DAVID MUYAMBO

versus

JOHN NGOMAIKARIRA

and

RICHARD MASHAMBA

and

RAY MAVHEYA

and

ROGER WHITTAL

and

COMMISSIONER-GENERAL OF POLICE

and

MINISTER OF HOME AFFAIRS

HIGH COURT OF ZIMBABWE

PATEL J

Civil Trial

HARARE, 11 to 12 January 2011 and 7 July 2011

V. Muza, for the plaintiff

B. Kamanga, for the 1^st, 2^nd, 5^th and 6^th defendants

            PATEL J:        The plaintiff in this matter claims general damages for malicious arrest and detention as well as special damages in respect of his motor vehicle. His original claim was for a total sum of US$60,860 but this amount was reduced to US$20,600 at the trial.

The 3^rd and 4^th defendants did not enter any appearance to defend and were consequently barred. The 1^st, 2^nd, 5^th and 6^th defendants assert that the plaintiff’s arrest and detention were lawful and accordingly deny any wrongfulness on their part.

The Evidence

            David Muyambo, the plaintiff, is a business man with diverse businesses in Chipinge. His evidence was as follows. On 27 September 2008, at Veneka Business Centre, he was stopped by the 1^st, 2^nd and 3^rd defendants who identified themselves as policemen. They forced the plaintiff into his vehicle and took him to his house. At the entrance gate, he was hand-cuffed by the 1^st defendant. The 2^nd defendant produced a rifle, cocked it and pointed it at the plaintiff’s head. His four young children and six workers were chased out of the yard. The defendants then conducted a search of his residence and said they were looking for firearms. This was followed by a search of his Pajero motor vehicle and a further search in the main house. Having found nothing at the residence, the defendants then took him into their vehicle and drove to Humani Range, where he was placed in a peacock cage while they went to meet the 4^th defendant, who was the owner or manager of the Range. Thereafter, they took him to Mukwasine police station where the Officer-in-Charge refused to detain him. They then proceeded to Sabi police station where he was detained in the cells at midnight. The following morning, he was taken to Bikita CID station and detained for two days until his workers located him. It was alleged that he had killed a rhino but no formal charge was levelled against him. He produced a certified copy of entries in the Detention Book at Bikita police station [Exhibit 1] which shows the details pertaining to his detention. According to the plaintiff, the charge cited in Exhibit 1 under CR 83/09/08 is incorrect. He was released on 30 September 2008 without having been formally charged with any offence. On 3 October 2008, a meeting was held at Bikita CID Station and he was told that no charges would be laid against him. On 4 October 2008, he lodged a formal complaint against the 1^st, 2^nd and 3^rd defendants [Exhibit 2]. The 1^st and 2^nd defendants were arrested but not subsequently prosecuted. He later discovered that the 3^rd defendant is employed by the 4^th defendant and that the latter engineered a false charge of poaching against him.

As regards damages, the plaintiff claims US$2,000 for repairs to his Pajero, as evidenced by an invoice from Mitsubishi Motors for ZAR15,600 [Exhibit 3]. In addition, he claims US18,600 for shock, pain and suffering, arising from his humiliation and ill-treatment by the defendants, both in public and in front of his children and workers. He withdrew his claim in respect of the remaining heads of damage.

            Sgt. Cephas Chigaro was based at Chishumbanje Police Station in September and October 2008. His evidence was that Humani Range is part of Chiredzi Conservancy but is privately owned by the 4^th defendant. He recorded the plaintiff’s statement in Exhibit 2 and investigated the allegations of vehicle damage, unlawful detention and impersonation against the 1^st, 2^nd and 3^rd defendants. He inspected the Pajero at the plaintiff’s homestead and found that its door panels had been broken. He then located and arrested the 1^st and 2^nd defendants and took them to his Officer-in-Charge. They ran away from his office and he found them on the following day at Sabi Police Station. They were evasive and refused to have their statements recorded. He was then sent to Bikita CID Station and recorded statements from Ass/Ins. Mapfaka and Sgt. Mawuka. They confirmed that there were no criminal allegations against the plaintiff. They also said that the CR No. in Exhibit 1 was assigned in order to detain the plaintiff. The witness produced a copy of his own statement made on 5 October 2008 [Exhibit 4]. He also produced copies of the statements recorded at Bikita CID Station a few days later [Exhibits 5 and 6]. The 1^st and 2^nd defendants were not prosecuted because the Public Prosecutor in Chipinge said that the plaintiff’s complaint was a civil matter.

