Kadungure v Pervaiz (822 of 2022) [2022] ZWHHC 822 (16 November 2022)

1 HH 822-22 HC 7137/21 CHRIS KADUNGURE versus JUNAID PERVAIZ HIGH COURT OF ZIMBABWE MUSITHU J HARARE, 20 & 21 October & 16 November 2022 Ruling on Application for Absolution from the Instance Mr G Mupanga, for the plaintiff Mr T L Mapuranga, for the defendant MUSITHU J: This judgment is pursuant to an application for absolution from the instance made by the defendant at the close of the plaintiff’s case. The plaintiff is a male adult who is into the business of farming and is based at Elephants Walk Farm in Karoi. The defendant is also a male adult and director in an entity called Sensan Investments (Pvt) Ltd, which operates from number 24 Seke Road, Harare. On 13 December 2021, the plaintiff caused summons to be issued out of this court seeking the following relief against the defendant: “damages in the sums of a) ZWL $18,000,000.00 arising from the malicious prosecution and abuse of proceedings by the defendant together with interest at the prescribed rate from the date of judgment to date of payment in full. b) USD$6,100.00 being provable legal expenses charged by the plaintiff’s legal practitioners at the time for prosecuting his appeal against conviction and sentence together with interest at the LIBOR rate applicable on the date of payment calculated from the date of judgment to the date of payment in full. c) Costs of suit.” The background to the claims is as follows. The plaintiff was arrested by the police on 15 August 2016 on a charge of robbery and placed on remand at the Harare Magistrates Court for a period of 73 days from 15 August 2016 to 27 October 2016. He was later released on bail pending trial. Thereafter, the matter went on trial and the plaintiff was found guilty and sentenced to five and half years in prison. He was later to be released on bail pending appeal after spending 11 months in prison. The plaintiff was subsequently acquitted on appeal at the High Court on 1 April HH 822-22 HC 7137/21 2021. This was after the Prosecutor General conceded that there was no evidence linking him to the commission of the offence. The plaintiff avers that his arrest, detention and the subsequent prosecution, conviction and sentence were all actuated by malice on the part of the defendant. The defendant had abused the criminal justice delivery system in causing his arrest and malicious prosecution. The plaintiff narrated the events leading to his arrest and subsequent prosecution as follows. On the day of his arrest, he had accompanied his friend, one Dumisani Sithole to the Rottenrow Magistrates Court. At the court premises, they met officers from the Police Criminal Investigations Department (CID). The officers enquired about the whereabouts of his son, Kelvin Makiyi. The officers informed him that they were looking for his son in connection with some offence that he had committed. The plaintiff told them that his son was at Waverly Blankets in Sunningdale, Harare. The officers requested him to accompany them to his son. The plaintiff complied and called his son on his mobile phone to verify if he was still in Sunningdale, and to get him to describe what he was wearing. The plaintiff called Kelvin who confirmed that he was still in Sunningdale. He also informed the plaintiff that he was wearing green trousers and a white shirt. When they got to Sunningdale, the plaintiff pointed his son to the officers who proceeded to arrest him. They went to Harare Central Police Station where the plaintiff learnt that Kelvin had committed a crime of robbery. The plaintiff was made to wait in one of the offices while the officers were preparing the necessary paperwork for Kelvin to be detained in police cells. At that stage, the defendant herein came into one of the offices and briefly spoke to one of the police officers. After the defendant’s departure, the plaintiff was informed that he was also being implicated in the robbery and the police were preparing the relevant papers for his detention. It was at this point that the plaintiff was informed that an Indian national, the defendant herein, had been robbed of some funds. The plaintiff was also informed that the defendant had implicated him in the robbery. According to the plaintiff, of all the witnesses that testified in court, it was only the defendant who implicated him by claiming that he was the one who drove the getaway car. The Application for Absolution from the Instance In his submissions, the defendant averred that the plaintiff failed to place before the court, evidence necessary to prove three of the requirements to sustain the claim. The defendant referred HH 822-22 HC 7137/21 to the case of Nherera v Shah1, where the court set out the requirements for a claim of this nature as follows: ➢ That the