NHERERA v SHAH
HIGH COURT, HARARE
[Civil Trial HH 845-15]
October 21 and November 4, 2015
MATHONSI J
Delict - Actio injuriarum - Malicious prosecution - Requirements to establish - What constitutes a failure of the prosecution.
Legal practitioners - Prosecutor General* - Conduct and ethics - Appeal - Decision to decline to prosecute - Past involvement in case as defence witness and acting in related matter as legal practitioner for plaintiff - Whether competent to be involved in deciding fate of appeal after assuming post as head of prosecuting authority.
The plaintiff, who at the material time chaired the board of the Zimbabwe United Passenger Company ("ZUPCO"), was arrested on charges of corruption, following information made available to the police by the defendant. He was subsequently convicted by the Magistrates' Court and sentenced to a term of imprisonment. Subsequent to filing an appeal against both conviction and sentence, he on three, separate, occasions approached the courts in a bid to secure his liberty pending the determination of his appeal. All three attempts met spirited opposition from the prosecuting authority that resulted in his failing to win liberty pending determination of the appeal. After 16 months of incarceration his appeal was allowed by the High Court in circumstances where the prosecuting authority conceded in terms of s 35 of the High Court Act [Chapter 7:06] that they no longer supported the conviction.
Following this success, the plaintiff instituted action against the defendant claiming damages for malicious prosecution and malicious arrest and detention. He based his claim on the grounds that on divers occasions the defendant reported that he had solicited for a bribe in order to facilitate the purchase by ZUPCO of certain buses from Gift Investment (Pvt) Ltd, a company operated by the defendant. Those reports led to his arrest, prosecution and sentence. That his success on appeal constituted proof of failure of the prosecution, entitling him to damages for malicious prosecution and detention.
In answer to the claim the defendant denied instigating the plaintiff's arrest, prosecution and detention maintaining that he only placed information, personally known to him before the police in good faith and that by conveying that information he had neither acted wrongfully nor with subjective malicious intent to injure plaintiff.
At the trial it was not in dispute that plaintiff's criminal conviction had, on three separate occasions, been supported by the prosecuting authority. Further, that the current Prosecutor General was at the material time the legal advisor to ZUPCO; had in civil litigation allied to the criminal case acted as the plaintiff's legal practitioner in addition to being a member of the board of directors of ZUPCO. Furthermore that during his tenure as legal advisor aforesaid, he had formulated the opinion that the criminal allegations against the plaintiff were unfounded and had testified to that effect as a defence witness at the criminal trial.
The concession at the appeal hearing made by the prosecuting authority not to support the conviction was made at a time the current Prosecutor General had taken over and was now head of the prosecuting authority.
Held, that in an action for malicious prosecution the onus is on the plaintiff to prove, on a balance of probabilities, that the defendant caused him to be arrested, detained or prosecuted and that in so doing he acted without reasonable and probable cause and was actuated by malice.
Held, further, that for the action to succeed the following requirements must be satisfied by the plaintiff: (a) the defendant instigated the proceedings; (b) the defendant acted without reasonable and probable cause; (c) the defendant acted animo iniuriandi; and (d) the prosecution failed or was unsuccessful.
Held, further, in respect to the first requirement that it must be shown that the defendant acted with the purpose of having the plaintiff prosecuted and a prosecution resulted from defendant's actions. That the ultimate test for instigation is whether the defendant did more than pass information to the police and left them to act on their own. In respect to the second and third requirements that, our law unlike the English law, requires that the defendant must have animus iniuriandi as opposed to malice.
Held, further, in respect to the last requirement, that a refusal by the prosecuting authority to prosecute constitutes a failure of the prosecution, but such refusal must be bona fide and not tainted in anyway. Thus while a decision declining to prosecute is proof of failure of the prosecution, such condition evinces that a State Counsel seized with making the decision had not at some point been directly involved with the case. In the present case the notice declining to support the appeal was given at a time when the head of the prosecuting authority was a person very close to the case.
Held, further, that the involvement of the current Prosecutor General in the decision-making process tainted the outcome of the appeal to the extent that the requirement of the prosecution having failed cannot be said to have been satisfied.
