SANANGURA v ECONET WIRELESS (PVT) LTD & ORS 2012 (2) ZLR 304 (H)

Flynote

Damages — delictual — failure to quantify loss of earnings and payment of legal fees — absolution from the instance granted

Delict — actio injuriarum — defamation — qualified privilege — presumption of animus injuriandi — when arises — displacement of presumption — onus upon plaintiff to prove animus injuriandi — defendant writing defamatory letter without full knowledge of the facts — animus injuriandi established — assessment of damages

Delict — actio injuriarum — malicious prosecution — malice — wide meaning of — several potential defendants — plaintiff having choice against whom to proceed — malice established — liability of defendants for damages arising from malicious prosecution — assessment of damages

Practice and procedure — parties — choice of — action for malicious prosecution — several potential defendants — plaintiff having choice against whom to proceed

Headnote

In a suit for malicious prosecution involving a number of potential defendants, a plaintiff has the absolute choice to elect who to proceed against.

"Malice", in delict, has a wide meaning. It covers spite and ill will, often referred to as express malice or dolus directus; indirect and improper motive, often referred to as implied malice or dolus indirectus; and statements that a defendant did not know to be true, reckless as to whether the statements were true or false and otherwise known as dolus eventualis.

The plaintiff brought an action against the first and second defendants, alleging that he had been the victim of malicious prosecution for which they were responsible. He sought general damages for pain and suffering as well as the contumelia and further sums in respect of loss of earnings and legal fees arising therefrom. In addition, he brought a related action against the third defendant in respect of a letter which he alleged had been written on behalf of the third defendant and was defamatory of him. In respect of the malicious prosecution, the plaintiff had been arrested by the police because of a complaint by persons, including the second defendant, acting on behalf of the first defendant, that the plaintiff had stolen certain electronic recharge card pins belonging to the first defendant. The plaintiff was detained, in unpleasant conditions, in police custody for six days and a further two days in prison, awaiting trial. Eventually the charges against the plaintiff were withdrawn by the prosecutor during the course of the criminal trial. Notwithstanding an attempt by the first defendant to obtain a certificate declining prosecution so as to facilitate a private prosecution, the Director of Public Prosecutions declined to interfere with the prosecutor's decision. On the facts it was accepted by the court that the case against the plaintiff was a very weak one indeed, a fact which must have been obvious to the legal adviser representing both defendants. However, as far as plaintiff's damages were concerned, he led no evidence quantifying his loss of earnings, nor did he produce any receipts relating to his payment of legal fees nor call in evidence the legal practitioners involved.

Concerning his action for defamation against the third defendant, the offending letter was written on the letterhead of the third defendant, which was a subsidiary company and a distributor of electronic airtime for the first defendant. It informed the plaintiff that the third defendant had terminated the airtime agreement it had entered into with him with immediate effect. The letter continued, that the "... decision follows the fraudulent activities on (plaintiff's) account that prejudiced Econet Wireless Zimbabwe (Pvt) Ltd of prepaid airtime", and was copied to four internal employees of the first defendant. In denying the defamation, the third defendant relied upon the evidence of its managing director, who admitted writing the letter on behalf of the third defendant. The third defendant raised the defence of qualified privilege, arguing that all four persons to whom the letter was copied had a right to receive it and an interest in the contents thereof. The managing director conceded, however, that he wrote the letter without full knowledge of the facts upon which it was based.

Held, that, on the facts, the liability of the first and second defendants for malicious prosecution had been established. The arrest, incarceration and subsequent prosecution of the plaintiff had been actuated by malice, only leaving his measure of damages for the malicious prosecution to be decided.

Held, further, that the failure of the plaintiff to quantify his loss of earnings and his failure to lead or produce evidence relating to his payment of legal fees meant that the first and second defendants had to be absolved from the instance in regard thereto. The plaintiff was, however, entitled to general damages and, having regard to the treatment he received, a punitive award of $20 000 for malicious prosecution was justified.

Held, further, and in regard to the alleged defamation, that, while it had been established that the contents of the letter were indeed defamatory, the presumption that the third defendant had acted animo injuriandi had been negated by its raising of the defence of qualified privilege. However, the resulting onus upon the plaintiff to prove animus injuriandi, had been discharged in the light of the admission by the third defendant's managing director that he wrote the offending letter without a full knowledge of the facts. In other words, he was reckless as to whether its contents were true or false. This amounted to malice.

Held, further, that having particular regard to the fact that the publication of the letter was restricted to four people, a fair and appropriate sum to assuage plaintiff's feelings was the sum of $2000.