In terms of section 49(1) of the Constitution of Zimbabwe every person has the right to personal liberty which includes the right not to be deprived of liberty arbitrarily or without just cause.
This delict is committed when D, without lawful justification, restrains the liberty of P by arresting or imprisoning him or her.
In OK Zimbabwe Ltd v Msundire 2015 (1) ZLR 741 (S) the court pointed out that whilst an action for unlawful arrest and detention is usually brought against the police or other uniformed forces, a private individual can also commit this delict. The position is also settled that in our law, unlike South Africa, once unlawful arrest or imprisonment are proved, animus injuriandi is presumed and intention is not a requirement for this delict.
Obviously, if the arrest or detention is legal, such as arrest and detention under the Criminal Procedure and Evidence Act [Chapter 9:07] then this action cannot be brought.But even where a police officer has reasonable suspicion that a First Schedule crime has been committed, the police officer is not obliged to arrest and detain the suspect. The power of arrest, which is a discretionary power, has to be exercised reasonably. Where a person is arrested when it is not reasonable to so arrest him, the arrest will still be unlawful. The courts have decided that there is no reason to hold the suspect in custody if there is no reason to believe that if the person is not detained he or she:
- would try to escape;
- would commit further crimes;
- would interfere with police inquiries or with witnesses.
See Botha v Zvada & Anor 1997 (1) ZLR 415 (H) and Muzonda v Ministry of Home Affairs 1993 (1) ZLR 92 (S).
Force is not a pre-requisite for this delict and neither is pecuniary loss. Malice is not required but in assessing damages malice can be taken into account.
Damages can be awarded for affront or humiliation stemming from the arrest and imprisonment of P. Damages can also be awarded for any patrimonial loss stemming from unlawful arrest and detention.
This action is usually brought against the Ministry of Home Affairs arising out of illegal arrests and detention by the police but it can also be brought against both the police officers involved and the Ministry.
A private individual can also commit this delict against another private individual. See Mapuranga v Mungate 1997 (1) ZLR 64 (H); Muyambo v Ngomaikarira & Ors 2011 (2) ZLR 51 (H). In Macheka v Metcalfe & Anor HH-62-07 P was unjustifiably arrested and detained on an allegation of theft at the institigation of the employer of the workers. The court found that P was entitled to damages for unlawful arrest.
In Mapuranga v Mungate 1997 (1) ZLR 64 (H) the court pointed out that once an act of imprisonment or complete deprivation of liberty has been established, there is a presumption that the imprisonment was wrongful. It is not necessary for P to establish malice or the absence of a reasonable cause for the imprisonment, or even that he was at all times aware of the imprisonment.
In Muyambo v Ngomaikarira & Ors 2011 (2) ZLR 51 (H) the court stated that P need only prove that the arrest or imprisonment was illegal. P does not have to prove that D had intention to act illegally or to cause harm. In our law, unlike South African law, animus injuriandi is presumed and, therefore, intention is not a requirement for this delict. The view of McKerron at p 160 that inevitable mistake is no defence would seem to be correct in our law.
The court also stated that in order to establish the lawfulness of an arrest without a warrant, the onus lies upon D to show probable cause or reasonable suspicion. In exercising the power of arrest, he must act as an ordinary honest man would act, on suspicions which have a reasonable basis, and not merely on wild suspicion. In other words, the arrestor must act on such circumstances as would ordinarily lead a reasonable man to form the suspicion that the arrestee has committed an offence. It is not the function of the police to arrest at large and to use the interrogatory process in order to determine whom to charge.
In Masendeke v Chalimba & Ors 2014 (2) ZLR 63 (H) the court pointed out that in an action for wrongful arrest it is not necessary to plead malice or animus injuriandi.
In Mavhiza & Anor v Muwambwi & Anor 2014 (1) ZLR 605 (H) Ps, officers of the Zimbabwe National Water Authority, went to the Zimbabwe Republic Police camp at Chirundu to disconnect water supplies owing to unpaid water charges. They discovered the following day that the water had been reconnected. Having advised their superiors in Harare about the unauthorised reconnections, Ps were instructed to remove the water meters and plug the pipes so that the water supplies would be disconnected. They did that. A day later they were taken to Chirundu police station where they were kept forseveral hours.They were released after they had reinstated the meter and restored the water supply to the police station. While at the police station, they were ordered to sit on a bench behind thecounter in the charge office. They were ordered to remove their shoes and to switch off their mobile phones.They had to seek leave to be allowed to ask someone to bring food for them, which they only ate late in the afternoon. They brought an action for damages for unlawful arrest and detention against D1 and D2, the responsible officers, and against the responsible Ministers.
