Ashel Mutungura versus Obvious Chikata and Eric Nyanhongo

### Preamble
1
HMT 52-20
HC 85/19
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ASHEL MUTUNGURA

versus

OBVIOUS CHIKATA

and

ERIC NYANHONGO

HIGH COURT OF ZIMBABWE

MUZENDA J

MUTARE, 23, 24 and 30 July 2020

Civil Trial

P Nyakureba with K Kabaya, for the Plaintiff

KG Muraicho, for the first Defendant

Mrs M Mandingwa, for the second Defendant

MUZENDA J: “CASIO: Reputation, reputation, reputation!

Oh I have lost my reputation.

I have lost the immortal part of myself.

And what remains is bestial, my reputation iago my reputation.

IAGO: As I am an honest man I had thought you had received some bodily wound, there is more sense in that than in reputation.

Reputation is an idle and most false imposition oft got without merit and lost without merit and lost wihout deserving. You have lost no reputation at all, unless you repute yourself such a loser.”

“IAGO: Good name in man and woman dear my lord.

Is the immediate jewel of their souls.

Who steals my purse steals trash something, nothing.

‘Twas mine its his, and has been slave to thousands

But he that filches from me my good name robs me of that which not enriches him

And makes me poor indeed.”

On 26 March 2019, the plaintiff issued summons against the two defendants jointly and severally one paying the other to be absolved claiming the following:

US$200,000-00 as damages for malicious arrest and prosecution,

US$150,000-00 as damages for the injury to his dignity,

US$140,000-00 as defamation damages,

US$10,000-00 as pecuniary damages suffered in legal fees for defence counsel,

Interest thereon at the prescribed rate from the date of judgment to the date of payment in full,

Costs of suit at a legal practitioner and client scale,

Interest thereon at the prescribed rate, from the date of judgment to the date of payment in full,

On the 11th of April 2019 and 29th March 2019 both defendants entered appearance to defend on the respective dates.

BACKGROUND OF THE MATTER

According to the declaration, the plaintiff resides in Mutare. He is a registered legal practitioner practising under the style of Mutungura and Partners where he is the managing and senior partner. He is also the Registrar of the Anglican Diocese of Manicaland in the Church of the Province of Central Africa.

First defendant is a former headmaster of St Mathias Tsonzo High School owned by the Anglican Diocese of Manicaland. Second defendant is a school bursar at St Mathias Tsonzo High School.

According to Plaintiff, sometime in September 2018, the first and second defendants instituted a criminal proceeding against the plaintiff by alleging that he had stolen money from St Mathias Tsonzo to the value of $8 160-00. Following the report by the two defendants acting together, the plaintiff was arrested by members of the Anti-Corruption Commission working jointly with officers of the Zimbabwe Republic Police. Plaintiff was brought before the courts to answer charges of theft of trust property at the instance of the defendants and was acquitted at the close of the State case.

He adds that at the time they instituted proceedings, the defendants knew that the plaintiff had not committed the offence in question but only meant to harass, embarrass and publicly humiliate the plaintiff in a greater scheme of church politics that were playing in the diocese by portraying him as a corrupt lawyer who wanted to steal from the church and not worth to hold a key position in the church. When the trial commenced and the witnesses had been subjected to cross-examination it became apparent to the defendants that they were mistaken in their complaint. The prosecution instigated by the defendants was malicious, they had no reasonable grounds or probable cause whatsoever to believe that the plaintiff had committed such an offence.

To plaintiff the actions of the defendants caused harm to the plaintiff’s dignity and harmed his professional reputation and standing in the eyes of his peers, the general society in Mutare and the Anglican world over who learnt through ecclesiastical communications that he was facing such embarrassing charges. He was made to unnecessarily incur direct expenses in engaging a lawyer to defend a case which was never and parted with US$10,000-00 in legal fees. Plaintiff demands that both defendants pay him US$500,000-00 for malicious arrest and prosecution.

