was appointed as founding Vice-Chancellor of the Chinhoyi University of Technology.  He was also, inter alia, a board member of the Zimbabwe Schools Examinations Council. Between 2001 and 2007, he was Chairman of the Zimbabwe United Passenger Company (“ZUPCO”) board of directors. He held a number of other positions in various local and regional organisations.

[3]	At the relevant time, the respondent had an interest in a company called Gift Investments. The company had, on diverse occasions, supplied mini-buses to ZUPCO. It had done so under the board that preceded the one chaired by the appellant.  The company was required to follow tender procedures set by the State Procurement Board before supplying buses to ZUPCO.

[4]	On 21 March 2005, the then Minister of Local Government and Local Housing, Ignatious Chombo, convened a meeting at the ZUPCO offices.  The purpose of the meeting was to discuss the purchase of mini-buses from Gift Investments.  Also present during the meeting were the appellant, as ZUPCO board chair, Professor Ndyanda as Deputy Chair, a Mr Chigora who was, at the time, acting Chief Executive Officer of ZUPCO, the respondent who was accompanied by one Mafusire (now Justice Mafusire), a legal practitioner representing Gift Investments, one Johannes Tomana, a board member and one Ndekwere, who was the ZUPCO Finance Director.  It was common cause that Johannes Tomana was the legal practitioner representing ZUPCO and that, at some stage, the legal firm in which he had an interest had also represented the appellant and, in particular, in the suit filed against the respondent for defamation damages.

[5]	After the Minister had left the ZUPCO boardroom, the respondent alleged during the course of the meeting that the reason why the appellant was being difficult was because he (the respondent) had refused to pay to him a bribe of $5000 per each bus purchased by ZUPCO. A further meeting of the board the following day during which the recorded conversation between the appellant and respondent was played resolved that the appellant had no case to answer. It was common cause during the trial a quo that the respondent thereafter made similar allegations against the appellant to a number of high ranking officials, who included Minister Chombo, the Reserve Bank Governor, Dr Gideon Gono and Minister Webster Shamu who was responsible for policy implementation. Reports were also made to the Central Intelligence Organisation and the Attorney General’s Office.

[6]	The respondent was picked up by the police on or about 10 April 2005 on allegations of corruption.  Following further investigations, a decision was then taken by the police and the Attorney General’s Office to charge the appellant with corruption and to treat the respondent as a state witness.  Indeed, by letters dated 24 April 2006 and July 2006, the prosecuting authorities made it clear that, although the respondent may have been involved in the corrupt activities, a decision had been made to offer him immunity so that he would assist in providing the necessary information that would lead to the successful prosecution of the appellant.  On 21 July 2006 the respondent then deposed to a lengthy affidavit in which he gave details of the attempt by the appellant to extort money from him.

[7]	On 2 May 2006 the appellant appeared before a Regional Magistrate at Harare on corruption charges, having been arrested on 21 March 2006.  During the trial, various witnesses gave evidence for the prosecution.  The incriminating evidence was given by the respondent who also produced a tape containing recorded conversation allegedly between himself and the appellant.  A transcript of that conversation was also tendered in evidence by the prosecution.  Johannes Tomana gave evidence exonerating appellant.  Thereafter, on 21 August 2006, the appellant was found guilty as charged and sentenced to 3 years imprisonment of which 1 year imprisonment was suspended on the usual conditions of good behaviour. On 24 August 2006, the appellant noted an appeal to the High Court against both conviction and sentence.  An application for bail pending appeal was dismissed by both the trial court and the High Court.  The appellant served an effective sixteen months imprisonment, a third of the sentence having been remitted for good behaviour.

[8]	In January 2006, the appellant instituted proceedings in the High Court claiming defamation damages in the sum of $100,000,000.00.  The suit was instituted by Johannes Tomana on behalf of the appellant.  The fate of that suit remains unclear.

[9]	Johannes Tomana became a member of the Anti-Corruption Commission in September 2005. Thereafter he became Attorney General of Zimbabwe on 18 December 2008. It was common cause in the court a quo that the appellant only prepared and filed his heads of argument in the criminal appeal on 14 September 2009.  At the hearing of appeal, the office of the Attorney General conceded that the conviction was not safe, as a consequence of which Justices Karwi and Uchena, purportedly acting in terms of s 35 of the High Court Act, allowed the appeal against both conviction and sentence on 19 November 2009.

[10]	In November 2011, the appellant instituted a claim against the respondent for a total sum of US$400,000.00 being damages for malicious prosecution, malicious arrest and detention. In his declaration, he averred that the respondent had, on divers occasions, reported that he had solicited for a bribe in order to facilitate the purchase by ZUPCO of certain buses; that, at the time, the respondent knew that the allegations were false and malicious and that, as a result, he was arrested, prosecuted and sentenced to a term of imprisonment.  Following the quashing of his conviction and sentence, he now sought payment of delictual damages in the aforesaid sums, flowing from the injury to his reputation, dignity and liberty.

