Rusape Town Council v Lyton Sithole and Others

The appellant, Rusape Town Council, is a town council established under the Urban Councils Act. The respondents are six councillors of the appellant. Between May and August 2020, a tender relating to legal services was cancelled by the appellant. The respondents were subsequently charged with criminal abuse of duty contrary to s 174(1) of the Criminal Law (Codification and Reform) Act, allegedly for cancelling the tender to hand pick certain law firms. The prosecution was spearheaded by Zimbabwe Anti-Corruption Commission (ZACC) officers. At trial, state witnesses including the Acting Town Secretary and Finance Director exonerated the respondents, testifying they were not part of the committee that deliberated on the tender. The respondents were discharged and acquitted at the close of the State case. On 20 November 2023, the respondents filed separate claims seeking damages for malicious prosecution against the appellant for US$40,000 each. The trials were consolidated by consent, and the court a quo awarded each respondent US$5,500 for legal fees and US$2,000 for lost business opportunities on 14 April 2025. The appellant appealed.

• Whether the court a quo had jurisdiction over the respondents' claims given the combined value exceeded the Magistrates Court's financial jurisdiction
• Whether there was evidence to justify the liability of the appellant for damages for malicious prosecution
• Whether the appellant or its officers instigated or set the law in motion against the respondents
• Whether the respondents proved special damages relating to legal fees and lost business opportunities

The appeal was allowed. The judgment of the court a quo was set aside and substituted with an order dismissing all the plaintiffs' (respondents') claims with no order as to costs.

1. For liability in malicious prosecution, a defendant must have instigated prosecution or overborne the police to institute proceedings they would not otherwise commence - merely placing information before investigative authorities is insufficient. 2. A local authority established by statute can only act through resolutions passed by the majority of its councillors as required by the enabling legislation (s 84 of the Urban Councils Act) - without such resolution, the local authority cannot be said to have taken a decision to set the law in motion. 3. Special damages must be proven mathematically and by way of documentary evidence such as receipts - courts cannot resort to tariffs or fee schedules to justify awards where no proof of actual payment or loss is produced.

The court noted that there was no allegation by the respondents that the appellant was being sued vicariously for the acts of its officers. This suggests that had such an allegation been properly pleaded and proven, the outcome might have been different. The court's observation implicitly recognizes that vicarious liability remains a potential basis for holding local authorities liable for wrongful acts of their employees, but such claims must be properly pleaded and established on the evidence.

This case clarifies important principles in Zimbabwean law regarding malicious prosecution and the proof required to establish liability. It emphasizes that a local authority can only act through proper resolutions as required by statute, and that merely providing information to investigative authorities does not constitute instigation of prosecution. The case also reinforces strict requirements for proving special damages - mathematical proof and documentary evidence such as receipts are required, and courts cannot resort to tariffs or estimates where actual proof of loss is absent. The judgment demonstrates the application of corporate attribution principles to local authorities and the limits of their vicarious liability.