The court held that on the facts, the delict of unlawful arrest and detention had been established. An action for unlawful arrest and detention is one that falls under the actio injuriarum, and so proof of actual damage is not necessary to support such an action. Even if no pecuniary damage has been suffered, the court will not award a contemptuous figure for the infringement of the right to liberty. Damages for unlawful arrest and detention should be exemplary and punitive in order to deter would-be offenders. The factors to be considered include: the circumstances under which the deprivation of liberty took place; the presence or absence of improper motive or “malice” on the part of D; the harsh conduct of D; the duration and nature (e.g. solitary confinement) of the deprivation of liberty; the status, standing, age, and health of P; the extent of the publicity given to the deprivation of liberty; the presence or absence of an apology or satisfactory explanation of the events by D; awards in previous comparable cases; the fact that, in addition to physical freedom, other personality interests such as honour and good name have been infringed; the high value of the right to physical liberty; the effects of inflation and the fact that the actio injuriarum also has a punitive function. Here, the plaintiffs were not handcuffed, and were allowed to sit on a bench at the police station. They spent eight hours but that was during the day. However, they were deprived of their liberty in circumstances where they had removed the meter in question in the honest performance of their work. There was an abuse by Ds of their positions to obtain a reconnection of water by arresting and detaining Ps. An improper motive or malice was clearly established. The fact that Ps were ordered to remove their shoes amounted to inhuman and degrading treatment. Ps were ordered to switch off their mobile phones and were denied food at the appropriate time. Damages of US$5 000 for the deprivation of liberty and $1 000 for contumelia for each of Ps would be appropriate.
In Zuvarimwe & Anor v Naran & Anor HH-161-14 the court stated that the delict of wrongful arrest involves the wrongful deprivation of a person’s liberty; it consists of arresting and holding a person without legal justification. Where an arrest is effected by the police, D is only liable if it can be established that the police acted on his directions, orders or command. Liability for wrongful arrest is strict: a party is not required to show that the person causing the arrest was at fault or that he was aware that the arrest was wrongful. To succeed in an action based on wrongful arrest, P must show that D himself, or someone acting as his agent or employee deprived him of his liberty. Where D merely furnishes the police with information on the strength of which the latter decides to arrest P, D does not effect the arrest. D1 admits that he furnished the police with information leading to P’s arrest. If the arrest was not unlawful, D cannot be liable for wrongful arrest and deprivation of liberty, as the discretion lay with the police whether to arrest Ps.
In determining whether D had a reasonable suspicion that the offence complained of was committed by P, the court must consider whether D acted as an honest man would act; not merely on wild suspicion, but on suspicion which had a reasonable basis. The suspicion need not be a matter of certainty, or even probability, it must not, at the other extreme, be vague, remote or tenuous. It is, perhaps, a question of a feasible possibility, a matter of likelihood.
For further commentary on this delict, see 1987 Vol 5 Zimbabwe Law Review 26 at 30-38.
In Minister of Home Affairs & Anor v Bangajena 2000 (1) ZLR 306 (S)the Supreme Court stated that the deprivation of personal liberty is an odious interference and has always been regarded as a serious injury. The courts have properly taken the stance that deprivation of liberty through unlawful arrest and imprisonment is a very serious infraction of fundamental rights. Damages for this delict should therefore be exemplary and punitive to deter would-be offenders.
In Mandirwhe v Minister of State 1981 (1) SA 759 (ZS) at the request of the Mozambican Government, P had been arrested and handed over to that Government. These actions had been illegal as no proper extradition process had been followed. P was entitled to considerable damages.
In Minister of Home Affairs v Allan 1986 (1) ZLR 263 (S) P had photographed some buildings. Thinking wrongly that he had photographed the nearby police station, the police arrested him. The arrest was illegal as there was no reasonable suspicion of the commission of a crime.
In Makomberedze v Minister of State (Security) 1986 (4) SA 26 (ZH), P was unlawfully arrested and detained for 20 months. He was given no reason for his detention and was refused access to a lawyer. He was handed over to the Mozambican authorities without following proper extradition procedures. He was awarded $50 000 damages.