[11]	In his plea, the respondent, as defendant, denied setting in motion the plaintiffs’ arrest, detention and prosecution.  All he did was to place “information he held before a police officer, in good faith, in the honest and bona fide belief founded on subjective and objective grounds that the plaintiff had solicited for a bribe.” He denied that his conduct was wrongful or that, subjectively, he had malicious intention to injure the appellant.  He averred that the decision to arrest the appellant was made solely by the police; the decision to prosecute solely by the Attorney General and the decision to convict and imprison the plaintiff solely by the trial magistrate after a consideration of all the evidence placed before her.  He denied that the conviction was quashed on the basis that the report he had made was false or that the court found that the appellant had not committed the offence in question.  In short, whilst accepting that he had “reported to the police that the plaintiff had solicited for a bribe,” he maintained that the report “was made in good faith on the basis of facts that were true.”

[12]	At a pre-trial conference held before a judge, the parties agreed that the issues requiring determination at the trial were:-

(1)	Whether the report by the respondent to the police was the cause of the appellant’s arrest, prosecution and detention.

(2)	Whether the said report was not made in good faith or was false and malicious.

(3)	Whether the prosecution of the plaintiff failed.

(4)	The quantum of damages payable.

Both the appellant and the respondent indicated, during the pre-trial conference, that they were not leading other evidence beyond their own.

APPELLANT’S EVIDENCE A QUO

[13]	The appellant gave evidence before the trial court.  It was as follows.  He is a married man with two children who were students at the time of his imprisonment in 2006. He was subjected to humiliating conditions at Harare Central Prison.  The diet was very poor.  The cells were overcrowded and ablution facilities dehumanising.  He spent a whole year at Harare Central Prison before being transferred to Connemara Prison where conditions were a lot better. He stayed at Connemara Prison until his release in February 2008.  By the time of his release, he had lost his position as Vice-Chancellor of Chinhoyi University of Technology and as ZUPCO Board Chair. He also lost his research networks.  Currently he is Pro Vice-Chancellor at the Women’s University in Africa.

[14]	He denied soliciting for a bribe from the respondent at any stage. He denied going with the respondent to Kensington Centre.  As a board, he and his colleagues refused to purchase any buses from the respondent before Tender Board approval. It was his evidence that his trial at the Magistrates Court commenced on 2 May 2006.  When the respondent deposed to the lengthy affidavit dated 27 July 2006, he had already given his evidence before the court.  At no stage was he or his lawyer advised of the decision by the Attorney General to grant immunity to the respondent.

[15]	Under cross-examination, the appellant denied ever soliciting for a bribe from the respondent and told the court that the ZUPCO board could not have purchased the buses in the absence of tender board approval.  It was his evidence that the respondent made reports to various people and institutions and had therefore instigated his arrest. Although the respondent may have been arrested at some stage as well, he had, after having been offered immunity from prosecution, proceeded to give evidence against him. He accepted that a senior police officer, Superintendent Magwenzi had investigated the complaint by the respondent and that, thereafter, the Attorney General had decided to prosecute.  He further accepted that the decision to convict and imprison him was made by the Regional Court. He denied that Tomana’s position as Attorney General of Zimbabwe would have had an influence on the decision made by his office to concede the conviction and sentence.  He also denied claims made by the respondent during the criminal proceedings that the respondent had been a reluctant witness and that he had given evidence pursuant to a subpoena.

[16]	The appellant was further cross examined on the evidence given during the criminal trial by Superintendent Magwenzi, Bright Matonga and Johannes Tomana. He could neither confirm nor deny Magwenzi’s evidence given during the criminal proceedings that the respondent had only formally reported the offence when he was under interrogation and that the decision to prefer charges was only made after a number of people had been interviewed.

APPLICATION FOR ABSOLUTION FROM THE INSTANCE

[17]	After the appellant had given evidence and closed his case, the respondent applied for absolution from the instance.  In his submissions, the respondent stated as follows. Mr Tomana’s office hijacked the appeal by invoking s 35 of the High Court Act.  That office acted corruptly or at least connived with the appellant.  The High Court therefore quashed both conviction and sentence regardless of the merits or demerits.  The conviction was not set aside through an appeal process because the concession by the prosecution effectively “side-stepped” the ventilation of the matter on the merits. In other words, the quashing of the conviction was not a termination in favour of the appellant.  Further, at no stage had the appellant, whether in his pleadings or evidence, alleged that the respondent had instituted or instigated his arrest, detention and prosecution.  He (the respondent) never made a report to the police but had simply communicated his complaint of the solicitation to Dr Gono, Minister Chombo, Minister Shamu and many others.  These persons were not the police.  He was first to be arrested and had then placed certain information at the disposal of the police.  Even though he was offered immunity, he only testified pursuant to a subpoena.  He only gave a written statement to the police well after his own testimony in the criminal court.  Nowhere did the appellant demonstrate that he, as defendant, had reported to the police or that he had any motive to want to fix the appellant by procuring his arrest, prosecution and detention.  The arrest and detention were at the instance of Superintendent Magwenzi and the prosecution at the instance of the prosecution. The appellant was enjoined to prove more than the mere placement of information before the State and that the information was wilfully false.  Further the appellant had not established the quantum of the damages claimed as a result of his incarceration.