Cases cited:
Baker v Christiane 1920 WLD 14, applied
Bande v Muchiguri 1999 (1) ZLR 476 (H), referred to
Beckenstrater v Rottcher & Theunissen 1955 (1) SA 129 (A), applied
Econet Wireless (Pvt) Ltd & Ors v Sanangura 2013 (1) ZLR 401 (S), referred to
Prinsloo & Anor v Newman 1975 (1) SA 481 (A), referred to
S v Sando 2007 (1) ZLR 394 (H), referred to
Supreme Services Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR 1 (A), applied
United Air Charters (Pvt) Ltd v Jarman 1994 (2) ZLR 341 (S), applied
Legislation considered:
Criminal Procedure and Evidence Act [Chapter 9:07], s 6(2)
High Court Act [Chapter 7:06], s 35
Prevention of Corruption Act [Chapter 9:16], s 3(1)(a)(i)
Article considered
Feltoe G and Lewin P "Remedies for unlawful interference with personal liberty in Zimbabwe" vol 5, 1987 ZL Rev 26 pp 38-39
Books cited
Dyson ME April 4, 1968: Martin Luther King, Jr.'s Death and How It Changed America (Basic Civitas Books, New York, 2008) at p 120
Feltoe G A Guide to the Zimbabwean Law of Delict (2nd edn, Legal Resources Foundation, Harare, 1990) p 58
McKerron RG The Law of Delict (7th edn, Juta & Co Ltd, Cape Town, 1971) at 259-260
Neethling J, Potgieter JM and Visser PJ Law of Delict (3rd edn, Butterworths, Durban, 1999) p 350
T Magwaliba, for plaintiff
L Uriri, for respondent
MATHONSI J:
At the material time in 2006 the plaintiff was the vice chancellor of Chinhoyi University of Technology, a State university, member of the Zimbabwe Examinations Council and the Parastatals Advisory Council, but more importantly he was the board chairman of Zimbabwe United Passenger Company (ZUPCO). Following the information made available to the police by the defendant, the plaintiff was arrested on 21 March 2006 on charges of corruption. He was tried at the Magistrates' Court in Harare for contravening s 3(1)(a)(i) of the Prevention of Corruption Act [Chapter 9:16] and at the end of the trial he was convicted and sentenced to three years imprisonment of which one year imprisonment was suspended for five years on condition of future good behaviour.
{mprestriction ids="1,2,3,4,5"}
The plaintiff appealed to the High Court against both conviction and sentence. His appeal was successful as, on 19 November 2009 this Court quashed both the conviction and sentence. Fresh from 16 months of incarceration before his appeal, the plaintiff instituted this action against the defendant seeking damages for malicious prosecution in the sum of US$ 100 000 and for malicious arrest and detention in the sum of US$ 300 000.
In his declaration the plaintiff made the averments that on 21 March 2006 and on several and divers occasions the defendant reported that he had solicited for a bribe in order to facilitate the purchase by ZUPCO, a company in which the plaintiff was a board chairman, of certain buses from Gift Investments (Pvt) Ltd, a company which the defendant operated. As a result of such report, the plaintiff was arrested, prosecuted and sentenced aforesaid. By procuring his arrest, prosecution and imprisonment the defendant caused him injury to his reputation, dignity and deprivation of liberty as a consequence of which he sustained the damages claimed.
The defendant entered appearance to defend and filed a plea in which he denied instigating the plaintiff's arrest, prosecution and detention maintaining that he only placed information he had before a police officer in good faith, in the honest and bona fide belief that the plaintiff had solicited for a bribe. In conveying that information he had neither acted wrongfully nor with subjective malicious intent to injure the plaintiff. The decision to arrest the plaintiff was made by the police upon consideration of all relevant information after they formulated a reasonable suspicion that the plaintiff had committed a criminal offence.
Equally the decision to prosecute was made by the Attorney General of Zimbabwe in the exercise of his constitutional mandate after satisfying himself on the facts that a crime had been committed. Likewise, the conviction and imprisonment was done by the trial magistrate upon consideration of all the evidence available and in the discharge of her lawful mandate. Considering that the plaintiff was denied bail pending appeal by both the trial court and this Court on the basis that the appeal had no prospects of success this meant that there was merit in all that was done.
The defendant averred further that the success of the plaintiff's appeal did not mean that he had not committed the offence especially regard being had to the fact that the information he (the defendant) had conveyed to the police was true and it was conveyed in good faith in the discharge of a subject's obligation to adhere to the laws of Zimbabwe.
The issues for determination at the trial, as appear from the joint pretrial conference minute of the parties are:
(1) Whether the defendant's report to the police was the cause of the plaintiff's arrest, prosecution and detention.
(2) Whether the said report was made in good faith or whether it was false and malicious.
(3) Whether the prosecution of the plaintiff failed.
(4) What damages, if any, were suffered by the plaintiff as a result.