According to the first defendant’s plea, he denies acting in the manner alleged by the plaintiff. He was merely called as a witness to testify on behalf of the State. The arrest and prosecution of the plaintiff were done at the instance of Zimbabwe Anti-Corruption Commission who made the report and investigations to the police. The trial proceedings were conducted by the State. First defendant is not the complainant. First defendant denies instituting any proceedings against plaintiff. His involvement in the trial proceedings was that of witness and not meant to harass, embarrass or humiliate anyone. The matter was submitted to the State which referred the matter to trial. The first defendant also states that he is not to blame for any loss suffered by the plaintiff. First defendant also denied any malicious intent and denied taking part in the church politics. To first defendant the proceedings brought by the plaintiff are malicious, unfounded and amounts to harassment. First defendant prays that plaintiff’s claim be dismissed with costs.

The second defendant denies instituting criminal proceedings against plaintiff. They were instituted by the Anti-Corruption Commission together with the police. Second defendant states that he was only but called as a state witness. He was not the complainant and denied being malicious to the plaintiff. He had nothing to gain by plaintiff’s arrest and prosecution. The State investigated the matter and took plaintiff for prosecution and second defendant denies being liable to the plaintiff. His plea is on all fours with that of the first defendant on all other issues and prays for the dismissal of the plaintiff with costs on a punitive scale.

On 12 March 2020, the parties agreed that the following constitute issues for trial:

Whether or not the first and second defendant caused the arrest of the plaintiff and instituted/instigated the criminal proceedings against him.

If so, whether or not the arrest and prosecution was malicious and unlawful?

If so, whether or not the plaintiff suffered damages as a result of the unlawful arrest and malicious prosecution?

If so, what is the quantum of damages that the plaintiff is entitled to, for malicious prosecution, defamation and pecuniary loss?

The onus was on the plaintiff.

Plaintiff testified. He told the court that the prosecution which followed his arrest was actuated by the two defendants’ malice. St Mathias Tsonzo High School, the alleged complainant in the criminal trial, is not a juristic person, it is wholly owned by the Anglican Diocese of Manicaland. The school’s property and funds are owned by the Diocese. Anyone who represents the High School must be appointed by the Standing Committee and the Trustees of the Diocese. In this matter Mutungura and Partners was engaged by the Church’s Trustees to represent it in a suit involving Mutasa Rural District Council and St Mathias Tsonzo High School. All legal instructions to Mutungura and Partners to defend the matter were given by the Anglican Diocese and not initiated by the Headmaster. All payments to Mutungura and Partners were borne by the church. At no point did the legal firm nor plaintiff wrote to request payments from St Mathias Tsonzo High School.

First defendant was not by then the headmaster of the school, he knew nothing about the matter. Second defendant is an employee of the church whose duty is to write instructions. He knows how the church operates. Plaintiff was adamant that first defendant was malicious because just before September 2018, there were about four (4) strikes at St Mathias Tsonzo High School by the school pupils during the second and third terms. Plaintiff attended to three strikes at midnight in his capacity as the Diocesan Registrar. He recommended that a Commission of Enquiry be carried out in respect of first defendant. The result of that enquiry was that first defendant was found to be not suitable to head the High School. There was also established that there was a breakdown of relationships between the first defendant and staff members, non-participation of the school in church activities and at that time the first defendant was victimising the second defendant at the school. First defendant had employed his own employee to perform on parallel lines the duties of the second defendant. It was then recommended that first defendant be transferred to another school. First defendant all along knew that plaintiff’s office was responsible for such transfer recommendations. First defendant was also aware that plaintiff had successfully transferred one person who had behaved as he did. First defendant then joined hand with a particular faction in the Anglican Diocese of Manicaland to work towards plaintiff’s downfall. He did not consult the officials at the Diocese about the payments made to plaintiff’s law firm because he knew what his objective was to distract and tarnish plaintiff’s image and good standing, that is why first defendant went to report the matter.

