Cornelius Muskwe v Minister of Home Affairs and Commissioner General of Police and Officer Nkoma and Officer Charunda

### Preamble
1
HH 83-2013
HC 6114/11
CORNELIUS MUSKWE
versus
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CORNELIUS MUSKWE
versus
MINISTER OF HOME AFFAIRS
and
COMMISSIONER GENERAL OF POLICE
and
OFFICER NKOMA
and
OFFICER CHARUNDA

HIGH COURT OF ZIMBABWE
PATEL J

Civil Trial

HARARE, 22 January and 2 April 2013

P. Maguchu and T. Mutungwizo, for the plaintiff
K. Murefu, for the defendants

PATEL J: The plaintiff herein claims general damages for unlawful arrest, detention and assault by two police officers, the 3rd and 4th defendants. In particular, he seeks damages for shock, pain and suffering, and for contumely, unlawful arrest and detention, in the total sum of US$4,000. The defendants accept that the plaintiff was lawfully arrested, but deny that he was assaulted or otherwise maltreated.

The principal issues for determination are whether or not the plaintiff was unlawfully arrested, detained and assaulted and whether or not he sustained any injuries as a result of the alleged assault. The secondary issue, in the event of affirmative answers to the foregoing, is the quantum of damages that the plaintiff is entitled to.

The Evidence

Cornelius Muskwe, the plaintiff, is a 65 year old subsistence farmer in Murewa. His evidence was as follows. On 13 February 2011, he was arrested by a member of the neighbourhood watch committee and taken to Mugabe Police Base in Murewa. At the
 Base, the 3rd defendant instructed his staff to handcuff the plaintiff. He was then taken into a cell and handcuffed to a metal pipe, first while hanging from the pipe and then later in a stooping position. He was then assaulted several times during the day with a shambok and booted feet on his face, shoulders and soles. His wife bought him food at lunchtime but he was stopped from finishing his meal. He was detained at 7.00 a.m. and released at 7.00 p.m. and told to return the next day. Upon his return the following day, the 3rd defendant wrote out a statement and told him to sign it. He refused to do so and was then handcuffed and taken to the cell. Again, he was assaulted by the 3rd and 4th defendants and eventually released at 9.00 a.m. When asked for an explanation, they said that he had been taken as a suspect in a case of unlawful entry and theft which took place in Muskwe Village at mid-day on 12 February 2011. On the day of his release, he went to Muskwe Clinic and was referred to Nyadire Hospital the following day. He later attended Parirenyatwa Hospital and the CSU surgery in Harare. He produced an affidavit from Dr. Mukewa who examined him on 21 February 2011. The affidavit was sworn on 16 November 2011 [Exhibit 1]. The injuries described in the affidavit refer to “tender shoulder, flank region and feet” as well as certain psychological symptoms, including “suicidal ideation”. His right shoulder is occasionally painful and he is unable to do the things he used to do before the assault. He was very embarrassed by the incident and still feels suicidal at times. When cross-examined, he stated that he fell of a scotch-cart in 2008 and injured his back. He underwent an operation and related treatment for his back. This is reflected on his out-patient cards from Nyadire Hospital recorded in November 2011 [Exhibit 2].

Rosemary Nyarukokora is the plaintiff’s 45 year old wife. She confirmed that the plaintiff was arrested on 13 February 2011 and that she took food to him at Mugabe Police Base at about 2.00 p.m. He was handcuffed and appeared to be in pain. He came home at
 7.00 p.m. and explained that the police had alleged that he had committed theft and that they had assaulted him. He had a painful shoulder and collar-bone and painful feet. The following morning he went back to the Base and returned home at 9.00 a.m. He said that his whole body was aching and that he had been assaulted by the police. He went to Muskwe Clinic the same day and was then referred to Nyadire Hospital. He later went to the CSU surgery in Harare for medical attention. He presently takes pain-killers which he was not taking before the arrest and assault. He was engaged in farming but has deteriorated since that time and cannot use the plough or lift water cans. Under cross-examination, she stated that on both the 13th and 14th of February the plaintiff walked to and from the Base which is about 5 to 7 minutes walking distance from home. When he went to Muskwe Clinic on the 14th of February, he travelled by commuter omnibus.

