Falsely accused trio awarded $10 000 each

THREE men falsely accused of stealing 25 tonnes of fertiliser from a local company will smile all the way to the bank after the High Court awarded each $10 000 in damages for malicious arrest.

Punish Mushezhu, Evaristo Muchenjeka and Hanny Chisamba were released after spending two days in police custody.

They sued Windmill (Private) Ltd, a fertiliser producing company for $480 000, each claiming $120 000.

The claim covered compensatory and punitive damages as well as attorney fees and costs.

But Justice Happias Zhou reduced the amount to $10 000 each. The company denied the claim arguing that police used its discretion whether or not to arrest or detain the three.

Justice Zhou, however, ruled that police discretion could not absolve the company from liability in the present case.

“In the result, the court finds that the defendant (Windmill) committed the delict of wrongfully causing the arrest of the plaintiffs (Mushezhu, Muchenjeka and Chisamba) without reasonable cause,” said Justice Zhou.

“The setting in motion of the process of arrest was actuated by malice.”

In their very terse declara- tion, the three men argued that Mushezhu, a farmer, entered into a tripartite agreement with Windmill and the Zimbabwe Farmers Union in terms of which the farmer was granted a credit facility to buy and receive fertiliser.

Armed with relevant papers, Mushezhu went to Windmill’s depot in Harare’s Workington area to collect the fertiliser.

He was given 25 tonnes of fertiliser, which were loaded into a truck.

The truck driver Chisamba left Windmil premises.

Some minutes after leaving the premises, Mushezhu, Chisamba and a third man Muchenjeka were con- fronted by an employee of Windmill, only identified as Mapaike.

He was being accompanied by police detective.

The three men were then arrested on false allegations of stealing 25 tonnes of fertiliser.

They were detained for two days at Southerton Police Station. They were later released without any charge.

In its plea, Windmill admitted making a report to the police, which triggered the arrest of the trio.

It denied, however, that the complaint to the police was malicious.

Windmill pleaded that the trio acted fraudulently in that they used one voucher and one order number to collect fertiliser more than once when they were entitled to use those only once.

The court heard that the voucher in question was in respect of 30 tonnes of fertiliser.

However, when Mushezhu went to collect the 30 tonnes, he managed to get only five tonnes as the Windmill advised him that it had run out of stock.

There was therefore a balance owing to him of 25 tonnes in respect of that voucher.

The court also heard that police released Mushezhu after he had produced to them proof that he was entitled to the 25 tonnes of fertiliser.