Under cross-examination, the witness conceded that Exhibit 4 referred to a case of criminal defamation, impersonation and malicious damage to property, but did not refer to any allegation of unlawful detention. When questioned by the Court, he accepted that Exhibit 4 made no mention at all of his attempts to arrest the 1^st and 2^nd defendants. Moreover, he had great difficulty in recollecting certain important dates. In particular, it was noted that Exhibit 4 was undated, while Exhibit 5 was dated 6 April 2009 and Exhibit 6 was dated 6 April 2008. He further indicated that his statement was made in April 2009, when preparing the docket against the 1^st and 2^nd defendants, and not in October 2008 as stated in his evidence-in-chief. Given that he is an experienced police officer, his failure to reconcile the relevant dates renders his testimony rather dubious and difficult to credit.

            As regards the defendants, none of them was available to testify at the trial. However, the 2^nd defendant’s undated report [Exhibit 7] was admitted by consent. Thereafter, Exhibits 5 and 6 as well as Exhibit 7 were read into the record by both counsel. It was noted that the deponents to the three exhibits were not in court to give their testimony and that, therefore, their statements could not be meaningfully examined.

            According to the 2^nd defendant’s report, on 27 September 2008, he and the 1^st defendant received a tip-off from the 3^rd defendant, a security agent at Humani Ranch. This was to the effect that the plaintiff, who had been spotted in the area, was a suspect in a recent case of rhino poaching. After the plaintiff was located, he was arrested, handcuffed and advised of the charge against him. He was not humiliated and no firearm was pointed at his head. He was taken to his residence, where he consented to the search of the house and his Pajero. No damage was caused to the vehicle. He was then taken to Mkwasine police station and Middle Sabi police station and detained overnight. The following day he was taken to Bikita CID station for interrogation, where Ass/Ins. Mapfaka ordered his detention in relation to a pending case. On 5 October 2008, the 1^st and 2^nd defendants were taken to Chishumbanje police station by Sgt. Chigaro. The plaintiff was called at night and told them about his plan to claim damages from the 4^th defendant and that they would “share the spoils”. When they refused to co-operate, the plaintiff threatened that he would ensure their discharge from the ZRP. Thereafter, a docket was compiled against the 2^nd defendant, but the charges were withdrawn before plea. As regards the plaintiff, he had been procedurally arrested on reasonable suspicion, as was confirmed at Bikita CID station, and he was then detained awaiting his interrogation.

Unlawful Arrest and Detention

            The delict of unlawful arrest and detention is committed when a person, without lawful justification, restrains the liberty of another by arresting or imprisoning him. See Macheka v Metcalfe & Anor HH 62-2007 (at pp. 6-7) and the authorities there cited.As is explained by Feltoe: A Guide to the Zimbabwean Law of Delict (2^nd ed.) at p.48, the plaintiff need only prove that the arrest or imprisonment was illegal and not that there was intention to act illegally or to cause harm. In our law, unlike South African law, animus injuriandi is presumed and, therefore, intention is not a requirement for this delict. Moreover, the use of force is not a prerequisite and neither is pecuniary loss. Damages can be awarded for any affront or humiliation stemming from the unlawful arrest and imprisonment of the plaintiff. Although this action is usually brought against members of the police or other uniformed force, a private individual can also be held liable for this delict committed against another private individual. See Mapuranga v Mungate 1997 (1) ZLR 64 (H).

            In order to establish the lawfulness of an arrest without a warrant, the onus lies upon the defendant to show probable cause or reasonable suspicion. In exercising the power of arrest, he must act as an ordinary honest man would act, on suspicions which have a reasonable basis, and not merely on wild suspicion.  See Rosseau v Boshoff 1945 CPD 135 at 137. In other words, the arrestor must act on such circumstances as would ordinarily lead a reasonable man to form the suspicion that the arrestee has committed an offence. It is not the function of the police to arrest at large and to use the interrogatory process in order to determine whom to charge. See Feldman v Minister of Home Affairs 1992 (2) ZLR 304 (S) at 309; Botha v Zvada & Another 1997 (1) ZLR 415 (S) at 418-419.

As regards damages for wrongful imprisonment, as was aptly observed in Muzonda v Minister of Home Affairs & Another 1993 (1) ZLR 92 (S) at 100-101, the deprivation of personal liberty is an odious interference and constitutes a serious infraction of fundamental rights, attracting an exemplary assessment of reparation. Thus, in Mapuranga’s case, supra, a plaintiff who was detained for 8 hours was awarded damages amounting to ZW$4,000. The longer and more oppressive the period of detention, the higher should be the quantum of damages, as in Botha’s case, supra, where a plaintiff detained for 6 days in a crowded cell was awarded the sum of ZW$20,000. Again, in Minister of Home Affairs v Bangajena 2000 (1) ZLR 306 (S), the plaintiff was awarded ZW$20,000 as general damages after having being detained just before midnight until his release the following midday.

