Shawn Tshuma v The Minister of Home Affairs and Commissioner-General of Police and Officer Moyo and Officer Chimhou and Officer Tendai

### Preamble
1
HH 194-13
HC 4819/09
---------


SHAWN TSHUMA

versus

THE MINISTER OF HOME AFFAIRS

and

COMMISSIONER-GENERAL OF POLICE

and

OFFICER MOYO

and

OFFICER CHIMHOU

and

OFFICER TENDAI

HIGH COURT OF ZIMBABWE

MTSHIYA J

HARARE, 5, 6, 8, 26 March 2013 and 19 June 2013

Ms S.C. Mutambasere, for the plaintiff

Ms R. Hove, for the defendants

MTSHIYA J:  In this action the plaintiff makes the following claim:-

“(a) Payment in the sum of US$4500-00 (Four Thousand and Five hundred United States Dollars Only) being damages for shock, pain and suffering, unlawful arrest and detention of the plaintiff perpetrated by third, fourth and fifth defendants, who were all members of the Zimbabwe Republic Police (ZRP) acting within the course and scope of their employment with the first and second defendants thus rendering the latter vicariously liable for their employees’ actions. The third, fourth and fifth defendants are liable in their personal capacities.”

It is common cause that on 26 April 2009 the plaintiff was arrested by the

third, fourth and fifth defendants in Sunningdale 2 for “drinking alcohol in a

public place” The arrest took place at around 1600 hours. The third, fourth and fifth defendants, who are members of the Zimbabwe Republic Police (ZRP), where deployed in Sunningdale 2 as a Cycle Patrol Team, with the fourth defendant as the Team Leader. Upon arrest, the plaintiff was first taken to Sunningdale Caravan Police Post and later to Braeside Police Station where he was detained for one night. He was released on the morning of 27 April 2009 upon paying a fine of US$20-00 for contravening s 116(1)(a) of the Liquor Act [Cap 14:12] (“the Act”).

There is a dispute as to the place of arrest. The plaintiff alleged that he was arrested at his place of residence, namely House number ‘1577-22 Close, Sunningdale 2. The third, fourth and fifth defendants, however, alleged that he plaintiff was arrested in a public street.

The accused alleged that he was, at the time of his arrest, drinking beer at his residence whilst washing his car in the company of a friend. The plaintiff goes on to allege that despite the fact that he was not drinking beer in a public place, he was arrested and taken to the Sunningdale Caravan Police Post where the third, fourth and fifth defendants “forced him to kneel, handcuffed him and proceeded to assault him with fists, booted feet and baton sticks all over the body”.

The assault, according to the plaintiff, resulted in him sustaining:-

“(a)	serious injuries on his back and eye

(b)	excruciating pain

(c)	unlawful infringement of his right to liberty; and

(d)	contumelia due to the inhuman treatment he was subjected to in

full view of the public”.

As a result of the foregoing, on 9 October 2009 the plaintiff issued summons against the defendants claiming the relief indicated at p 1 of this judgment.

At the pre-trial conference the agreed issues for determination were listed as follows:-

“1.	Whether the defendants acted reasonably and lawfully in arresting the plaintiff?

2.	Whether the defendants unlawfully assaulted the plaintiff upon arrest?

3.	Whether the defendants acted reasonably and lawfully in detaining the plaintiff overnight.

4.	Quantum of damages”.

The plaintiff and a friend of his, a Mr Justice Mashozhera, gave

evidence.

In the main the plaintiff’s evidence confirmed the arrest and detention as indicated in the facts of the case given above. There were, however material differences relating to the place of arrest, subsequent events after arrest and reasons for arrest.

The plaintiff told the court that he was arrested at his residence whilst washing his car. He was in the company of his friend, Justice Mashozhera. He said he was, in the process, drinking a quart ‘of pilsner beer ‘and was not drunk. He said his car was close to his house because he was using a vacuum cleaner which required a power point. The third, fourth and fifth defendants, who were in police uniform, had approached him and ordered him to follow them alleging that he was drinking beer in a public place. He had argued that he was drinking beer within the precincts of his residence and therefore not committing any offence. However, the police, he said, still arrested him and took him to Sunningdale Caravan Police Post where he was handcuffed and then assaulted as indicated  in para 1 at p 2 of this judgment. He confirmed that after the assault he was walked to Braeside Police Station. He said this was despite his offer to pay a fine, if indeed he had committed an offence as the three defendants alleged. He confirmed that he was detained overnight at Braeside Police Station and released on 27 April 2009 upon paying US$20-00 as admission of guilt.