Only the plaintiff gave evidence. After spending sometime on his résumé and his personal life including his experiences in prison following his conviction and sentence by the Magistrates' Court on 21 August 2006, where he was released after 16 months of incarceration, the plaintiff confirmed the record of proceedings at the Magistrates' Court, exh 1. He stated that he entirely agrees with the record of proceedings. Following those proceedings and his imprisonment, he lost his job as the Vice Chancellor of Chinhoyi University of Technology. He lost all his collaboration contracts both within and outside Zimbabwe. He lost his earnings and other benefits that went with his employment and as such could not provide for his family of three, being his school teacher wife, his daughter who has since completed university education at the University of Cape Town and his son who was then a form three pupil at Gateway High School where his wife was a teacher.
The plaintiff testified that only now has he started re-building his life, re-establishing his contacts and is now the pro-vice chancellor of Women's University in Africa, a far less glamorous position.
The plaintiff did not give an account of how he was arrested but stuck to the record of proceedings, his notice and grounds of appeal to the High Court against both conviction and sentence and the heads of argument submitted on his behalf in support of the appeal. He stated that following his appeal, the Attorney General's office conceded the appeal in heads of argument filed on 12 October 2009. Following that concession his appeal was then allowed on 19 November 2009, per Karwi and Uchena JJ. The disposal order reads:
"It is ordered that:
In terms of section 35 of the High Court Act appeal allowed conviction and sentence set aside."
Section 35 of the High Court Act [Chapter 7:06] provides:
"35 Concession of appeal by Attorney-General
When an appeal in a criminal case, other than an appeal against sentence only, has been noted to the High Court, the Attorney-General may, at any time before the hearing of the appeal, give notice to the registrar of the High Court that he does not for the reasons stated by him support the conviction, whereupon a judge of the High Court in chambers may allow the appeal and quash the conviction without hearing argument from the parties or their legal representatives and without their appearing before him."
So this is how the appeal was disposed of and according to the plaintiff, as the prosecution was thereby rendered unsuccessful, he is entitled to damages for malicious prosecution and detention. The plaintiff conceded that the current Prosecutor General, who is the former Attorney General, Johannes Tomana (Tomana) was once his legal practitioner. Under cross-examination he was forced to concede that when he sued the defendant in this Court under HC 157/06 for defamation of damages in the sum of ZWD 100 000 000 arising from utterances he made at the ZUPCO board meeting held on 21 March 2005, he was represented by Tomana, then a partner at the law firm of Muzangaza, Mandaza and Tomana. The summons and declaration in exh 3 bear his reference "JT/SM/SM/903".
The plaintiff also confirmed that Tomana was, at the material time, the legal practitioner representing ZUPCO and a board member in the board which was chaired by the plaintiff himself. Tomana also attended the board meeting of 21 March 2005 where the defendant made the accusations of solicitation of a bribe against the plaintiff. Tomana later testified at the criminal trial as a defence witness and gave evidence exonerating the plaintiff from wrong-doing. He had then become a commissioner in the Anti-Corruption Commission, he having been appointed (according to his own testimony) on 8 September 2005. See p 243 of exh 1.
The plaintiff confirmed that at the time that his appeal was conceded by the State through heads of argument signed by one S Ncube and filed on 12 October 2009, Tomana was now the Attorney General. Prior to that and during his trial the Attorney General was one Sobusa Gula-Ndebele. It was during the latter's tenure that when the plaintiff made an application for bail pending appeal before the trial magistrate following his conviction and sentence, that the State had strenuously opposed the application on the ground that the appeal had no prospects of success. The trial magistrate dismissed the application on that basis.
Aggrieved by that decision, the plaintiff had lodged an appeal to the High Court seeking to overturn the magistrate's ruling and that he be admitted to bail. Again the State opposed the bid for bail and this Court, per Chitakunye J, dismissed the bail appeal on the grounds that the appeal had no merit. The plaintiff accepted that he had approached the Supreme Court on review, still pursuing his quest for liberty. The State again opposed his application which was dismissed by the Chief Justice. He however stated that all he knows is that he lodged an appeal to this Court. He does not know how Tomana comes into it. The concession was made by S Ncube, whom he does not know.
The plaintiff denied soliciting for a bribe from the defendant. When his attention was drawn to the evidence strewn all over the record to the effect that the defendant had not reported the alleged solicitation to the police, the plaintiff acknowledged its existence but stated that its existence does not mean that the defendant did not report. He went on to say that in any event, the fact that he made allegations to a number of people including Minister Ignatius Chombo, RBZ Governor Gono and the ZUPCO board members, led to his arrest and prosecution. For that reason the defendant should be held liable.
