Mavis Dandira v The Minister of Home Affairs and The Commissioner General of Police and The Minister of Defence

### Preamble
1
HH 247-12
HC 11442/03
MAVIS DANDIRA
versus
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MAVIS DANDIRA
versus
THE MINISTER OF HOME AFFAIRS
and
THE COMMISSIONER GENERAL OF POLICE
and
THE MINISTER OF DEFENCE

HIGH COURT OF ZIMBABWE
CHITAKUNYE J
HARARE June 9, 2011 and June 13, 2012

CIVIL TRIAL

R. Magundani, for the plaintiff
C. J. Chawafambira, for 1st, 2nd and 3rd Defendants

CHITAKUNYE J. The plaintiff is a female adult. The first, second and third defendants were cited in their official capacities.

On 17 December 2003 the plaintiff sued the defendants seeking payment of:-

1. Z$ 300 000 being damages for pain and suffering and
2. Z$250 000 being damages for contumelia.

The plaintiff alleged that on 2 June 2003 she was part of a group of demonstrators which was marching from Highfields suburb towards the city of Harare. Along the way they were confronted by members of Zimbabwe National Army herein after referred to as ZNA. Commotion ensued and the plaintiff fell down as she attempted to run away. The ZNA soldiers caught up with her and started assaulting her with rifle butts all over the body. She was bundled into a green army Land Rover motor vehicle and taken to Machipisa Police Station. The soldiers took turns in assaulting her en-route to the police station.

At Machipisa Police Station she was handed over to members of the Zimbabwe Republic Police. The police officers, to whom she was handed over, perpetrated further assaults on her person using baton sticks. After further assaults by the police officers she was forced to pay an admission of guilty fine for breach of a section of the Miscellaneous Offences Act, [Cap 9:15] in order to be released.

As a result of the assault by the soldiers and police officers she sustained severe bruises all over her body. She alleged that at all material times during the assault, the soldiers and the police officers were acting in the course and scope of their employment with the defendants. The defendants are thus vicariously liable for the actions of their employees.

It is as a result of the above that the plaintiff alleged she suffered damages in the amounts claimed.

The defendants in their joint plea did not deny that on 2 June 2003 there was a demonstration and that the plaintiff was part of the demonstrators. They did not deny that the plaintiff was apprehended and taken by members of ZNA to Machipisa Police Station. The defendants however denied that their members assaulted the plaintiff in the process. They contended that at Machipisa Police Station the plaintiff and others were advised that they could either pay a fine of $3 000 or be taken to court on the charge of contravening s 7(b) of the Miscellaneous Offences Act. The plaintiff opted to pay the fine. As far as the defendants are concerned the plaintiff was not assaulted and so did not suffer any damages at all.

At a pre-trial conference held on 26 August 2004, the following issues were referred to trial:-

1. Whether the plaintiff was assaulted by members of the Zimbabwe National Army before being taken to Machipisa Police Station;
2. whether the plaintiff was assaulted by Policemen while in custody at Machipisa Police Station;
3. whether the plaintiff paid a fine willingly or under duress;
4. whether the plaintiff sustained any injuries;
5. quantum of damages if any;
6. Whether or not defendants are vicariously liable;

On the date of trial plaintiff applied for amendment to her claim such that the amount being claimed was now in United States dollars and not in Zimbabwean dollars. The defendants opposed the application. After some heated arguments I granted the application such that the plaintiff’s prayer now read:-

“Wherefore in the premises, the plaintiff claims as against the defendants, jointly and severally, one paying the other to be absolved, the sum of:-

a) US$3200.00 (three thousand two hundred United States dollars) being damages for pain and suffering;

b) US$1000.00 (one thousand United States dollars) being damages for contumelia

c) Interest at the prescribed rate from date of issue of summons to date of full and final payment

d) Costs of suit.”

The plaintiff gave evidence after which the defendants gave evidence through one witness, Sergeant Pelagia Chikwera.

From the evidence adduced it was common cause that on 2 June 2003 there was a demonstration and the plaintiff was part of the demonstrators. Plaintiff was apprehended by members of Zimbabwe National Army. It was not denied that she was taken around in the army motor vehicle. Eventually she was handed over to members of Zimbabwe Republic Police at Machipisa Police Station. At Machipisa Police Station she paid an admission of guilty fine and was released.

The plaintiff’s evidence was to the effect that after ZNA members had apprehended her they assaulted her severely. As the soldiers drove around Highfields suburb they were taking turns in assaulting her. At some point she asked if they could just kill her instead of continuously subjecting her to the assaults. After about 3 to 5 hours the soldiers took her to Machipisa Police Station where she was pushed out of the motor vehicle and into the police station. Members of the police force who received her perpetrated further assaults on her person.

