Colleen Beatrice Benatar v Robert Daniel Benatar

The parties were formerly married and divorced acrimoniously in 2010. They continued to dispute over property acquired during the marriage and were engaged in litigation under HC 5257/11. In that matter, the plaintiff deposed to an affidavit stating that the defendant resided in South Africa, regarded it as his home, and traveled to Zimbabwe once a month. In January 2011, the defendant made a written report to police alleging the plaintiff committed perjury in relation to these statements. The plaintiff was arrested and prosecuted for perjury at the Magistrates Court but was acquitted on 5 July 2012. The plaintiff then instituted this action for malicious prosecution, claiming damages of $17,602 comprising legal costs incurred in defending herself ($7,602) and damages for contumelia and discomfort ($10,000). Evidence showed the defendant spent considerable time in South Africa, had South African residence and ID, obtained loans from South African banks by representing himself as a South African resident, transferred money from his Zimbabwean company to South Africa, and maintained a home there. The plaintiff had also previously laid perjury charges against the defendant, of which he was acquitted.

• Whether the defendant wrongfully and maliciously set the law in motion by laying a false charge of perjury against the plaintiff
• Whether the defendant acted without reasonable and probable cause in instituting the prosecution
• Whether the defendant acted with malice
• Whether the plaintiff is entitled to damages for legal costs, contumelia and discomfort
• What constitutes 'setting the law in motion' for purposes of malicious prosecution
• Whether legal costs incurred in criminal proceedings must be taxed to constitute damages in a malicious prosecution claim

Judgment for the plaintiff. The defendant shall pay to the plaintiff: (1) $7,602 as legal costs; (2) $3,000 as damages for contumelia and discomfort; (3) Costs of suit.

The binding legal principles established are: (1) A person sets the law in motion for purposes of malicious prosecution when they do more than tell police the facts and leave them to act on their own judgment - where a complainant suggests the specific charge to be laid, cites the relevant legal provision, and directs police to investigate and prosecute, this amounts to active instigation of proceedings. (2) Reasonable and probable cause requires both an honest belief and reasonable grounds for that belief that the accused committed the offense - this is assessed both subjectively (honest belief) and objectively (whether a reasonable person in the defendant's position would reach the same conclusion). (3) Malice for purposes of malicious prosecution includes retaliatory motives - where a person makes a criminal report primarily because the other party had previously reported them, taking "a cue" from them, this constitutes an improper motive amounting to malice. (4) Legal costs reasonably incurred in defending criminal charges constitute recoverable damages in malicious prosecution without any requirement that such costs be taxed (distinguishing civil costs). (5) All five requirements of malicious prosecution must be proved on a balance of probabilities: (i) setting the law in motion; (ii) lack of reasonable and probable cause; (iii) malice; (iv) termination of proceedings in plaintiff's favor; and (v) damages suffered.

Dube J made important obiter observations criticizing the preparation of the bundle of documents by the plaintiff herself rather than by her legal practitioner. The court noted the bundle was improperly paginated, had unmarked pages, was heavily highlighted in yellow marker, had confusing page sequences, and had several pages numbered as one page. The court emphasized that: (1) it is not the function of a litigant to prepare and paginate documents for court as the litigant does not know and cannot pre-empt legal issues that may arise; (2) even if a client prepares documents, the legal practitioner must inspect and verify them; (3) the practice of highlighting pages for court should be avoided as courts do not require assistance from litigants in identifying relevant issues; (4) legal practitioners should ensure documents are properly and logically paginated; and (5) the excuse that counsel was "too busy" is unacceptable. The court also made obiter comments on appropriate quantum of damages for contumelia and discomfort, noting that awards in South African cases range from R3,000 to R15,000 (approximately US$300-$1,500), and that factors such as whether the plaintiff was detained after arrest are relevant to quantum.

This case provides important guidance on the delict of malicious prosecution in Zimbabwean law, particularly: (1) clarifying what constitutes 'setting the law in motion' - a complainant who goes beyond merely reporting facts to police and actively directs them on what charges to lay, cites legal provisions, and instructs them to investigate and prosecute has actively instigated proceedings and cannot escape liability; (2) illustrating the application of the reasonable and probable cause requirement, including both its objective and subjective elements; (3) confirming that retaliatory motives constitute malice; (4) addressing the recoverability of legal costs incurred in criminal proceedings as damages without the requirement of taxation; and (5) providing guidance on quantum of damages for contumelia and discomfort in malicious prosecution cases. The case also contains important obiter dicta criticizing improper preparation of court bundles by litigants rather than legal practitioners.