Regarding the claim that not only did the defendant fail to report the matter to the police, he was arrested first and was an unwilling witness who had to be subpoenaed and to receive immunity as shown by the Attorney General's letter and that of the investigating officer dated 20 July 2006 and 24 April 2006 respectively, the plaintiff was unmoved. He pointed out that the AG's immunity letter was written after the defendant had given evidence, the trial having commenced on 2 May 2006. As far as he is concerned, the existence of immunity was not disclosed to him during the trial even after a specific query had been raised.
I have already said that the plaintiff did not testify on the circumstances under which he was arrested. In fact even throughout the criminal proceedings there is scarcely any reference to how he was arrested. We however have the evidence of the defendant who was adamant that he never reported the plaintiff to the police that he did not even want to testify against him in court even after the assurances given by the investigating officer until he was subpoenaed. At pp 52-53 of the transcript we have the defendant's evidence that when he drew the attention of Minister Chombo to the demand for a bribe by the applicant, the Minister was shocked and he then indicated he would call a ZUPCO full board meeting to inform all the board members of the need to purchase buses. He also dissuaded the defendant from reporting the matter to the police. The dialogue between the prosecutor and the defendant in relevant part proceeds like this:
"Q: Yes, and what transpired?
A: But before that, I would like to say on record that the Minister on the 18th of March had told me if I wanted to report this recording or give the recording to the police, if I could only wait till the 21 March special board meeting and take any action thereafter.
Q: But did he advance any reason apart from waiting for that meeting why you should not immediately report the matter to the police?
A: He only advised with elections around the corner and the party would not like any bad publicity and these are matters which can be resolved without creating, without going to the police or without, he was very brief, he just said just wait, he was very-very brief.
Q: And what was your attitude towards Minister Chombo's suggestion?
A: I decided to accept his advice..."
At pp 59-60 the dialogue continued in this vein:
"Q: Now, do you still recall when you decided to make that report?
A: I didn't make the report. The police came and picked me up.
Q: You did not make a report.
A: I did not make a report. I have never made a report.
Q: Do you still remember when that was when the police came and picked you up?
A: It was around the 10th of, about middle April 2005.
Q: Yes, did you eventually get to know the person who had made a report to the police?
A: They never told me who had made the report.
Q: In fact, what did they want when they picked you up?
A: They were charging me for corruption."
At pp 74-75, the two continued their dialogue:
"Q: Yes, but yourself would you have any reason to come to court today and lie against him, tell this Court something about the accused which he never did? Would you have any reason to do that?
A: Absolutely not. If there was no subpoena from this Court, I would not have come. I did not even make any formal charges or complaints to the police. It is just because I have respect for the court that I am here."
The defendant won the heart of the court which, on credibility it made a finding that he was a truthful witness. The trial magistrate stated at p 8 of the judgment:
"As regards his evidence, his candidness and laying himself bare of his dirty hands in the whole speaks volumes of the truthfulness of his testimony."
She went on at p 10:
"This evidence shows the sincerity of the witness that Shah was when he came to give evidence, notwithstanding his accomplice status. So despite him being an accomplice his credibility was brought to fore by such aspects."
She then concluded at p 11:
"In summary therefore, while Shah is an accomplice witness for the reasons advanced above, it is clear that his testimony passed the test of credibility and the court had no reason to fault it."
The Investigating Officer Superintendent Peter Magwenzi tried to shed light as to why the police arrested the plaintiff. He said information came from Police General Headquarters. At p 141-142 the following conversation between the prosecutor and the witness is recorded:
"Q. Now, the accused person is facing a charge of contravening s 3 of the Prevention of Corruption Act. Could you please tell this Court how this case came to be investigated by the police?
A. Your worship the case came through Police General-Headquarters, our internal investigations department and through the investigations which I made, I also discovered that the case was originally reported to the Attorney General's Office.
Q. And at the time when this case came to your attention, was there a suspect in the matter?
A. No there was no suspect.
Q. Can you briefly tell this Court how you subsequently charged the accused of this case?
A. Your worship after we had interviewed a number of persons including the accused and the complainant Shah, it was agreed that we should charge the accused under the Corruption Act. Accordingly he was charged."
They continued at pp 144-145 as follows:
"Q. Now, Mr Magwenzi, did you subsequently get to know how the information or report pertaining to this case came about apart from receiving the docket from Police General Headquarters?
A. Your worship I can say there was a lot of information which was coming from different angles. I think that after the meeting which they had where this allegation of, the meeting which they had at the ZUPCO board meeting and information started circulating in Greater Harare that Shah had bribed ZUPCO officials.
Q. Now, were any charges preferred against Shah?
A. I can say Shah was called to our offices for interrogation and in consultation with the Attorney General's Office, it was suggested that Professor Nherera should be charged.
