EMMANUEL ADMIRE JERA

versus

SARAH HWENGERE

HIGH COURT OF ZIMBABWE

FOROMA J

HARARE, 28 June 2017 & 24 January 2018

Civil trial

E Jera, for the plaintiff

W Bherebhende, for the defendant

            FOROMA J:The plaintiff in this matter sued the defendant for payment of the sum of $103 300,00 being damages for malicious arrest and prosecution broken down as follows as pleaded in plaintiff’s declaration-:

• US$30 000 being damages for embarrassment trauma and humiliation suffered by the plaintiff when he was arrested and charged.
• US$30 000 being damages for deprivation of liberty, freedom and discomfort suffered by the plaintiff for 15 days when he was detained at Marondera prison cells.
• US$30 000 being defamatory damages suffered by the plaintiff arising from malicious arrest and malicious prosecution.
• US$13 000 being costs reasonably expended by the plaintiff in defending prosecution and prosecuting his appeal.
• US$300,00 being money paid to the defendant through the clerk of court Marondera as restitution.

The plaintiff also claimed interest on the said damages at the prescribed rate from the date of issue of summons to date of final payment and costs of suit on a legal practitioner and client scale.

The defendant defended the plaintiff’s claims. In its plea the defendant whilst admitting that she made a report disputed the factual allegations made in her complaint to the police and averred that she had merely narrated to the police that the plaintiff had borrowed her tractor plough and failed to return it and that when she inspected the plough most of its parts had been removed save for the frame. The defendant further averred that it was police officers who decided to charge the plaintiff with theft specifically denying that she laid a false charge of theft against the defendant. The defendant further denied that she was motivated by any malice in reporting the matter to the police. She further denied that the information given to the police when she made her report was false. The defendant also denied having caused any commotion at the police station nor did she force the police force to prefer charges against the plaintiff.

After closure of pleadings the parties attended a pre-trial conference before a judge at which issues for trial were agreed to be the following÷

1. Whether or not the allegations and proceedings brought against the plaintiff were motivated by malice and without a legal basis.
2. Whether or not the plaintiff suffered any damages? If so what is the quantum of the damages? At the pre-trial conference the plaintiff indicated that it would be calling four witnesses and the evidence of the four witnesses had been summarised in two separate documents headed the Plaintiff’s Summary of Evidence filed on 29 October 2015 and Amended Summary of Evidence filed on the 25 November 2015.

The defendant indicated that she would be leading evidence of two witnesses. It is to be noted that at the trial the witnesses referred to in the plaintiff’s amended summary of evidence were not called to testify with the result that the plaintiff effectively only led the evidence of two witnesses only. At the pre-trial conference it was also agreed that the onus was on the plaintiff on both issues.

At the trial the plaintiff opened its case with the plaintiff taking the witness stand. He gave evidence under oath. The plaintiff’s evidence was largely the evidence summarised in the plaintiff’s summary of evidence supported by exhibits. The plaintiff produced a bundle of documents which was marked “A” which contained the following documents

• The defendant’s statement to the police which was produced as exh 1
• Record of trial proceedings in CRB 2424/13
• Detention and incarceration documents and
• Judgment on appeal (HH 619/14).

In terms of judgment HH 619/14 produced as exh 6 the plaintiff’s conviction by the Magistrate’s Court sitting at Marondera was quashed and sentence set aside by the High Court. From the documents in Plaintiff’s bundle of documents, Plaintiff was able to prove that he was detained at Mahusekwa ZRP at 0130hrs on the 03/11/13 and released at 10:29 hrs on 4 November 2013 per exh 2 and that he served a prison sentence at Marondera Prison from 22 April 2014 up to 6 May 2014 when he paid bail pending appeal per exh 3.

The plaintiff’s case is premised on the defendant’s statement to police at Mahusekwa which as indicated herein above was produced as exh 1. The plaintiff’s evidence was that exh 1 shows that the plaintiff falsely alleged that the plaintiff had sold her plough.

From the evidence led by the parties the following emerge as common cause between the parties.

• The parties are resettled farmers in the same area living about 5km apart.
• The plaintiff owned a tractor and a tractor drawn 2 disc plough while defendant owned a 3 dish tractor drawn plough but had no tractor.
• About September 2013 the parties entered into an agreement in terms of which the plaintiff would use the defendant’s plough and in turn the plaintiff would use his tractor to plough the defendant’s fields as and when requested to do so by the defendant.
• Pursuant to the agreement the plaintiff collected defendant’s plough and started using it.
• About 29 October 2013 the defendant enquired of the plaintiff if he could plough her field to which the plaintiff appears to have indicated that he could do so provided the defendant provided some diesel.