arrest, prosecution and detention was instigated or procured by the defendant; ➢ That there was no reasonable and probable cause; ➢ That the arrest, prosecution or detention was actuated by malice; and ➢ That the prosecution failed. It was common cause that the defendant was robbed of an amount of US$ 56, 800.00, and he proceeded to lodge a police report, leading to the arrest and prosecution of the plaintiff and five of his accomplices. They were all convicted and sentenced by the trial court at the conclusion of the trial. In his submissions, the defendant accepted that he gave evidence against the plaintiff during the trial. He also identified the plaintiff as one of those persons involved in the robbery. The plaintiff however averred that the court did not even consider the evidence of the defendant in convicting the plaintiff. The defendant asserted that the plaintiff was convicted on the basis of circumstantial evidence, mainly his call history with the other accused persons. The defendant denied being the cause of the plaintiff’s arrest, averring that the summary of the State case showed that the plaintiff was implicated by the other robbers. The plaintiff knew these persons, who on their part also knew him. There was no evidence that the defendant pointed out the plaintiff to the police. The defendant submitted that even if it was averred that he identified the plaintiff at the police station, it did not mean that the plaintiff’s arrest which thereafter ensued was malicious. It had to be demonstrated that the defendant did more than just report the case. The defendant was entitled to point out the plaintiff as a suspect in the robbery. The fact that the defendant may have wrongly believed that plaintiff was involved in the robbery, did not make him liable to this kind of claim. The defendant also averred that a consideration of the Summary of the State case showed that the plaintiff’s prosecution was not caused by the defendant’s identification of the plaintiff. The judgment of the criminal court did not even mention or relate to the evidence of the identification. Rather, it showed that the court relied on circumstantial evidence. The defendant’s evidence was inconsequential in relation to the plaintiff’s conviction and incarceration. 1 SC 51/19 HH 822-22 HC 7137/21 The defendant averred that the plaintiff failed to prove his claim for damages. He failed to prove that he had any reputation to speak of. There was no evidence of any publication showing that the media reported on the defendant’s testimony against him. The defendant also claimed that the plaintiff was overcharged on his legal fees. In his response, the plaintiff insisted that he had testified on all the essential elements of the delict of malicious prosecution and the damages suffered. The plaintiff contended that the defendant initiated his arrest and prosecution. He did not only set the law in motion, by making a report of robbery and implicating the plaintiff. He was present at the police station. He also testified against the plaintiff in court, even though the court chose to ignore his testimony. The plaintiff further contended that the defendant fabricated evidence against the plaintiff. He falsely accused the plaintiff of being the driver of the getaway car, thus causing his arrest. This was done even after the plaintiff volunteered information about the whereabouts of his son Kelvin. The court chose to ignore the evidence of his alleged involvement as the driver of the getaway car. But then that evidence had obviously caused the plaintiff’s arrest. The plaintiff also averred that the police intended to let him leave after they arrested his son. This all changed when the defendant appeared at the police station. It was at this point that the defendant identified the plaintiff to the police. The plaintiff contends that the appearance of the defendant at the police station and the sudden change of attitude by the police gave credence to the view that it was the defendant who identified the plaintiff to the police. According to the plaintiff, the fact that the court disregarded the defendant’s testimony showed that the defendant had no reasonable and probable reason to cause the plaintiff’s arrest. The defendant did not have sufficient information as would lead a reasonable man to conclude that the plaintiff was involved in the robbery. According to the plaintiff, the defendant demonstrated malice by taking to the witness stand and repeating the allegations that the plaintiff was at the crime scene. In so doing, he showed total disregard for the plaintiff’s rights. The defendant was intent on causing the plaintiff’s arrest and prosecution in order to make sure he recovered his lost money. The plaintiff insisted that he needed to be compensated for the personal