Q. Now, did you ever find out from Shah why a report was never made to the police pertaining to these allegations?
A. We squeezed (sic) him your worship on that issue and he told us that he had been advised by the authorities not to hurry.
Q. Did he specifically tell you who in authority had so advised him?
A. He did not disclose, but he said he was strictly advised not to report to the police at that time."
I have made reference to the immunity which the defendant obtained from the State for him to give evidence against the plaintiff. That is contained in a letter written to him by Superintendent Magwenzi on 24 April 2006 a few days before the criminal trial commenced on 2 May 2006. It states:
"Re: State v Professor Charles Nherera: Harare Central CR 702 - 08 - 05
Please be advised that according to the discussions we have had with the then Director of Public Prosecution, Justice Musakwa, the State is not going to prosecute you for the same charges being faced by Professor Nherera. In fact, you are being treated as a State witness and not an accomplice to this matter, we thus expect you in the interest of justice to feel free and tell the truth to the court in the above matter at the hearing which is scheduled for 0900 hours on 2nd May 2006. We appreciate your efforts and thank you for assisting the Police in their endeavour to fight against corruption."
Much later, the then Attorney General Sobusa Gula-Ndebele saw it necessary to again give assurances to the defendant in a letter dated 20 July 2006, during the criminal trial. He wrote:
"Immunity from prosecution
I refer to the above matter and discussion with yourself in the presence of your lawyer Mr Innocent Chagonda and I now confirm the position in the following terms. Whereas current investigations suggest that you may have committed offences jointly with Professor Charles Nherera... I am making the following undertaking in my capacity as Attorney General of Zimbabwe and in terms of the Constitution. The undertaking is that the Attorney General's Office shall not prosecute you at any stage in connection with any crime or offences that you may have committed jointly with the above named persons which crimes you will have exposed and diligently assisted the Attorney General's office and the Police to investigate and prosecute. The crimes and offences in question arise from your dealings with the above persons in connection with the affairs of the Zimbabwe United Passenger Company (ZUPCO) since 2002.
We also confirm that you will assist the police and the Attorney General's office when required in order that a successful prosecution of the above named persons is carried out. The undertaking is made on the strength of your agreement to assist investigations covering the above."
The plaintiff insisted that despite all this it is the defendant who maliciously procured his arrest, prosecution and imprisonment and is thus liable to him in the sums of US$ 100 000 for malicious prosecution and US$ 300 000 for malicious arrest and detention. He therefore craves an order accordingly.
At the close of the plaintiff's case, Mr Uriri for the defendant made an application for absolution from the instance on the basis that the plaintiff has not made out a case upon which the defendant may be called upon to answer. Mr Uriri submitted that the plaintiff's claim is vapid. It is devoid of evidence supporting the cause of action set out in the declaration, namely that the defendant procured the arrest, prosecution and imprisonment of the plaintiff. The evidence has not shown that the defendant instigated his arrest, prosecution and imprisonment that what the defendant did was without reasonable and probable cause, that the defendant was actuated by an improper motive and finally that the proceedings terminated in the plaintiff's favour. Writing about Malicious Arrest and Detention and Malicious Prosecution in an article titled "Remedies For Unlawful Interference With Personal Liberty in Zimbabwe" vol 5, 1987 ZL Rev 26 at pp 38-39 the learned authors G Feltoe and P Lewin stated:
"The delict of malicious arrest or imprisonment is committed 'when the defendant had maliciously and without reasonable and probable cause, procured the arrest or detention of the plaintiff by the proper authorities'. Where a person knows or suspects that another person has committed a crime, he has a lawful right to lay a charge against him with the police. If the result of this report is the arrest and imprisonment of the person against whom the charge is laid, that person has no right of action for damages against the reporter if later the charge is dropped. On the other hand, if there is no reasonable and probable cause for the allegation of criminal conduct and the person making the allegation was acting maliciously in making the report, then this constitutes an abuse of the right to lay genuine complaints and an action for damages will lie after he is released from custody when it is discovered that there is no valid basis for continuing to hold him, where there is no reasonable foundation for believing that the plaintiff has committed a crime and the defendant lays a complaint of criminal conduct knowing or suspecting that this complaint is without foundation and intending simply to cause harm to the plaintiff by having him arrested and held in custody, this delict is committed. In other words, where the motive in laying the complaint is to injure the plaintiff, and there are no reasonable grounds for making the allegation, the defendant can be sued by the plaintiff after the police have released him upon finding the allegation to be baseless. Proof of malice is not an easy matter, but the plaintiff may seek to establish it as a matter of inference from the fact that there was no reasonable ground for suspecting that he had committed a crime, such as to form the basis for the complaint.