Everything else that happened subsequently seems to be in dispute. What objectively one can assess from the evidence led is that about the 2nd November 2013 the defendant brought some diesel and some tractor part(s) so as to ensure the plough was in a condition to be used to plough her fields. According to the plaintiff’s defence outline at his criminal trial it would appear that defendant wanted the fields ploughed during the weekend she brought diesel and the part(s) which defendant indicated was the tail piece. According to the plaintiff’s defence outline at his criminal trial the plaintiff indicated to defendant that if his driver returned from where he had gone he would try to plough her fields. When defendant took the tail piece (part of her 3 dish plough) to plaintiff she was shown a disc plough frame lying down on its side and she protested that that was not part of her plough. She said that her plough was green in colour. It is important to note that as early as the day defendant saw the plough at plaintiff’s farm she protested that that was not part of her plough as hers was green in colour. It is clear that when defendant failed to find her plough at plaintiff’s farm she must have suspected that plaintiff had disposed of her dish plough. She then would have considered it necessary to involve the police in the matter in order to get help to recover her plough. Her statement to the police per exh 1 demonstrates that she suspected that the plaintiff had sold her plough.

            After reporting her case to the police, police had the plaintiff arrested and taken to court and he was tried and convicted and sentenced to 10 months imprisonment the whole of which was suspended on the following conditions 5 months was suspended on condition of good behaviour and the other 5 months were suspended on condition of restitution i.e payment to defendant of the sum of $3 800 being the agreed value of the plough.

            Plaintiff  must have defaulted in the payment terms as he was then imprisoned for the default and served 15 days imprisonment before he was released on bail pending appeal. Plaintiff successfully appealed against both conviction and sentence. The appeal court upheld the appeal and quashed the conviction and set aside the sentence.

            On the success of his appeal the plaintiff decided to sue defendant for damages for maliciously causing his arrest detention and malicious prosecution.

            Plaintiff considers that defendant’s case was malicious because the appeal court granted his appeal. Defendant on the other hand denied having caused his arrest or prosecution. Her position is that she correctly and justifiably made a report to the police that plaintiff who had by agreement taken her plough could not return her plough and that the plough whose frame plaintiff showed her was not her plough. She argues correctly that the decision to arrest and detain plaintiff was not her decision but that of the police. This is apparent from the text of her statement of complaint that was exhibited by the plaintiff.

            The plaintiff also argues that the 15 days detention at Marondera prison cannot be blamed on her as that arose as a result of plaintiff’s failure to observe the condition imposed by the sentencing court for the suspension of a further 5 months imprisonment i.e. restitution.

            A proper appreciation of exh 1 (the complainant’s statement of complaint) shows that defendant conceded that the plough was taken by plaintiff for his use by agreement. It therefore cannot be suggested that the defendant falsely mispresented that the plough was furtively removed from her possession. Defendant in her statement of complaint was categorical that the plough plaintiff showed him was not hers and at the criminal trial of plaintiff she retorted that if the plough was hers she would not be so naïve as to deny her own property. Its significant that defendant consistently described her plough as green in colour and that it was in a serviceable condition and yet what the plaintiff showed her was not only not green (in fact blue) but a mere frame. Given this factual background defendant’s decision to enlist the assistance of the police in the recovery of her plough would not justify the plaintiff’s complaint that defendant’s complaint was malicious. It is vital to note that the information that the defendant gave to the police is incorrectly represented in the plaintiff’s pleadings in that in the declaration plaintiff pleads that defendant gave police the following false information – (i) that during the period between 1st and 2nd day of November 2013 the plaintiff and his employee Takundwa Takundwa had stolen a three dish tractor plough from defendant. (ii) that they had done so with intend to deprive her permanently of her plough. (underlining is mine for emphasis). A closer scrutiny of exh 1 (complainant’s statement of complaint to police) will reveal that defendant did not say that plaintiff stole the tractor plough between 1st and 2nd day of November 2013. Defendant in fact specifically says (as recorded) that the plough was taken by mutual agreement but the plaintiff and his employee showed her the wrong plough. In exh 1 defendant actually makes an inference from being shown the wrong plough that hers had been sold.