The second defendant who was the bursar of St Mathias Tsonzo High School joined first defendant in his malicious deed. Second defendant could have said the truth but chose not to. He knew that the equipment and computer desk had been attached by the Messenger of Court at the school in execution of a judgment obtained by Mutasa Rural District Council in a debt owed by the school in excess of US$18.000-00. He knew that execution was suspended when plaintiff’s law firm had filed an exparte application. He knew that legal fees are paid to lawyers who represent the Diocese. He also knew that they do not go to plaintiff’s offices they send officials. So first defendant deliberately reported the matter to Zimbabwe Anti-Corruption Commission out of malice. Plaintiff personally interviewed second defendant when he was being bullied by the first defendant. First defendant had brought his own accountant, so that second accountant was removed by plaintiff to give second defendant free space to operate. Second defendant was also plaintiff’s college student at Africa University hence second defendant was described by plaintiff as a person he had relations with who could have at a phone call sought clarification, but he opted to join the first defendant and caused that malicious arrest.

Plaintiff is the Registrar of the Diocese as well as the Diocesan lawyer. As a Registrar, he advises the synod, he is the legal counsel for the synod that composed of delegates from each parish of prayer point in the Diocese. He provides advice to the Standing Committee which is elected every two years and sits in the readings. He gives advice to all communions of the Diocese, to the Bishop and all clergy in the church. He also inducts all new priests and deacons and that work is done for free. When litigation arises, they are all referred to him to make a decision to represent the church himself or appoint an outside law firm. He deals with all matters relating to land and assets of the Diocese.

On the allegations of church factionalism, plaintiff stated that as at 23 September 2007, schism happened in Manicaland in which the former Reverend Bishop Jakazi went out with one group of people leaving the original Anglican Church. On 21 February 2013 when the Supreme Court of Zimbabwe confirmed that the group which plaintiff belongs was the substantive church organisation, plaintiff was arrested on fifteen occasions but the only one which went for prosecution is the one that gave rise to this action against the two defendants. To the plaintiff, the two defendant were being assisted by the likes of faction leaders to destabilise the church. Ruwede led the group from Rusape. Plaintiff had seen first defendant having a meeting with him and believes that what was written by the two defendants at the school could have originated from Ruwede. Before the plaintiff was arrested the faction drove a bus to Harare to ZACC offices where the members circulated whatsapp messages about plaintiff’s imminent arrest for theft of trust property belonging to the school. The text messages also stated that plaintiff had been caught up and was responsible for first defendant’s removal from the school as victimisation and the subscribers of those texts messages were saying no to the transfer of the first defendant. Plaintiff went on to state that first defendant went to the extent of hiring war veterans and politicians to protest against plaintiff for alleged victimisation yet all those allegations by the demonstrators were false.

The plaintiff disputed that first defendant only came to the trial court as a witness because first defendant told the criminal court that he was representing St Mathias Tsonzo High School, first defendant could not represent the Diocese. Second defendant knew that the money had been transferred to Mutungura & Partners but he ignored the truth. Plaintiff also refuted that second defendant was innocent about instituting criminal proceedings because to plaintiff, second defendant generated payments. He never received instructions from the Registrar. Second defendant knew about the litigation that had occurred, he could have at least told the truth if he did not know anything than to say that the money belonged to Mutasa Rural District Council.

The plaintiff is claiming US$500 000-00 damages based on three things. From 2007 he is the Diocesan Registrar of the Anglican Diocese of Manicaland which comprises Zimbabwe, Botswana, Zambia and Malawi, from there it is under the Church of England and Episcopal Church in America. As a Registrar, he gives legal advice to the church in consultation with the Church of England and Episcopal Church in America, each arrest would be published globally, arrest on allegations of theft was damning and demeaning of the plaintiff, Co-Registrars and church leaders were left wondering why plaintiff would do that. As at 2018 plaintiff told the court that he had 18 years’ experience as a legal practitioner and had established a practice in law which is a brand on its own. He boasts of big corporate clients who were reading of him having stolen US$8 000-00. His law firm’s image and him as a lawyer was tainted and soiled. Plaintiff told the court that he is also a father to grown up children one whom is a law student the allegations of theft dwindled his reputation, even before his local peers and those who work with him in the church were shattered by the theft allegations and the malicious falsehood did not go down with him.