The delict of malicious prosecution occurs when the defendant has maliciously and without reasonable and probable cause instituted criminal proceedings against the plaintiff. The action will not lie until the criminal proceedings have terminated in favour of the plaintiff. The plaintiff may of course have suffered loss of personal liberty in this sort of situation in that he may have been held in custody before and during the trial or until the appeal was heard. With both these actions, it is not the defendant who has actually himself arrested or imprisoned the plaintiff, but instead his action has resulted in the police holding him or the court ordering that he be held in custody. In these actions the onus is on the plaintiff to prove on a balance of probabilities that the defendant caused him to be arrested, detained or prosecuted and that he acted without reasonable and probable cause and was actuated by malice." (my emphasis)
See also G Feltoe A Guide to the Zimbabwean Law of Delict (2nd edn, Legal Resources Foundation, Harare, 1990) at p 58; RG McKerron The Law of Delict (7th edn, Juta & Co, Cape Town, 1971) at pp 259-260.
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, JM Potgieter and PJ Visser Law of Delict (3rd edn, Butterworths, Durban, 1999) at p 350 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:
(a) the defendant must have instigated the proceedings;
(b) the defendant must have acted without reasonable and probable cause;
(c) the defendant must have acted animo iniuriandi; and
(d) the prosecution must have failed."
See also Econet Wireless (Pvt) Ltd & Ors v Sanangura 2013 (1) ZLR 401 (S) at 408A-B; Bande v Muchiguri 1999 (1) ZLR 476 (H) at 478A-B and Prinsloo & Anor v Newman 1975 (1) SA 481 (A).
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 defendant's 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. See Baker v Christiane 1920 WLD 14 at 16-17.
On whether reasonable and probable cause exists can only be answered upon 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. In my view the refusal by the Prosecutor General to prosecute must also be considered as a failure of the prosecution. However such a refusal must be bona fide and not tainted at all.
Mr Uriri submitted that the prosecution proceedings did not terminate in favour of the plaintiff because the Attorney General invoked the provisions of s 35 of the High Court Act resulting in the conviction being quashed as opposed to being set aside. The quashing of the conviction follows automatically merely upon the prosecution consenting to the appeal. He submitted that the court did not determine the appeal as the appeal process was side-stepped through the intervention of a very interested officer of the court, Tomana, the then Attorney General who had a vested interest in the appeal as he had long held the view that the plaintiff was not guilty. In Mr Uriri's view the quashing of the conviction pursuant to s 35 of the High Court Act is not a termination in the plaintiff's favour. In my view that is an unnecessary splitting of hairs. In contesting that argument Mr Magwaliba for the plaintiff referred to S v Sando 2007 (1) ZLR 394 (H), 397E-F maintaining that the judge still has to satisfy himself that the conviction cannot stand.
In an application for absolution the test to be applied has been stated in a number of cases. In United Air Charters (Pvt) Ltd v Jarman 1994 (2) ZLR 341 (S) 343B-C it was stated that:
"The test in deciding an application for absolution from the instance is well settled in this jurisdiction. A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court directing its mind reasonably to such evidence could or might (not should or ought to) find for him."
In Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR 1 (A) 5D the court put it in another way:
"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 of mistake a reasonable court might make - a definition which helps not at all."
I am of the view that the matter resolves itself on those facts which are either common cause or cannot possibly be disputed namely that the defendant did not, at any point, report the matter to the police. He was arrested by the police on corruption charges before the plaintiff was arrested and charged. He was interrogated by the police in connection with the issue. The investigating officer testified that the decision to arrest the plaintiff was taken, not following a report made by the defendant, but after discussions within the structures of the State. In fact while that evidence was not challenged, there is also no evidence of an initial report lodged by the defendant to the police.
Quite to the contrary there is evidence, which again remains intact, that those, the defendant shared the issue of the bribe with like the Minister strongly persuaded him not to report the matter to the police and he took that advice. There is also evidence that the defendant reported the solicitation of a bribe by the plaintiff to the board of directors of ZUPCO at the meeting held on 21 March 2005. However, the plaintiff has instituted separate proceedings for defamation against the defendant in respect of the statement made to the board. So the issue of that publication and its consequences vis-a-vis the damages to the plaintiff is a subject of separate proceedings. In any event those that received the report did not believe it and did not act upon it, as shall be seen hereunder.