            Plaintiff also pleaded his cause by averring that when laying this charge and giving this disinformation defendant had no reasonable or probable cause for so doing nor did she have any reasonable belief in the truth of the information given which she knew was false. It can scarcely be said that defendant laid the charge alleged nor that in giving the statement she made to police she had no probable cause for doing so. It has to be remembered that defendant was shown not only just a plough frame whose plough parts were stripped and whose colour did not match the colour of her plough (green). Clearly defendant had a reasonable cause to believe that her own plough had been disposed of (sold as reflected in exh 1).

            Dealing with malicious deprivation of liberty in their book Law of Delict the authors J Neethling Potgier and P J Visser have the following to say – “unlike the case of wrongful ….. deprivation of liberty where the result complained of  must have been caused without justification by the defendant himself or some person acting as his gent or servant the action in the case of malicious deprivation of liberty takes place under the guise of a valid judicial process. The defendant makes improper use of the legal machinery of the state either through a policeman acting on his own discretion or through a valid warrant, to deprive the plaintiff of his liberty. The actual deprivation is consequently not carried out by the defendant himself or by his servant or agent but by the machinery of the state through a valid judicial process.” “See also Newman v Prinslow 1973 (1) SA 125 W 127.

            In order to succeed in an action based on malicious deprivation of liberty the plaintiff has to prove the following

•  
• that the instigation was without reasonable and probable cause and
• that the defendant acted amimo iniuriandi.

The evidence that plaintiff adduced was directed at proving that defendant had no

reasonable or probable cause for having plaintiff prosecuted. Plaintiff in particular testified that the defendant threatened both the police and prosecutors to have plaintiff prosecuted when they had formulated an opinion that the matter was purely civil. This evidence which of course was hotly disputed by the defendant was designed to prove malice. Despite plaintiff having amended its summary of evidence in order to show that the threatened police and prosecutors would corroborate plaintiff on the aspect of threatening the law enforcement agents to pursue plaintiff’s prosecution the said witnesses were infact not called to testify. Besides it is highly unlikely that defendant a mere debt collector at a legal firm could have successfully brought pressure to bear on both the police and prosecutors to pursue a prosecution in circumstances where they had concluded that no criminal offence had been committed. Any suggestion that the mention of a close contact with the Chief Magistrate would have instilled fear in the minds of the prosecution or police leading to a decision to pursue the prosecution of a non-criminal case is not seriously made. This is particularly so when one pays due regard to the separation of powers between the prosecution and the bench. Neither the police nor the prosecutor were directly answerable to the Chief Magistrate.I dismiss as highly improbable the suggestion that defendant compelled the police and the prosecutors to prosecute the plaintiff. The suggestion is infact also discredited by the fact that initially one of the prosecutors supported the plaintiff’s application for absolution from the instance at the close of the state case highlighting that the state considered the matter as a civil dispute. Clearly plaintiff has not succeeded in establishing the elements of a successful claim for damages for malicious arrest and prosecution namely

• that the prosecution was instigated by dependant
• that defendant had no reasonable and probable cause for the prosecution
• that the prosecution was activated by malice
• that plaintiff suffered damages as a result of the prosecution and that the prosecution failed – see Econet Wireless (Pvt) Ltd and others v Ngonidzaishe Sanangura SC 52/2013. Bande v Muchinguri 1999 (1) ZLR 476.

While I fully associate myself with the law as laid out in these judgments I do not consider that plaintiff has satisfied the essential elements for the reasons referred to herein above. Defendant was emphatic in her position that all she did was  make a report to the police by providing information on which the police had to use their own discretion as law enforcement agents as to whether to arrest and prosecute the plaintiff or decline to take any action on the matter. The court should be slow to interpret a complainant’s report to the police as malicious lest it sends the wrong messages to the citizenry which may be eager to resort to lawful dispute resolution by engaging police thus unwittingly encourage the resort to self-help by otherwise law-abiding citizens. Had plaintiff adduced evidence of the police and the prosecutors to corroborate the claim that defendant unduly pressurised them by means of unlawful threats to act contrary to their better judgment that the complaint was a civil one he would probably have persuaded the court to find in its favour that defendant had no reasonable or probable cause to have plaintiff prosecuted.

            In the circumstances I do not find the plaintiff to have discharged the onus on it on both the issues agreed at the pre-trial conference.

            I accordingly order that plaintiff’s claim be and is hereby dismissed with costs.

Moyo & Jera, plaintiff’s legal practitioners

Bherebhende Law Chambers, defendant’s legal practitioners