Constable Gabriel Nkoma, the 3rd defendant, is stationed at Mtawatawa Police Station as an investigating and community relations officer. His evidence was that on 13 February 2011 he received a report of unlawful entry and theft from one Manyonde in Muskwe Village. He investigated the matter and observed footprints leading from Manyonde’s homestead to the plaintiff’s homestead. He also discovered some of the stolen items hidden behind a nearby bush. Subsequently, the plaintiff was arrested and brought to Mugabe Police Base by Constable Muleya. The latter confirmed having seen footprints between the two homesteads which are at a distance of about 20 to 30 metres from each other. The 3rd defendant told the plaintiff that he was being charged and prepared a warned-and-cautioned statement after interrogating him. He read out the statement to the plaintiff twice, as he could not read. He denied the allegation against him and refused to sign the statement, saying that he wanted to sign it in the presence of his unnamed lawyer. 3rd defendant then handcuffed the plaintiff and took him into the Police Base. This comprises a single room which is used for all purposes, including as a bedroom for the officers based there. He left the plaintiff inside and locked the door, at about 1.00 p.m., and went to the shops nearby. When he returned, he was told by Constable Muleya that the plaintiff had an old back and shoulder injury. He then made the plaintiff comfortable and eventually released him at 5.00 p.m. because of his previous injury. The plaintiff was told to return the next day and he duly returned the following morning. Manyonde then withdrew his complaint, saying that he wanted to pursue his stolen money through witchcraft. Consequently, the 3rd defendant decided to release the plaintiff at about 9.00 a.m. When cross-examined, he explained that the plaintiff was handcuffed because it was necessary to secure all the personal belongings and dockets inside the Police Base.

Constable Joshua Charunda, the 4th defendant, is also stationed at Mtawatawa Police Station as a community relations officer. He testified that he received a phone call from Constable Nkoma on 13 February 2011 regarding Manyonde’s complaint. He arrived at Mugabe Police Base at about 1.00 p.m., unlocked the door and found the plaintiff handcuffed inside. He removed the handcuffs and they both sat together on the veranda. At lunchtime the plaintiff’s wife arrived. She was told about the charge against the plaintiff and was allowed to feed him. Constable Nkoma returned at about 4.30 p.m. and released the plaintiff after approximately 20 minutes, telling him to return the next morning. The plaintiff arrived at the Base at 8.00 a.m. the following day. He was released at 9.00 a.m. and told to go home because Manyonde had withdrawn the charge. The plaintiff was physically fit and well when the 4th defendant first saw him and when he was eventually released on 14 February 2011. When questioned by the Court, he explained that there is a distance of about 20 to 30 metres between the plaintiff’s and Manyonde’s homesteads and a distance of about 120 metres from both homesteads to Mugabe Police Base. Muskwe
 Clinic and Nyadire Hospital are located about 1.5 km and 20 km respectively from Muskwe Village.

Whether Plaintiff Unlawfully Arrested and Detained

In order to establish the lawfulness of an arrest, the arresting officer must show that he had reasonable grounds for suspecting that the arrestee has committed an offence. Additionally, even if there are reasonable grounds for arrest, he must show that his discretion to arrest and hold the arrestee in custody was exercised reasonably, either to prevent the arrestee’s escape or the commission of some further crime or interference with police enquiries. See *Botha v Zvada & Another* 1997 (1) ZLR 415 (S). The power to arrest is not intended always or even ordinarily to be exercised. Thus, a decision to arrest is judicially reviewable where it is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question would have arrived at it. See *Muzonda v Minister of Home Affairs & Another* 1993 (1) ZLR 92 (S).

The 3rd defendant testified that on 13 February 2011 he received a report of unlawful entry and theft in Muskwe Village. While investigating the matter, he observed footprints leading from the complainant’s homestead to the plaintiff’s homestead and discovered some of the stolen items hidden behind a nearby bush. The plaintiff was later arrested and brought to the Police Base by Constable Muleya, who confirmed having seen footprints between the two homesteads which are very near each other. The 4th defendant was not involved in the investigation of the charge or the plaintiff’s arrest. However, his evidence was that he received a phone call from the 3rd defendant on 13 February 2011 regarding the matter and thereafter proceeded to the Police Base.

Following his arrest, the plaintiff was detained for the whole day. According to the 3rd defendant, the plaintiff was interrogated and then asked to sign a warned-and-cautioned statement which he refused to sign. The 3rd defendant then handcuffed the plaintiff, locked him inside the Police Base and returned a few hours later. He later released the plaintiff and told him to return the next day. The following morning, after the complainant had withdrawn his complaint, the 3rd defendant decided to release the plaintiff at about 9.00 a.m. Apart from a few discrepancies as to the exact times and distances involved, the 3rd defendant’s evidence was largely corroborated by the 4th defendant.