It is also common cause that the defendant received assurances from the State that he would not be prosecuted on the same charges before he testified against the plaintiff. He later received full immunity from the Attorney General himself suggesting that there was intent to use him in further criminal proceedings. There is therefore substance to his claim that not only did he not instigate the arrest of the plaintiff, he was also a reluctant witness. The plaintiff therefore has difficulties with proof that the defendant instigated the criminal proceedings. He may have testified in support of the prosecution but as a compelled witness.
I agree with Mr Uriri that the mere fact that the defendant placed information before the police during interrogation and that the State activated the criminal justice system against the plaintiff on the basis of that information is not enough to establish the requirement of instigation. The plaintiff is required to show more than the disclosure of information to the State.
On whether the defendant acted without reasonable cause, we have evidence of the judgment of the trial magistrate which concluded that indeed the plaintiff had solicited a bribe. Apart from a very minor blemish where the learned magistrate found that the plaintiff had travelled to Kenya to view the buses when in fact it was his predecessor who did and the plaintiff was only offered such a trip which he did not take, the judgment is well reasoned and the findings are well-supported. There were also findings of fact and credibility of witnesses which would have been impossible to interfere with.
The plaintiff maintains that the defendant formulated an ill-motive against him because he was standing in his way of selling his buses to ZUPCO. That issue was extensively dealt with by the trial magistrate who was not persuaded at all. In addition, the defendant's accusations were supported by a recording which, although attacked by the plaintiff, was accepted by the trial court and reasons for that given. Again the plaintiff does not fairwell in that regard as well. In that regard my attention has been drawn to the remarks of Schreiner JA in Beckenstrater v Rottcher and Theunissen 1955 (1) SA 129 (A) 136A-B that:
"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 disproves the existence, for the defendant, of reasonable and probable cause".
I have said that the recording was accepted by the trial court. It is there and cannot be wished away and in it the plaintiff is recorded as having discussed the payment of money. At one stage he offers to give the defendant his account number for the money to be deposited in it. Of course he tried to rubbish the recording as being doctored and to raise a shaky alibi that he was at the South African Embassy all of which was disbelieved. What remains though is that the defendant had probable cause. The evidence that the plaintiff led during this trial has not taken his case beyond what it was at the criminal trial. Other than being a hollow denial of partaking in the discussion claiming that the recording was manufactured it has not shown that the plaintiff's voice was invented.
It is common cause that the plaintiff was convicted by the criminal court which conviction was supported by the prosecution on three separate occasions when the plaintiff escalated his effort to secure his liberty. It is common cause that the current Prosecutor General, Tomana, was the legal advisor to ZUPCO at the material time. He was also the plaintiff's legal representative in addition to being a member of the board of directors of ZUPCO. He stated that "being a board member with a legal background (he) was supposed to assist the ZUPCO board with the legal brains on the board."
During his tenure as such legal advisor, he formulated the opinion that the allegations against the plaintiff were unfounded. It is common cause that he testified on behalf of the plaintiff at the criminal trial and made it clear that the plaintiff had no case to answer. Despite his spirited efforts, the plaintiff was still found guilty and sentenced aforesaid. Tomana was later elevated to the position of Attorney General in 2008 and when the plaintiff's appeal came up to the High Court in 2009 he was now in charge of prosecutions in this country. Unfortunately he did not recuse himself.
That brings me to the last requirement namely that the prosecution must have failed. This matter is unique in the sense that at the trial court the prosecution was successful. The failure of the prosecution comes at the appeal stage when the State decided to make an about turn and refused to support the conviction thereby depriving the appeal court an opportunity to formulate its own opinion on the merits of the appeal. The concession came as a surprise because the prosecution had, prior to that, strenuously opposed the appeal on the basis that it was devoid of any merit. The prosecution successfully argued that point before the trial magistrate when bail pending appeal was sought. It also succeeded before the High Court when a bail appeal was launched. An effort by the plaintiff at the Supreme Court was also successfully repelled by the prosecution.
It is against that background that the decision to capitulate before the hearing of the appeal must be viewed. I note of course that Mr Magwaliba argues that the appeal was heard in open court and the appeal court satisfied itself that the conviction could not stand. Apart from that being evidence led by counsel himself, it does not change that the appeal was disposed of in terms of s 35. That is what the court order says.
At the trial Tomana was emphatic in his testimony. The following appears at pp 247-248 of his evidence in chief:
"Q: So you made the observation that the meeting would have been putting the cart before the horse if it was going to consider the issue of those buses. What then happened?