Under cross examination by Mr Muraicho representing first defendant, plaintiff stated the proof he had that first defendant made a report to the police is the witness’ statement prepared on behalf of first defendant by the police. When the plaintiff was questioned about the report received book reference, he told the court that according to him Zimbabwe Anti-Corruption Commission does not open a report received book reference number. Plaintiff also stated that first defendant contributed to the production of documents that led to plaintiff’s prosecution. Plaintiff confirmed that first defendant denies that plaintiff stole any money when he gave his statement to the police and that when first defendant was transferred to St Mathias Tsonzo High School the problem had already commenced. Further under cross examination, the plaintiff stated that because the text messages mentioned issues about first defendant, he concluded that first defendant was involved in the events leading to his arrest.

Under cross examination by Mrs Mandingwa representing second defendant, plaintiff confirmed that he does not know as to who made the report to the police leading to his subsequent arrest and prosecution. He also admitted that he knew how second defendant ended up giving a statement, he was approached by Zimbabwe Anti-Corruption Commission at the school and requested to give a statement, however the plaintiff insisted that second defendant ought to have been truthful about the payments made to plaintiff’s legal firm. He also confirmed that the documents outlined in the search warrant could ordinarily be kept by the second defendant as the bursar and known to the Headmaster and his deputy and that the role of the second defendant in the criminal trial involving plaintiff was that of simply providing information during police investigation and would not have been malicious in providing such information. Plaintiff also confirmed during cross examination that he did not have evidence that shows that the second defendant was part of the faction in the church working against plaintiff. When the matter that led to the plaintiff’s prosecution went for initial appearance on form 242, plaintiff agreed that he did not challenge his placement on remand. He also agreed that the prosecutor vetted the matter and decided to place the plaintiff on remand. Further, plaintiff conceded the police interviewed second defendant pertaining to the payment to Mutungura and Partners’ office, however he denied that both defendants were providing answers to their best knowledge relating to records kept at the school. On whatsap messages plaintiff admitted that he did not have evidence to show that second defendant generated them. When the second defendant finished cross examination of the plaintiff, plaintiff closed his case. The defendant made an application for absolution from the instance.

The first defendant submitted that the plaintiff had failed to prove that first defendant set the whole matter in motion by making a police report or complaint. The case leading to the arrest of the plaintiff was only investigated by Zimbabwe Anti-Corruption Commission and Zimbabwe Republic Police and there is no evidence to prove that these arms of government in pursuing the matter against the plaintiff, were doing so at the instance of the first defendant which is critical in matters of this type, to show that the defendant instigated the proceedings. First defendant further submitted that what plaintiff managed to state was that a certain faction in the Diocese circulated text messages of his pending arrest but produced no evidence to show that first defendant is the one who made a report. The first defendant denied that he was representing St Mathias Tsonzo High School, he never alleged that plaintiff stole trust property. It therefore remains that plaintiff is making bold allegations devoid of tangible evidence, it was contended by the first defendant. First defendant added also that the plaintiff failed to prove that first defendant was malicious. First defendant was not involved in the drafting of the statement nor state outline he only stood as a witness in explaining the origin of documents specified on the search warrant. First defendant prayed that plaintiff’s claim be dismissed with costs.