insult he suffered, the humiliation and inevitable defamation that arose from his characterization as a robber. He will have to live with the stigma associated with being labelled a convicted robber. The plaintiff HH 822-22 HC 7137/21 contended that the manner in which the conviction and sentence were set aside did not matter. There was even no need to show that he was acquitted on the merits. What only needed to be demonstrated was the absence of any judicial determination on his guilty. Analysis The test to be applied in determining whether or not the court should grant an application for absolution from the instance at the close of the plaintiff’s case is a well-worn path. It has been the subject of discussion in a plethora of cases in this jurisdiction. In MC Plumbing (Pvt) Ltd v Hualong Construction (Pvt) Ltd2, CHIGUMBA J set out the position of the law as follows: “Absolution from the instance means that the plaintiff has not proved a case against the defendant, and it is to be distinguished from a positive finding that no claim exists against the defendant. Where a defendant has been absolved from the instance, the plaintiff may reinstitute the action provided that it has not prescribed. The rationale behind absolving a defendant from the instance is that, due to the insufficiency of the plaintiff’s evidence and failure to establish an essential element of its claim, the defendant should be spared the trouble and the expense of continuing to mount a defence to a hopeless claim.”3 Further down in the same judgment, the learned judge went further to state as follows: “In the case of Lourenco v Raja Dry Cleaners & Steam Laundry Private Limited4, the Supreme Court had occasion to discuss the various cases which ought to be relied on in determining an application for absolution from the instance. The first case to be referred to be that of Mazibuko v Santam Insurance Co Ltd and Anor 1982 (3) SA 125 (AD) at 133, where the court said, at 132H: "In an application for absolution made by the defendant at the close of the plaintiff's case the question to which the Court must address itself is whether the plaintiff has adduced evidence upon which a court, applying its mind reasonably, could or might find for the plaintiff; in other words whether plaintiff has made out a prima facie case”. The next case referred to by the Supreme Court is that of Gascoyne v Paul and Hunter 1917 TPD 170 where the court said, at 173: “The question therefore is, at the close of the case . . . was there a prima facie case against the defendant Hunter; in other words, was there such evidence before the Court upon which a reasonable man might, not should, give judgment against Hunter?”. (my underlining for emphasis). In determining whether the plaintiff has established a prima facie case, the court must have regard to the factors that must be satisfied in a claim of this nature. In Wireless (Pvt) v Sanangwa5, the court laid out the law on malicious prosecution as follows: 2 HH 88/15 3 At pages 6-7 of the judgment 4 1984 (2) ZLR 151 (S) @ pp156-158 5 2013 (1) ZLR 401 (S) at 407 F - 408A HH 822-22 HC 7137/21 “The law on the delict of malicious prosecution is clear. In Davies v Premier Finance Group Ltd HH 235-10 Patel J (as he then was), said at pp 10-11 ‘According to Feltoe, A Guide to the Zimbabwean Law of delict (2006) the delict of malicious prosecution is committed: ‘When D maliciously and without reasonable and probable cause brings legal proceedings against another. Every citizen has a right to use legal proceedings legitimately for the purpose of upholding and protecting his rights. He or she does not, however, have the right to abuse the legal process for the purpose, of upholding and furthering his or her rights, but instead solely for the purpose of causing harm to plaintiff. As regards malicious prosecution, the case of Bande v Muchinguri (1999) points out that the term ‘malice’ did not here mention spite or ill will or a spirit of negligence, it had a wider connotation. It included any malice different that which is proper for the institution of criminal proceedings, which is to bring an offender to justice and thereby did in the enforcement of the law.” A determination of an application for absolution at the close of the plaintiff’s case is one that places a court in an invidious position, especially in a dispute that involves a claim for damages. Ordinarily, such claims require that the court hears the parties’ versions of what transpired to allow the court to make a final decision on a balance of probabilities. An application for absolution requires that the court determines the dispute after having heard just half of the case. Authors Herbstein & Van Winsen:6 entreat courts to tread carefully in applications of this nature. This is what they have had