The plaintiff said that upon his release he made a report about his assault to the member-in-charge at Braeside Police Station and also sought medical help.

In support of his evidence, the plaintiff submitted the following exhibits:-

Exhibit 1.	- Doctor’s Medical Report (Affidavit) dated 28/2/13

Exhibit 2.	- Police Request for Medical Report (Form 234) dated

29/04/09; and

Exhibit 3.	- a Sketch he drew up in court on 5/03/13 indicating assault

positions at Sunningdale Caravan Police Post.

The plaintiff’s witness, Justice Mashozhera, confirmed the friendship. He said on the day in question he was with the plaintiff at his (plaintiff’s) residence. He said they were washing the plaintiff’s car and that is when the police (i.e the third, fourth and fifth) arrived. He confirmed that the plaintiff was drinking a beer. The police, he said, then called the plaintiff to the road. He said was surprised when the police took the plaintiff away. He had followed and witnessed the assault by the defendants on the plaintiff at the Sunningdale Caravan Police Post.

The third, fourth and fifth defendants all gave evidence.

The first to give evidence was the fourth defendant, Tinashe Chimhou (Chimhou). Chimhou told the court that on 26 April 2009 he was the leader of the Cycle Patrol Team that was deployed in Sunningdale 2. The other team members were Constables Moyo (third defendant) and Zvikaramba (fifth defendant). He said they had met the plaintiff on a road, which road he could not remember, in Sunningdale 2. The plaintiff, he said, was drinking a quart of castle beer. He had approached the plaintiff and told him he was under arrest for public drinking. He said he had ordered the plaintiff to follow them but the plaintiff had refused and started shouting telling the defendants that “they did not know judicial law”. The defendants had then handcuffed him and taken him to Sunningdale Caravan Police Post where they detained him for two hours before taking him to Braeside Police Station. He said they had also taken the bottle of beer as an exhibit.

At Braeside, Chimhou said, as team leader, he had instructed Moyo to open a full docket against the plaintiff. The plaintiff was then handed over to the duty member at Braeside. He said they could not release him because police regulations did not allow for release of accused persons after 16:30 hours. He also said he did not hear the plaintiff offering to pay a fine.

The next person to give evidence was the third defendant, Innocent Moyo (Moyo). His evidence was, to a large extent, similar to Chimhou’s evidence. He said at Sunningdale 2 Caravan Police Post, they had temporarily handed over the plaintiff to Constable Mambirisi before taking him to Braeside Police Station where he prepared a docket with the following charges:-

“ - Public drinking

Being drunk and violent in a public place, and

Undermining police authority”.

Moyo then produced the following exhibits:

Exhibit 4.	- Reports Received Book dated 26/04/09; and

Exhibit 5 	- Crime Register dated 27/04/09

Exhibit 6 	- Extract from detention Book (Form 54) dated

27/04/09

Exhibit 7.	- Admission of guilt dated 27/04/09

Moyo said although he could not dispute the fact that the plaintiff was

assaulted, he did not know who had assaulted him. He said the defendants had not assaulted the plaintiff.

Tendai Zvikaramba, the fifth defendant, was the last to give evidence. In general, he also confirmed the evidence of the first two defence witnesses. He denied assaulting the plaintiff. He said he had never seen the plaintiff’s friend, Justice Mashozhera. Zvikaramba said when they took and left the plaintiff at Braeside Police Station, he had not noticed any injuries on him. He confirmed that it was Moyo who prepared the docket against the plaintiff. Zvikaramba said Chimhou had told him that the Member-In-Charge at Braeside was going to assess a fine for the plaintiff. He also confirmed that the plaintiff had submitted a complaint against them (the defendants). He said the plaintiff had complained of unlawful assault and detention.

Zvikaramba testified that Chimhou had, on his own, managed to subdue and handcuff the plaintiff and that he did not enter the Caravan. He said he was therefore not able to tell what transpired therein.

On the basis of evidence given and submissions made by both sides, I shall now proceed to determine each one of the issues identified at the pre-trial conference.

