The
defendant filed a counterclaim in which he alleged that on 20 January
2011 the plaintiff maliciously and wrongfully set the law in motion
by laying false charges against him of fraud and contravening
Exchange Control Regulations with the police. In particular, the
defendant accused the plaintiff of complaining to the police that he
had secured a loan of USD4 million by means of making a false
representation to him and that the defendant had not obtained
Exchange Control authority for the borrowing.
The
defendant averred that when the plaintiff made these complaints he
had no reasonable/probable cause for doing so and he did not have any
reasonable belief in the truth of the information that he gave to the
police. As a result of the plaintiff's conduct, the defendant was
arrested and arraigned before the Magistrate's Court and indicted
for trial before the High Court on 1 July 2013. The defendant was
detained in custody until his admission to bail on 4 July 2013. He
was tried and acquitted by the High Court on 12 September 2013.
The
defendant's claim for damages for contumelia, deprivation of
freedom and discomfort was in the sum of USD$300 00-00. He also
claimed a sum of USD$50,000=
for his legal costs.
On
20 November 2014, the plaintiff filed his replication to the
defendant's special plea, in which he denied that the proceedings
in HC4221/08 were currently still pending and denied that the parties
were the same in both matters or that the cause of action was the
same. In the replication to the plea on the merits, the plaintiff
denied that the agreement between the parties violated Exchange
Control Regulations and joined issue with the defendant. The
plaintiff's plea to the defendant's counterclaim was an admission
that he laid charges against the defendant and a denial that he
maliciously set the law in motion, or that the charges were false, or
that the information given was false. The plaintiff prayed that the
defendant's counterclaim be dismissed with costs….,.
The
following issues were referred to trial in the defendant's
counter-claim:
1.
Did the
plaintiff lay fake criminal charges with the police against the
defendant?
2.
Did the laying of the fake charges by the plaintiff cause the arrest,
detention, and prosecution of the defendant?
3.
What amount of damages, if any, did the defendant suffer as a result
of his arrest, detention and prosecution?…,.
With
regards to the defendant's counterclaim, the issue that falls for
determination is whether the complaint raised by the plaintiff to the
police against the defendant was deliberately and intentionally based
on falsehoods, the aim being to cause the arrest, detention and
prosecution of the defendant, knowing full well that such arrest,
detention and prosecution was unjustified….,.
The
plaintiff said the defendant never intended to pay back the money
which he borrowed so he misrepresented himself giving rise to the
criminal charges. He did not mention where the funds were going or
what he would use them for. He paid a total of USD$400,000=. At one
stage he tried to pay USD$3,500,000= by depositing it into an
offshore account in Jersey but the payment was returned by the Bank
because the source of the funds was not clear at a time when the
defendant was under investigation by the Serious Frauds Squad.
Thereafter, the defendant said that all his funds were blocked
because he had been placed on the sanctions list. The defendant's
trustees then wrote a letter in which they said that he had
instructed them that the payment had been made in error…,. When the
trustees confirmed that the defendant had no intention to pay, that
played a part in the consideration of pressing a criminal complaint.
The criminal complaint was placed after legal advice from Mr
Samkange….,.
The defendant was only detained for
one or two days at the most.
During
cross examination, the plaintiff said that he knew nothing about the
defendant being denied bail and confirmed that he never asked for
proof of the legal costs….,. On the criminal prosecution of the
defendant, the witness confirmed that the defendant took money from
him with no intention of paying, based on the misrepresentation that
he needed a loan and that he was willing to re-pay. He disputed the
assertion that the e-mail from the Maitland Trustees, which he relies
on as proof that the defendant did not intend to pay, was written
well after he had already laid the criminal complaint. He denied that
the police advised him that this was a civil matter or that they had
refused to prosecute the defendant for this reason. He denied that he
had pursued a civil matter using the criminal process….,.
Mr
Jonathan
Samkange, who
testified on behalf of the plaintiff, said the defendant made many
promises to pay after the deadline expired in February 2013. Mr
Chagonda
wrote several letters in which assets were said to be in the process
of liquidation to settle the debt. When it became clear that the
defendant was not a man of his words, and the Attorney General (AG)
now had evidence that the defendant had not told the truth about his
involvement with our army in the Democratic Republic of Congo (DRC),
he recommended that the plaintiff lodge a criminal complaint for
fraud against the defendant…,. The AG was now prepared to
prosecute. The basis of the criminal complaint was that the defendant
had misrepresented to the plaintiff that he wanted a loan when he
never had any intention of paying back the money….,.
