MONDAY BOPOTO NYANDORO

versus

MINISTER OF HOME AFFAIRS

and

COMMISSIONER OF POLICE

HIGH COURT OF ZIMBABWE

PATEL J

HARARE, 6 to 8 July and 7 September 2010

Civil Trial

S. Mutambasereand P. Maguchu, for the plaintiff

M.M. Svotwa, for the defendants

            PATEL J:        The plaintiff in this matter claims the sum of US$9798.20 as damages for unlawful assault allegedly perpetrated by members of the Zimbabwe Republic Police (ZRP) acting within the course and scope of their employment. The defendants admit that the plaintiff was arrested and detained by members of the ZRP but deny that he was assaulted during his arrest and detention.

            The issues for determination are relatively straightforward and are as follows:

1. Whether or not the plaintiff was unlawfully assaulted by members of the ZRP acting during the course and within the scope of their employment.
2. If so, the quantum of damages, if any, suffered by the plaintiff as a result of the assault.

Evidence for the Plaintiff

            Monday Bopoto Nyandoro, who is the plaintiff in this matter, testified as follows. He is presently 63 years old and, at the time of the alleged assault, he was an active member and office-bearer of the National Constitutional Assembly (NCA), a non-governmental organisation based in Zimbabwe.

On  5 November 2005, he was involved in a peaceful NCA demonstration proceeding along Robert Mugabe Road in Harare. The NCA group of about 300 people was running and singing along the side of the road and dropping political flyers as they proceeded, without obstructing the traffic on the road. At the corner of Innes Terrace, members of the ZRP Support Unit disembarked from about 6 lorries and began running towards the crowd. They wore police uniforms and were wielding rubber batons. Most of the crowd ran away and dispersed, but the plaintiff was caught and assaulted by about 10 to 12 policemen. He produced in evidence a photograph taken from a newspaper, The Zimbabwean (dated 11 to 17 November 2005), depicting a policeman running behind the plaintiff and brandishing a baton within striking distance [Exh 1]. The plaintiff fell to the ground and continued to be assaulted. He was then lifted and shoved into one of the police lorries where he was trampled upon whilst lying down.

The lorry was then driven to Harare Central Police Station (Harare Central) where he was separated from the other arrestees and taken to 2 senior police officers in the Law and Order Section. These officers took turns to assault him under the sole of his left foot for a period of approximately 1½ hours. He was then taken to the holding cells at Harare Central and detained for 4 days until he was eventually released.

Thereafter, he continued to feel severe pain in his chest, ribs and left leg. He was then taken to Shamva Hospital where he was treated with medication as an out-patient for two 2 weeks [Exh 2]. As his condition did not improve, he sought the assistance of the NCA and was taken to a Dr. Coric at the Medical Centre in Harare. After being x-rayed and scanned, he was referred to St. Anne’s Hospital where his left leg was operated upon and drained. He was subsequently discharged and taken to Dandaro Hospital where he was admitted for 2 weeks of rehabilitation. He produced a medical affidavit from Dr. Coric, dated  2 February 2006, detailing his injuries and indicating the likelihood of permanent injury [Exh 3]. The affidavit, which was compiled after his discharge from Dandaro Hospital, only mentions the injuries to his left foot and is totally silent as to the injuries to his chest and ribs. He was unable to explain this omission when cross-examined on the point.

After his discharge, he continued to walk with crutches till the end of 2006. His left leg still aches and sometimes numbs and he walks with a severe limp. He continues to visit Dr. Coric every 2 to 3 months for examination and prescription of pain-killers.

Before his injuries, he was self-employed as the director of a rural supply company, ferrying goods from Harare and selling produce from horticulture farming. He used to derive the equivalent of US$460 to US$550 per month from both of these occupations. He is now unable to continue with either occupation because of his injuries. His savings have been exhausted in medical expenses, as evidenced by receipts for part of the hospital fees and transport costs incurred by him in 2006 [Exh 4]. The quality of his life has been greatly reduced as a result of the assault upon him and he is no longer able to assist his 3 dependant children who are still at school.