Second defendant adopted first defendant’s submission and also submitted that plaintiff has failed to establish elements for malicious arrest and prosecution, that is:

prosecution was instigated by the defence, in this case, there is no such evidence. The evidence alluded to by the plaintiff forms part of the criminal record and it is clear that the second defendant had reasonable and probable cause for giving evidence.

the plaintiff has also failed to rebut or show that first and second defendant had reasonable or probable cause. Evidence led from police or Zimbabwe Anti-Corruption Commission officers was not produced to show that the participation of second defendant in as far as the criminal matter was concerned, even to call evidence from the investigation officer or Zimbabwe Anti-Corruption Commission, is fatal to the plaintiff’s case. The plaintiff had thus failed to prove that his prosecution was actuated by malice at the instance of the defendants.

In response to the application, Mr Nyakureba submitted that at this stage the important thing for the court is to decide whether the plaintiff has established or proved a prima facie case. He added that plaintiff has managed to prove malice on the part of the defendants which led to the arrest and prosecution of the plaintiff. The warrant of search and seizure produced by the defendants during cross examination of the plaintiff would be the starting point. Defendants supplied information not requested by the search warrant, and because of that defendants cannot escape liability.

The plaintiff stuttered in response to the very valid points raised by the two defendants in their application for absolution. The plaintiff submitted that he was ambushed by the defendants when they did not pre-warn him about the application so that he could have been prepared for it. I have checked the rules of this court and failed to see where it is required at law that a defendant has to give plaintiff a notice that after the closure of plaintiff’s case, defendant will apply for absolution. Maybe as a matter of courtesy but not a rule defendant may do so. An application for absolution can be made by a party immediately after plaintiff had closed its case. Having heard submissions of all parties I gave an extempo ruling dismissing the application for absolution and indicated that my reasons will be contained in the main judgment, these are they:

In the matter of Standard Chartered Finance Zimbabwe Limited v Georgias & Anor, Smith j dealing with an application for absolution quoted the matter of Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd where Beadle cj said:

“The test, therefore, boils down to this: Is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff? What is a reasonable mistake in any case must always be a question of fact, and cannot be defined with any greater exactitude than by saying that it is the sort if mistake a reasonable court might make-a definition which helps not at all.”

Further on, at 5-6 the Learned CHIEF JUSTICE went on to say:

“Before concluding my remarks of the law on this subject, I must stress that rules of procedure are made to ensure that justice is done between the parties, and so far as is possible, courts should not allow rules of procedure to be used to cause an injustice. If the defence is something peculiarly within the knowledge of a defendant, and the plaintiff has made out some case to answer, the plaintiff should not lightly be deprived of his remedy without first hearing what the defendant has to say. A defendant who might be afraid to go into the box should not be permitted to shelter behind the procedure of absolution from the instance. I might usefully quote here what was said by Stutton j in Erasmus v Boss.

‘In Theron v Behr, Juta j states that according to the practice in this court in later years judges have become very loath to decide upon questions of fact without hearing all the evidence on both sides.’

We in this territory have always followed the practice of the Cape courts. In case of doubt at what a reasonable court ‘might’ do, a judicial officer should always, therefore, lean on the side of allowing the case to proceed.”

I totally subscribe to the views expressed by the Learned Judge citing the Chief Justice. It was on this basis that I ordered the two defendants to be put on their defence.

In his defence case, first defendant told the court that he was called as a witness by the State. He denied that when he went to testify in plaintiff’s case, he was malicious. He is not one who reported the matter to Zimbabwe Anti-Corruption Commission or Zimbabwe Republic Police. He stated that he does not belong to any faction operating a vendetta against the plaintiff in the church organisation. He does not have any bad blood to settle with the plaintiff, plaintiff actually recommended first defendant for him to be appointed school head. During his oral testimony in the criminal trial first defendant did not say that plaintiff stole the money nor did he say that in his statement to the police. When he went to court he was subpoenaed and he gave evidence and even told the court that he was not representing the school. He only became aware of the legal status between St Mathias Tsonzo School and the Mission when he went to the criminal trial. He denied any malice towards the plaintiff. He did not belong to any faction. He does not know as to who made the report to the police nor to Zimbabwe Anti-Corruption Commission.