1.	Whether the defendants acted reasonably and lawfully in arresting the plaintiff

In determining this issue, it is important to find out whether or not there

was any lawful reason for the defendants to arrest the plaintiff. Admittedly the defendants were lawfully carrying out their normal official duties. The question, however,  that arises is: Was their arrest of the plaintiff on 26 April 2009 based on reasonable and lawful grounds? In order to answer this question we have to establish whether or not the plaintiff was committing or committed the offence of drinking beer in a public place as alleged by the defendants. The section of the Liquor Act [Cap 14:12] (“the Act”) relied upon, namely s 116, in full, provides as follows:-

“(1)	No person shall –

refuse to comply with the demand of any police officer made under this Act for information as to his name or address or for the production of a licence or permit; or

obstruct or hinder any police officer or any member, inspector or other official in the performance of any duty under this Act; or

with intent to deceive, make use of any purpose whatsoever of any authority, permit, certificate, licence or other document which is issued under or for any purpose of this Act and which is not his own; or

with intent to deceive, alter, destroy or mutilate any authority, permit, certificate, licence or other document issued under or for any purpose of this Act or unlawful withhold any such authority, permit certificate, licence or other document from any person entitled to the possession thereof or use any such authority, permit, certificate, licence or other document for any unlawful purpose; or

submit to a licensing authority any written information, whether on affidavit or otherwise, which he knows to be false or does not know to be true or any false document or document which purports to be, but which is not in fact, a true copy of the original or be in  any way a party to any such submission; or

after being duly sworn, give false evidence before a licensing authority on any matter relevant to the question under inquiry, knowing such evidence to be false or not knowing or believing it to be true; or

knowing that he is disqualified from doing so, act as a member or take any part in the hearing or decision of an application for a licence or make a false declaration as to his qualification to be a member, or

refuse or fail to leave any licensed premises when requested by the licensee, the approved manager, the agent or employee of the licensee or approved manager or any police officer to do so or be upon any restricted portion of licensed premises, knowing that his presence there is unlawful; or

refuse or fail to leave any premises, in respect of which a permit has been granted when requested to do so by any police officer, by the person to whom the permit was granted or by any person whom the grantee of the permit has authorised, whether in a particular case or in general, to make such request; or

be drunk, violent or disorderly upon any licensed premises or premises to which a permit relates; or

be drunk in or near –

any road, lane, thoroughfare or market place; or

any shop, warehouse or public garage; or

any place of entertainment, restaurant or race course; or

any other place to which the public is admitted or has access, whether on payment or otherwise and whether or not the right of admission thereto reserved; or

any aircraft, railway carriage, passenger vessel, omnibus or other means of public transportation; or

being a person to whom in terms of this Act the sale of liquor is prohibited, purchase or attempt to purchase liquor in contravention of such provision; or

purchase or consume any liquor at any time when, or at a place or in circumstances in which, or is unlawful for such liquor to be sold to or consumed by him, as the case may be; or

consume any liquor in any road, lane, thoroughfare, public square, public park or public garden within the area of a local authority or a local government area:

Provided that this paragraph shall not apply to the consumption of liquor –

at any social function which is held in any public park or public garden within the area and with the permission of the local authority or official administering the local government area concerned; or

on any land set aside by the local authority or official administering the local government area concerned for camping or picnic purposes or a caravan park;

or

sell, lend, give supply or deliver, or offer so to do, any liquor to any person under the age of eighteen years except with the consent of the parent or guardian of that person.

(1a) Any person who contravenes subs (1) shall be guilty of an offence and liable to a fine not exceeding level six or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.

(2) For the purposes of paragraph (n) of subs (1) –

“local authority” means a municipal council or rural district council”.

It is important to note that the plaintiff was made to pay a fine for contravening s 116(1)(a) of the Act (see exh 7). Furthermore, in terms of	 the evidence placed before the court by all the defendants, the plaintiff was arrested for:-

Public drinking

Resisting arrest; and

Undermining police authority

A look at the above provision of the law suggests that the plaintiff, if one

goes by the reasons  given for his arrest, should have offended sections:-

“(a) 116(1)(b)  	- obstruct or hinder any police officer or any member,

inspector or other official in the performance of any duty under

this

Act: or

(b) 116(1)(k)(i)	- be drunk in or near any road, lane thoroughfare or

market place; or………..

(c) 116(1)(n)	           - consume any liquor in any road, lane, thoroughfare,

public square, public park or public garden within the

area of a local authority or a local government area”.

The question to be answered then is:-

Did the plaintiff violate any of the above provisions of the law?

The plaintiff’s evidence is that he was drinking beer at his residence

whilst washing his car using a vaccum cleaner which required a power point. The need for power meant that his car had to be parked close to his house. That position was confirmed by his witness, Mashozhera. The defendants alleged he was on the road – a road they did not know until the court probed. The road, 1st Street Sunningdale 2, only became known after the Chimhou’s evidence. I therefore formed the impression that the defendants, in their three some, made their research after Chimhou’s evidence, which evidence, I must say, was not convincing and given arrogantly. It was clear to me that the evidence of the third and fifth defendants was rehearsed after Chimhou had already testified. The third and fifth witnesses were not convincing at all. They clearly gave the impression they did not care about the result of the court proceedings and had therefore come unprepared for the trial.

