Dickson Chaeruka and Others v Minister of Home Affairs and Cultural Heritage N.O. and Others

On 8 October 2018, a colleague of the plaintiffs notified police seeking permission to hold a demonstration march from ZCTU offices in Mutare. On 10 October 2018, the Police Regulating Authority denied the notification and plaintiffs were informed. On 11 October 2018, police proceeded to ZCTU offices and found a group of workers, including the 19 plaintiffs, holding placards and singing against government monetary policy. All 19 plaintiffs were arrested and detained for two nights before appearing in court. They were charged with contravening s 37(2)(a)(i) of the Criminal Law (Codification and Reform) Act (acting with intention to disturb peace) or alternatively s 46(2)(f) (obstructing free passage while intending to carry out a street demonstration). After trial in the Magistrates Court at Mutare, all plaintiffs were discharged and acquitted at the close of the state case on 13 November 2020. Plaintiffs then sued for unlawful arrest, unlawful detention, and malicious prosecution, claiming ZWL $38 million jointly and severally from the three defendants.

• Whether the arrest and detention of the plaintiffs was unlawful
• Whether the prosecution of the plaintiffs was malicious
• Whether the first and second defendants are vicariously liable for the alleged delicts of the third defendant
• What constitutes reasonable suspicion for lawful arrest
• What are the requirements for establishing malicious prosecution

The plaintiffs' claims were dismissed with costs.

For a successful claim of unlawful arrest and malicious prosecution against police officers, plaintiffs must prove on a balance of probabilities: (1) that specific defendants personally instigated or actively participated in the arrest and prosecution (not merely presumed involvement); (2) that there was no reasonable suspicion justifying the arrest; (3) absence of reasonable and probable cause for the prosecution; and (4) that the prosecution was actuated by malice. An acquittal in criminal proceedings does not automatically establish these elements in subsequent civil proceedings. Police officers who arrest persons based on observable conduct that reasonably attracts suspicion of criminal activity (such as gathering, singing and holding placards after being denied permission to demonstrate) act lawfully within their mandate to maintain law and order. Where plaintiffs fail to provide credible explanation for their conduct and fail to produce direct evidence of malicious instigation, their claim must fail.

The court observed that where a defendant police officer pleads that they were acting solely to maintain law and order in accordance with their duties, the plaintiff should plead and prove that the defendant had ulterior motives beyond their official duties. The court also noted that plaintiffs' own conduct - specifically their acquiescence to the prosecution by pleading to charges and offering defences rather than challenging their placement on remand in 2018 - suggested they themselves believed there was reasonable and probable cause for their prosecution. The court suggested that if plaintiffs genuinely believed the arrest and detention were unlawful, they should have challenged this immediately after their initial appearance before a judicial officer rather than waiting until after acquittal. The term "malice" in this context does not mean "spite" or "ill will" or "a spirit of negligence" but such evidence assists the court in interpreting a defendant's conduct.

This case clarifies important principles in Zimbabwean law regarding the requirements for establishing unlawful arrest, unlawful detention, and malicious prosecution against police and state officials. It emphasizes that: (1) an acquittal in criminal proceedings does not automatically translate to success in a subsequent civil claim for malicious prosecution; (2) plaintiffs bear the burden of proving all elements of their delictual claims on a balance of probabilities; (3) mere suspicion or presumption about who gave orders is insufficient - direct evidence is required; (4) police officers acting within their mandate to maintain law and order, based on reasonable suspicion, will not be held liable; and (5) the conduct of plaintiffs themselves (such as acquiescing to prosecution and not challenging remand) may indicate they believed there was reasonable cause for prosecution. The case serves as a reminder of the high evidentiary threshold required to succeed in claims against law enforcement officials.