It was her evidence that the assault by the police officers was not as severe as the assault by the soldiers. After further assault at the hands of the police officers, she and others were then threatened that if they did not pay admission of guilty fines they would be taken to Harare Central Police Station were further and more severe assaults were to take place. In fear of being taken to Harare Central Police Station she opted to pay the fine. She was then taken to an office were payments were being made. After paying the fine she was released.

The plaintiff tendered medical documents as confirmation of the injuries she suffered and the treatment she had to under go as a consequence of the assaults. The documents had their own problems in that they were all uncertified photocopies. No mention was made of the whereabouts of the original documents. Besides that, the contents of some of the documents were hardly legible.

The plaintiff’s bundle of documents comprised 6 documents. Page 1 of the plaintiff’s bundle of documents is an uncertified photocopy of an affidavit purportedly deposed to by Laurence Fraser Levy. In this document Dr. Levy states that he examined the plaintiff on 6 September 2003. This was about 3 months after the assault. There was no explanation for the delay. I am of the view that this long delay lessened the weight to be attached to his findings. Surely anything could have interfered with the plaintiff’s health in that period.

Another unexplained anomaly is that after having examined the plaintiff on 6 September 2003, the doctor only deposed to the affidavit a year later on 14 September 2004. That delay was not explained.

According to the plaintiff she was taken to the Avenues clinic on the day of the assault. By then one would assume the injuries were still fresh. Naturally the nature and extent of injuries noted by Dr. Levy would be expected to tally or to relate to those observed by the doctor who first attended to the plaintiff at the Avenues Clinic. There was need for evidence linking the injuries sustained on 2 June 2003 and those observed by the doctor three months later.

Page 2 and 3 of the plaintiff’s bundle of documents are documents from the Avenues Clinic pertaining to injuries noted on the plaintiff. The injuries noted were described as ‘Soft tissue injury’. No where in those reports is there reference to broken bones or such other open wounds.

Page 4 is a document of instructions at West End clinic and is dated: 19 February 2004. It relates to an operation the plaintiff said was done on her. There is nothing else to confirm that such a surgical operation was in fact done.


As already pointed out above there was need to show a relationship between the injuries sustained on 2 June 2003 and the medical condition that was intended to be corrected by the surgical operation.

I am of the view that the chain of medical evidence needed to be testified to by a medical expert. It is not always the case that one’s future medical condition is a consequent of an assault or ill-treatment one may have under gone in the past. There is invariably need for evidence that clearly shows the link between the assault, injuries sustained and subsequent medical conditions. In casu no such evidence was led.

Page 6 is a photocopy of a person’s thigh from the hip to the knee. Plaintiff said it is her thigh but there is nothing to confirm so. The photograph ought to have been certified confirming whose thigh it was and when the photograph was taken. In the absence of such confirmation it is of no value.

After a careful examination of all the documents tendered I am of the view that they left a lot to be desired.

What is however clear from the plaintiff’s evidence is that she was assaulted and sustained some injuries. It is evidence on the nature and extent of such injuries that was found wanting.

The defendant’s evidence was led from one Sergeant Pelagia Chikwera, a police officer. At the time of the incident she was a constable based at Machipisa Police Station. Her evidence was to the effect that on the day in question she was on duty in the charge office when the plaintiff and others walked in from the holding cells to tender payment for fines. She explained that the set up of the offices was such that she did not see when the plaintiff was brought to the police station. She also could not see what was taking place where the plaintiff and others were being held before they came to pay the fines. She further conceded that when plaintiff came to pay the fine she did not explain to her the nature of the charge. She assumed that that had been done by other officers.

This witness’ evidence did not deal with the issue of assault at all. She thus could not deny or confirm that the plaintiff was assaulted by members of the ZNA who apprehended her and by police officers when she was handed over to the police before approaching her to pay the fine. She also could not refute that the plaintiff had been threatened with being taken to Harare Central Police Station for further assaults if she did not pay the fine. Sergeant Chikwera however confirmed that on the day in question there was a joint operation involving the police and the army in the area in question. It was during this joint operation that the plaintiff was apprehended.

In as far as sergeant Chikwera could not testify on what happened at the time the plaintiff was apprehended and brought to the police station, it follows that the plaintiff’s evidence on these aspects remained unchallenged. In the absence of contrary evidence I find that the plaintiff was assaulted by members of the ZNA and Police officers in the manner she described. Further in the absence of any evidence that the ZNA and Police officers were not acting in the course and scope of their duties/employment I find that they were in fact acting in the course and scope of their employment with defendants.