RESPONSE BY APPELLANT TO THE APPLICATION FOR ABSOLUTION

[18]	In response, the appellant submitted as follows.  When he filed his notice of appeal in 2006, he could not have foreseen that, by the time the appeal was to be heard, Johannes Tomana would have become the Attorney General of Zimbabwe. In any event, there was no evidence to suggest that Johannes Tomana had himself handled this matter.  Allegations of corruption made against him as the Attorney General without him being cited are most unfortunate as the court cannot make a proper determination on these allegations in his absence. Further, as stated in S v Sando 2007(1) ZLR 395(H), 397 E-F, the Attorney General’s attitude in respect of an appeal is not binding on the court.  The order was not made by a single judge in chambers as envisaged by s 35 of the High Court Act but, rather, by two judges in open court. The judgment obtained in these circumstances is a judgment in rem as it fully and finally resolved the allegation made against him by the State.

[19]	The appellant submitted further that, in his plea, the respondent had accepted that he had placed the information he held before a police officer. He, therefore, instigated the arrest. The respondent had, on the evidence of Superintendent Magwenzi, reported the matter to various offices including that of the Attorney General and had even obtained US$5 000 from the Reserve Bank of Zimbabwe in an attempt to set a trap for the plaintiff. He had further told Bright Matonga that he wanted “to fix Nherera because he was an impediment in acquiring his buses.”  He deliberately manufactured a tape recording in order to give credence to his allegations.  His lawyers even had discussions with the police and the Attorney General’s Office after which it was agreed to give him immunity on condition he would actively provide evidence against the appellant.  Since he was not himself prosecuted, the respondent must have actively assisted the police to investigate and prosecute.

[20]	As regards the order quashing the conviction and sentence, the appellant drew attention to the fact that his legal practitioners had filed detailed heads of argument on 14 September 2009.  The Attorney General, in response, had then conceded the appeal in his heads filed on 12 October 2009.  The concession was not made in terms of s 35 of the High Court Act.  Nor was the matter considered in chambers by a single judge as provided for in s 35 of the Act.

[21]	It was his further submission that the report by the respondent was actuated by a desire to remove him from the scene.  As it so happened, with him facing criminal allegations, the respondent proceeded to supply sixty nine (69) buses without tender board approval.  All the witnesses who gave evidence in the criminal trial, save for the respondent, had exonerated him.  The absence of reasonable and probable cause would justify an inference that he was actuated by malice.

FINDINGS BY THE COURT A QUO

[22]	In determining the application, the court a quo took into account, inter alia, the exchange that took place in the criminal proceedings between the prosecutor and the respondent and between the prosecutor and Superintendent Magwenzi.  The court relied on the evidence of Superintendent Magwenzi given in the criminal proceedings to the effect that the arrest was effected following discussions within the structures of the State and not pursuant to a report made by the respondent. The court also considered the evidence given by the respondent in the criminal proceedings that Minister Chombo had dissuaded him from reporting to the police and that the respondent had, consequently, taken that advice.

[23]	On whether or not the respondent had acted without reasonable cause, the court a quo relied on the judgment of the trial magistrate which concluded that the appellant had indeed solicited for a bribe.  The court also accepted the findings by the Magistrates’ Court that the recording implicated the appellant.  The court also found the concession by the Attorney General to have been a “surprise”, having been made by “an Attorney General’s Office under the leadership of someone very close to the case.” The court accordingly found that the involvement of Johannes Tomana had tainted the outcome of the appeal “to the extent that the requirement that the prosecution must have failed cannot be said to have been satisfied.”  The court also found that no attempt had been made to show how the damages claimed had been arrived at. Consequently, the court a quo granted absolution from the instance and ordered the appellant to pay the costs of suit. As noted at the outset, it is against that order that an appeal has been noted to this Court.

GROUNDS OF APPEAL BEFORE THIS COURT

[24]	In attacking the order of the court a quo, the appellant relies on six grounds of appeal.  These are that the High Court:-

1.	Erred in finding that the appellant had not established a prima facie case for the delict of malicious arrest, prosecution and detention.

2.	Further erred in finding that the respondent had not instigated the appellant’s arrest, prosecution and detention.

3.	Further erred in finding that the respondent had reasonable and probable cause to have made a report to the relevant authorities which led to the arrest, prosecution and detention of the appellant.

4.	Further erred in failing to find that the respondent’s report to the relevant authorities was accompanied with the necessary animus injuriandi.

5.	Further fundamentally erred in finding that the prosecution against the appellant had not failed in circumstances where the High Court, on the 19 November 2006, had allowed the appeal and quashed the appellant’s conviction and sentence.

6.	Further erred in finding, as it did, that the appellant had not shown how the damages he was claiming had been arrived at.

