Matambudziko Muswere v Freddy Kaiya and The Minister of Home Affairs

### Preamble
1
HH 777-18
HC 6028/17
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MATAMBUDZIKO MUSWERE

versus

FREDDY KAIYA

and

THE MINISTER OF HOME AFFAIRS

HIGH COURT OF ZIMBABWE

DUBE J

HARARE, 25 September and 21 November 2018

Civil Continuous Roll

W Chagwiza, for the plaintiff

K Chimiti, for the 1st & 2nd defendant

DUBE J: The plaintiff‘s claim is for delictual damages for pain and suffering and loss of amenities. The plaintiff was arrested at his workplace on 12 November 2016 on allegations of unlawful entry into premises together with his workmates and detained at Budiriro Police Station. He claims that whilst in detention, the first defendant assaulted him resulting in him sustaining injuries. He was taken to court where he was acquitted of the charges he was facing. The plaintiff’s case is that the first defendant who is a member of the Zimbabwe Republic Police assaulted him together with other unidentified officers whilst he was in the course and scope of his employment. The second defendant being the first defendant’ employer is sued on the basis of vicarious liability.

The defendants admit that the plaintiff was arrested and detained at Budiriro Police Station but deny that he was assaulted by the first defendant or any other police officer whilst in detention. The court was asked to determine whether or not the plaintiff was assaulted by the first defendant during his period of detention at Budiriro Police Station and if so, if the plaintiff suffered any injuries and the quantum of damages.

The plaintiff testified in his own case. His testimony is as follows. He was arrested together with his workmates for unlawful entry into premises and taken to Budiriro Police Station by Const Kumhanje. They were taken one by one from the charge office to the Police Internal Security Investigations (PISI) offices where the first defendant handcuffed him with his hands at the back. He instructed him to lie on the ground on his stomach. The first defendant bent plaintiff’s knees and put a metal bar between his legs and hands. He was assisted by one of his colleagues to lift the metal bar with the plaintiff hanging on it and he placed the bar straddling across two tables with plaintiff hanging between the tables facing downwards. The first respondent took a meter long stick, 4 cm in diameter and started assaulting him. He assaulted him together with another police officer. The blows were delivered all over his body, under the feet, knees wrists and elbows. The assault lasted about 15-20 minutes. As he assaulted him, the first defendant   demanded to know how much he had been given by the people who had stolen from the shop he had been guarding. The other officers whom he is unable to identify would pass by him and assault him with open hands.

He fractured his left leg and the other got swollen. His medical records reflect that he sustained a fracture of the metatarsal .He was X-rayed and his leg put in a plaster. He felt a lot of pain. His legs were swollen for months and life was difficult. He used to play boozers soccer and can no longer do so. He used to run in the mornings but can no longer do that anymore. When it is cold he feels pain. He was unable to engage in sexual intercourse. He claims $8000, 00 for pain and suffering and $3000, 00 for loss of amenities. He produced a medical card in the form of an exercise book showing the treatment he received at Harare Hospital.

Under cross examination he told the court that whilst he was assaulted by 3-4 officers, the one who injured him most is the first defendant. He refuted that he only came to know of the first defendant’s name when he approached him for the request for medical examination forms. He knew the first defendant as he had previously assisted him over a matter he had reported involving a co-operative and had helped him recover his money. He refuted that he was given the medical request forms by the defendant. He does not know the name of the person who gave him the forms. He did not tell the arresting detail that he had been assaulted but told a female officer who had seen him limping and asked him the cause.

The first defendant testified on behalf of the defendants. He testified as follows. He is a member of the Zimbabwe Republic Police (ZRP), attached to the PISI section which deals with co-operative and political matters and matters involving members of the police force and the army. His duties involve supplying information to superiors and have nothing to do with housebreaking. When he got to work that day, he found the plaintiff and others seated in the charge office. He did not speak to the plaintiff since he had nothing to do with him. He collected dockets for his section and went to his office. He left for a meeting. He did not take the plaintiff from the charge office to the PISI offices or assault him as alleged nor did he cause any injuries to him.