to say: “In view of the principles set out above, it is clear that a trial court should be extremely chary of granting absolution at the close of the plaintiff’s case. In deciding whether or not absolution should be granted, the court must assume that in the absence of very special considerations, such as the inherent unacceptability of the evidence adduced, the evidence is true. The court should not at this stage evaluate and reject the plaintiff’s evidence. The test to be applied is not whether the evidence led by the plaintiff establishes what will finally have to be established. When the plaintiff relies on an inference the court will refuse the application for absolution unless it is satisfied that no reasonable court can draw the inference for which the plaintiff contends. A court may grant absolution from the instance at the close of a plaintiff’s case if the plaintiff has failed to establish an essential element of the claim even though the defendant could have succeeded on exception or by way of special plea had the issue been raised by either procedure…” Has the plaintiff failed to establish an essential element of the claim? The defendant’s counsel argued that the plaintiff only managed to establish one out of the four requirements. The plaintiff’s counsel on the other had argued that all the essential elements were satisfied. The defendant does not dispute that he identified the plaintiff to the police as one of the perpetrators of the crime.7 He also identified the plaintiff as the driver of the getaway car. The defendant also 6 The Civil Practice of the High Courts of South Africa, 5th Edition, Vol 1 at p 923 7 Paragraph 2.1.8 of the defendant’s submissions HH 822-22 HC 7137/21 admitted having testified against the plaintiff in the criminal court. I am satisfied that the plaintiff managed to establish one of the requirements that his arrest, prosecution and detention was at the instigation of the defendant. The second issue is whether there was no reasonable and probable cause in instigating the arrest, prosecution and subsequent detention of the plaintiff. The additional issue of whether or not the arrest, prosecution or detention was actuated by malice is intrinsically tied to the question of whether or not there was reasonable cause in arresting the plaintiff. The plaintiff contends that his arrest was actuated by malice and there was no reasonable cause. He goes further to argue that the defendant’s version of events was manifestly unreasonable and unreliable such that the court totally jettisoned it altogether. Of all the witnesses who testified, it was only the defendant who had implicated the plaintiff. It was however contended on behalf of the defendant that even though he may have caused the plaintiff’s arrest, the criminal court did not however convict the plaintiff on the basis of his version of events or his testimony. The court had relied on circumstantial evidence. The question which arises is whether the court should evaluate and reject the plaintiff’s testimony as inherently unacceptable at this stage? In my respectable view, it is not safe to do so at this stage. This is so especially if one considers the defendant’s contention that the plaintiff was convicted on the basis of circumstantial evidence. The plaintiff was subsequently found not guilty and acquitted on appeal. In light of the fact that the defendant admitted that he caused the plaintiff’s arrest, the only way that the court can determine whether the basis of such report was not malicious and was indeed for a just cause, is if the court hears the defendant’s testimony. The court cannot conclude on the basis of the plaintiff’s sole testimony that the defendant’s conduct was reasonable and justifiable so as to make the plaintiff’s claim unfounded. This court is obviously not in the same position as the criminal court. The issues before this court, though partly grounded on events that occurred before the criminal court, are not the same issues as those before the criminal court. At the conclusion of these proceedings, this court will be required to determine the plaintiff’s claim on a balance of probabilities, whereas proof beyond reasonable doubt was required to sustain the plaintiff’s conviction at the criminal trial. HH 822-22 HC 7137/21 This court concludes that the plaintiff has placed before the court evidence on the basis of which a court might reasonably find in his favour. The court determines that the application is devoid of merit and cannot succeed. Resultantly it is ordered that: 1. The defendant’s application for absolution from the instance at the close of the plaintiff’s case is hereby dismissed. 2. Costs shall be in the cause. Bhatasara Attorneys, plaintiff’s legal practitioners Ahmed & Ziyambi, defendant’s legal practitioners