During cross examination by Mr Nyakureba for the plaintiff, first defendant denied that he is solely responsible for the problems of the plaintiff. Although he admitted that he was subjected to audits leading to his removal from St Mathias Tsonzo School he told the court that he is not privy to the contents of those audits. He was indeed transferred by the school but was waiting for the official position from the Provincial Education Director. On 17 September 2018, Zimbabwe Anti-Corruption Commission visited first defendant at the school and recorded a statement and on that date first defendant was not aware of payments made to plaintiff’s law firm but that there was an amount due to Mutasa Rural District Council. The documents contained in the search warrant were given to Zimbabwe Anti-Corruption Commission by the acting head not first defendant because he has since been interdicted by a court order. He gave the statement to Zimbabwe Anti-Corruption Commission because he was the head of the school when the police visited St Mathias Tsonzo School about the payments to plaintiff’s law firm. When the first defendant was transferred from the school, proceedings at the criminal court had already started.

First defendant then closed his case. Second defendant opened his case. He adopted his plea to form part of his evidence in chief. He is still employed by the Anglican Diocese of Manicaland as a school bursar. He has since been transferred from St Mathias Tsonzo High School to St Davids Bonda High School, he had been a bursar since 2005. As a bursar his duties include receiving money and disbursing it, he reports to the headmaster, when he was at St Mathias Tsonzo he was reporting to the then headmaster Mr James Mwonzora who is now deceased. He recalls making payments to plaintiff’s legal firm for purposes of payment for levies due to Mutasa Rural District Council and for such payment he was being given instructions by the school head. When such payments were made to plaintiff’s law firm, first defendant would use payment vouchers, RTGS forms meant for the bank where he would attach to the payment vouchers where he would inscribe “payment in respect of Mutasa Rural District Council levy.” When the search warrant was received by the first defendant it required him to produce the documents relating to payments to the plaintiff’s legal firm and he gave the payment vouchers, RTGS forms and receipts to Zimbabwe Anti-Corruption Commission. Among those documents given to Zimbabwe Anti-Corruption Commission were also bank statements of the school. First defendant does not know the person who made the report to the police or Zimbabwe Anti-Corruption Commission that led to the arrest of the plaintiff. First defendant was only requested to be a witness in his capacity as the author of the documents stipulated on the search warrant. First defendant stated that he does not belong to any faction borne out of schism in the Diocese and distanced himself from acting in collision with first defendant against the plaintiff. He also reiterated that he did not maliciously malign the plaintiff. In court second defendant gave evidence relating to what he had been instructed to do by the headmaster that second defendant had to make payments to plaintiff’s firm to settle the levies due to Mutasa Rural District Council. He denies putting pressure to the police to take action against the plaintiff nor did he at any time threaten police that he should take action against police if the latter fail to act against the plaintiff.

Under cross examination by Mr Nyakureba, second defendant basically stuck to his plea and evidence in chief. He also told the court that the accounts at Tsonzo Mission are in the name of the Diocese and this he became aware of at a later stage. He did not know that the Diocese acts through the plaintiff. He could not comment whether it was first defendant who made the report to the police because he was fighting for his life.

After cross-examination of the second defendant by counsel, second defendant’s case was closed. As already alluded to herein, the joint pre-trial conference minute sets out four issues for determination.

whether or not the first and second defendants caused the arrest of the plaintiff and instituted/instigated the criminal proceedings against him.

if so, whether or not the arrest and prosecution was malicious and unlawful?

if so, whether or not the plaintiff suffered damage as a result of the arrest and malicious prosecution?

If so, what is the quantum of damages that the plaintiff is entitled to, for malicious prosecution, defamation and pecuniary loss?

The first two issues (a) and (b) form the bedrock of the plaintiff’s claim. They are the primary requirements which plaintiff bears the onus to prove before the court looks at issues (c) and (d) which naturally flow from the resolution of (a) and (b). If issues (a) and (b) are answered and decided in plaintiff’s favour, obviously issue (c) flows from the two and what would remain to be determined by this court would be the question of quantum in respect of each set of claim specified by the plaintiff in the prayer on the summons. However if the court finds in favour of the defendants on issues (a) and (b) there will be no need to delve into both issues (c) and (d).

