The ManicaPost
Trust Maanda
Post Correspondent
A person can claim damages from a person who would have maliciously caused his or her arrest and prosecution.
Malicious deprivation of liberty is when someone causes someone to be arrested on a false police report.
It takes place under the guise of a valid judicial process instigated by a defendant.
In that case, the defendant abuses the legal machinery of the state through a policeman acting on his own discretion or through a valid warrant, to deprive the plaintiff of his liberty.
The actual deprivation is consequently not carried out by the defendant himself but by the machinery of the state through a valid judicial process.
In order to succeed in an action based on malicious deprivation of liberty the plaintiff has to prove the following:
the defendant instigated the arrest of the plaintiff
that the instigation was without reasonable and probable cause and
that the defendant acted animoiniuriandi, meaning there must be intention to injure or harm the plaintiff.
Sometimes a person may maliciously cause an innocent person’s prosecution.
In order to succeed in a claim for malicious instigation of proceedings, the plaintiff must establish the following elements:
that the prosecution was instigated by defendant,
that defendant had no reasonable and probable cause for the prosecution,
that the prosecution was actuated by malice; and
that prosecution failed and the plaintiff suffered damages as a result of the prosecution.
Reasonable and probable cause means that a person making a report to the police must have an honest belief based on reasonable grounds that the institution of proceedings is justified.
The claim for malicious instigation of proceedings protects persons from being arrested and prosecuted at the instance of a person who sets the legal machinery against them without a reasonable or probable cause.
It is however, not every prosecution in which a person is acquitted that the court will find that the prosecution was maliciously instigated.
Where a person provides the police with information on which the police have to use their own discretion, on whether or not to arrest and prosecute the plaintiff, it cannot be regarded as malicious instigation or prosecution.
Where a report is made to the police and the defendant puts pressure on the police to act against the plaintiff, against their own better judgment and the prosecution fails, the plaintiff would have proved that the prosecution was on the malicious instigation of the defendant, who had no reasonable or probable cause to have plaintiff prosecuted.
Placing of information and facts before the police does not in itself amount to instigating prosecution.
What would be wrong is if besides giving information the defendant proceeds to lay a charge or puts pressure on the police to institute proceedings which they would not otherwise institute.
Not every act of conveying information to the police, is wrongful or as result of a subjective malicious intent to injure the plaintiff.
Where information conveyed to the police is true and was conveyed in good faith in adherence to the laws of Zimbabwe, a person who is arrested and prosecuted accordingly cannot succeed in a claim for malicious instigation of prosecution.
Where the police make a decision to arrest, upon a consideration of all the relevant information and the formulation of a reasonable suspicion that the plaintiff had committed a criminal offence, there can be no liability for making the report.
Where a decision is made by the prosecutor in the exercise of his or her lawful duties and upon consideration of all relevant facts, the defendant cannot be liable for malicious instigation of proceedings against the plaintiff.
Where the court finds that there is no reasonable suspicion that an offence was committed and throws the case out, it can be argued that there was no probable cause for the plaintiff to be charged with an offence.
The defendant may be liable for damages for malicious instigation of proceedings. But an acquittal after trial does not always provide the evidence of malicious prosecution.
It is when there is no reasonable suspicion or probable cause for the arrest and prosecution, where there is evidence of intention to harm the plaintiff that a plaintiff may succeed.
If every report made to the police resulting in someone being detained and prosecuted would entitle a person so detained and prosecuted to sue for damages, it would discourage people from making genuine police reports.
The courts are always slow to interpret a complainant’s report to the police as malicious, in order not to discourage people from reporting to the police for fear of being sued.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be reached at +263 772432646