On
the criminal prosecution, Mr Samukange
said, in cross-examination, his recommendation that the plaintiff
place criminal charges was based on the contents of the letter from
the trustees not on the plaintiff's instructions. He said that the
defendant could have made alternative arrangements to pay the
USD$3.5million that was returned by the plaintiff's Bank if he was
sincere in his intention to re-pay the money. Mr Samkange
denied that he was instrumental in using the criminal route to
recover money from the defendant. He said he disagreed with the
judgment of the Criminal Court which expressed misgivings at the use
of the criminal sanction in what it described as a purely civil
matter….,.
The
defendant said he was prosecuted and acquitted in 2013 after being
arrested and taken to prison. He was put in a cell with one toilet
and 79 people who were smoking all night and some of whom behaved
aggressively towards him. He was in custody for 3-4 days. He had had
double bypass heart surgery and was denied his medication which he
should take every morning and evening….,.
On
the malicious prosecution allegations, the defendant said that
because he was put in jail and the plaintiff has approached his
friends and family and bad-mouthed him, and continues to do so, he
should be paid damages. He admitted that the police arrested and
incarcerated him not the plaintiff, but insisted that the plaintiff
instructed his lawyers to set the criminal sanction in motion. The
witness was hazy on the details of what actually happened or how many
days he was incarcerated for due to his faulty memory. He referred
questions on the legal fees incurred to his legal practitioners of
record.
The
defendant said that he has not paid the plaintiff because he has no
access to cash. He is cash poor because he has remained on the
sanctions list and lost significant assets in the United States. He
admitted that he sold his mine in the Democratic Republic of Congo
(DRC) for USD$35 million and denied that in light of this fact his
failure to pay the plaintiff was criminal….,.
The
court must determine whether the plaintiff caused the malicious
prosecution of the defendant giving rise to a claim for damages in
the sum claimed by the defendant….,.
The
last issue for determination is that of the claim in reconvention.
In
determining this claim, it has been submitted that the court should
consider whether the evidence before it establishes a cause of
action. A cause of action has been defined as;-
“…,
the entire set of facts which gives rise to an enforceable claim and
includes every fact which is material to be proved to entitle a
plaintiff to succeed in his claim. It includes all the plaintiff must
set out in his declaration in order to disclose a cause of action”.
See Abrahamse
& Sons v SA Railways & Harbours 1933 CPD 626;
Peebles
v Dairiboard Zimbabwe (Pvt) Ltd, Patel v Controller of Customs &
Excise 1982 (2) ZLR 82 (H),
Denton
v Director of Customs & Excise HH216-89;
Hodgson
v Granger & Anor HH133-91;
Dube
v Banana 1998 (2) ZLR 92 (H).
See
Mukahlera
v Clerk of Parliament & Ors
2005
(2) ZLR 365 (SC),
where
the court relied on the case of
Dube
v Banana 1998 (2) ZLR 92 (H)
in
which it was held that;
“…,
the cause of action means the combination of facts that are material
for the plaintiff to prove in order to succeed…,.”
So,
in order for there to be a 'cause of action', every fact which
gives rise to a successful claim must be present. Every act which is
relevant to the plaintiff's claim, if the plaintiff is to succeed
in its claim, must be present before it can be said that there is a
'cause of action'. See also Peebles
v Dairiboard Zimbabwe supra.
The
cause of action, in an action for a claim of damages caused by
malicious criminal or civil proceedings, is the actio iniuriarum. The
plaintiff bears the onus in respect of all the elements of the
delict, including that of animus iniuriandi. See Amler's Precedents
of Pleadings 7th
ed, HARMS…,; Van der Merwe v Strydom [1967] 3 All SA 281 (A);
Beckenstrator v Rottcher Theunissen [1955] 1 All SA 146 (A); Rudolph
v Minister of Safety & Security [2007] 3 All SA 271 (T).
To
succeed with a claim for malicious prosecution, a claimant must
allege, and prove, that:
(a)The
defendant set the law in motion, instigated or instituted the
proceedings;
(b)
The defendant acted without reasonable or probable cause;
(c)
The defendant acted with malice or animo
iniuriandi;
and
(d)
The prosecution has failed.
See
Minister
for Justice and Constitutional Development v Moleko
[2008]
3 All SA 47 (SCA); Bande
v Muchinguri
1999
(1) ZLR 476 (H). See also Econet
Wireless & Ors v Sanangura
SC52-13;
and
Luke Davies v Premier Finance Limited
HH235-10.
The
plaintiff must allege, and prove, that the defendant instituted the
proceedings, that the defendant actually instigated or instituted
them. The mere placing of information or facts before the police, as
a result of which proceedings are instituted, is insufficient. See
Lederman v Moharal Investments (Pty) Ltd
[1969]
1 All SA 297 (A). The test is whether the defendant did more than
tell the detective the facts and leave him to act on his own
judgment. At pp197, the court stated that:
“Inherent
in the concept 'set the law in motion', 'instigate or institute 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.
