By Mary Taruvinga
FORMER Zupco board chairman Charles Nherera has won a claim of US$130 000 against businessman Jayesh Shah, who he was suing for causing his wrongful arrest, prosecution and incarceration.
Nherera had claimed US$400 000 but the High Court ruled that the amount was too high.
Justice Nicholas Mathonsi ordered Shah to compensate Nherera in the amount of US$130 000, which could be paid in local currency at the official exchange rate.
The judge also ruled that the arrest of Nherera was driven by malice.
“This court has also found that there was no reasonable and probable cause for the arrest of Nherera. Accordingly, the report made by Shah could not have been made in good faith and it was false. As a result, the existence of malice on the defendant’s part is inferred from the absence of reasonable and probable cause by operation of law,” he said.
“I am, however, of the view, drawing from experience from sunrise, from conjecture and from imagination that the claim for US$400 000 is extremely excessive. In my view an award of US$30 000 for malicious arrest and detention, it should be recalled that the derelict occurs when there is no reasonable or probable cause for the allegation of criminal conduct. The institution of proceedings constitutes an abuse of the right to lay genuine complaints. In such circumstances the complaint by Shah as has been shown above is without foundation and intended to cause harm or injury to Nherera.”
“Again, drawing on the factors set out in the authorities mentioned including the duty thrust on the court to bear in mind inter alia the effect any award may have on future awards in similar cases and indeed economic development or the economic conditions of this country, I have no doubt that the claim of US$300 000 is again excessive. We live in a small economy where such claims may not be sustainable at all.”
“In the result it be and is hereby ordered that the judgment is entered in favour of the plaintiff against the defendant in the sum of US$30 000 for malicious prosecution and in the sum of US$100 000 for malicious arrest and detention. Interest on both amounts at the prescribed rate from the date of service of summons to the date of full payment. The sums of US$30 000 and US$100 000 must be paid in RTGS dollars at the inter-bank rate prevailing on the date of payment. The defendant shall bear costs of suit,” Mathonsi ruled.
The victory comes 15 years after Nherea was jailed for two years for corruption.
He was in 2006 jailed for soliciting for a bribe from Shah, who operated Gift Investments, so that his company could be awarded a tender to supply Mazda Swaraj buses to Zupco.
After completing his sentence, the High Court heard his appeal and quashed the conviction, which prompted Nherera to file a US$400 000 lawsuit against Shah.
The claim initially flopped after Justice Mathonsi granted an application by Shah for absolution from the instance.
In that judgment, the judge said the former prosecutor general Johannes Tomana could have abused the court process to rubber-stamp the acquittal of Nherera on corruption charges.
The matter then spilled to the Supreme Court which ruled that the prosecution had erred.