Online Reporter
Fidelis Munyoro
Chief Court Reporter
FORMER Hwedza Rural District Council chief executive officer, Mr John Kundeya, has won a legal battle in the High Court after it ruled that his arrest and prosecution were malicious, ordering the council to pay him US$15 000 in damages.
In his judgment, Justice Joel Mambara said: “The council was the moving force behind the complaint. There was no genuine unresolved criminal question left.”
The claim arose from a dispute over employment conditions and mileage payments. Mr Kundeya said payments were made through council processes after resolutions and correspondence on mileage entitlement.
The court heard that council resolutions granted mileage benefits and that later correspondence converted mileage into a monthly payment figure.
It was also heard that an audit report raised queries and recommended recovery steps, after which the council made a report to the police.
Justice Mambara said the legal test required proof that the council instituted or set in motion a prosecution, that proceedings ended in favour of Mr Kundeya, establishing that there was no reasonable and probable cause, and that there was malice.
The judge referred to various decided cases to back his decision to award Mr Kundeya the relief he sought.
Justice Mambara said: “Selective presentation of an audit exception to the police, coupled with suppression or feigned ignorance of the labour rulings, is precisely the kind of conduct that takes a case out of the protected zone of a bona fide complaint.”
The court found no reasonable and probable cause after considering council records, resolutions, correspondence, and prior labour proceedings on the same subject matter.
On malice, the court said the use of criminal process followed the labour dispute and involved an improper purpose.
Justice Mambara said: “There remained only an institutional desire not to pay, or at least to pressure the plaintiff into submission by the terror and indignity of criminal prosecution.”
The court also held that the council’s conduct led to the arrest and prosecution. It ruled that police action followed the report and that the council was not a passive source of information.
Damages were set at US$5 000 for arrest and deprivation of liberty and US$10 000 for prosecution. The court ordered interest from the service of summons and costs against the council.
Peter Tanyanyiwa