APPELLANT’S SUBMISSIONS BEFORE THIS COURT

[25]	In his heads of argument and oral submissions, the appellant has made the following submissions before us. The court a quo misconstrued its role in an application for absolution and instead treated the matter as a review of the decision of the Magistrates’ Court. Further, it wrongly concluded that it could overturn a decision made by two judges of the same court quashing both the conviction and sentence.  In his view, a single judge of the High Court could not set aside or ignore a judgment made by two judges of that court.  The net effect of the judgment of the court a quo was that it purported to validate a judgment of the Magistrates’ Court which had been set aside. The court could not purport to support findings of fact made by the Magistrates’ Court in its judgment, which judgment had subsequently been quashed by the High Court on appeal.

[26]	Further, whilst correctly restating the approach to be adopted in an application for absolution, the a quo court did not, however, apply the correct test. The court lost sight of the fact that, at the stage of absolution, it was required to consider the evidence of the plaintiff together with the pleaded defence of the defendant but not the evidence given by the respondent in the Magistrates’ Court.  The result was that the court ended up treating the evidence led in the criminal trial as evidence of the respondent in the High Court proceedings. The court a quo weighed the evidence of the appellant, as plaintiff, given before it against the evidence of the respondent previously given in criminal proceedings after which the court then made findings of fact based on a balance of probabilities. The judgment appears to be one given after a full trial.  In any event, the evidence of the respondent in the Magistrates’ Court was completely unreliable, particularly when regard is had to Minister Chombo’s evidence to the contrary given during those proceedings that he, in fact, advised the respondent to go and report the complaint to the police.

[27]	Lastly, the appellant submitted that the respondent had the motive to falsely incriminate him. He not only placed information at the disposal of law enforcement agencies but was actively involved in the prosecution of the appellant.  He posed as a champion in the fight against corruption. That is why he reported to Minister Goche, who was in charge of State Security and the Governor of the Reserve Bank of Zimbabwe with whom he even agreed to set up a trap. He had malice, motivated as he was, by his personal interests. The claim by the respondent that he had to be subpoenaed to give evidence was not confirmed by the investigating officer in the criminal proceedings.

RESPONDENT’S SUBMISSIONS ON APPEAL

[28]	In his submissions, the respondent has argued that the appellant’s declaration did not establish the requirements in an action for malicious prosecution.  He did not say whether the respondent reported to the police or to a competent body vested with prosecutorial authority. A report made to “the whole world” is insufficient.  Even in his evidence, the appellant failed to establish that the respondent had made such a report to the police.  Whilst he talked of reports having been made to various persons, which reports might have sufficed in the action he instituted for defamation, the reports were irrelevant for purposes of the present claim. It is clear that, in terms of the law, an aggrieved person has the right to place information before the police.  What the appellant failed to show was that the respondent thereafter manipulated or abused the criminal justice system. The record in the Magistrates’ Court clearly showed that the respondent was an unwilling witness and that he only placed information before the police after he had been arrested and interrogated. He only testified after a subpoena had been issued. Such was not the conduct of a malicious person bent upon procuring the prosecution of the appellant.

ISSUES ARISING FOR DETERMINATION

[29]	The issues that arise for determination in this appeal, in my view, are the following. First, the legal effect of the judgment of the High Court quashing the conviction and sentence and whether that judgment did not satisfy the requirement that the prosecution must have failed. Second, whether the court a quo could properly rely on evidence given in the Magistrates’ Court in order to make its own findings on the application for absolution from the instance. Third, whether the evidence before the court a quo showed, prima facie, that the respondent had instigated or procured the arrest of the appellant. Lastly, whether prima facie the respondent acted without reasonable and probable cause and with animus iniuriandi.

I consider each of these in turn.

THE ORDER OF THE HIGH COURT OF 19 NOVEMBER 2009 QUASHING BOTH CONVICTION AND SENTENCE

[30]	It is clear, both from submissions made by the parties and the record, that, at the hearing of the criminal appeal before the High Court, detailed heads of argument impugning the conviction of the appellant on corruption charges had been filed on behalf of the appellant and that the State, in a response which was well substantiated, had then conceded the appeal. The concession by the State made no reference to s 35 of the High Court Act.

[31]	Section 35 of the High Court Act, [Chapter 7:06] provides that where an appeal, other than an appeal against sentence only, has been noted to the High Court, the Attorney General may, at any time before the hearing of the appeal, give notice to the Registrar of the High Court that he does not, for the reasons stated by him, support the conviction. In that event, a judge of the High Court, in chambers, may allow the appeal and quash the conviction without hearing argument from the parties and without the parties appearing before him. It is clear from this provision that a single judge in chambers can, where the Attorney General concedes the conviction, giving reasons for that decision, quash the conviction in chambers without further ado.

[32]	In S v Sando 2007(1) ZLR 395(H), the High Court had occasion to consider the meaning of the above section. It remarked that a judge in chambers will peruse the notice given by the Attorney General together with the reasons given therein as well as the record of the proceedings.  If satisfied, on a consideration of all the facts, that the conviction cannot stand, he or she will allow the appeal and quash the conviction without any further participation of the parties. I agree entirely with that interpretation. It is also clear, from the wording of that section, that the quashing of a conviction does not necessarily follow once a notice conceding the appeal is filed by the Attorney General. The judge must consider the record and determine whether the reasons given by the Attorney General justify the vacation of the conviction. It follows from this that if, upon a consideration of the record of the proceedings and the reasons given for conceding the appeal, the judge is not satisfied that the concession has been properly made, he will not quash the conviction. Instead, he will require that the matter be set down for a full hearing after which the court, consisting of two judges, will determine whether or not the appeal should succeed. Consequently the court a quo was wrong in concluding, as it did, that the judge in essence has no discretion whenever the Attorney General invokes s 35 of the High Court Act.

