MAPANGA v MUPEPE & ANOR 2017 (1) ZLR 308 (H)

Flynote

Delict — actio injuriarum — malicious arrest and prosecution — what plaintiff must show — what constitutes malice

Headnote

The plaintiff issued summons claiming damages for malicious arrest, detention and prosecution due to the first defendant's conduct during his employment with the second respondent. The second defendant owned a mine and employed the first defendant as a security manager. The plaintiff alleged that the first defendant laid false charges to the effect that the plaintiff had stolen gold slime from the mine, which resulted in his arrest, detention and prosecution for theft of the gold slime. The defendants averred that the first defendant discovered that 75 000 tonnes of gold slime had been stolen from the mine and he made a report to the police. After making investigations it was established that the plaintiff had instructed two of the employees of the second defendant to collect gold slime from the second defendant's mine, which resulted in the plaintiff being arrested. At the pre-trial conference it was agreed that the issues were whether the defendants maliciously and wrongfully caused the arrest of the plaintiff and whether the plaintiff suffered damages as a result.

Held, that it is an actionable wrong to procure the imprisonment or arrest of anyone by setting the law in motion against him maliciously and without reasonable cause.

Held, further, that for the plaintiff to succeed in an action for malicious prosecution he must prove that the prosecution was instigated by the defendants and that it was concluded in favour of the plaintiff and that there was no reasonable and probable cause for the prosecution and that the prosecution was actioned by malice. For malice to be present, the defendant must thus not only have been aware of what he was doing in instituting or initiating the prosecution but must at least have foreseen the possibility that he was acting wrongfully, but nevertheless continued

to act, reckless as to the consequences of his conduct (dolus eventualis). Negligence on the part of the defendant (or even gross negligence) will not suffice.

Held, further, that the plaintiff failed to prove that his arrest, detention and prosecution were malicious and so the claim would be dismissed with costs.