A: It is at that stage that Mr Shah burst out with an accusation now directed at the chairperson, the accused herein, saying that he was now refusing to buy the buses because he had refused to give him a bribe of US$ 5000 per bus. I was quite taken aback. To me this was a serious accusation and I took it seriously and so did the rest of the board members in attendance. We immediately demanded substantiation of that allegation. Mr Shah then said yes he had the evidence in the form of a recording of the discussion that they had had together on his laptop which he had with him in the boardroom. We readily demanded that he plays it. To my utter dismay, nothing audible came from the laptop replay. We reminded him that this was serious accusation and we were taking it seriously and we needed tangible substantiation of the allegation to which he said: 'Well; this recording would be audible if it was on C.D.' We at that stage dismissed that as a face-saving statement he had made seeing as it were that he had actually caused this Kabra from Dubai to fly into the country to seal this deal...We then had a special board meeting called for the next day, the 22 March 2005. The reason why we needed to satisfy ourselves on the merits of the accusation was because if we considered that the chairperson had indeed asked for that bribe, we needed to take a vote of no confidence in him because we were not going to be chaired by somebody we considered was blemished. And so on the 22 March, again in the evening, that was after 5pm we had a special board meeting which excluded the accused...Having looked at the two and concluding that both admitted of the inference that it was not probable that the accused had asked for that bribe, we then saw sense in concluding that the outburst was confidence nothing other than a face-saving gimmick. We accordingly re-affirmed a vote of confidence in the accused in his capacity to lead the ZUPCO board properly". (my emphasis)
What is clear therefore is that even before the plaintiff was charged Tomana had, in his capacity as board member, made up his mind about his guilt or otherwise. In his capacity as his legal practitioner, he had sued the defendant on behalf of the plaintiff for ZWD 100 000 000 in HC 157/06 as defamation damages. In his capacity as a defence witness he had vouched for his innocence at the criminal trial. Now he was the Attorney General whose office was tasked to defend the interest of the State and protect a conviction the State had fought tooth and nail to accomplish. Mr Uriri put it dramatically that the plaintiff was crucified and resurrected by the same office.
Was it competent for him to handle the appeal? It is possible that Tomana, being the head of a big office, the Attorney General's office, this colossus spreading its tentacles across the country, may not have even known about the plaintiff's appeal. But that is neither here nor there. As Michael Dyson put in his book April 4, 1968: Martin Luther King, Jr.'s Death and How It Changed America (Basic Civitas Books, New York, 2008) at p 120:
"Justice does not depend on feeling to do the right thing. It depends on right action and sound thinking about the most helpful route to the best and most virtuous outcome".
As they say, justice must not only be done, it must be seen to be done. It cannot be seen to be done in the circumstances under which the appeal was conceded. For the appeal court to proceed in terms of s 35 of the High Court Act it relies entirely on the notice given by the Attorney General that he does not support the appeal. Although the use of the word "may" in that section appears to give the judge a discretion, the judge in essence has no such discretion. This is apparent from the fact that the section does not provide what the judge must do when he or she does not agree with the notice. The judgment of Uchena J (as he then was) in S v Sando (supra), does not address that conundrum.
But then, this is a notice that was given by an Attorney General's Office under the leadership of someone very close to the case. Someone who should not have participated at all. Although a refusal to prosecute is proof that the prosecution has failed, in my view that evinces a State counsel who was not a defence witness and not the legal representative of the accused person, declining to prosecute. Accordingly, the involvement of Tomana in that process has tainted the outcome of the appeal to the extent that the requirement that the prosecution must have failed cannot be said to have been satisfied.
It is not like the Attorney General did not have options. In terms of s 6(2) of the Criminal Procedure and Evidence Act [Chapter 9:07]:
"The Prosecutor-General may, when he or she deems it expedient, appoint any legal practitioner entitled to practise in Zimbabwe to exercise (subject to the general or specific instructions of the Prosecutor-General) all or any of the rights and powers or perform all or any of the functions conferred upon the Prosecutor General by section 259 of the Constitution, this Act or any other enactment, whether or not they relate to criminal proceedings."
He could have easily invoked that provision to save the proceedings from being impugned. It therefore stands to reason that on the evidence that has been led so far on behalf of the plaintiff the answer to the question whether there is evidence upon which a reasonable person can make a mistake and find for the plaintiff must therefore be in the negative especially as the plaintiff did not attempt to show how the damages claimed are arrived at.
In the result, it is ordered that:
1. Absolution from the instance is hereby granted.
2. The plaintiff shall bear the costs of suit.
Magwaliba & Kwirira, plaintiff's legal practitioners
Uriri Attorneys-At-Law, defendant's legal practitioners
*Under the former Constitution the head of the prosecuting authority was the Attorney General - Editor
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