I believe it is essential that for the offences indicated under ss 116(1)(k)(1) and 116(1)(n) the road or public place must be named or identified. This was not the case in casu. Exhibits 5 and 7 clearly show that the plaintiff paid a fine for offending s 116(1)(a) of the Act which, as we can see, provides as follows:-

“(a)	refuse to comply with the demand of any police officer made under this Act for information as to his name or address or for the production of a licence or permit”. (my own underlining)

The evidence led in court by the defendants does not in any way relate to the above offence. I would, therefore, in the circumstances, agree with the plaintiff’s submission that the charges were trumped up in order to justify the arrest and detention of the plaintiff.  That being the case I would not dwell into the minor inconsistences that occurred when evidence was being led.

On a balance of probabilities, therefore, my finding is that the plaintiff was indeed drinking a beer at his residence and did not commit the offence of ‘public drinking’ as alleged by the defendants. Furthermore, I also accept that the plaintiff did not resist arrest but complied with the order of arrest where upon he was taken to Sunningdale Caravan Police Post. It was there that the handcuffs were placed on him.

Accordingly the only conclusion to be drawn from the foregoing is that the plaintiff’s arrest was unreasonable and unlawful. This finding disposes of the issue of whether or not the defendants acted reasonably and lawfully in detaining the plaintiff overnight.  There was no lawful reason to arrest and detain the plaintiff.

2.	Whether the defendants unlawfully assaulted the plaintiff upon arrest

The plaintiff produced exh 1, an affidavit from Dr N. Mutambwe, confirming that on 27 April 2009 he had examined the plaintiff. He confirmed the plaintiff’s injuries and came to the conclusion that the injuries were due to “Blunt trauma”. The said injuries, according to the Doctor’s report were ‘serious’.

The plaintiff also produced exh 2 confirming that he had indeed made a report to the Zimbabwe Republic Police, whereupon a request was made for him to be medically examined. That request was made on 29 April 2009 when the plaintiff had already approached a private Doctor i.e Dr N. Mutambwe. The plaintiff said his efforts to get a medical report from a Government hospital had failed. Given the existence of Dr N. Mutambwe’s report, whose production was not opposed, I did not find it necessary to dwell on the issue that there was no medical report from a Government institution. I had a medical report before me confirming that the plaintiff had been assaulted. The only question was to establish whether or not it was the third, fourth and fifth defendants who perpetrated the assault on the plaintiff.

It was the plaintiff’s evidence that the assault took place at the Sunningdale Caravan Police Post whilst he was handcuffed. He said the three defendants had only stopped beating him up when his left eye started bleeding. This was confirmed by Mashozhera.

The plaintiff said there was no further assault after leaving Sunningdale Caravan Police Post for Braeside Police Station.

All the three defendants denied beating up the plaintiff and seeing any injuries on him. The defendants confirmed, however, that since the time of his arrest up to the time they took him to Braeside Police Station, the plaintiff had remained under police custody. They further stated that the overnight detention at Braeside Police Station was for safe keeping. Furthermore, the three defendants admitted that they had been questioned by the authorities at Braeside Police Station about the assault. This was after the plaintiff had made a complaint. They all testified that upon being questioned they had written reports on the issue. None of them was, however, able to produce any of the reports submitted to the authorities at Braeside Police Station.

I believe that if the plaintiff had been assaulted at Braeside Police Station during his detention he would have said so. I am therefore unable to accept the bare denials of the three defendants that they did not assault the plaintiff, and in so doing I come to the conclusion that no other person other than the third, fourth and fifth defendants unlawfully assaulted the plaintiff.  I have no reason to reject the evidence of both the plaintiff and Mashozhera.

3.	The Quantum of Damages

The plaintiff claims damages in the sum of US$4 500 made up as follows:-

“(a)	Shock, pain and suffering		- US$1500-00

(b)	Unlawful arrest			- US$1000-00

(c)	Unlawful detention			- US$1000-00

(d)	Contumelia				- US$1000-00

Total					- US$4500-00

He also prays for interest on the total sum at the prescribed rate from the date of summons to the date of full payment.