He encountered the plaintiff days after when he came limping and walking with a stick. He knocked on an office and he asked if he needed any assistance. He reported that officers at the charge office had refused to give him a request for medical examination form. He asked three officers present at the charge office why they had refused to write the request for medical examination for him. He took a request for medical examination form and filled it in and gave it to him. The plaintiff told him that he had been assaulted by the police. He did not ask who had assaulted him. He told him to come back and see the member in charge of the station. He assisted him because he was the senior person there. He does not remember previously assisting the plaintiff in a matter involving co-operatives.

It is common cause that the plaintiff was arrested together with his workmates on allegations of unlawful entry from their work place. They were arrested and detained. This case centers on the identity of the perpetrators of the alleged assault.  In his statement to the police that the plaintiff gave in respect of the assault charges, he states that an officer whom he does not know by name came and took him to the PISI office and handcuffed him. When he was taken to the PISI offices, he found the first respondent there and he asked him to lie on his stomach. He states that  police officers started to assault him and he could not recognize the officers assaulting him since he was facing downwards. He does not mention that the defendant handcuffed him. The statement is clear that he did not recognize the officers who assaulted him. During the trial he states that it is the   first defendant who assaulted him. Ultimately, it is unclear who assaulted him. He was quizzed under cross examination regarding why he was now saying that the first respondent is one of the people who assaulted him. The statement materially contradicts the evidence he gave in court. His statement materially contradicts his evidence in chief.The court is left unclear regarding what happened in that office on that day. His explanation for the inconsistency is that he was not given an opportunity to explain himself when he was giving the statement. He was threatened and did not give the statement freely and was told to just sign the statement. He does not say who threatened him and forced him to sign the statement. He also does not say how he was threatened and by who. He has not shown that he was threatened at all. He does not come out clearly regarding what the effect of the effect of the threat was. He failed to satisfactorily explain why his statement is different from the version he gave in court. At the end of the day the court is unable to say whether he indeed was threatened.

The plaintiff testified that he had previously dealt with the first defendant in a matter that involved co-operatives. He had helped him as a result of which he was able to recover some monies that were owed to him. The first defendant did not dispute that he dealt with a co-operative matter that involved the plaintiff or that he had previously assisted the plaintiff.  He simply did not remember dealing with the plaintiff on a prior occasion. It is possible that the first defendant had dealt with the plaintiff in a matter the first defendant handled.

The plaintiff mentions the first defendant by name in his statement and says that he ordered him to lie on his stomach. He told the court in his evidence that the first defendant had handcuffed him. He seems totally confused about the part played by the first defendant. He does not say that the first defendant did anything else after asking him to lie down. There are doubts that the first defendant assaulted him. If he indeed he had assaulted him and he knew him before, he would have indicated so in his statement. Having mentioned his name in the statement, I see no reason why he would fail to relate the allegations of assault if indeed he had been assaulted. I do not see any reason why he would fail to tell the police that first defendant had perpetrated most of the assaults. I want to assume that by the time that he was giving the statement he had already identified the first defendant as having been present and assaulted him. There is no reasonable explanation why he would then fail to say that he assaulted him as well .It appears to me that the plaintiff is unable to identify his assailants and has simply chosen to falsely implicate the first defendant so that his claim holds. He appears to have identified him as a scapegoat because he is the only person he knew at that Police Station. The plaintiff did not fare well under cross examination. He was shaken and became evasive and failed to give straight answers to questions asked. He seemed unsure of his answers. He would fail to answer questions directly. He The probabilities favor the first defendant’s story that he did not assault the plaintiff. The plaintiff failed to lead evidence that supports the case he pleaded.

The plaintiff has failed to prove his case

In the result it is ordered as follows,

Plaintiff’s claim is dismissed with costs

Kwenda & Chagwiza, plaintiff’s legal practitioners

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