In Botha v Zvada & Anor 1997 (1) ZLR 415 (H) a 71 year old man was arrested by the police on suspicion that he had committed murder. He was held in custody for six days in a crowded cell. He sued for unlawful arrest and detention. The court held that for an arrest to be lawful the arresting officer had first to establish that he had reasonable grounds for suspecting that the man had committed the murder and, in any event, his detention was not reasonably necessary. The arrest and detention were therefore unlawful and the man was entitled to damages for the interference with his liberty. Interference with liberty is a serious matter and in the circumstances an amount of $20 000 would be an appropriate award.
In Muzonda v Ministry of Home Affairs 1993 (1) ZLR 92 (S) the court held that the police officer had not exercised reasonably his discretion to arrest and detain an elderly woman on charges of assaulting her daughter in law during a dispute and theft of a watch. The exercise of the discretion was so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it. The woman was awarded damages.
In Mapuranga v Mungate 1997 (1) ZLR 64 (H) the court awarded damages to P for unlawful imprisonment. He had been detained by private persons at their house and subjected to ill treatment. Detaining a man and denying him freedom of movement is a serious infringement of his liberty, far beyond the estimate of mere money damages. The motive for the imprisonment was dishonourable and malice was present.
In Minister of Home Affairs & Anor v Bangajena 2000 (1) ZLR 306 (S)the owner of a car was wrongly arrested by a police officer on an allegation that he was stealing the car. During the arrest, the arresting officer shot at the owner and his friend. The arresting officer, who had been drinking, knew the person arrested. A number of police officers at two police stations refused to detain the person, saying that they knew the person to be the owner of car. Eventually, the person was detained overnight after the police officer took personal responsibility for his detention. The next morning the police officer came to the station and on seeing the respondent he expressed surprise that he had arrested a person he knew and said he would not have arrested him if he had realised this. The court held that deprivation of personal liberty is an odious interference and has always been regarded as a serious injury. Even if no pecuniary damage has been suffered, the court will not award a contemptuous figure for the infringement of the right to personal liberty. Our courts have properly taken the stance that deprivation of liberty is a very serious infraction of fundamental rights. Damages should be exemplary and punitive in order to deter would-be offenders.
In Nyatanga v Mlambo & Ors HH-85-03 the Master of the High Court was arrested without warrant on a charge of fraud and detained in the cells over a weekend. The alleged fraud concerned a judicial sale of immovable property that had taken place eight years previously. The decision to arrest and detain had in the circumstances been so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it.
In Muyambo v Ngomaikarira & Ors 2011 (2) ZLR 51 (H) the court stated that wrongful imprisonment, the deprivation of personal liberty is an odious interference and constitutes a serious infraction of fundamental rights, attracting an exemplary assessment of reparation. The longer and more oppressive the period of detention, the higher should be the quantum of damages.
In Lawson v Minister of Home Affairs & Anor 1996 (2) ZLR 35 (H) a young man was arrested and held in the detention cells at the court for over two hours where he was abused by fellow prisoners and prison officers. He was denied access to her parents and his legal advisor. The court found that there was no lawful basis for arresting and detaining the man. He was awarded $4000 damages.
See also Granger v Minister of State(Security) 1985 (1) ZLR 153 (H) P had made no claim for illegal detention; Masukusa v National Foods Ltd & Anor HH-95-89; Guriranai v Kwenda & Ors HH-194-91; Mwete v Chimanzi & Ors HB-5-93; Muchenje v Chinyanganya HH-95-94; Ellison v Rusike & Anor HB-40-95 Officers of National Parks unlawfully arrested P and some visitors he was showing around; Coltart v Minister of Home Affairs & Ors 2006 (1) ZLR 543 (H).
Makhanya v Minister of Justice 1965 (2) SA 488 (N); Thompson & Anor v Minister of Police & Anor 1971 (1) SA 371 (E); Ramakulukusha v Commander, Venda National Force 1989 (2) SA 813 (VSC).
The nature of the action
This delict 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, not of upholding and furthering his or her rights, but instead solely for the purpose of causing harm to P because he or she has malice towards P. In Bande v Muchinguri 1999 1 ZLR 476 (H) the judge points out that the term “malice” did not here mean spite or ill-will or a spirit of vengeance; it had a wider connotation. It included any motive different from that which is proper for the institution of criminal proceedings, which is to bring an offender to justice and thereby aid in the enforcement of the law. In this case a magistrate brought a baseless charge of contempt of court against P.
Thus, it constitutes a delict if D, actuated by malice and with no reasonable and probable grounds for doing so, does any of the following:
- procures the arrest or detention of P by the proper authorities (malicious arrest or detention); or
- institutes against P unsuccessful civil or criminal proceedings resulting in injury to reputation or pecuniary loss (malicious prosecution); or
- issues execution against P’s property, which writ has been set aside (malicious execution).
