Tendai Blessing Mangwiro v Co-Ministers of Home Affairs and Others

The plaintiff was arrested on 16 February 2008 on allegations of theft of US$3,000,000.00 from Andre Nsaka Nsaka. During his arrest, the following items were seized from him: US$78,900.00, ZW$46,135,000,000.00, and two motor vehicles (subsequently released). The plaintiff was prosecuted before the regional court and acquitted on 18 January 2013. The seized cash was never booked as exhibits with the trial court but was booked under entry 09/08 (Exhibit Book 34) with CID Suspects. After acquittal, police unlawfully released the seized money to Andre Nsaka Nsaka (the complainant in the criminal matter) rather than returning it to the plaintiff. When the plaintiff demanded return of the money, the defendants claimed prescription. The plaintiff gave notice in terms of the State Liabilities Act on 18 March 2013 and subsequently sued for return of the money. The defendants filed a special plea but were barred for failure to plead over to the merits.

• Whether the plaintiff was entitled to damages for the wrongful release of seized money to a third party
• Whether the plaintiff could claim the US dollar equivalent of the Zimbabwe dollar amount based on the exchange rate at the time of seizure
• Whether the principle of currency nominalism applied to prevent conversion of the Zimbabwe dollar claim to US dollars
• The proper application of section 59(1) of the Criminal Procedure and Evidence Act regarding disposal of seized articles
• Whether damages should be calculated at the date of the delict

The court ordered: (a) That the defendants jointly and severally, the one paying the other to be absolved pay the plaintiff the sum of US$78,900.00; (b) That the defendants jointly and severally, the one paying the other to be absolved pay interest at the prescribed rate from the 25th January, 2013; (c) That the defendants jointly and severally, the one paying the other to be absolved pay the costs of suit.

The binding legal principles established are: (1) The principle of currency nominalism applies such that a debt sounding in money must be paid in terms of its nominal value irrespective of fluctuations in the purchasing power of currency, placing the risk of currency depreciation on the creditor; (2) Delictual damages are to be calculated as at the date of the delict, not at a later date; (3) Section 59(1) of the Criminal Procedure and Evidence Act requires proper determination of who may lawfully possess seized articles before their release, and arbitrary release to third parties constitutes unlawful conduct giving rise to a claim for damages; (4) Where money is wrongfully released by police to a third party after an acquittal, the person from whom it was seized is entitled to damages equivalent to the amount wrongfully released, calculated at its value at the time of the delict.

The court made several non-binding observations: (1) It expressed surprise and criticism at the laxity of state legal representatives and personnel in failing to comply with simple court rules, noting that failure to file a defence to a claim with serious financial implications was unacceptable; (2) The court noted that just because an article is seized by police does not mean it will inevitably be used as an exhibit at trial, and the legality of seizure may be challenged; (3) The court observed that the plaintiff's claim for the seized money was not dependent on the outcome of the criminal prosecution and he could have challenged the seizure at an earlier opportunity; (4) The court questioned why the plaintiff did not join Andre Nsaka Nsaka as a party to the suit; (5) The court noted that a police officer who released the money apparently had criminal charges preferred against him, though the outcome was unclear; (6) The court acknowledged that in deserving cases, courts have made awards in foreign currency notwithstanding the cause of action arising during the era of local currency, though this was not such a case.

This case is significant in Zimbabwean law for its application of the principle of currency nominalism in the context of the transition from Zimbabwe dollars to multi-currency economy. It establishes that creditors bear the risk of currency depreciation and that damages are calculated at the date of the delict, not at a later date when currency values may have changed dramatically. The case also clarifies the procedural requirements under section 59(1) of the Criminal Procedure and Evidence Act regarding the lawful disposal of seized property, emphasizing that police must properly determine who may lawfully possess seized articles rather than making arbitrary decisions. It serves as a warning to state institutions about the consequences of failing to comply with court rules and procedures in litigation.