WHETHER OR NOT THE FIRST AND SECOND DEFENDANTS CAUSED THE ARREST OF THE PLAINTIFF AND INSTITUTED/INSTIGATED THE CRIMINAL PROCEEDINGS AGAINST HIM?

In the matter of Nherera v Shah mathonsi j (as he then was) stated:

“In our law, the action for malicious prosecution has always been available to a person acquitted of a criminal charge instituted by another, the defendant, with an improper motive. The learned authors J. Neethling, J.M. Potgieter and P.J. Visser set out the requirements for malicious prosecution as follows:

‘Presently, the following requirements must be met before a plaintiff may succeed with an action on the ground of malicious prosecution:

the defendant must have instigated the proceedings;

the defendant must have acted without reasonable and probable cause;

the defendant must have acted animo iniuriandi; and

the prosecution must have failed.’

It should be noted that in respect of instigation, it must be shown that the defendant acted with the purpose of having the plaintiff prosecuted and a prosecution resulted from the defendants’ actions. The well-known formulations of instigation are: was the defendant then instrumental in making or prosecuting the charge? The test is whether the defendant did more than tell the detective the facts and leave him to act on his own judgment.

On whether reasonable and probable cause exist can only be answered up on reference to the facts of each particular case. The facts must reasonably indicate that the plaintiff committed the offence. It is now accepted that, unlike the English Law, our law requires that the defendant must have had animus iniuriandi as opposed to malice which is a feature of English Law.

Indeed the requirement that the prosecution must have failed speaks for itself.”

I will now look at the requirements spelt out above:

Setting the law in motion

The plaintiff in his pleadings and evidence as well as his submissions must allege and establish that both defendants instituted the proceedings, that the defendants actually instigated or instituted them. The mere placing of information or facts before the police as a result of which proceedings are instituted is insufficient. The test to be applied by the court is whether the defendants did more than tell the police or Zimbabwe Anti-Corruption Commission, the facts and leave the police to act on their own judgment?

“Inherent in the concept “set the law in motion” “instigate or institute” the proceedings is the causing of a certain result; i.e. a prosecution which involves the vexed question of causality. This is especially a problem where, as in most instances, the necessary formal steps to set the law in motion have been taken by the police and it is sought to hold someone else responsible for the prosecution….”

The principle is that where a person acts in such a way that a reasonable person would conclude that he (ie the defendant) is acting clearly with a specific view to a prosecution of the plaintiff and such a prosecution is the direct consequence of that action, that person is responsible for the prosecution.”

On the other hand, an informer who makes a statement to the police which is wilfully false in a material respect “instigates” a prosecution and may be personally liable.

I have closely analysed this requirement and applying this legal requirement to the present matter, more particularly looking at the summons, declaration, oral and documentary evidence as well as submission made on behalf of the plaintiff, onus being placed squarely on the plaintiff, there is no cogent evidence to prove that the defendants made a false statement in a material respect, to the police, which would qualify to constitute instigation, for purposes of fulfilling the requirement of having instigate plaintiff’s prosecution. The plaintiff contended that the two defendants gave a statement to the police and testified in the criminal proceedings, unfortunately the two defendants’ statements to the police were not produced in court at all. Even the plaintiff’s bundle of documents did not include any of these two statements. Even the bundle itself containing the record of proceedings was not tendered as an exhibit by the plaintiff.