As indicated above, the cause of action is applicable to malicious institution of civil proceedings, and is not confined to malicious institution of criminal proceedings. See Munukwi v Tsanga 2014 (1) ZLR 271 (H). In that case the judge pointed out that the malicious institution of legal proceedings, as a cause of action, differs from unlawful arrest and detention.The requirements and elements are different, and it is not necessary, for purposes of a cause of action founded on malicious institution of legal proceedings, that either the police, or the parent Ministry of Home Affairs, be cited as parties to the proceedings. The cause of action is applicable to malicious institution of civil proceedings, and is not confined to malicious institution of criminal proceedings.
Whereas with unlawful arrest or imprisonment it is normally the police that is sued for the wrongful actions of their employees (servants), with abuse of legal proceedings D is a private citizen who has used the agency of the police or the courts to cause harm to P. In Zuvarimwe & Anor v Naran & Anor 2014 (1) ZLR 449 (H) it was pointed out that the delict of wrongful arrest involves the wrongful deprivation of a person’s liberty; it consists of arresting and holding a person without legal justification.
Requirements for action
P must show–
(a) that D set the law in motion (instigated or instituted the prosecution) against P;
(b) that at the time D instigated or instituted the legal proceedings D had no reasonable and probable cause to do so;
(c) that D was actuated by express or implied malice (any indirect and improper motive) to set the law in motion against P;
(d) that the prosecution terminated in Ps favour; and
(e) that P suffered damages as a result of the prosecution.
In Abu-Busutu v Moyo 2013 (2) ZLR 716 (H) D and P were co-directors of a company registered in South Africa. A bank account was opened in the company’s name. D, who was working for another business, fraudulently transferred money from his employers to the company’s account. He then proceeded to withdraw all the ill-gotten funds from the account for his personal use without the P’s knowledge. He then fled South Africa and went to Zimbabwe, where he spent the funds. P was arrested by the South African police and detained for 98 days before the charges of fraud brought against him were withdrawn. He brought an action against D for malicious prosecution, basing the damages on a fixed amount per day. By utilizing the bank account of the company for his illicit dealings, D acted maliciously and set the law in motion against P without reasonable and probable cause. When he fled South Africa he was well aware that he was exposing P to the risk of arrest and detention. D was well aware of the consequence of his actions. As co-directors,D owed a special duty of care to P not to utilise the company account in a manner that would endanger P in any manner whatsoever. D not only broke the trust between himself and P but also breached the duty of care to operate the company’s bank account for lawful means. P’s arrest and detention was a direct consequence of D’s nefarious activities and P is entitled to compensation for the unwarranted deprivation of his liberty. P’s life was needlessly disrupted by the incarceration. He was prevented from carrying out his normal duties and his daily activities. His loss of income for the 98 days he was in detention is not capable of easy ascertainment.
In Econet Wireless (Pvt) Ltd & Ors v Sanangura 2013 (1) ZLR 401 (S) the court pointed out that every citizen has a right to use legal proceedings legitimately for the purpose of upholding and protecting his or her rights, but does not have the right to abuse the legal process for the purpose, not of upholding and furthering his or her rights, but instead solely for the purpose of causing harm to another because he or she has malice towards that person. The term “malice” does not her mean spite or ill-will or a spirit of vengeance; it has a wider connotation. It includes any motive different from that which is proper for the institution of criminal proceedings, which is to bring an offender to justice and thereby aid in the enforcement of the law. To succeed in an action for malicious prosecution four requirements must be proven: the prosecution was instigated by D; it was concluded in favour of P; there was no reasonable and probable cause for the prosecution; and the prosecution was actuated by malice. Placing information and facts before the police does not in itself amount to instigating a prosecution; D must also proceed to lay a charge or prevail on the police to institute proceedings which they would not otherwise have instituted. D must have been actively instrumental in setting the law in motion. Simply giving a candid account, however incriminating, to the police is not the equivalent of launching a prosecution.