[33]	Although this was not a determination made by a single judge in chambers but by two judges in open court, it is unclear whether the intention of the Attorney General was to invoke his powers in terms of s 35 of the High Court Act so that the conviction and sentence could be set aside. One can safely assume however that, before quashing the conviction and sentence, Justices Karwi and Uchena, who heard the criminal appeal, would have perused the record and considered the Attorney General’s reasons for conceding the appeal before coming up with the decision to quash the conviction. The order by the two judges remains extant.

[34]	The position is settled that an order of a court, even if wrong, must be complied with unless steps are taken to have such order set aside. In other words, a court order made by a court of competent jurisdiction, such as the one quashing the conviction in this case, or even an administrative order, has certain consequences. It cannot be ignored or treated as if it was never made – Beverley Building Society v Minister of The Public Service 2002(2) ZLR 241(H); Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004(6) 222 (SCA); Manning v Manning 1986(2) ZLR 1, 3 F-G.

[35]	I am prepared to accept that the involvement of Johannes Tomana in this whole episode and the decision by Mr Ncube, an official from his office, to concede the appeal at the very last stage, may provide some basis for suspecting that the concession may not have been properly taken.  But one cannot go beyond that. The heads of argument filed on behalf of the State justify why the conviction was not supported. However, all this is beside the point.  The reality is that the order was made by two judges of the High Court after considering the record of the proceedings as well as the reasons given by the Attorney General in conceding the appeal. The effect of that order was to fully and finally quash the conviction and sentence.

[36]	Moreover, as submitted by learned counsel for the appellant, a single judge of the same court cannot set aside or ignore an order made by two judges of that court.  Therefore the remark by the court a quo that “the involvement of Tomana in that process has tainted the outcome of the appeal to the extent that the requirement that the prosecution must have failed cannot be said to have been satisfied” is a clear misdirection on the facts and the law. With the quashing of the conviction and sentence, the prosecution failed. The acquittal fully and finally settled the question whether or not the appellant was guilty of attempting to procure a bribe from the respondent.  The court a quo should, in these circumstances, therefore have found that the requirement that the prosecution had failed had been met.

THE RELIANCE BY THE COURT A QUO ON EVIDENCE GIVEN IN THE MAGISTRATES’ COURT

[37]	It is clear, on a perusal of the judgment of the court a quo, that it relied heavily on evidence, not led before it, but before the Magistrates’ Court. At the commencement of the proceedings before the court a quo, a copy of the record of the proceedings in the criminal trial was tendered by consent.  The court a quo relied on the exchange between the prosecutor and the respondent in coming to the conclusion that the latter had, at no stage, made a report to the police and that he was an unwilling witness for the prosecution who had to be subpoenaed to give evidence.  The court found that the respondent, as defendant, had “won the heart of the court which, on credibility, made a finding that he was a truthful witness.” The court a quo also extensively relied on the exchange between the prosecutor and Superintendent Magwenzi. The court accepted the evidence given in the Magistrates’ Court that the appellant was arrested after the investigating officer had had discussions with other structures of the State and that Minister Chombo had dissuaded the respondent from reporting to the police.  On the basis of that evidence, the court a quo concluded that there was “substance to his claim that not only did he not instigate the arrest of the plaintiff, he was also a reluctant witness.”  Based on that finding, the court a quo further concluded that the appellant, as plaintiff, had “difficulties with proof that the defendant instigated the criminal proceedings.” The court a quo also found, notwithstanding the fact that the judgment of the Magistrates’ Court had been set aside by two judges of the same court, that “the judgment is well reasoned and the findings well supported.  There were also findings of fact and credibility of witnesses which would have been impossible to interfere with.”  The court also found that the evidence of Superintendent Magwenzi “was not challenged …”

[38]	On the question of malice, the court noted that the issue had been dealt with extensively by the trial magistrate “who was not persuaded at all,” and that “in addition the defendants’ (Shah) accusations were supported by a recording which, although attacked by the plaintiff (appellant in this case) was accepted by the trial court and reasons for that given. Again the plaintiff does not fare well in that regard as well.”

[39]	As regards the tape recording, the court a quo remarked;

“… the recording was accepted by the trial court.  It is there and cannot be wished away and in it the plaintiff is recorded as having discussed the payment of money.  At one stage he offers to give the defendant his account number for the money to be deposited in it.  Of course he tried to rubbish the recording as being doctored and to raise a shaky alibi that he was at the South African Embassy all of which was disbelieved ….  Other than being a hollow denial of partaking in the discussion claiming that the recording was manufactured it has not shown that the plaintiff’s voice was invented.”