In support of the above claim for damages counsel for the plaintiff submitted in part, as follows:-

“In assessing general damages in personal injury cases Minister of Defence and Anor v Jackson 1990(2) ZLR 1(SC) @ 7 and 8 is very instructive. GUBBAY JA, as he then was expounds the law:

It must be recognized that translating personal injuring into money is equating the incommensurable: money cannot replace a physical frame that has been permanently injured. The task therefore of assessing damages for personal injury is one of the most perplexing a court has to discharge. This is not withstanding certain broad principles that have been laid down which govern the obligation. These are

General damages are not a penalty but compensation. The award is designed to compensate the victim and not to punish the wrongdoer.

Compensation must be assessed as to replace the injured party, as far as possible in the position he would have occupied if the wrongful act causing him injury had not been committed, see Union Government v Warneck 1911 AD 651 @ 655.

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 consideration. See Sandler v Wholesale Coal Suppliers Ltd 1914 AD 194 @ 199

The court is entitled and it has the duty to heed the effect its decision may have upon the course of awards in the future, see Signouranay v Gillbanks 1960 (2) SA 552 (A) @ 555H)”.

The defendants’ Counsel countered the above by submitting that:-

“In as far as the quantum of damages (sic) I refer to the case of Monday Bopoto Nyandoro v  Minister of Home Affairs & Commissioner General HH 196-2010 where the court awarded the plaintiff damages in the amount of $5000 in total. In this particular case the plaintiff suffered more serious injuries because of the assault. Plaintiff sustained injuries which deprived him of future income as he was disfigured. He suffered even at the time the trial was concluded, from a limp and his prospects of recovery were much slimmer considering that he was of advanced age (63 years) and was self-employed and was still on medication. Contrary however to this case, the plaintiff is young (29 years), employed and has not suffered any financial loss, nor has he proven to have suffered serious injuries that are permanent enough to hinder him from fending for him. An amount of $4500-00 as claimed by the plaintiff is unjustified and the defendant denies it in torto. (sic)

In conclusion therefore taking into consideration all the above factors, the defendants still deny liability for the plaintiff’s claim and prays for the dismissal of such application”.

Indeed, in arriving at the quantum of damages, one has to  seriously take heed of the above submissions.

I shall start by pointing out that there was no dispute on the issue of vicarious liability. The first and the second defendants pleaded that the third, fourth and fifth defendants were acting in their official capacities. This is further confirmed in the defendant’s submissions as follows:-

“As far as vicarious liability, onus of proof ad damages, are concerned, the case law cited by the plaintiff is not disputed. However, should the court find in the plaintiff’s favour the quantum of damages is greatly disputed”.

The finding of unlawful arrest, detention and assault clearly entitles the

plaintiff to general damages. The only issue for determination therefore is the quantum of those damages.

According to the three defendants’ evidence the arrest of the plaintiff drew a crowd of people from neighbouring houses and he was further assaulted in a public place before being taken, in handcuffs, for overnight detention at Braeside. All this was humiliating and uncalled for.  The public, as per evidence from the defendants witnessed the arrest.

Accordingly and guided by decisions in cases such as Muzondo v Ministry of Home Affairs 1993(1) ZLR 92(S) and Mapuranga v Mungate 1997 (1) ZLR 64(H) (where a plaintiff detained for 8 hours was awarded damages amounting to Z$4000-00 I do believe that, the Zimbabwe dollar then, had value), I do not find the plaintiff’s claim to be outrageous. The plaintiff’s liberty was unlawfully interfered with as from 16:30 hours on 26 April 2009 until around 8 hours on 27 April 2009. He, apart from public humiliation, suffered pain from injuries.

In David Muyambo v John Ngomaikarira and 5 Ors, PATEL J, as he then was, pointed out that:-

“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 de) 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 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 casu the use of force was evident and the medical report says the injuries were serious.

I am therefore satisfied that, given the facts of this case, the sum of US$4500-00 for general damages is a reasonable amount. The defendants, who are law enforcement agents, should pay for joyfully breaking the law and thereby denying a citizen his liberty, causing him pain, suffering and public humiliation.

In the result I make the following order:-

It is ordered that:-

The defendants shall jointly, the one paying the others to be absolved, pay the plaintiff

the sum of US$4500-00 for unlawful arrest, unlawful detention contumelia, pain, shock and suffering with interest thereon at the prescribed rate from the date of summons to the date of full payment; and

The defendants shall pay costs of suit.

Zimbabwe Human Rights Forum, plaintiff’s legal practitioners

The Civil Division, Attorney General’s Office, defendants’ legal practitioners