AMERASINGHE,
Aspects of the Actio
Injuriarum
in Roman-Dutch Law, recognises that 'the problem is essentially one
of causation' and suggests (at p. 20):
'The
principle is that where a person acts in such a way that a reasonable
person would conclude that he (i.e. the defendant) 'is acting
clearly with a specific view to a prosecution of the plaintiff and
such prosecution is the direct consequence of that action, that
person is responsible for the prosecution.'”
The
plaintiff must allege and prove that the defendant instituted the
proceedings without reasonable or probable cause, a phrase 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. See Beckenstrater
v Theunisen
[1955]
1 All SA 146 (A).
In
the context of animus
iniuriandi,
malice
means animus
inuiriandi
and is not a separate element of the delict. See
Moaki
v Reckitt & Coleman (Africa) Ltd
[1968]
3 All SA 242 (A). Malice, in this context, does not mean 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. See a Guide to the
Zimbabwean Law of Delict (2006), FELTOE; Bande
v Muchinguri
1999
(1) ZLR 476 (H).
The
plaintiff testified that he had received advice from his legal
practitioners that the defendant had perpetrated a fraud on him and
that he made a report to the police based on this advice. Mr
Samukange
confirmed that the plaintiff had acted on his advice.
In
this case, it is common cause that the proceedings in S
v Bredenkamp 2013 (2) ZLR 288 (H)
were
terminated when the now defendant was discharged at the close of the
State case. Did the plaintiff do more than give the police
information and leave them to decide whether to prosecute the
defendant?
The
defendant argues that there is no doubt that the plaintiff instigated
the criminal proceedings against him and was malicious. The defendant
relies on the letter from the plaintiff's legal practitioners,
dated 25 March 2013, in which it is observed that the defendant's
conduct of borrowing the money with no intention of returning it fits
the definition of fraud in the Criminal Code and establishes all the
elements of fraud. The defendant relies, further, on the finding made
in S
v Bredenkamp 2013 (2) ZLR 288 (H)…,
that
the defendant had made two payments of USD$200,000= in 2001 and a
further payment of USD$3,5 million in 2006 after he had sold his mine
in the Democratic Republic of Congo. There was also a finding made…,
that 'the driving force behind the prosecution was the complainant
(Plaintiff). The Prosecutor General succumbed to the pressure from
the complainant to prosecute an apparently civil matter and therefore
act in complicity with the complainant to use a Criminal Court to put
pressure on the accused in order to collect a civil debt'.
See
also Ngonidzashe
Sanangura v Econet Wireless
HH398-12.
It
was submitted that these findings pointed to a 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.
It
was submitted, on behalf of the plaintiff, that a person who has not
been paid for ten years cannot be said to abuse court process in
seeking the prosecution of the fraudster, that this was the
plaintiff's motivation and that this does not exhibit any malice at
all in the sense of pushing the police. The plaintiff maintains that
he acted on Mr Samukange's
advice at the time and it was only when the defendant breached the
undertaking that he had made to pay that a police report of fraud was
made. The plaintiff had knowledge that the defendant had the money
after the attempt to pay USD$3.5 million
to his account in Jersey was made. The e-mail from the Maitland
Trustees confirmed that the defendant no longer intended to pay the
plaintiff after the money was returned because of his instructions to
the trustees that he had authorized them to pay in error.
I
accept that this evidence was not placed before my sister Judge
CHATUKUTA in S
v Bredenkamp 2013 (2) ZLR 288 (H).
The Criminal Court did not hear the evidence of the defendant or
verify it through cross-examination since the matter was dismissed at
the close of the State case.
I
am unable to accept that the plaintiff caused the prosecution of the
defendant in the sense of doing more than merely report that a crime
had been committed….,.
We
find that the report made to the police by the plaintiff was not
fake, as in based on false information. We find that the plaintiff
did not do anything more than what is required to cause a perceived
perpetrator of a crime to be brought to book. We find that the
plaintiff could not have been motivated by malice, as in motivated by
the desire to induce the defendant to pay, alone The defendant had
already caused USD$3.5 million to be deposited into the plaintiff's
bank account in Jersey. It was the defendant's counter-instructions
to the Maitland Trustees not to make any further attempts to pay that
triggered the report of fraud - not an intention to induce the
defendant to pay.
The
claim in reconvention must fail because it is this court's view
that the evidence does not support the assertion that the plaintiff
caused the prosecution of the defendant without reasonable or
probable cause. We find that the plaintiff had 'an honest belief,
founded on reasonable grounds, that the institution of proceedings
was justified when he saw the email from the trustees which his
lawyer advised him was evidence that defendant no longer wished to
re-pay the money borrowed after undertaking to do so.'…,.
1….,.
2….,.
3….,.
4.
The claim in reconvention is dismissed with costs on legal
practitioner and client scale.