In my assessment, the defendants appear to have adequately explained why the plaintiff was initially apprehended, i.e. on the ground that he was reasonably suspected of having unlawfully entered the complainant’s homestead and stolen various items therefrom. However, they have failed to justify the consequent prolonged detention of the plaintiff. In my view, their discretion to arrest and detain the plaintiff was improperly exercised for the following reasons. Firstly, the plaintiff is an aged and unsophisticated subsistence farmer. After his arrest, he was subjected to perfunctory interrogation and told to sign the statement prepared by the 3rd defendant. When he refused to sign the statement, his request for legal representation was totally ignored. Instead, he was incarcerated in and then detained at the Police Base until the end of the first day. The 3rd defendant did not take any steps to investigate the matter further, while the 4th defendant simply sat with the plaintiff on the veranda. Again, they did nothing meaningful on the second day and simply released the plaintiff following the withdrawal of the complaint leading to his arrest. By their own testimony, both defendants displayed a total lack of commitment and application to their investigative functions. Moreover, neither defendant proffered any valid reason for the continued detention of the plaintiff. Indeed, the fact that he was allowed to go home at the end of the first day demonstrates that neither defendant harboured any fears that the plaintiff might escape or commit some other offence or interfere with police investigations.

In the premises, I am prepared to accept that the plaintiff might have been justifiably apprehended at the beginning of his ordeal. However, his subsequent arrest and detention, during the whole of the first day and for several hours the next morning, was grossly irrational and unwarranted. I am accordingly satisfied that the plaintiff was unlawfully arrested and detained by the 3rd and 4th defendants.

Whether Plaintiff Assaulted by 3rd and 4th Defendants

The plaintiff’s evidence was that after his arrest he was taken into a cell and handcuffed to a metal pipe, first while hanging from the pipe and then later in a stooping position. He was then assaulted several times during the day with a shambok and booted feet on his face, shoulders and soles. He was later released and when he returned the following day he was again assaulted by the 3rd and 4th defendants until he was eventually released at 9.00 a.m. The plaintiff’s wife also gave evidence to the effect that when he came home on the first day he had a painful shoulder and collarbone and painful feet. On the following morning he said that his whole body was aching and she assisted him with first aid for the next 5 days.

In assessing the plaintiff’s testimony, it seems to me that his evidence as to the nature of the alleged assault inflicted upon him as well as the extent of the injuries that he sustained thereby was somewhat erratic and inconsistent. It lacked the requisite detail and clarity necessary to sustain his allegations of assault. His case in this regard was not advanced by his wife whose evidence was also rather skimpy and inconsistent in certain critical respects. Moreover, both the plaintiff and his wife were equally vague and unclear concerning the specific dates when the plaintiff received medical treatment at Muskwe Clinic, Nyadire Hospital, Parirenyatwa Hospital and the CSU Surgery.

Turning to the medical affidavit of Dr. Mukewa, the brief history of the incident and long term prognosis are narrated as follows:

“Patient states that he was assaulted with batons sticks on back, buttocks and under feet. He was also twisted his it arm and beaten with open hands on face. … Injury consistent with history. Prognosis good.”

It is evident that there are several material inconsistencies between this description of the incident and the plaintiff’s evidence in court as to the weapons used and the parts of the body that were affected. Moreover, the concluding prognosis appears to contradict the plaintiff’s evidence as to his present state of debility. Lastly, there is the long gap between the stated date of examination (21 February 2011) and the date of deposition of the affidavit (16 November 2011) which tends to cast some measure of doubt on the accuracy of its contents. It is also significant that Dr. Mukewa himself was not called as a witness to clarify and be cross-examined on his affidavit. The deficiencies in the plaintiff’s case are compounded by the out-patient cards from Nyadire Hospital, recorded in November 2011, which seem to suggest that his chronic pain at that time was largely attributable to the previous back injury that he had sustained in 2008.

In their Plea, the defendants deny that the plaintiff was handcuffed in the manner described in his Declaration. They also aver that the plaintiff was never assaulted. The 3rd and 4th defendants firmly adhered to this defence when testifying in court. Indeed, the 3rd defendant maintains that he was solicitous towards the plaintiff after learning that he had an old back and shoulder injury. The plaintiff was only handcuffed initially in order to secure and protect all the personal belongings and dockets inside the Police Base, which comprises a single multi-purpose room.


Although their evidence showed lack of due diligence and attention to detail that would be expected of professional policing, the 3rd and 4th defendants were consistent in their denial of any physical wrongdoing. This denial is buttressed by two very significant considerations. The first is that the plaintiff was released from custody at the end of the first day of his detention and told to return the following day. It seems particularly strange that the 3rd and 4th defendants would have released the plaintiff and expected him to return after having severely assaulted him in the manner that he alleges. The second aspect is that the plaintiff walked a distance of about 120 metres to and from his homestead on both of the days in question. However, he failed to explain how he was able to do so after having had his feet battered with batons and the like on both days.

