Tinashe M. Zenda Hungwe Versus Veronica DURO AND Kushinga NEDI AND Tariro NEDI AND Rebecca Rusere AND Monica Mudavanhu

### Preamble
1
HH 786-18
HC 1450/14
---------


TINASHE M. ZENDA HUNGWE

versus

VERONICA DURO

and

KUSHINGA NEDI

and

TARIRO NEDI

and

REBECCA RUSERE

and

MONICA MUDAVANHU

HIGH COURT OF ZIMBABWE

MUZOFA J

HARARE, 14, 23 November 2018

Motion Court - Damages

L Ziro, for the plaintiff

No appearance for the defendant

MUZOFA J: On 20 February 2014, the plaintiff issued summons against the defendants for malicious prosecution. He claimed $14 000 for loss of earnings $25 000 for legal costs and $100 000 for contumelia. The defendants were duly served with the application and after default in filing the relevant pleadings. The matter was accordingly set down on the unopposed roll. The matter was heard and the claim was dismissed. The plaintiff noted an appeal, the decision was set aside and the relevant part of the Supreme Court order reads

“3. The matter be and is hereby remitted to the unopposed roll for a determination of the 	damages due to the appellants.”

My reading of that order is that the court does not have to concern itself with the issue of liability. The court has to determine on the damages payable to the plaintiff only.

The brief facts of the case are that the plaintiff, a legal practitioner was appointed executor of the estate of the defendants’ late father. It was alleged that he did not conduct his duties properly and among the allegations it was alleged that he sold some property without the consent or knowledge of the defendants. The defendants laid a criminal charge against the plaintiff. The plaintiff was arrested and incarcerated in police custody. The docket was taken for prosecution and prosecution was declined. The defendants protested until the matter was re - opened and referred to court. He was placed on remand. While on remand the defendants wrote letters of complainant against him to every influential office they could think of including the President’s office and the Law Society of Zimbabwe. In due course the plaintiff was tried and subsequently acquitted. The defendants offered no apology to the plaintiff. The plaintiff then filed this claim.

In Joubert, in The Law of South Africa Volume 15 para 617 referred in Bande v Munginguri 1999 (1) ZLR 476 (HC) the court said,

“The successful plaintiff in action for malicious prosecution is entitled to damages for both 	injury to personality and pecuniary loss suffered. The former are awarded as solatum under 	the actio iniuriarum while the latter constitute compensation under the action legis a qualia.”

The claim for contumelia arises from injury to the plaintiff’s personality, reputation and dignity. These are general damages. There is no arithmetic formula to compute such damages but courts have come up with some considerations to assist in coming up with an award for damages. Greenland J in Masawi v Chabata 1991 (1) ZLR 148H had this to say;

“as regards quantum it must be borne in mind that the primary object of the injuriam is to 	punish 	the defendant.”

Counsel for the plaintiff conceded that he could not get case law dealing with malicious prosecution of a legal practitioner. In Abu Basuthu v Moyo HB 173/13 which case l was encouraged to rely on and grant damages, in the region of US$30 000 the plaintiff was detained for 98 days. The defendant and plaintiff were in partnership; the defendant caused some financial prejudice to the company and falsely incriminated the plaintiff. In coming up with an award the court considered the number of days the plaintiff was detained and that the defendant had benefitted from his criminal activities. In my view each case depends on its facts. However courts take a serious view where there has been deprivation of liberty.  In Botha v Zvada 1997 (1) ZLR 415 the court held;

“As regards the quantum of damages…. Our courts have quite properly taken the stance that 	deprivation of liberty is a very serious infraction of fundamental rights.”

I must add that there is a direct link between the period of detention and the damages awarded the more the number of days incarnation the greater the award in damages.

In casu the plaintiff was in police custody for 4 days. He said the police cells were just inhabitable he had to endure a lot of pain and suffering. The cells were overcrowded, unflushed toilet and lice infested. The conditions were extremely unbearable for him being a lawyer yet he had no case to answer. There is no doubt that the incarnation and subsequent prosecution tarnished his image and professional standing. Whatever perception the public hold of a lawyer affects their practice. In this case a negative perception was built. The plaintiff was not only maliciously prosecuted, the matter was reported in the Herald Newspaper entitled “Lawyer accused of theft” that on its own certainly had a negative impact to his reputation. The public generally do not then follow up on what happens to a case, once accused a person bears the negative reputation until in due course they forget about it. I agree with plaintiff that this was a grave injury to his reputation and practice generally. I would not be surprised if he lost clients during the period. Counsel for the plaintiff urged the court to award exemplary damages particularly to send a message to the public that legal practitioners should not be intimidated when doing their work but left to do their work without threats from the clients. My view rather is that such damages should strike a balance between the protection of the legal practitioners from unnecessary litigation arising from their work and the public’s right to question a legal practitioner’s conduct. A legal practitioner should not be seen as a sacred cow, the untouchables but rather they should be accountable partners in the dispensation of justice. In that light I believe damages of $100 000 are on the high side. Counsel for the applicant conceded that the claim was on the high side particularly considering awards in our jurisdiction. Damages of $20 000 should meet the justice of this case. Even if there are five defendants I am of the firm view that each one of them will feel the pinch of the award.

Plaintiff requested costs on a higher scale; I see no reason to deny the request. The defendants’ conduct in instigating the prosecution and to malign the plaintiff in every office is nothing short of deplorable.

Accordingly the following order is made that,

The defendants shall pay the plaintiff, jointly and severally, the one paying the other to be absolved, an amount of $20 000 (Twenty thousand dollars) for damages arising from malicious prosecution, together with interest at the rate of 5% per annum from 28 February 2014 (date of service of summons) to date of final payment.

The defendants shall pay, jointly and severally, the one paying and the others to be absolved, the costs of this application on attorney-client scale.

Hungwe & Partners, plaintiff’s legal practitioners

Magaya-Mandizvidza Legal Practitioners, defendant’s legal practitioners