The applicant was employed by the respondent as a security guard. On 10 September 2010, he was summarily dismissed from employment on allegations of theft and was not paid his terminal benefits. On 27 September 2010, the applicant was served with a letter of summary dismissal and was subsequently arrested on the same date at the respondent's request. He spent a night in police custody and appeared in court on 28 October 2010 on a charge of theft. He was remanded out of custody and attended routine remands twice a month until 31 May 2011, when the charges were withdrawn before plea. During this seven-month remand period, the applicant was unable to secure employment. He had previously entered into a settlement agreement with the respondent on 4 July 2011 for US$4,404.00 relating to his unlawful dismissal. The applicant then issued summons on 11 December 2012 claiming US$100,000.00 for general damages for malicious prosecution leading to loss of employment. The respondent entered appearance and filed a plea, but subsequently failed to attend a pre-trial conference, resulting in its defence being struck out and the matter referred to the unopposed roll for quantification of damages.
The applicant's claim was dismissed with costs. The court found insufficient evidence to establish the essential elements of malicious prosecution and held that the applicant was not entitled to judgment in terms of the summons.
To succeed in a claim for malicious prosecution based on the actio iniuriarum, a plaintiff must prove all four essential elements: (1) that the defendant instigated or instituted the proceedings by doing more than merely placing facts before the police; (2) that the defendant acted without reasonable or probable cause; (3) that the defendant acted with malice (animus iniuriandi); and (4) that the prosecution was terminated in the plaintiff's favour with sufficient finality. The mere placing of information before the police is insufficient to constitute 'setting the law in motion' - there must be evidence of causation showing the defendant acted with a specific view to prosecution. Withdrawal of charges before plea does not constitute sufficient termination as charges may be reinstituted; there must be finality such as an acquittal or verdict in the plaintiff's favour. Even when a matter proceeds on the unopposed roll due to the striking out of the defendant's defence, the plaintiff still bears the onus to establish a prima facie case for all elements of the cause of action and cannot succeed merely due to the defendant's default.
The court observed that it was debatable whether the applicant, by entering into the settlement agreement with the respondent on 4 July 2011 for unlawful dismissal (annexures A and B), had given up his right to institute any other proceedings whose cause of action emanated from his unlawful dismissal from the respondent's employ. The settlement agreement stated that payment of the agreed amount would "put a close to all matters to do with the alleged unlawful dismissal and any other issues to do with his conditions of service at the time he was employed." This suggests that even if the applicant had successfully established the elements of malicious prosecution, there may have been a separate legal impediment to his claim based on the terms of the settlement agreement. The court also noted that as a matter of law, malicious institution of legal proceedings as a cause of action differs from unlawful arrest and detention, with different requirements and elements applying to each.
This case is significant in Zimbabwean law (which shares similar common law principles with South African law) for clarifying the evidentiary burden in malicious prosecution claims, even when the matter proceeds on the unopposed roll. It emphasizes that: (1) the striking out of a defence does not relieve the plaintiff of the burden to establish a prima facie case for all elements of the cause of action; (2) mere reporting of facts to police is insufficient to constitute 'setting the law in motion' - there must be evidence of active instigation or causation beyond ordinary complaint-making; (3) withdrawal of charges before plea does not constitute sufficient 'termination' of proceedings as it lacks finality and charges may be reinstituted; (4) speculative averments without factual foundation are insufficient to meet the onus of proof; and (5) settlement agreements relating to unlawful dismissal may preclude subsequent claims arising from the same employment relationship. The case serves as a reminder that malicious prosecution claims require rigorous proof of all elements and that courts will scrutinize claims carefully even in default situations.