Evidence for the Defendants

            Sergeant Hangwane Singo has been with the ZRP for 15 years. In November 2005 he was engaged at Harare Central with the duty of gathering security information. He testified that he first met the plaintiff at about 4.00 p.m. on 5 November 2005, after he was arrested and brought to Harare Central. Pursuant to instructions from his member-in-charge, he detained the plaintiff as a suspect for investigation by the CID Law and Order Section. The plaintiff was limping before his detention but did not complain of any injury. After detaining the plaintiff, he did not see him again. He could not say whether or not the plaintiff was assaulted by any member of the CID Law and Order Section.

            Inspector Douglas Shoko has been a policeman for 19 years and was stationed at Harare Central in the CID Law and Order Section during 2005. His evidence was that on 6 November 2005 he was instructed by his officer-in-charge to investigate the NCA demonstration suspects. Together with 2 colleagues he took fingerprints from the 13 suspects and recorded their profiles. Subsequently, certain defence lawyers came to represent the suspects while their warned-and-cautioned statements were being recorded. All of the suspects, including the plaintiff, signed statements drafted by their lawyers. The uniform response of all the suspects was to deny the charge against them and to state that their possession of flyers and placards was not unlawful. Thereafter, the witness escorted all the suspects to the holding cells for detention. He then compiled dockets in respect of each suspect and forwarded the dockets to the Attorney-General’s Office. In compliance with the direction from that Office and after instructions from his officer-in-charge, he released all of the suspects from custody on the afternoon of  8 November 2005. When he saw the plaintiff for the first time, he did not seem to have been injured. He did not notice whether the plaintiff was limping at that time. When the plaintiff was released, he was physically well and did not appear to be limping.

Under cross-examination, the witness stated that the plaintiff was arrested at approximately 11.30 a.m. on the 5^th of November 2005. On that day the witness was deployed elsewhere and only arrived at Harare Central at 8.00 p.m. He was therefore not present at the time of the alleged assault on the plaintiff. As regards Exhibit 1, he recognised the assailant as a police officer by virtue of his police uniform but was unable to identify him by name. He was also unable to recognise the victim in the photograph as being the plaintiff because the face in the photograph was unclear. Additionally, all the suspects that he interviewed on 6 November 2005, including the plaintiff, were wearing NCA tee-shirts and would not have been allowed to change their clothing before being photographed.

When questioned by the Court, the witness stated that the dockets opened for the suspects were no longer available as they had been destroyed in 2009, after the passage of 3 years, in accordance with Police Standing Orders. However, these Orders are silent as to the handling of dockets where civil litigation is pending in relation to the arrest and detention of suspects.

            Sergeant Hangwane Singo was recalled by the Court to clarify the details of Exh 1. He identified the plaintiff in court as being the person that he met on 5 November 2005. However, he could not recall what the plaintiff was wearing on that day as there were 13 suspects in all and not all of them were wearing NCA tee-shirts. Moreover, he could not recognise or identify the victim in the photograph or the assailant police officer.

Unlawful Assault

            The plaintiff’s testimony is that he was assaulted by members of the ZRP on  5 November 2005, initially, at the NCA demonstration and, subsequently, at Harare Central after he was arrested. The evidence for the defendants is silent as to what happened to the plaintiff, before and immediately after his arrest at 11.30 a.m. and until 4.00 p.m. when he was detained by Sergeant Singo.

It seems reasonably clear that the assailant in the photograph [Exh 1] is a policeman and that the person about to be assaulted is indeed the plaintiff. It is therefore proper to infer that the plaintiff was in fact assaulted before his arrest, as stated in his evidence. As regards the plaintiff’s assertion that he was further assaulted soon after his arrest, the defendants have adduced nothing to gainsay his evidence of having been assaulted under his left foot. On a balance of probabilities, his position appears to be corroborated by Sergeant Singo’s testimony to the effect that the plaintiff was limping before his detention. It is further supported by the medical reports produced at the trial [Exhibits 2 & 3] showing the nature and extent of his injuries.

            There can be no doubt whatsoever that the assaults upon the plaintiff’s physical integrity were unlawful in that they were perpetrated without lawful authority. They were also patently wrongful as being demonstrably incompatible with boni mores and the legal convictions of the community concerning the exercise of police powers. See Musadzikwa v Minister of Home Affairs & Another 2000 (1) ZLR 405 (H) at 416.