SUCH RELIANCE ON EVIDENCE GIVEN BEFORE A LOWER COURT A CLEAR MISDIRECTION

[40]	I have no doubt in my mind that the court a quo seriously misdirected itself in formulating findings of fact based on evidence led, not before it, but in the Magistrates’ Court.  The court a quo appears to have proceeded on the basis that the evidence led before the Magistrates’ Court was also evidence before it.  It was because of this misdirection that the court a quo predicated its findings of fact on evidence led in the Magistrates’ Court and also on findings on credibility made by the Magistrates’ Court, notwithstanding the fact, as already noted, that the judgment of that Court had been set aside on appeal.

[41]	As an example, the finding by the court a quo that the respondent did not at any stage report to the police or that he was dissuaded by Minister Chombo from reporting to the police was evidence led in the Magistrates’ Court and not before it.  That the respondent was a reluctant witness was a finding predicated on the record of the criminal proceedings before the Magistrates’ Court. The further finding that the allegations made by the respondent were supported by the tape recording was also based on the record in the Magistrates Court.  The court a quo even found that, in view of the acceptance by the trial court of the recording, “the plaintiff does not fare well in that regard as well.”

[42]	As correctly noted by counsel for the appellant, it appears, from the judgment of the court a quo, that it considered that its role was to review the correctness of the findings of the Magistrates’ Court and then reach its own conclusion based on that review.  In this respect, the court a quo was clearly wrong.

[43]	A record of a witness’s evidence in earlier judicial proceedings is ordinarily hearsay at common law, but there are exceptions in which such evidence can be tendered to prove the truth of the facts which the witness has stated. It is usual for the record of an inquest or criminal trial to be made an exhibit at a subsequent civil trial, but at common law its evidential value is only to prove that the witness said what they are recorded to have said. Further, at common law, the testimony of a witness in earlier judicial proceedings is admissible at a subsequent trial provided that (a) the proceedings are between the same parties or their privies (b) the issues are substantially the same (c) the witness cannot be located because he is dead, insane, too ill to attend, kept out of the way by the opposing party, or (in civil cases) beyond the jurisdiction and (d) the opposing party had a full opportunity to cross-examine him – Hoffman & Zeffert, The South African Law of Evidence, Fourth Edition, at p 152.

[44]	The reason for this common law position is simple. This is because, if the court were to act on the basis of evidence given before another court:

“… the court is deprived of the opportunity of first-hand experience of the witnesses’ demeanour, and much of the force of cross-examination is lost if it does not take place before the tribunal which has to accept or reject the evidence ….” – Cross on Evidence, 5th Edition 1979, London, Butterworths at p 568.”

[45]	Like in South Africa, the admissibility of earlier testimony in subsequent proceedings is now largely codified.  Section 28 of our Civil Evidence Act [Chapter 8:01] provides:

“(1)	Where a person has previously-

given evidence; or

made an affidavit that was produced in evidence; in any legal proceedings, whether civil or criminal, and he has died or cannot be found or compelled to give evidence or for some other good and sufficient cause cannot reasonably be called to give evidence in or make an affidavit for the purposes of any subsequent civil proceedings, a document which purports to be-

a transcript of his evidence or a copy of his affidavit, as the case may be, in the former legal proceedings; and

certified by the official having custody of the record of the former legal proceedings as a true transcript of the evidence or copy of the affidavit, as the case may be, shall be admissible on its production by any person as evidence of the fact stated therein.

(2)	Subsection (1) shall apply even if the evidence concerned was not recorded verbatim and the transcript of the evidence was taken from notes made by the person presiding at the proceedings.”

Section 51 of the same Act provides that the fact that any evidence is rendered admissible by this Act shall not oblige a court to believe or rely on such evidence.

[46]	I am satisfied that the evidence that was adduced before the Magistrates’ Court and relied upon by the court a quo in making certain findings of fact was not properly admitted.  There would have been nothing wrong in using the evidence given in the Magistrates’ Court in the cross-examination of the appellant.  However, for that evidence to have probative value, the witnesses who had previously given evidence, such as Magwenzi, Chombo and Matonga, would have had to be called to give the same evidence in the defendant’s case and be cross-examined on it.  Naturally, the evidence given by either the appellant or the respondent in the criminal proceedings would be admissible against the person who would have given such evidence.  Both the appellant and the respondent had indicated in a joint pre-trial minute that they were not calling witnesses. The findings made by the court a quo, based on its acceptance of the evidence of persons who were not witnesses before that court, were therefore improper.

WHETHER THERE WAS EVIDENCE THAT THE RESPONDENT HAD CAUSED THE ARREST OF THE APPELLANT

[47]	As already noted, the court a quo found that the respondent had not, at any stage, reported the matter to the police and, relying on evidence given before the Magistrates’ Court, also found that the decision to arrest the appellant was taken, not following a report made by the respondent, but after discussions within the structures of the State.  The court a quo considered that that evidence had not been challenged.