The question is: are defendants’ vicariously liable in the circumstances?

Section 2 of the State Liabilities Act [Cap 8:14] states that:-

“Any claim against the State which would, if that claim had arisen against a private person, be the ground of an action in any competent court, shall be cognizable by any such court, whether the claim arises or has arisen out of any contract lawfully entered into on behalf of the State or out of any wrong committed by any officer or employee of the State acting in his capacity and within the scope of his authority as such officer or employee, as the case may be.”

In casu as the ZNA soldiers and Police officers who assaulted the plaintiff were doing so in the course and scope of their employment with the defendant’s it follows that the defendants are vicariously liable.

The next aspect to consider is whether the conduct by the defendants’ employees was wrongful and unlawful. The plaintiff was clear in her evidence that she had not conducted herself in any way that justified the ZNA soldiers and the police officers to assault her. The defendants themselves have not given any evidence to contradict that. The plaintiff’s allegation that the assault was wrongful and unlawful was not denied by the defendants in their evidence. The only defense witness who testified could not refute the plaintiff’s evidence as she only saw the plaintiff in her office at the time of paying the fine. The witness was ignorant of what had transpired before the plaintiff came to pay the fine. I therefore accept as a fact that the defendants’ employees had no lawful right to assault the plaintiff as they did. Their conduct was therefore wrongful and unlawful.


The next issue is on the quantum of damages. The plaintiff’s claim for damages is under two headings that is:-

1. Pain and suffering USD3 200.00; and
2. Contumelia USD1 000.00.

1. Pain and suffering

In his book, ‘The Law of delict’ by PQR BOBERG Volume 1 1984 at page 516, the learned author had this to say about the remedy for pain and suffering:-

“Compensation may be awarded not only for the actual physical pain but also shock, discomfort and mental suffering, disfigurement, loss of amenities of life and disability, and loss of expectation of life. For convenience we speak simply of pain and suffering, but the concept embraces all these non-pecuniary misfortunes – past and future – of an injured person. Nor is the list a closed one.”

It is not easy to measure pain and suffering in monetary terms. There is no hard and fast rule the various aspects constituting pain and suffering can be measured to come up with an exact figure. The pain and suffering experienced by each individual varies. No two persons can experience the same level of such pain and suffering. This makes it hard to rely on past cases with any certainty except as general guidelines. In Minister of Defence and Another v Jackson 1990 (2) ZLR 1 (SC) GUBBAY JA (as he then was) at p 7 stated that:-

“It must be recognized that translating personal injuries into money is equating the incommensurable, money cannot replace a physical frame that has been permanently injured. The task of assessing damages for personal injury is one of the most perplexing duties a court has to discharge.”

The Honorable judge went on to enumerate 8 broad principles that should guide a court in assessing such damages. These are:-

“1. General damages are not a penalty but compensation. The award is designed to compensate the victim and not to punish the wrong-doer.

2. Compensation must be so assessed as to place the injured party, as far as possible, in the position he would have occupied if the wrongful act causing him the injury had not been committed. See Union Gvt v Warnecke 1911 AD 651 at 665.

3. Since no scales exist by which pain and suffering can be measured, the quantum of compensation to be awarded can only be determined by the broadest general considerations. (See *Sandler v Wholesale Coal Suppliers Ltd* 1941 AD 194 at 199)

4. The court is entitled, and it has the duty, to heed the effect its decision may have upon the course of awards in future. (see *Sigournay v Gill Bank* 1960 (2) SA 552 (A) at 555H).

5. The fall in the value of money is a factor which should be taken into account in terms of purchasing power, but not with such an adherence to mathematics as may lead to an unreasonable result, per SCHREINER JA in *Sigournay’s* case, *supra*, at 556C. see also *Southern Insurance Association Ltd v Bailey N. O.* 984(1) SA 98(A) at 117B-D, *Ngwena v Mafuka* S 18/89 not reported at page 8 of the cyclostyled copy.

6. No regard is to be had to the subjective value of money to the injured person, for the award of damages for pain and suffering cannot depend upon or vary according to whether he be a millionaire or a pauper. (see *Radebe v Hough* 1949(1) SA 380 (A) at 386.

