SHAH v NHERERA (55 of 2024) [2024] ZWSC 55 (6 June 2024)

Judgment No SC 55/24 Civil Appeal No. SC 08/221 REPORTABLE

(55) JAYESH SHAH v PROFESSOR CHARLES NHERERA SUPREME COURT OF ZIMBABWE GWAUNZA DCJ, GUVAVA JA & CHATUKUTA JA HARARE: 17 OCTOBER 2023 & 6 JUNE 2024 L. Uriri with S. M. Hashiti and M. Ndhlovu, for the appellant T. Magwaliba with T. R. Hove, for the respondent CHATUKUTA JA:

1. This is an appeal against the whole judgment of the High Court (the court a quo) handed down on 16 December 2021. The court a quo granted the respondent damages in the sum of US$30 000.00 for malicious prosecution and US$100 000.00 for malicious arrest and detention. The damages were to be paid at the equivalent rate of the local currency of RTGS reckoned at the time of payment. FACTUAL BACKGROUND

2. The respondent was the Chairman of the board of directors of Zimbabwe United Passenger Company (‘ZUPCO’). He was also Vice-Chancellor of the Chinhoyi University of Technology and a member of the Zimbabwe Examinations Council and the Parastatals Advisory Council. He held various positions in other local and regional organisations. The appellant had an interest in a company known as Gift Investments (Pvt) Ltd which supplied mini-buses to ZUPCO. The buses were supplied pursuant to a tender process approved by the State Procurement Board. Judgment No SC 55/24 Civil Appeal No. SC 08/222

3. In November 2011, the respondent issued summons against the appellant claiming damages in the sum of US$100 000 for malicious prosecution and US$300 000 for malicious arrest and detention, interest thereon at the rate of 5% per annum and costs of suit. The respondent averred that the appellant had made allegations that he had, in his capacity as the Chairperson of ZUPCO Board of Directors, solicited for a bribe from Gift Investments (Pvt) Ltd in order to facilitate the purchase by ZUPCO of 17 buses from the company. The company had previously sold some buses to ZUPCO with the authority of the State Procurement Board. Seventeen buses painted in the corporate colours remained in the company’s stock. ZUPCO had not placed an order for the buses which were not covered by the authority issued by the State Procurement Board. He contended that the appellant made reports on the allegations to various people, high ranking government officials and institutions. As a result of these allegations against him, he was arrested by the police on 21 March 2005 and detained on charges of corruption. He was arraigned before the Regional Magistrates Court, Harare, for contravening s 3 (1) (a)(i) of the Prevention of Corruption Act [ Chapter 9:16]. The trial magistrate found him guilty and sentenced him to 3 years’ imprisonment of which one year imprisonment was suspended for a period of five years on condition of future good behaviour. The effective sentence was 2 years’ imprisonment.

4. Aggrieved, the respondent filed an appeal before the High Court against both conviction and sentence. On 19 November 2009, the High Court quashed the conviction and set aside the sentence. By then, the respondent had served the effective sentence of two years. The claim for damages was instituted soon thereafter. The respondent averred in his claim that he was subjected to humiliation from the time of arrest up to his acquittal. As a result of his arrest, prosecution and imprisonment at the instance of the appellant, he Judgment No SC 55/24 Civil Appeal No. SC 08/223 suffered injury to his reputation, both locally and internationally and injury to his dignity. He was also deprived of his liberty. He lost his positions as the Vice Chancellor of Chinhoyi University of Technology and as the Chairperson of ZUPCO Board of Directors.

5. The appellant admitted in his plea to having made the report to the police. He however denied having done so maliciously. He averred that he only informed the police that the respondent had solicited a bribe from him and the information was true. He maintained that the decision to arrest the respondent was made by the police and not by him after the police had formulated a reasonable suspicion that an offence had been committed. He also denied causing the prosecution of the respondent. He argued that the decision to prosecute the respondent was made by the Attorney General in the exercise of his constitutional mandate. He averred that the decision to imprison the respondent was made by the trial magistrate after due consideration of the evidence placed before her during trial.

6. At the trial, the appellant applied for absolution from the instance at the close of the respondent’s case. The appellant submitted that the respondent had no prima facie case against him. The court a quo granted the application. It held that there was evidence that the respondent had solicited for a bribe. It further held that the respondent failed to show how he had arrived at the damages he was claiming.

7. Disgruntled by the decision, the respondent noted an appeal before this Court under SC 634/19. He argued that the court a quo had misdirected itself in granting the appellant absolution from the instance. This Court determined the appeal in ( Nherera v Shah 2019

(1) ZLR 462 (S); SC 51/19) (Nherera v Shah). Judgment No SC 55/24 Civil Appeal No. SC 08/224 FINDINGS OF THIS COURT IN NHERERA v SHAH SC 51/19

