Ex-councillors win US$45 000 suit against RTC

 

Lovemore Kadzura
Post Reporter

SIX former Rusape Town Council councillors have been awarded US$45 000 compensation for malicious arrest and prosecution that was instigated by the local authority and its managers.

The six – Messrs Lyton Sithole, Peter Kwesha, Munyaradzi Preference Chigwede, Ndabanengi Mataga, Joseph Nyamupera and Ms Elizabeth Chidza – were each awarded US$7 500 by Rusape magistrate, Ms Rufaro Mangwiro.

Mrs Mangwiro arrived at the decision after satisfying herself that their arrest by the Zimbabwe Anti-Corruption Commission was based on malice.

Six councillors, together with Mr Blessmore Pambureni, who had not pursued legal action, Mr Luckson Zengeni and Mr Patrick Chipere, who later withdrew their lawsuit, and former acting town secretary, Engineer Charles Chindenga, were arrested by officials from ZACC in 2021.

They were arrested on criminal abuse of office charges for allegedly hand picking two law firms to handle a labour dispute involving the then suspended town secretary, Mr Solomon Gabaza.
They were acquitted of the allegations after full trial.

The former councillors, represented by Mr Taurai Khupe, of Khupe and Majamanda Law Chambers, alleged that three council managers made statements intended to incriminate them and testified against them in court.

They argued that they had not cancelled the tender to procure legal services, but rather, it was the then town treasurer, current procurement manager, and internal auditor – who later testified against them – who formed the procurement committee, which cancelled the tender process.

“The defendant (RTC) despite having knowledge of why and how the said tender process was cancelled, maliciously made a report against the plaintiffs, alleging that they had abused their offices and cancelled the tender process.

“The defendant authorised its employees, the same, who were responsible for the cancellation of the tender process, to testify against the applicants.

Each applicant wants a payment of US$35 000 being damages for malicious prosecution and US$5 000 each for legal costs incurred,” reads part of their joint application.

Council opposed the application, arguing that its employees testified in court against the councillors after being subpoenaed by ZACC.

Through its lawyers, Absolom and Shepherd Attorneys, the council argued that ‘the not guilty verdict’ is not a basis for them to seek damages for the alleged malicious prosecution.

“The defendant’s witnesses’ participation in the prosecution of plaintiffs, if any, was not motivated by malice.

‘‘The defendant’s officials, who participated as witnesses, did so in response to a State-issued subpoena, and being compellable witnesses, were constrained to give evidence.

“A plea of ‘not guilty’ retained by the court in discharging the plaintiffs is not necessarily a basis for plaintiffs to seek damages for alleged malicious prosecution, and maybe an indication that defendant’s officials, who stood as witnesses were truthful, unless plaintiffs insinuate that they were actually guilty,” reads the council’s opposing application.

In her ruling, Ms Mangwiro said Rusape Town Council cannot be absolved as it is the one which initiated the arrest and prosecution of the six former councillors.

Mrs Mangwiro noted that ZACC only acted when council reported and officially seconded employees to represent it in giving evidence against the councillors in court as it was the complainant.

“To determine initiation of proceedings, there is a causation element, which has to be considered. The defendant’s actions must have been a direct or indirect cause of the wrongful arrest and prosecution. There was mention of ZACC to be involved in this matter, and everyone was making reference to it.

“It is being portrayed that they initiated the proceedings, however, in retrospect they did get involved in this matter, but it is important to note that initiation of prosecution can be done in a direct and indirect manner.

“Indirectly, ZACC probed in the investigation of the matter, but RTC, and a dully appointed representative, actually reported the matter, and then led it to being named as a complainant, and had therefore initiated the proceedings to the matter. Therefore, when one is said to have initiated a matter, it is important to note that the test is in initiation of a matter, the resultant test is, who complained and whose rights were tried to be enforced and protected by the initiation of proceedings.

‘‘In this case it is the defendant who was the complainant, it is their rights, which were to be protected and therefore one can conclusively state that the defendant initiated prosecution against plaintiffs,” ruled Ms Mangwiro.

She added that there was no reasonable suspicion that the ex-councillors actually committed the offence as council employees told the court that they were not part of the tendering process, and then ordered council meet the cost of suit.

“This is an objective test. The test essentially is would any reasonable person act in the manner in which the defendant acted on.

‘‘The question will now be being there proper cause to state there was reasonable suspicion that the plaintiffs were involved in this matter.

“The witnesses all in the criminal proceedings clarified one thing – that none of the defendants were part of the tender process.

‘‘They were not in the committee of the tendering process and had nothing to do with the tender process. This was confirmed by the defendant in this matter. This then begs the question that if they were not part of the tender process, and they had no participation of any decision of the tendering of the legal services, why then would they be charged in regards on the matter involving the tender process, and then boils down to the fact that a reasonable person would not have caused the arrest of the defendants.

“The action of malicious prosecution succeeds. Each plaintiff is hereby awarded damages in the sum of US$7 500 and defendant is to bear cost of suit,” ruled Ms Mangwiro.