[48]	For reasons already given, it was not proper for the court a quo to make these findings on the basis of evidence led before another court.  As counsel for the appellant correctly pointed out, at the stage of absolution from the instance, the court should have confined itself to the evidence given by the appellant and the plea given by the respondent.  The court could not properly consider the evidence given by the respondent in the Magistrates’ Court as evidence of the respondent in the High Court.  After all, the respondent was still to give evidence in his defence.  I am further inclined to agree with appellant’s counsel that the court a quo sought to weigh the evidence of the appellant against the evidence of the respondent given in the Magistrates’ Court. Having done so, it then made findings based on a balance of probabilities, thereby losing sight of the requirement that, at that stage, the appellant only needed to establish a prima facie case against the respondent.

[49]	In his plea to the appellant’s claim before the High Court, whilst denying instigating the plaintiff’s arrest, detention and prosecution, the respondent accepted that he placed information before a police officer in the bona fide belief that the plaintiff had solicited for a bribe. In para 5.1 of his plea, he admitted reporting to the police.

[50]	In his evidence before the court a quo, the appellant stated that the respondent had made allegations to all and sundry that he, the appellant, had solicited for a bribe.  He stated that the respondent made a report not only to senior government officials but also to the Attorney General’s Office and to the police.  He further stated that the respondent had gone to the extent of manufacturing a tape recording which he alleged contained evidence of the solicitation.  He also testified that the respondent had even approached the Reserve Bank Governor and had been given the sum of US$5 000 in order to entrap the appellant.

[51]	Contrary to the findings of the court a quo, the respondent himself accepts that he made a report to the police.  That plea, weighed against the evidence given by the appellant, prima facie established that the appellant not only reported the matter to the authorities, but that he involved himself further in attempts to incriminate the appellant.

[52]	Going by the cross-examination of the appellant by counsel for the respondent, it is apparent that the respondent’s stance is that since he did not personally approach the police to make a report, he could not have procured or instigated the arrest of the appellant.  In my view, that cannot be correct.  If a person approaches the National Prosecuting Authority alleging corruption on the part of an accused person, and the person so accused is consequently arrested by the police, the former can hardly be heard to state that the arrest was not a consequence of the report he made to the Authority.  The arrest would be regarded as being the result of the report made to the Authority.  The fact that the report was made indirectly would, in my view, not alter the fact that the arrest was set in motion by such person.  On the basis of the evidence given before it, the court a quo should, in my view, have concluded that the respondent prima facie set in motion the events that led to the arrest of the appellant.

ABSOLUTION FROM THE INSTANCE – THE CONSIDERATIONS

[53]	The court a quo correctly stated the requirements to be met before absolution from the instance may be granted. These are now well established. In United Air Charters v Jarman 1994(2) ZLR 341(S), 343 B-C GUBBAY CJ stated:-

“The test in deciding an application for absolution from the instance is well settled in this jurisdiction.  A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court, directing its mind reasonably to such evidence, could or might (not should or ought to) find for him.”

[54]	In Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR 1 (A), BEADLE CJ drew attention to some of the considerations which a court faced with such an application ought to bear in mind. He pointed out that the court should always remember that the defendant has not yet given evidence or been cross-examined on it. If a plaintiff has made a case for the defendant to answer and the defence is something peculiarly within the knowledge of the defendant, justice demands that he should be put on his defence. In general, judges are loath to decide upon a question of fact without hearing the evidence given on both sides.  In case of doubt, therefore, the safest course for a court to take is to allow the case to proceed. In this regard see also Theron v Behr, 1918 CPD 443, 451; Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998(2) ZLR 547 H.

[55]	In Gordon Lloyd Page & Associates v Rivera 2001(1) SA 88(SCA), 92-93 Harms JA quoted with approval remarks made in Claude Neon Lights (S.A.) Ltd v Daniel 1976(4) SA 403(A), 409 G-H that:-

“… when absolution from the instance is sought at the close of the plaintiff’s case, the test to be applied is not whether the evidence led by the plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should or ought to) find for the plaintiff. …. This implies that a plaintiff has to make out a prima facie case in the sense that there is evidence relating to all the elements of the claim … because without such evidence no court could find for the plaintiff ….”

THE REQUISITES FOR A CLAIM FOR MALICIOUS ARREST, PROSECUTION AND DETENTION

[56]	In broad terms, the action instituted against the respondent in the court a quo was for abuse of legal proceedings.  This delict is committed when a defendant maliciously and without reasonable and probable cause brings legal proceedings against another.  No citizen has the right to abuse legal process for the purpose of causing harm to another because he has malice towards him.  It is a delict if a defendant, actuated by malice and with no reasonable and probable grounds for doing so, procures the arrest or detention of the plaintiff by the proper authorities (malicious arrest or detention) or institutes against the plaintiff unsuccessful civil or criminal proceedings resulting in injury to reputation or pecuniary loss (malicious prosecution). It is also a delict when a defendant issues execution against the plaintiff’s property when that writ has been set aside (malicious execution) – A Guide to the Zimbabwean Law of Delict, Third Edition 2001, by Geoff Feltoe.