D will not be liable for this delict if he or she held a genuine belief in P’s guilt founded on reasonable grounds as was the case on the facts of this case. (The decision in Sanangura v Econet Wireless (Pvt) Ltd & Ors 2012 (2) ZLR 304 (H) was reversed)
In Munukwi v Tsanga 2014 (1) ZLR 271 (H) the court pointed out that P must allege and prove that D instituted or instigated the proceedings. The mere placing of information or facts before the police, as a result of which proceedings are instituted, is insufficient. The test is whether D did more than tell the police the facts and leave them to act on their own judgment. Inherent in the concept of “setting the law in motion” or “instigating or instituting 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 D acts in such a way that a reasonable person would conclude that he is acting clearly with a specific view to a prosecution of P and such prosecution is the direct consequence of that action, D is responsible for the prosecution. Similarly, 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. P must allege and prove that D instituted the proceedings without reasonable or probable cause, which means an honest belief, founded on reasonable grounds, that the institution of proceedings is justified. The concept involves an objective and a subjective element.This cause of action cannot be used to prejudge the reasonableness of the proceedings that form the subject of the complaint, so P must allege and prove that the proceedings were terminated in his favour.
In Zuvarimwe & Anor v Naran & Anor 2014 (1) ZLR 449 (H) Where an arrest is effected by the police, D is only liable if it can be established that the police acted on his directions, orders or command. Liability for wrongful arrest is strict: a party is not required to show that the person causing the arrest was at fault or that he was aware that the arrest was wrongful. To succeed in an action based on wrongful arrest, P must show that D himself, or someone acting as his agent or employee deprived him of his liberty. Where D merely furnishes the police with information on the strength of which the latter decides to arrest P, D does not effect the arrest. D1 admits that he furnished the police with information leading to D’s arrest. If the arrest was not unlawful, D cannot be liable for wrongful arrest and deprivation of liberty, as the discretion lay with the police whether to arrest Ps. In determining whether D had a reasonable suspicion that the offence complained of was committed by P, the court must consider whether the defendant acted as an honest man would act; not merely on wild suspicion, but on suspicion which had a reasonable basis. The suspicion need not be a matter of certainty, or even probability, it must not, at the other extreme, be vague, remote or tenuous. It is, perhaps, a question of a feasible possibility, a matter of likelihood.
In Nherera v Shah HH-845-15 the court pointed out that the onus is on P 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. In respect of instigation, it must be shown that D acted with the purpose of having P prosecuted and that a prosecution resulted from D’s actions. The well-known formulations of instigation are: was D then instrumental in making or prosecuting the charge? The test is whether D did more than tell the police officer the facts and leave him to act on his own judgment. The mere fact that D placed information before the police during interrogation and that the State activated the criminal justice system against P on the basis of that information is not enough to establish the requirement of instigation. P is required to show more than the disclosure of information to the State. The involvement of the current Attorney-General in that process had tainted the outcome of the appeal to the extent that the requirement that the prosecution must have failed could not be said to have been satisfied. Absolution was, therefore, granted.
In Manjoro v Minister of Home Affairs & Ors 2015 (1) ZLR 872 (H) P claimed for unlawful arrest and imprisonment and for malicious prosecution following on the arrest and imprisonment. The P was acquitted of the charge. The court found the proceedings from the arrest to acquittal were continuous and therefore the cause of action only arose when the criminal proceedings were terminated in favour of P. Therefore P’s claim against the police had not prescribed under the Police Act as he had brought his claim within 8 months of the cause of action arising.
For further commentary on this delict, see 1987 Vol. 5 Zimbabwe Law Rev 26 at 38-40.
See also Lovemore v Rhoguard Ltd GS-154-72 false charge laid; Nyakabambo v Minister of Justice 1989 (1) ZLR 96 (H) P was arrested on a charge of murder. After she was acquitted she claimed damages for malicious prosecution. She was unsuccessful; Bande v Muchinguri 1999 (1) ZLR 476 (H). A prison officer successfully sued a magistrate who had, without reasonable and probable cause, caused the police to bring a case against the prison officer for contempt of court; Ramakulukusha v Commander, Venda National Force 1989 (2) SA 813 (VSC) malicious prosecution; Beckenstrater v Rottcher & Theunissen 1955 (1) SA 129 (A).
In Abu-Busutu v Moyo 2013 (2) ZLR 716 (H) did not set out the basis upon which he arrived at the daily rate claimed, for which there was no rational basis. The correct approach to the quantum of damages would be to award a global figure based on a fair reflection of an award that would adequately compensate P. There was a need in all the circumstances of the case to award exemplary damages, regard being had to the following factors:-
(a) the award must be fair and reasonable.
(b) the award must provide adequate compensation to the injured party.
(c) the award must penalise D for his malicious and reckless conduct.
(d) the award must be exemplary, in that D had benefited financially whilst placing P at serious risk.