7. Awards must reflect the state of economic development and current economic conditions of the country. See *Mairs case supra* at 29 H; *Sadomba v Unity Insurance Co. Ltd & Anor* 1978 RLE 262 (G) at 270F; 1978 (3) SA1094 at 1097C; *Minister of Home Affairs v Allen S* 76/86.. at p 12 of the cyclostyled copy. They should tend towards conservatism lest some injustice be done to the defendant. See *Bay Passenger Transport Ltd Franzem* 1975 (1) SA 269 (A).

8. For that reason, reference to awards made by the English and South African courts may be an inappropriate guide since conditions in those jurisdictions, both political and economic are different.”

See also *Marufu v Mawona and Ors* 1996 (1) ZLR 593; and *De Klerk & Ors v Makwiro* HH 31/92.

It must be clear from the above that each case must be treated on its own merit. Sight must not be lost of the nature and extent of the injury suffered and the fact that the award is essentially to compensate plaintiff for such injury.

In *Gwiriri v Starafrica Corporation (Private) Limited t/a Highfield Bag (Pvt) Ltd.* 2010 ZLR 160 (H) the plaintiff went through excruciating pain as his right hand was being crushed by a machine at work. As a consequence he effectively lost the use of that hand due to that work related accident. He claimed among others things damages for pain and suffering. I awarded damages for pain and suffering in the sum of USD3000.


In *Nyasha Gutsire v Mathew Makanyanga and Anor* HH290/11 the plaintiff was unlawfully arrested, assaulted and detained by members of a rival political party. He sustained injuries that included: fracture of the fifth metatarsal bone in the right foot’ an injury in one eye and some burns due to the fact that he was forced to sit close to an open fire. He sued defendants for shock, pain and suffering; contumelia and unlawful arrest. For shock, pain and suffering he was awarded damages in the sum of USD1500 (one thousand and five hundred United States dollars).

In *Monday Bopoto Nyandoro v Minister of Home Affairs and Commissioner of Police* HH 196/2010 the plaintiff was assaulted by police officers during a demonstration. He suffered more excruciating pain and injuries than in the present case. He was awarded USD1500 for shock, pain and suffering.

In *casu* the injuries suffered by the plaintiff were not shown to have been as serious as in some of the cases cited above. It is my view that for pain and suffering the evidence adduced does not warrant an award above one thousand United States dollars.

The other claim is for contumelia in the sum of USD1000 (one thousand United States dollars). Counsel for the plaintiff indicated that this claim was raised to recompense the injury, hurt, insult and indignity inflicted upon the plaintiff by the defendants’ unlawful conduct.

Contumelia involves, inter alia, the infringement of a person’s right to privacy, dignity and reputation.

In *Nyasha Gutsire v Mathew Makanyanga and Anor* (supra) the plaintiff was awarded USD500.00 for Contumelia. In casu plaintiff seeks USD 1000.00.

The plaintiff’s evidence was to the effect that after being apprehended by members of the ZNA she was subjected to assaults at the back of the truck. The truck was driven around Highfields where she lives. The assault was done in view of members of the public. As a result of that conduct she felt greatly embarrassed because this was in her neighborhood. At 36 years of age she considered herself elderly and so to be subjected to such treatment was of great embarrassment and impairment of dignity. Upon being taken to the police station she was subjected to further embarrassment by the manner in which she was whisked into the police station and treated in the cell she was held in.


Though the plaintiff claimed a sum of USD1000, I am of the view that her evidence did not warrant such a sum. Whilst there is no doubt she suffered some loss of dignity in the manner she was apprehended and treated thereafter, I am of the view she has not shown such loss of dignity was of such a degree as to warrant an award of USD1000. In short, she has not shown on a balance of probabilities that she suffered damages to that extent under this heading. I believe an award of USD500 (five hundred United States dollars) would be adequate in the circumstances.

The plaintiff’s claim for interest to be paid as from the date of issue of summons was without justification and so will not be granted. At the time of summons the claim was in Zimbabwean dollars and no justification for interest in United States dollars was made for that period. It is only proper that interest be as from the date of this judgment.

Accordingly judgment is hereby entered for the plaintiff and against the defendants, jointly and severally, one paying the other to be absolved as follows:-

1. USD 1000.00 (One thousand United States dollars) being damages for pain and suffering;
2. USD 500.00 (Five hundred United States dollars) being damages for contumelia;
3. Interest at the prescribed rate from the date of this judgment to the date of payment in full; and
4. Costs of suit on the ordinary scale.

Zimbabwe Human Rights NGO Forum (public Interest Unit), plaintiff’s legal practitioners
Civil Division of the Attorney-General’s Office, defendants’ legal practitioners.
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