[57]	In both of the first two instances referred to above, it is not the defendant who actually himself arrests or imprisons the plaintiff, but instead his action results in the police holding him or the court ordering that he be held in custody – Remedies for Unlawful Interference with Personal Liberty in Zimbabwe, 1987 ZL Rev. Vol 5, 26 at pages 38-40.

[58]	In order to get judgment in his favour, a plaintiff must prove four requirements.  First, that the arrest, prosecution and detention was instigated or procured by the defendant. The word “instigate” is wide enough to include the setting in motion of events that lead to the arrest of the person accused of criminal conduct.  Google defines “instigate” to mean to bring about or initiate an action or result.  It also means to put in motion, lay the foundations of, sow the seeds of, activate.  The word “procure” means to persuade or cause someone to do something. The law requires that a defendant must have been actively instrumental in setting the law in motion. Simply giving a candid account, however incriminating to the police, is not sufficient. The test is whether the defendant did more than tell the detective the facts and leave him to act on his own – Econet Wireless (Pvt) Ltd v Sanangura 2013 (1) ZLR 401(S), 408 AB; Bande v Muchinguri 1999(1) ZLR 476(H), 484. Second, a plaintiff must prove that there was no reasonable and probable cause.  Third, that the arrest, prosecution or detention was actuated by malice. Lastly, that the prosecution failed.

[59]	Proof of malice is not always an easy matter.  A plaintiff may seek to establish malice as a matter of inference from the fact that there was no reasonable ground for suspecting that he had committed a crime such as to form the basis of the complaint – Remedies for Unlawful Interference with Personal Liberty in Zimbabwe, op cit, 39.

WAS ABSOLUTION FROM THE INSTANCE WARRANTED IN THIS CASE

[60]	It has already been noted, earlier in this judgment, that the evidence led before the court a quo suggested that the respondent prima facie set in motion the events that led to the arrest of the appellant.  Indeed the respondent in his plea accepted that he placed information he had before a police officer.  The finding by the court a quo that he did not report to the police is therefore inconsistent with this admission. There is need for the respondent to explain this inconsistency as well as a number of other issues.  Further, as already discussed, the respondent went further than just placing evidence before the police. He also made allegations against the appellant to a number of high ranking officials.  To bolster his claim, he allegedly produced a tape recording of what he alleged was the conversation between him and the appellant during which the latter solicited for a bribe. The appellant insists that the tape was a complete fabrication. The appellant even suggested that the respondent was given the sum of US$5 000 by the Governor of the Reserve Bank in order to entrap him. The respondent was given immunity from prosecution on the understanding that he would “assist the police and Attorney General’s Office when required in order that a successful prosecution … is carried out. The undertaking is made on the strength of your agreement to assist investigations ….” (Underlining my own). On these facts, the respondent did more than just place facts before the police.  The court should, therefore, have found that, prima facie, he instigated the arrest, prosecution and detention of the appellant.

[61]	The second issue is whether, prima facie, he had reasonable and probable cause. This is, of course, a question fact. The appellant denied ever soliciting for a bribe and stated that this whole episode was fabricated in order to get him out of the way.  This was a case of one person’s word against that of the other. It was common cause that ZUPCO had not, at that stage, ordered any buses from Gift Investments and that no tender procedures had been followed. The tape recording did not incriminate the appellant. It was largely inaudible.  Other than the respondent’s mere say so, there is no other evidence which suggests that the appellant may indeed have attempted to solicit for a bribe. It was the appellant’s testimony that the respondent was desperate to offload, onto ZUPCO, a number of buses which were already painted in ZUPCO colours, even though no tender board approval had been sought or granted. Prima facie, therefore, on the basis of the evidence given by the appellant a quo, there was no reasonable or probable cause for the arrest and prosecution of the appellant. This was not an issue that could be determined in favour of the respondent at the stage of absolution and required that the respondent, as defendant, be put on his defence.

[62]	The question of malice is usually inferred from the absence of reasonable and probable cause. Once it is accepted that there is need for the respondent to give evidence on whether or not he had reasonable and probable cause, then one must accept that the question of malice is one that can only be determined once the respondent has given evidence in his defence.

[63]	Finally, that the prosecution failed is not in doubt.  The Attorney General’s Office gave detailed reasons why it did not support the conviction, consequent upon which both conviction and sentence were set aside.

DISPOSITION

[64]	In all the circumstances, the court a quo should have found that a prima facie case had been established against the respondent. It ought to have found that there was sufficient evidence upon which it could have found for the appellant. It should, therefore, have dismissed the application for absolution from the instance at the close of the plaintiff’s case.

[65]	In the result, the appeal must succeed.  Costs will follow the event.

[66]	It is accordingly ordered as follows:-

1.	The appeal be and is hereby allowed with costs.

2.	The judgment of the court a quo is set aside and in its place the following substituted:

“The application for absolution from the instance be and is hereby dismissed with costs.”

3.	The matter is remitted to the court a quo for continuation of the trial proceedings.

GWAUNZA JA:		I agree

MAVANGIRA JA:		I agree

Magwaliba & Kwirira, appellant’s legal practitioners

Uriri Attorneys, respondent’s legal practitioners