Felix Makonye v Mr Musara and Blessing Nyamuda and Manifest Security

The appellant was employed as a dispensary assistant at Mpilo Hospital pharmacy in Bulawayo, working alongside Sithabile Dlodlo. Their duties involved receiving orders for drugs from hospital wards and dispensing them in drug boxes. The drugs were then checked by security guards employed by the third respondent (Manifest Security), with the second respondent (Blessing Nyamuda) performing this duty under supervision of the first respondent (Mr Musara), a chief inspector. On 13 February 2013, drugs meant for ward C1 went missing. After the second respondent was sent looking for the drugs, she reported the matter to the first respondent. During inquiries about the missing drugs, the appellant left his workplace and could not be found. The first respondent reported the matter to the police, pointing out that the appellant and Dlodlo were responsible for dispensing drugs. The appellant was arrested, a search was conducted at his house, but he was released without charges relating to the missing drugs. However, he paid an admission of guilt fine for threats of violence against the second respondent. He later demanded to be taken to court, and those charges were subsequently withdrawn after plea. The appellant then sued for damages of $10,000 for unlawful detention, false incrimination and defamation.

• Whether the respondents had reasonable and probable cause to suspect that the appellant had committed an offence relating to the missing drugs
• Whether the respondents acted maliciously in reporting the appellant to the police
• Whether the appellant was unlawfully detained
• Whether the elements of the delict of malicious arrest or imprisonment were established
• Whether the court a quo erred in finding there was reasonable suspicion that the appellant had committed an offence

The appeal was dismissed with costs.

The binding legal principles established are: (1) For the delict of malicious arrest or imprisonment to succeed, the plaintiff must prove that the defendant had no reasonable and probable cause for suspecting that a crime had been committed and that the defendant acted maliciously in making the report; (2) Where a person has reasonable grounds to suspect another has committed a crime, they have a lawful right to lay a charge with police, and if charges are later dropped, the reporter is not liable for damages; (3) Proof of malice can be inferred from the fact that there was no reasonable ground for suspecting the plaintiff had committed a crime; (4) The determination of whether there was reasonable and probable cause for suspicion is not exclusively the province of the criminal court but can be determined in civil proceedings; (5) Where drugs go missing and only the plaintiff was responsible for dispensing them, and the plaintiff absconded during investigation, this constitutes reasonable and probable cause for suspicion.

The court made non-binding observations about the serious frailties in the appellant's pleadings, noting it was unclear what the basis of the claim was between malicious report, malicious prosecution and defamation of character, and how such averments could be made against a company. The court also observed that it is important that litigants claiming under this cluster of delicts plead properly so as to show under which of these delicts they are claiming, emphasizing the need to distinguish between malicious arrest/imprisonment and malicious prosecution. The court also commented that the appellant correctly did not pursue the threats of violence issue on appeal because it was self-created, having initially paid an admission of guilt fine before later demanding to be taken to court.

This case clarifies the elements of the delict of malicious arrest and detention in Zimbabwean law, particularly emphasizing the requirement that a plaintiff must prove both lack of reasonable and probable cause for the report to police, and that the defendant acted maliciously. It confirms that a person who has reasonable grounds to suspect another has committed a crime has a lawful right to report to police without incurring delictual liability, even if charges are later dropped. The case also distinguishes between malicious arrest/imprisonment (where police release the person on finding no valid reason to hold them) and malicious prosecution (where prosecution proceeds but concludes in favour of the accused). The judgment emphasizes the importance of proper pleading to identify under which specific delict a claim is being made.