8. The court made the following findings: (a) In order to succeed in his claim for damages, the respondent was required to prove four requirements, being that: i. the arrest, prosecution and detention were instigated or procured by the defendant; ii. there was no reasonable and probable cause for his arrest, prosecution and detention; iii. the arrest, prosecution or detention was actuated by malice; and iv. the prosecution failed. (b) there was sufficient evidence before the court a quo that the appellant had instigated or procured the respondent’s arrest. The appellant had admitted in his plea that he had informed the ZUPCO Board, the then Minister of Local Government, Dr Chombo, the then Governor of the Reserve Bank, Dr Gono and the then Minister of State Security, Mr Goche. He had also admitted in the plea that he made a report to the police. He further admitted that he was granted immunity from prosecution by the police and the Attorney General so that he would assist in the investigation of the allegations he had made against the respondent and assist in a successful prosecution of the respondent; (c) there was no evidence suggesting that the respondent had attempted to solicit for a bribe from Gift Investments. The appellant did not, prima facie, have reasonable and probable cause for the respondent’s arrest or prosecution; Judgment No SC 55/24 Civil Appeal No. SC 08/225 (d) the court a quo seriously misdirected itself in relying on evidence adduced in the Magistrates’ Court during the respondent’s prosecution which was not adduced and tested before it. This was particularly so where the criminal proceedings had been set aside by the High Court on appeal on 19 November 2009; (e) The judgment of the High Court quashing the respondent’s conviction was extant. The court a quo should not have ignored it. Following the judgment of the High Court, the requirement that the prosecution had failed had therefore been met; (f) The question of malice could only be determined after the appellant’s testimony in his defence. The appellant had disputed, during the cross examination of the respondent, that he had made a report to the police. There was therefore need for putting the appellant on his defence so that he would, among other issues, explain the inconsistency between his admission in his plea that he denied under cross examination of the respondent that he ever made a report to the police;

9. In the final analysis, the court held that the respondent had established a prima facie case against the appellant. It concluded that the court a quo ought to have dismissed the application for absolution from the instance. It ordered as follows: “1.The appeal be and is hereby allowed with costs.

2. The judgment of the court a quo is set aside and in its place the following substituted: “The application for absolution from the instance be and is hereby dismissed with costs.”

3. The matter is remitted to the court a quo for continuation of the trial proceedings.” PROCEEDINGS BEFORE THE COURT A QUO Judgment No SC 55/24 Civil Appeal No. SC 08/226

10. After the above findings by this Court in Nherera v Shah (supra) , the trial proceeded before the court a quo with the appellant testifying. The appellant adopted his plea, his testimony in the criminal proceedings against the respondent in the Magistrates Court and affidavit he deposed to on 27 July 2006 as part of his evidence on oath. His evidence was as follows.

11. In 2005 respondent demanded a US$5 000.00 bribe per bus for ZUPCO to flight a tender for the purchase of buses. He did not make a report to the police as alleged by the respondent. He however informed a number of people about the respondent’s conduct. These included the ZUPCO Board, the then Minister of Local Government, Dr Chombo, the then Governor of the Reserve Bank, Dr Gono, the then Minister of State Security, Mr Goche, and some Central Intelligence Officers.

12. He informed the police sometime in April 2005 that the respondent had solicited for a bribe in 2003 to facilitate the renewal of a lease agreement between Gift Investments and ZUPCO. He had paid the respondent and Bright Matonga a total of $20 000.00. The respondent was arrested in relation to the 2005 solicitation after he made reports to the government officials. DETERMINATION BY THE COURT A QUO At the conclusion of the trial, the court a quo made the following findings.

13. The findings by the Supreme Court in Nherera v Shah (supra) were binding on it. The Supreme Court had determined that the appellant placed information before a police officer that the respondent had solicited a bribe from him leading to the arrest, prosecution and detention of the respondent. He did not, prima facie, have any reasonable and probable cause for doing so. The prosecution of the respondent had failed Judgment No SC 55/24 Civil Appeal No. SC 08/227 when his conviction was quashed on 19 November 2009. The respondent had therefore established a prima facie case on these issues. The appellant was required to rebut the prima facie case.

14. As regards the appellant’s testimony, the court a quo made the following findings: The appellant was not a credible witness. He had admitted in his plea (which was now part of his evidence-in-chief) to making the report to the Police leading to the arrest, prosecution and detention of the respondent . His oral evidence was inconsistent with his plea. The oral evidence was also at variance with his evidence during the respondent’s criminal trial where he again admitted making the report. It was common cause that the respondent was arrested, prosecuted and imprisoned after the accusations of soliciting for a bribe were levelled against him by the appellant. The appellant failed to disprove the prima facie case found to have been established by the respondent on appeal in Nherera v Shah ( supra). He had caused the arrest of the respondent without reasonable and probable cause and had done so in bad faith. His report to the police was therefore malicious.

15. The court a quo further held that the appellant’s liability had been proved and the requirements for delictual damages satisfied. It further held that the respondent suffered humiliation, ill-treatment in prison and lost his employment due to the arrest, prosecution and imprisonment. The court a quo found that the respondent had not led evidence on how the sums of US$100 000 for malicious prosecution and US$300 000 for malicious arrest and detention were arrived at. It however held that it still could make an award on the strength of relevant principles on the assessment of damages evolved from the jurisprudence coming out of our courts. It held that the claim for $100 000.00 for malicious prosecution was extremely excessive and, in its stead, awarded the respondent Judgment No SC 55/24 Civil Appeal No. SC 08/228 US$30 000.00. It also found the claim of US$300 000 for malicious arrest and detention to be excessive and awarded the respondent US$100 000 instead. The court a quo further concluded that the damages would be paid in RTGS dollars at the interbank rate prevailing on the date of payment. Aggrieved by the court a quo’s decision, the appellant noted an appeal to this Court on the following grounds of appeal: