Court name
Harare High Court
Case number
HC 383 of 2010

Mushambi v Zimpapers (1980) Ltd (HC 383 of 2010) [2011] ZWHHC 50 (15 February 2011);

Law report citations
Media neutral citation
[2011] ZWHHC 50

 

 

NATHAN MUSHAMBI

versus

ZIMPAPERS (1980) LIMITED

 

 

HIGH COURT OF ZIMBABWE

BERE J

HARARE, 14 February, 15 February and 16 February 2011

 

 

T Deme, for the plaintiff

T Gasva, for the defendant

 

 

BERE J:  On 21 January 2010 the plaintiff issued summons out of this court seeking to recover $150 000-00 in damages for alleged malicious prosecution initiated against him by the defendant, his erstwhile employer.

In para 5 of the plaintiff’s declaration the plaintiff alleged as follows:

 

“The damages sought arose from the plaintiff’s loss of income, pain and suffering, discomfort, nervous insomnia, loss of ability to engage in sport, recreation, social commitments, sexual impotence, loss of general health, change of personality during the period of prosecution”.

 

At the close of the plaintiff’s case the defendant applied for absolution from the instance. The application was strenuously opposed by the plaintiff who felt he had at that stage made a case warranting the defendant to be put on its defence.

The test to be applied in deciding an application for absolution from the instance is well settled in our jurisdiction and in this regard I can do no more than refer to GUBBAY CJ when he stated:

“… 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. See Supreme SVC Station (1969) (Pvt) Ltd v Fox and Goodridge (Pvt) Ltd 1971 (1) RLR 1 (A) at SD – E; Lowrence v Rajar Dry Cleaners & Steam Laundry (Pvt) Ltd 1984 (2) ZLR 151 (S) at 158 B-E”[1]

 

It was argued by the defendant’s counsel that the onus was on the plaintiff to place before the court sufficient evidence to show malice on the part of the defendant in reporting the matter of theft to the police which report led to the prosecution and subsequent acquittal of the plaintiff. The defendant’s counsel submitted that the plaintiff had failed to discharge such evidence. I agree. It was critical that the plaintiff lays down the basis upon which his claim was pivoted. The prosecution and subsequent acquittal of the plaintiff per se would not demonstrate malice on the part of the defendant.

Facts which could not be disputed were that the plaintiff, for quite sometime after he had resigned from the defendant’s employment continued to receive copies of the Herald and Sunday Mail. The plaintiff himself stated that he resigned from the defendant company in October 2008 and that he knew at the time of his resignation that the only benefit accruing to him was his pension savings and nothing more. He was also quite aware of the benefits which he was entitled to upon securing employment with the defendant. These benefits, according to the plaintiff included pension, medical aid, company vehicle fuelled and serviced by the defendant, education assistance for his children, and the delivery of the Herald and the Sunday Mail to his residence.

From the plaintiff’s own evidence, it is clear he appreciated he was entitled to the above benefits as an employee of the defendant.

Upon his resignation he was able to recover his pension savings. For some unknown reason he continued to receive the Herald and the Sunday Mail. He speculated that he believed management had seen it fit to reward him for his loyal service to the organization by continuing with the supply of the two newspapers. It was this continuous receipt of newspapers by the plaintiff when he had seized to be an employee of the defendant which prompted the defendant to report a case of theft leading to the prosecution of the defendant.

In the court’s view, given the plaintiff’s responsible position with the defendant company as a circulation manager, he behaved irresponsibly by continuing to enjoy benefits from a company which he had seized to work for. He was expected to seek clarification if he genuinely felt that the defendant had decided to extend that benefit to him. I would draw an analogy with a civil servant who continues to draw his salary from his bank account from the Salary Service Bereau long after he has resigned from the service. Prima facie that conduct is theft and in the instant case the defendant was justified to suspect the plaintiff had committed the offence of theft hence the report to the police.

In his evidence in chief the plaintiff was not able to demonstrate that the defendant had acted maliciously in initiating his prosecution. When the plaintiff was asked in cross-examination a pointed question on the alleged malice, the plaintiff was unable to substantiate the allegations of malice on the part of the defendant. The question and answer went along the following:

 

“Q:      There is no single peace of evidence before this court to show that the defendant acted out of malice.

A:        I have no comment”.

 

The plaintiff further compounded his case by dismally failing to produce evidence to justify the amount of $150 000-00 in the form of damages.

It will be noted that when the plaintiff opened his case he indicated through his counsel that the evidence of Dr Lunga was not going to be relied upon as the doctor was not going to be called to testify. Despite this indication, the plaintiff continued to make reference to the letter written by the same doctor to try and justify some of the damages he was claiming.

The result of this patent confusion was that the plaintiff did not manage to put evidence before the court supporting his claim for nervous insomnia, loss of ability to engage in sport, sexual impotence, loss of general health and change of personality during his prosecution. In a suit for damages, these claims are not fanciful but must be supported by real evidence.  Such evidence was not forthcoming.

Within the claim of $150 000-00 was built in a claim of loss of income. No evidence was led by the plaintiff to sustain this claim.

All these issues about the breakdown of the plaintiff’s claim are secondary, the main issue being that he was supposed to show malice on the part of the defendant in his prosecution.

Accepted, the plaintiff had no duty to initiate the termination of the continued supply of the newspapers to him after leaving the defendant’s employment but I think it is an exaggeration on his part to allege that he was justified to continue receiving such newspapers which even upon termination of his employment he knew he was not entitled to.

I am satisfied that at the close of his case the plaintiff had not made some case for the defendant to answer.

 

THE QUESTION OF COSTS

The evidence as led by the plaintiff and as reflected in exh 4 clearly show that there was ineptitude on the part of the defendant in ensuring that the plaintiff ceased to get supply of newspapers after he had ceased to be an employee of the defendant. For almost close to a year after his resignation from the defendant company, it appears there was no timeous initiation of the process to ensure that the delivery of newspapers to the plaintiff was stopped.

This reckless discharge of duty on the part of the defendant did not portray the defendant in good light. For this reason they must be deprived of costs.

Consequently, the defendant’s application for absolution from the instance is granted but with no costs.

 

 

 

 

Chibune & Associates, plaintiff’s legal practitioners

Chirimuuta & Associates, defendant’s legal practitioners

 



[1]United Air Charterns v Jarman 1994 (2) ZLR 341 (S) at 343