Whether Report Filed was Malicious

            On the evidence before the Court, it is difficult to ascertain whether or not the 3^rd and 4^th defendants acted maliciously in filing the report against the plaintiff. The evidence of the plaintiff in this regard was flimsy and lacking in detail. However, it is fairly clear that the 3^rd and 4^th defendants instigated the plaintiff’s arrest. Having done so, they did not even care to enter an appearance to defend this action. Therefore, whether or not they were actuated by malice, they must be held accountable together with the 1^st and 2^nd defendants for the plaintiff’s arrest.

Whether Arrest, Search and Detention were Unlawful

            As I have already stated, none of the defendants was present at the trial to testify in their defence. Consequently, apart from the 2^nd defendant’s written report, there is nothing else before the Court to support the reasonableness of the defendants’ suspicions leading to the plaintiff’s arrest. In particular, there is no explanation from the defendants as to when, where or how the rhino in question was allegedly hunted by the plaintiff, or as to who saw the plaintiff in the vicinity of the crime. There is in fact no nexus linking the plaintiff to the commission of the alleged offence, other than the “tip-off” from the 3^rd defendant. Moreover, the 1^st and 2^nd defendants arrested and handcuffed the plaintiff without first interrogating him. In short, the nature and extent of the suspicion that the defendants acted upon cannot be tested. Having regard to the undisputed fact that no charges were subsequently laid against the plaintiff, the only conclusion one can draw is that the defendants acted without reasonable and probable cause in arresting the plaintiff.

            As for the alleged ill-treatment and humiliation of the plaintiff, his general demeanour when testifying in this regard suggested that he was exaggerating for effect and was not being entirely truthful. Moreover, his evidence on this aspect was not corroborated by any other witness, for instance, any member of the public or his workers and children who he claims witnessed his ill-treatment by the defendants. In any event, the 2^nd defendant denies any such maltreatment. He explains in his report that the plaintiff was co-operative and that his arrest and the search of his residence and vehicle were properly conducted. His version of the relevant events is no less credible than that of the plaintiff. In my view, on a balance of probabilities, the plaintiff has failed to establish his assertions in this respect.

            Turning to the plaintiff’s detention, it is common cause that he was arrested on 27 September 2008 and detained at several places before being released on 30 September 2008. In this regard, there is no explanation from the defendants as to why the plaintiff was detained at Bikita CID Station for two days, without being interrogated, only to be released without having been formally charged. Even if one were to accept that he was lawfully arrested on reasonable suspicion, the length of his detention simply cannot be justified on the facts before the Court.

Claim for General Damages

            On the foregoing findings, the plaintiff is clearly entitled to general damages for unlawful arrest and detention. The only issue in this respect is the appropriate quantum of damages that should be awarded. The plaintiff claims an amount of US$18,600.

Apart from the illegality of his arrest, the plaintiff was detained approximately 300 kilometres away from his residence for a relatively protracted period of 3 days. In the absence of any other aggravating features, and having regard to the amounts awarded in the cases cited earlier, I would consider the sum of US$3,000 as representing a fair and equitable measure of damages on the facts of this case.

Claim for Special Damages

            The plaintiff claims the sum of US$2,000 as special damages in respect of repairs to his motor vehicle. In support of this claim, he tenders an invoice for ZAR16,500 from a South African firm. However, his claim is beset with several difficulties.

            The first difficulty is the absence of any evidence to the effect that the vehicle was in good condition before it was searched by the defendants. Secondly, the invoice does not indicate which vehicle was to be repaired, as it does not reflect any registration or other details identifying it as the plaintiff’s vehicle. Thirdly, the date of the invoice (17 September 2008) predates the day when the search was conducted and, in any event, does not tally with the date stamped on the invoice (17 November 2008). The plaintiff was unable to explain these discrepancies. Fourthly and most importantly, he was unable to produce any receipts to demonstrate that the repairs in question had in fact been paid for. This failure is inexplicable given that the plaintiff’s schedule of documents, filed on 1 September 2010, specifically lists “invoices and receipts for vehicle repairs”. For all of these reasons, the plaintiff’s claim for special damages cannot be sustained and must be dismissed.

Disposition

            In the result, judgment is granted in favour of the plaintiff as against the defendants as follows.

It is ordered that the defendants shall jointly and severally, the one paying the others to be absolved, pay to the plaintiff:

1. the sum of US$3,000 (as general damages for unlawful arrest and detention) together with interest thereon at the prescribed rate from the date of the Summons to the date of payment in full;
2. the costs of suit.

Muza & Nyapadi, plaintiff’s legal practitioners

Civil Division of the Attorney-General’s Office, 1^st, 2^nd, 5^th and 6^th defendants’ legal practitioners