Vicarious Liability

            As regards the responsibility of the defendants for the actions of its employees, it is trite that an employer is vicariously liable for the conduct of his employees within the course and scope of their employment, even where such conduct has not been authorised, so long as it is closely connected with conduct which has been authorised. The employer’s liability extends to such unlawful actions of his employees, including assault, as may reasonably be regarded as modes, although improper modes, of doing what he has authorised. See Feldman (Pty) Ltd v Mall 1945 AD 733 at 742-743; Zungu v Administrator Natal & Another 1971 (1) SA 284 (D&CLD) at 285.

In the instant case, the assaults on the plaintiff were carried out by members of the ZRP acting within the course and scope of their employment, albeit improperly, in performing their duties and powers of arrest and detention. It follows that the defendants must be held vicariously liable for those assaults.

General and Special Damages

            As regards general damages, the broad purpose of an award for non-patrimonial loss is to enable the claimant to overcome the effects of his injuries and to provide psychological satisfaction for the injustice done to him. Since pain and suffering cannot be accurately measured, the quantum of compensation to be awarded can only be measured by the broadest general considerations. See Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 at 199; Southern Insurance Association Ltd v Bailey N.O. 1984 (1) SA 98 (A) at 117-119.

More specifically, the compensation awarded should be assessed so as to place the injured party, as far as is possible, in the position he would have been in if the wrongful act causing him injury had not been committed. See Union Government v Warnecke 1911 AD 657 at 665. However, general damages do not constitute a penalty but are designed to compensate the victim and not to punish the wrongdoer. The court is entitled and has a duty to heed the effect its decision may have upon the course of awards in the future. Moreover, awards generally must reflect the state of economic development and current economic conditions of the country. Consequently, they should tend towards conservatism lest some injustice be done to the defendant. See Sigournay v Gillbanks 1960 (2) SA 552 (A); Bay Passenger Transport Ltd v Franzen 1975 (1) SA 269 (A) at 274-275; Sadomba v Unity Insurance Co Ltd & Another 1978 (3) SA 1094 (R) at 1097; Minister of Defence & Another v Jackson 1991 (4) SA 23 (ZSC) at 27-28.

In this context, no regard is to be had to the subjective value of money to the injured party and, therefore, the award cannot vary according to whether he is a millionaire or a pauper. Thus, the courts are not concerned with the probably erroneous value that a person would put on his own life and limbs, but with the dispassionate and neutral value which society at large would deem appropriate on the basis of the prevailing value of money in that society. See Munkman: Damages for Personal Injuries and Death (16^th ed.) at p. 18; Radebe v Hough 1949 (1) SA 380 (A) at 386.

In determining prospective loss, all the contingencies must be considered, including facts known at the date of the trial, in deciding whether or not there is a reasonable probability of pecuniary loss occurring in the future. See Feltoe: A Guide to the Zimbabwean Law of Delict (2006) at p. 84. In assessing pain and suffering, regard may be given to the age of the claimant because an older person has less resistance to pain than a younger person. See Visser & Potgeiter: The Law of Damages (1993) at pp. 399-400.

With respect to loss of amenities of life, these were described in Administrator-General SWA & Others v Kriel 1988 (3) SA 275 (A) at 288:

“as those satisfactions in one’s everyday existence which flow from the blessings of an unclouded mind, a healthy body and sound limbs. The amenities of life derive from such simple but vital functions and faculties as the ability to walk and run; the ability to sit or stand unaided; the ability to read and write unaided; the ability to bath, dress and feed oneself unaided; and the ability to exercise control over one’s bladder and bowels. Upon all such powers individual human self-sufficiency, happiness and dignity are undoubtedly highly dependent”.

The aspect of contumelia is as important as pain and suffering and it is necessary to take into account the public and private embarrassment suffered by the plaintiff as a result of the wrongful conduct. See Robinson v Fitzgerald 1980 ZLR 508 at 510. As for disfigurement, this includes, inter alia, scars and limping caused by a leg injury. See Visser & Potgeiter, supra, at p. 91.

Quantum of Damages

The plaintiff claims both special and general damages in respect of hospital and transport costs, loss of income, pain and suffering, contumelia, loss of amenities of life, and permanent disability and disfigurement. His total claim is for the sum of US$9789.20.

