Douglas Nzombe Chiutsi v Simbarashe Mushambi Dube

The plaintiff, defendant and defendant's wife were shareholders and directors of Clique Pharmacy, Mutare, owned by Healthwell Pharmacy (Private) Limited. In 2024, the defendant lodged a criminal complaint alleging fraud/theft against the plaintiff, alleging plaintiff tampered with computer data. Plaintiff was arrested and released on bail with conditions restraining him from interfering with police investigations. Subsequently, the defendant was also arrested based on allegations from the plaintiff. During investigations into the defendant's matter, police asked plaintiff to attend Clique Pharmacy to assist in accessing data from a server. The defendant discovered plaintiff accessing the server and on 6 February 2025 lodged a complaint that plaintiff violated his bail conditions. Plaintiff was arrested on 7 February 2025, an enquiry was held before a magistrate who found that plaintiff breached his bail conditions, and plaintiff was remanded in custody. Plaintiff successfully appealed to the High Court and bail was restored by consent. Plaintiff then sued defendant for USD100,000 claiming defendant maliciously and wrongfully filed a criminal complaint without legal cause.

• Whether the defendant maliciously, wrongfully and without due legal and probable cause filed a criminal complaint against the plaintiff alleging breach of bail conditions
• Whether the plaintiff suffered damages as a result of the criminal complaint and if so, the quantum of damages
• Whether the plaintiff established a valid cause of action for malicious prosecution in circumstances where an enquiry (rather than prosecution) was held
• Whether the defendant had reasonable and probable cause to report the alleged breach of bail conditions

Plaintiff's claim dismissed with costs.

For a claim of malicious prosecution to succeed, the plaintiff must establish: (1) that the defendant actively set the law in motion; (2) that the defendant acted without reasonable and probable cause; and (3) that the defendant acted with malice (meaning any improper motive other than bringing an offender to justice). Where a complaint is made to police who investigate, prosecutors who assess the matter, and a judicial officer who conducts an enquiry and makes findings, there arises a rebuttable presumption that the original complainant had reasonable and probable cause for making the report. The burden of formulating reasonable suspicion for arrest and detention lies with the arresting officer, not the informant. Where independent state organs (police, prosecution, judiciary) each exercise judgment in proceeding with a matter, the causal link between the original complaint and subsequent detention becomes attenuated. A judicial officer's decision to revoke bail creates a presumption that the suspicion underlying the complaint was reasonably credible and deserving of judicial enquiry.

The court observed that it was unclear why Detective Constable Toronga was not called to testify during the bail breach enquiry and what became of the server seized by Harare detectives. The court noted that Detective Toronga's evidence contradicted the plaintiff's testimony on key aspects, undermining the plaintiff's case. The court commented that the evidence showed the server contained very critical evidence relevant to the successful prosecution of both the plaintiff and the allegations against the defendant and his wife, making it "indeed a security gadget." The court observed that plaintiff conceded that had police not summoned him, he would not have gone to the pharmacy because he knew it was against his bail conditions.

This case clarifies the requirements for establishing malicious prosecution in Zimbabwe, particularly distinguishing between cases involving formal prosecution versus bail enquiries. It establishes that where police, prosecution authorities and a judicial officer all independently assess a complaint and conclude that judicial intervention is warranted, a strong presumption arises that the original complainant had reasonable cause for making the report. The judgment reinforces that the burden of establishing reasonable suspicion for arrest lies with law enforcement officers, not the informant/complainant. It also demonstrates the high threshold plaintiffs face when claiming malicious prosecution after a judicial officer has made findings against them following a formal enquiry, as there is a rebuttable presumption that judicial officers act lawfully within their authority.