MUYAMBO v NGOMAIKARIRA & ORS 2011 (2) ZLR 51 (H)

Flynote

Delict — actio injuriarum — unlawful arrest and detention — when committed — presumption of animus injuriandi in event of illegal arrest or imprisonment — what defendant must show to establish lawful arrest

Headnote

The delict of unlawful arrest and detention is committed when a person, without lawful justification, restrains the liberty of another by arresting or imprisoning him. The plaintiff need only prove that the arrest or imprisonment was illegal and not that there was 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. Moreover, the use of force is not a prerequisite and neither is pecuniary loss. Damages can be awarded for any affront or humiliation stemming from the unlawful arrest and imprisonment of the plaintiff. Although this action is usually brought against members of the police or other uniformed force, a private individual can also be held liable for this delict committed against another private individual. In order to establish the lawfulness of an arrest without a warrant, the onus lies upon the defendant to show probable cause or reasonable suspicion. In exercising the power of arrest, he must act as an ordinary honest person would act, on suspicions which have a reasonable basis, and not merely on wild suspicion. In other words, the arrestor must act in such circumstances as would ordinarily lead a reasonable person 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. As regards damages for 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.