Ellen Vheremu v Sergeant Maruza and Sergeant Juru and Commissioner General of Police and Minister of Home Affairs

The plaintiff instituted proceedings on 14 October 2010 claiming damages of US$8,500 for alleged assault by the first and second defendants (police officers) at Matapi Police Station on 6 September 2010. The plaintiff alleged she was brutally assaulted with sjamboks and baton sticks after being accused of stealing US$200 from her nephew Hampfrey who had returned from South Africa. She claimed the assault occurred at the police station and continued at her residence in Prospect, Waterfalls, witnessed by her landlady. She alleged police threatened her with urine and a bloodied coffin. The third and fourth defendants were joined on the basis of vicarious liability. The stolen money was eventually repaid and the criminal complaint was withdrawn following the plaintiff's apology. The plaintiff relied on her own testimony and medical reports (exhibits 1-3). The defendants denied the assault, testified they were undercover officers in civilian attire without access to baton sticks, and gave evidence (corroborated by witness Tabeth Peturo) that the plaintiff's injuries resulted from her rolling on the ground and holding onto shrubs while resisting being taken back to the police station.

• Whether the plaintiff proved on a balance of probabilities that she was assaulted by the first and second defendants
• Whether the plaintiff's evidence was credible and sufficient to establish liability
• Whether the third and fourth defendants could be held vicariously liable for the alleged actions of the police officers
• The evidentiary burden on a plaintiff in civil assault proceedings
• The weight to be given to a plaintiff's failure to call available corroborating witnesses

The plaintiff's claim was dismissed with costs.

A plaintiff who deliberately fails to present vital corroborating evidence that is available and at their disposal should be treated as a suspect witness requiring the court to guard against possible deception. The plaintiff bears the burden of proving their case on a balance of probabilities and cannot succeed merely by presenting their own testimony when material corroborating witnesses are available but not called. In civil assault proceedings, courts must not adopt a 'boxing match approach' of simply awarding points for demeanour and probability between opposing parties, but must assess the totality of the evidence presented. A plaintiff's demonstrated dishonesty or criminal conduct in related matters materially affects their credibility as a witness in subsequent civil proceedings.

The court expressed concern about litigants in civil matters (particularly where money is sought) having a motive to exaggerate or lie to project themselves in a favorable light and gain sympathy. The court remarked that the case was 'screaming for costs on a punitive scale' but noted the defendants had not requested such costs. The court condemned the use of courts as 'refugees for those with clearly defined postures to deceive' and characterized the plaintiff's attempt as a 'misguided attempt to vent off the frustration from her criminal conduct on the innocent defendants.' The court drew an analogy to criminal proceedings, citing with approval McNally JA's criticism in Sunface Bhaudhi Temba v The State SC No. 81/91 of the 'boxing match approach' in assault-related matters.

This case illustrates the strict evidentiary standards applied in civil assault claims against police officers in Zimbabwe. It emphasizes the importance of calling all available corroborating witnesses and the negative inferences that may be drawn from a plaintiff's failure to do so. The judgment demonstrates judicial willingness to scrutinize claims against police officers critically, particularly where the plaintiff has demonstrated dishonest conduct in related matters. The case also warns against what the court termed the 'boxing match approach' to assault prosecutions, requiring substantive evidence beyond simply comparing the credibility of opposing parties. It reinforces that courts will not serve as refuges for litigants with deceptive postures, particularly where evidence suggests the litigation is motivated by frustration over the plaintiff's own criminal conduct.