The plaintiff’s uncontested evidence is that he suffered excruciating pain as a result of the assaults upon him and that he underwent a surgical operation to correct the effects of the leg injury that he sustained. Moreover, Dr. Coric’a medical affidavit [Exh 3] indicates that the force used to inflict that injury was severe. Again, the fact that the plaintiff was hospitalised for a prolonged period demonstrates the gravity of his injury, while his relative age would have diminished his capacity to resist pain. As for the future, the plaintiff testified that he still walks with a severe limp and is periodically prescribed pain-killers to assuage his pain.

In contrast to the evidence relating to the plaintiff’s leg injury, there is nothing to substantiate the alleged injuries to his chest and ribs. The out-patient record from Shamva Hospital dated 10 January 2006 and Dr. Coric’s affidavit of 2 February 2006 [Exhibits 2 & 3] are silent in this regard and the plaintiff failed to produce any other medical evidence to support his claim. As for the injury to his leg, the plaintiff only sought treatment at Shamva Hospital some 2 months after he sustained this injury. It can therefore be fairly inferred that the extended pain that he suffered would have been aggravated by his delay in seeking professional medical attention. With respect to future pain and suffering, the plaintiff claims the same amount as he claims for the period before the trial. However, apart from his evidence as to the use of pain-killers, there is nothing to suggest that the extent of his pain and suffering before and after the trial are similar or comparable so as to justify the same award in respect of both periods.

As regards the loss of amenities of life, the plaintiff’s claim is based on his inability to assist his children as he was able to do when he was of sound and healthy body. While it might be granted that the plaintiff’s sense of helplessness in this respect has reduced his self-esteem, it cannot be accepted that it impinges on the simple but vital functions and faculties described in Kriel’s case (supra) to such an extent as to entail substantial diminution in the full pleasure of living.

With reference to the claim for contumelia, it is clear from the newspaper photograph [Exh 1] that the plaintiff was initially assaulted in a public place in full view of his NCA colleagues and passers-by. The photograph was also published in The Zimbabwean for all of its readers to see. Moreover, the assault was aggravated by the fact that it was committed by members of the ZRP who are State servants paid from public funds. The plaintiff was consequently humiliated and embarrassed and must therefore be entitled to appreciable damages for contumelia.

The plaintiff’s claim for disfigurement is also clearly established, not only from his testimony but also from Dr. Coric’s affidavit [Exh 3] which evinces the likelihood of permanent injury to the plaintiff’s left foot. He still suffers from a limp and his prospect of recovery is slimmer because of his advanced age. However, there is nothing in the evidence before the Court to show that the surgery on his leg resulted in permanent scarring.

Turning to the claim for special damages, the plaintiff is undoubtedly entitled to recover his proven transport costs and medical expenses as per the receipts [Exhibit 4] produced at the trial. However, it is not clear how the amount of his claim for hospital expenses incurred at Shamva Hospital in the sum of ZW$260,000 has been converted into the figure of US$494. Moreover, the plaintiff did not produce any documentary evidence of the expenses that he might have incurred at the other clinics and hospitals where he received medical treatment.

As for loss of earnings, the injury to the plaintiff’s leg must have reduced his capacity to carry out his erstwhile occupation but could not have entirely incapacitated him from earning a living. Nevertheless, he must be compensated in some measure for his diminished capacity in the immediate aftermath of his injury.

Disposition

            Having regard to the foregoing findings and the legal guidelines applicable to the plaintiff’s specific claims, as well as the conditions prevailing in our economy, I am inclined to award the following amounts as special and general damages:

• Transport costs                                                US$20
• Hospital expenses                                           US$80
• Loss of income                                                US$400
• Shock, pain and suffering                               US$1500
• Future pain and suffering                               US$750
• Contumelia                                                      US$1500
• Loss of amenities of life                                 US$250
• Disability and disfigurement                          US$500
• TOTAL                                                           US$5000

In the result, judgment is granted in favour of the plaintiff as against the defendants for the payment of:

1. US$5,000 as special and general damages for unlawful assault;
2. interest on the foresaid sum at the prescribed rate of 5% per annum calculated from the date of the Summons to the date of full and final payment;
3. costs of suit.

Zimbabwe Human Rights NGO Forum PIU, plaintiff’s legal practitioners

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