Damages for unlawful arrest, detention
THE right to personal liberty is enshrined in Section 49 of the Constitution of Zimbabwe. It is one of the most important fundamental rights that the Constitution guards jealously.
Section 49 of the Constitution provides as follows: “49 (1) Every person has the right to personal liberty, which includes the right—(a) not to be detained without trial; and (b) not to be deprived of their liberty arbitrarily or without just cause.”
This means, therefore, that any arrest, with or without detention, being an inroad into the right to personal liberty, must be justified.
An arrest is regarded as wrongful, unless it is legally justified. In Zimbabwe, the person who sues for wrongful arrest, only needs to prove that the arrest or imprisonment was illegal.
He or she does not need to prove that there was an intention to cause him or her harm or to act illegally. Thus, intention to cause harm is presumed to exist.
The delict of unlawful arrest and detention is committed when a person, without lawful justification, restrains the liberty of another by arresting or imprisoning him.
In our law, intention to cause harm known as animus injuriandi is presumed and, therefore, intention is not a requirement for this delict. The use of force is not a prerequisite for the delict of unlawful arrest and detention. Pecuniary loss is also not a requirement.
Damages can be awarded for any affront or humiliation that comes out of the unlawful arrest and imprisonment of the plaintiff. This action is usually brought against members of the police or other uniformed forces, but a private individual can also be held liable for this delict committed against another private individual.
The onus lies upon the police officer to prove that a reasonable suspicion existed or that there was probable cause for the arrest.
The police must not act upon a mere suspicion, but the exercise of the power to arrest must be based on objective factors. Otherwise, the exercise of police discretion to arrest may be made arbitrarily and irrationally.
The police are not supposed to arrest in order to investigate. They should investigate in order to arrest. But even where they have investigated, an arrest is not always to be done unless there is justification for that arrest.
Where a person can be invited to the police station to give a statement to the police and there is no risk of abscondment and the like, then arrest is not necessary. In the case of Conelius Muskwe v Minister of Home Affairs HH 83/13, there were reasonable grounds for arresting, but the court found that the power of arrest was improperly exercised.
Where the police arrest on the basis of ongoing investigations, such an arrest is lawfully permissible as long as the arrest was based upon the police having just cause to make an arrest at the time that they did. In Botha v Zvada & Anor 1997 (1) ZLR 415 (S), the Supreme Court held that for an arrest to be lawful, the arresting officer has first to establish that he has reasonable grounds for suspecting that the suspect has committed the offence. But even where there are reasonable grounds for suspecting that an offence has been committed, the power of arrest, which is a discretionary power, has to be exercised reasonably. Where a person is arrested when it is not reasonable to arrest him, the arrest will still be unlawful.
Then there are cases where the power of arrest was clearly abused. In Jorum Mavhiza and Wilson
Tapfuma Versus Inspector Muwambwi And Constable Bvokoto and the Co-Ministers Of Home Affairs HH247/14, the plaintiffs who were employed by ZINWA went to a police station and removed a water meter for non-payment of water by the police station. The police officers took them to police station.
The plaintiffs spent eight hours at the station after which they were released after they were ordered to reconnect the water. They were deprived of their liberty in circumstances where they had removed the meter in question while performing their work.
There was a clear abuse of powers by the defendants. The defendants abused their positions to obtain a reconnection of water by arresting and detaining the plaintiffs. This is a case where there was improper motive or malice.
Damages for unlawful arrest and detention should be exemplary and punitive in order to deter would-be offenders.
The factors which are considered in assessing the appropriate quantum of damages include: the circumstances under which the deprivation of liberty took place, whether there was an improper motive or ‘malice’ on the part of the defendant, the harsh conduct of the defendants, the duration and nature of the deprivation of liberty, conditions of detention, the status, age, and health of the plaintiff.
The list is not exhaustive.
◆ Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646 or maandat@yahoo.com.