David Muyambo v John Ngomaikarira and 5 Others

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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 1st, 2nd, 5th and 6th 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 3rd and 4th defendants did not enter any appearance to defend

and were consequently barred. The 1 st, 2nd, 5th and 6th 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
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2008, at Veneka Business Centre, he was stopped by the 1 st, 2nd and 3rd

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 1st defendant. The 2nd 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 4th 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, 2nd and 3rd

defendants [Exhibit 2]. The 1st and 2nd defendants were arrested but not

subsequently prosecuted. He later discovered that the 3 rd defendant is
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employed by the 4th 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 1st, 2nd and 3rd 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 2nd 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 2nd defendants were not prosecuted because the Public Prosecutor in

Chipinge said that the plaintiff’s complaint was a civil matter.
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      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 2nd

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 2nd 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 2nd 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 2nd defendant’s report, on 27 September 2008, he

and the 1st 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
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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 1st and 2nd 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 2nd 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 (2nd 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
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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
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       On the evidence before the Court, it is difficult to ascertain whether

or not the 3rd and 4th 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 4th

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 1st and 2nd 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 1st and 2nd 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.
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      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
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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.
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       It is ordered that the defendants shall jointly and severally, the one

paying the others to be absolved, pay to the plaintiff:

       (a) 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;

       (b) the costs of suit.




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