The court wonders why it was not produced as exhibit nor alluded to by the plaintiff, on its relevancy. It would be apparent from the evidence led by the plaintiff that it was the police or Zimbabwe Anti-Corruption Commission who preferred the charge of theft of trust property against the plaintiff. The court would have needed more evidence to show that it were the defendants who influenced the police to proffer charges based on what defendants told the police, such evidence was unfortunately not adduced by the plaintiff. Plaintiff’s own perception of the schism in the Anglican Diocese which created factions, the whatsapp text messages and the transfer of first defendant from St Mathias Tsonzo High School and what defendants may or may not have told the Zimbabwe Anti-Corruption Commission or police is not enough. It would have been prudent or ideal for plaintiff to secure the testimony of someone who was present when the report was made to establish whether it was any of the defendants who made it and whether whoever made that report did more than supplying the documents prescribed on the search warrant and leave police to exercise its discretion on whether to arrest the plaintiff and which charge to prefer against him. A glean of the plaintiff’s totality of his evidence on this aspect remains speculative and not supported by an actual knowledge whether the police were induced in any way by the defendants to act against him when there was no evidence of wrong doing on his part. That link and evidence of the first preliminary conduct of the defendants, if any would have greatly assisted the plaintiff and the court as well. The plaintiff should have at least made efforts to procure the report received book reference to determine as to who made the report to Zimbabwe Anti-Corruption Commission or Zimbabwe Republic Police and adjudge the conduct of that complainant and see the nature of the complaint.

(ii)	Lack of reasonable or probable cause

“When it is alleged that a defendant had no reasonable cause for prosecuting I understand that to mean that he did not have such information as would lead a reasonable man to conclude that the plaintiff had probably been guilty of the offence charged; if, despite his having such information, the defendant is shown not to have believed in the plaintiff’s guilt, a subjective element comes into play and disproved the existence, for the defendant of reasonable and probable cause.”

The plaintiff must allege and prove that the defendants instituted the proceedings without reasonable cause, a phrase which means “an honest belief founded on reasonable grounds that the institution of proceedings is justified.”

The plaintiff does not know as to who reported the matter to the police and hence this court is at sea whether the person who filed the report to the police had reasonable or probable cause or not. I have already ruled that the plaintiff has failed to prove that either of the defendants reported the matter to the police. This legal requirement cannot be applied to witnesses, that is first and second defendants. Plaintiff is not asking this court to apply that requirement to any other person than the person who is proved to have set the law into motion. In any case the courts should be slow to interpret a witness’ statement to the police as being malicious, lest it send the wrong message to the society and citizenry at large that whoever testifies in a matter is prone to a civil suit, that will greatly affect the wheels of justice where witnesses would refuse to come to court and testify.

(iii)	The defendant must have acted animo iniuriandi

The plaintiff failed to prove that either of the defendants acted with malice. This requirement must be contemporaneously be adjudged at the time the law was set in motion, that is at the time the causality occurred. This is exhibited by the defendants influencing police to arrest the plaintiff or where they threaten the police with specified or unspecified action if police do not arrest the plaintiff. Having failed to prove that any of the defendants instigated the plaintiff’s arrest, plaintiff again failed to prove malice on part of the defendants. I have also failed to conclude that the statements made to the police by the defendants contained false or inaccurate information calculated to cause the prosecution of the plaintiff when such prosecution was not warranted.

What plaintiff has managed to prove is that because of his presumed relationship with both defendants more particularly that they had testified against him in a criminal trial, should mean that; they are the ones who complained and also ought to have been the ones who had caused his arrest. All these two inferences may be wrong, plaintiff had the onus to prove on a balance of probabilities that one or both of the defendants set the law in motion. There is no evidence of any action on defendants’ part which may be deemed to constitute “causation” of the plaintiff’s prosecution. “Causation” in the sense of something more than the provision of documents or relaying of facts or standing in a matter representing a complainant or being a witness in a criminal trial.

As indicated at the outset there is no need to determine the issues of quantum of damages if I have found that the defendants are not liable to pay the plaintiff the claimed damages.

Accordingly, plaintiff’s claim is dismissed with costs.

Maunga Maanda & Associates, plaintiff’s legal practitioners

Mugadza Chinzamba Legal Practitioners, first defendant’s legal practitioners

Mhungu & Associates, second defendant’s legal practitioners.