It is apparent that the plaintiff’s allegations of assault and the defendants’ denials of any maltreatment are mutually destructive versions of what transpired on the two days in question. Consequently, it becomes necessary in assessing the evidence to evaluate the credibility of the witnesses in conjunction with the probabilities. If the probabilities are evenly balanced in that they do not favour the case of one party any more than they do that of the other, the plaintiff can only succeed if the Court believes him and is satisfied that his version is true and that the defendants’ version is false. See *National Employers’ General Insurance Co Ltd v Jagers* 1984 (4) SA 437 (ECD) at 440-441. See also *Nicols v Pearl General Insurance Company & Another* 1994 (1) ZLR 193 (H) at 195-196; *Industrial Equity Ltd v Walker* 1996 (1) ZLR 269 (H) at 279; *Matiza v Pswarayi* 1999 (1) ZLR 140 (S) at 143.

Having regard to all of the evidence before the Court, it seems to me that the plaintiff’s version of events is somewhat less probable than the defendants’ version. Even assuming that both versions are equally plausible, the evidence adduced by and for the plaintiff is considerably less credible than that of the defendants because of the inconsistencies and deficiencies that I have alluded to earlier. Consequently, I am inclined to conclude, both on a preponderance of probabilities and also on my evaluation of the relative credibility of the witnesses, that the plaintiff has failed to establish his allegations of assault and maltreatment by the 3rd and 4th defendants.

Quantum of Damages

In view of the foregoing conclusion, it becomes unnecessary to determine the ancillary questions as to whether the plaintiff sustained any injuries from the alleged assault and the measure of damages claimable for shock, pain and suffering. The assessment of damages is therefore confined to those for his unlawful arrest and detention and for the attendant contumely that he was made to endure.

In assessing general damages, “it must be recognised that translating personal injuries into money is equating the incommensurable” per Gubbay JA in Minister of Defence & Another v Jackson 1990 (2) ZLR 1 (S) at 7. The guiding principle is that damages are designed to compensate the victim and not to punish the wrongdoer. See Nyandoro v Minister of Home Affairs & Another HH 196-2010, at pp. 5-6, and the authorities there cited. Moreover, regard should not be paid to the social, economic or cultural standing and circumstances of the injured party. Thus, the quantum of damages to be awarded does not vary according to whether the plaintiff is a pauper or a prince. See Radebe v Hough 1949 (1) SA 380 (A) at 386; Feltoe: A Guide to the Zimbabwean Law of Delict (2006) at p. 93.

The courts have perennially denounced the deprivation of personal liberty as an odious interference and a serious infraction of fundamental rights, warranting an award of exemplary damages to deter would-be offenders. See Muzonda’s case (supra). As I have already observed, no useful purpose was served by the plaintiff having been detained after he was interrogated and refused to sign the statement prepared by the 3rd defendant. Instead, he was unnecessarily handcuffed and detained for the rest of the day and for several hours the following morning. Consequently, I am satisfied that an award of US$1000 as damages for unlawful arrest and detention is reasonable and justified on the facts of this case.

I have already found that the plaintiff is not entitled to any damages for shock, pain and suffering, having failed to prove the allegations of assault levelled against the 3rd and 4th defendants. However, the aspect of *contumelia* arising from the public and private embarrassment suffered by the plaintiff as a result of his wrongful arrest and detention cannot be disregarded. See *Robinson v Fitzgerald* 1980 ZLR 508 at 510. The plaintiff’s uncontested testimony was that he felt deeply embarrassed and humiliated by the whole incident. This was the first time that he was arrested and detained, having never been confronted by the constabulary before. In the circumstances, his claim for US$500 as damages for contumely seems reasonable and perfectly acceptable.

**Disposition**

As regards all of the defendants, it is not in doubt and was never disputed that the 3rd and 4th were acting in the course and scope of their employment with the 1st and 2nd defendants. The latter are accordingly vicariously liable for the delictual actions of the former and must be held jointly liable with them. As regards costs, although the plaintiff has not succeeded in all of his claims, he is nevertheless entitled to all the costs that he incurred in having to institute and prosecute this action against the defendants.

In the result, judgment with costs of suit is entered in favour of the plaintiff as against the defendants jointly and severally, the one paying the others to be absolved, for payment of US$1000 (being damages for unlawful arrest and detention) and US$500
 (being damages for *contumelia*) together with interest on both sums at the prescribed rate from the date of issuance of summons to the date of full and final payment.

*Zimbabwe Human Rights NGO Forum*, plaintiff’s legal practitioners
*Civil Division of the A-G’s Office*, defendant’s legal practitioners
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