Rusape TOWN Council V Lyton Sithole & 5 ORS

### Preamble
1
HCMTJ 50-25
HCMTC 92/25
RUSAPE TOWN COUNCIL
versus
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RUSAPE TOWN COUNCIL
versus
LYTON SITHOLE
and
ELIZABETH CHIDZA
and
JOSEPH NYAMUPERA
and
NDABANINGI MATAGA
and
PREFERENCE CHIGWEDE
and
PETER KWESHA

HIGH COURT OF ZIMBABWE
MUZENDA J & SIZIBA J
MUTARE, 30 JULY 2025 & 10 SEPTEMBER 2025

CIVIL APPEAL

S.K Murondoti, for the appellant
R. Gwatidzo, for the respondents

SIZIBA J:

1. After hearing submissions from counsel on 30 July 2025, we allowed the appeal in this matter and set aside the judgment of the court a quo and substituted it with an order dismissing all the plaintiffs’ claims (the respondents herein) with no order as to costs.

BACKGROUND FACTS

2. The appellant is a town council duly established in terms of the Urban Councils Act [Chapter 29:15] while the respondents are its councillors. Sometime between May and August 2020, a tender relating to the provision of legal services was cancelled by the appellant. The respondents were subsequently charged with criminal abuse of duty contrary to s 174 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].


3. The allegations against the respondents were that they had cancelled the tender so as to hand pick certain law firms to provide legal services to the appellant and thus showing interest in the said tender. Their arrest and prosecution was spearheaded by the officers from the Zimbabwe Anti-Corruption Commission (ZACC).

4. When the respondents were dragged to court and prosecuted, it turned out that the state witnesses who included one Fansen Shuwa who was the Acting Town Secretary and Finance Director of the appellant exonerated the respondents from wrong doing by testifying that they had not even been part of the committee that deliberated on such tender. It also turned out that there were other reasons why the tender process had been cancelled by the appellant. The respondents were accordingly discharged and acquitted at the close of the State case.

5. On 20 November 2023, the respondents filed separate claims seeking damages for malicious prosecution against the appellant in the sums of US$40 000. The trials were consolidated by consent of all the parties for convenience. There was therefore one judgment which is the subject of this appeal and it was delivered on 14 April 2025.

6. In their claims, the respondents alleged that they had incurred damages in respect of legal fees and losses in their businesses as a result of the alleged malicious prosecution. They alleged that it was the appellant through its officers that instigated the allegations against them maliciously and without probable cause.

7. The court a quo awarded each of the respondents US$5 500 in respect of legal fees incurred and US$2000 in respect of lost business opportunities.

**THE GROUNDS OF APPEAL**

8. The appellant’s appeal was premised on the following grounds:

   “1. The court a quo erred in law in proceeding to determine a matter whose monetary jurisdiction was US$280 000.00 (Two Hundred and Eighty Thousand United States Dollars) and far exceeded the jurisdiction of the Magistrates Court when this was an issue that had been raised by Defendant.


2. The court a quo erred in law and in fact in making a finding that Rusape Town Council and a duly appointed representative actually reported the matter when there was no evidence whatsoever to prove this point.

3. The court a quo erred in fact in making a finding that the Plaintiffs had nothing to do with the tender process when there was evidence to prove their participation in the tender process.

4. The court a quo erred in law in making a finding that save for malice without reasonable cause there was no reason why people would then be accused and prosecuted over a matter that they were not part of, and yet there was no evidence before the court to prove that there was malice against the Plaintiffs by the Defendant.

5. The court a quo erred in law and in fact in awarding damages and costs of suit in favour of Plaintiffs in the sum of US$7500.00 (Seven Thousand Five Hundred United States Dollars) for each Plaintiff when there was no evidence to justify and quantify the damages.”

THE ISSUES FOR DETERMINATION

9. The issues that arise for determination from these grounds are as follows:

(a) Whether the court a quo had jurisdiction over the respondents’ claims.

(b) Whether the there was evidence to justify the liability of the appellant in respect of damages for malicious prosecution.

JURISDICTION

10. The appellant’s argument that the court a quo had no jurisdiction over the respondents’ claims as the combined value of such claims exceeded the financial jurisdiction of the court was misplaced. This argument ignored not only that the claims were filed separately but also that it had consented to the consolidation of the trial. We therefore found that the court a quo had jurisdiction over the respondent’s claims.

THE QUESTION OF LIABILITY

11. Malicious prosecution requires more than merely reporting a case to the police. A party can only be found liable if he or she is found to have acted in a manner that tended to overbear on the police regarding the particular state of affairs after having set the law in motion or instigated such allegations. In *Econet Wireless Private Limited and Others v Sanangura SC 52/13* at p 9 of the cyclostyled judgment, the court expressed the law as follows:

“Placing of information and facts before the police does not in itself amount to instigating prosecution. It would amount to instigation if besides giving information the defendant proceeds to lay a charge or overbears on the police to institute proceedings which they would not otherwise commence or institute.”

12. In the context of this case, the only evidence that was placed before the court *a quo* was that the officers from the Zimbabwe Anti-Corruption Commission came and invited the senior officials who included the Acting Town Secretary to submit statements concerning the allegations in question while the respondents were away. There was no evidence that the appellant or any of its officers took the initiative to report the respondents at ZACC. The appellant in this case is a legal *persona* at law which can only act through resolutions passed by a vote of the majority of its councilors in terms of s 84 of the Urban Councils Act [Chapter 29:15]. Without such resolution, there is no way that the appellant can be said to have taken a decision to set the law in motion against the appellants. It did not. This contention by the appellant is unassailable. In addition, there was no allegation by the respondents that the appellant was being sued vicariously for the act of its officers. The court *a quo* thus erred in finding the appellant liable for the delict of malicious prosecution.

13. Moreover, the claims relating to legal fees and lost business opportunities both related to special damages which should have been proven mathematically and by way of receipts. No evidence was produced to sustain these claims. In respect of legal fees, there was only one statement of account or invoice claiming US$3000 for six individuals and no receipt was produced to show that any payment was made to the lawyers. It was a misdirection on the part of the trial magistrate to resort to a reference to the Law Society tariff of fees so as to justify the claim relating to legal fees when no proof of payment was produced to show that these legal fees were incurred by the respondents as per their claims. Again, no sufficient evidence was presented to the court *a quo* to justify any award of damages towards loss of business opportunities. It is thus on the basis of these considerations that we found merit in the appeal by the appellant and thereby upheld the appeal as highlighted above.

SIZIBA J

MUZENDA J agrees ___________________

Absalom & Shepherd Attorneys, appellant’s legal practitioners
Khufe & Majamanda Law Chambers, respondents’ legal practitioners
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