Businessman Jayesh Shah has lost a Supreme Court appeal in which he was challenging payment of US$130 000 to former Zupco board chairperson, Charles Nherera being damages for causing his arrest, prosecution and conviction back in 2005.
A three-panel bench of Justices Felistus Chatukuta, Antonette Guvava and Elizabeth Gwaunza threw out his appeal in a recent judgement ruling that Shah should appreciate that he caused suffering to Nherera and pay the damages.
"The appellant (Shah) has been unrepentant.
"He has not shown an iota of contrition. Because of his unrepentance, he has kept the respondent (Nherera) on the judicial radar for the past eighteen years, since 2005 when the respondent was arrested.
"This appeal reflects the appellant's resolve at not taking full ownership of his malicious conduct and the consequences thereof.
"He had the temerity to pray for punitive costs against the respondent, playing the trump card of a patriotic citizen when in fact he has, to use his term, "unrelentingly persisted with (the respondent's) persecution"."
The court ruled, "The appeal lacks merit. In the result, it is ordered that the appeal be and is hereby dismissed with costs on the legal practitioner and client scale."
Shah and Nherera have been locked in a bitter legal battle for years.
Nherera was the Chairman of the board of directors of Zupco.
He was also Vice-Chancellor of the Chinhoyi University of Technology and a member of the Zimbabwe Examinations Council and the Parastatals Advisory Council.
He held various positions in other local and regional organisations.
Shah is a director in Gift Investments (Pvt) Ltd which supplied mini-buses to ZUPCO.
The buses were supplied under a tender process approved by the State Procurement Board.
In November 2011, Nherera issued a summons against Shah claiming damages in the sum of US$100 000 for malicious prosecution and US$300 000 for malicious arrest and detention, interest thereon at the rate of 5% per annum and costs of suit.
This was because Shah had made allegations that he had, in his capacity as the Chairperson of ZUPCO Board of Directors, solicited a bribe from Gift Investments (Pvt) Ltd to facilitate the purchase by ZUPCO of 17 buses from the company.
The company had previously sold some buses to ZUPCO with the authority of the SPB.
Seventeen buses painted in corporate colours remained in the company's stock.
ZUPCO had not placed an order for the buses which were not covered by the authority issued by the SPB.
He contended that Shah made reports on the allegations to various people, high-ranking government officials and institutions.
As a result of these allegations against him, he was arrested by the police on 21 March 2005 and detained on charges of corruption.
He was arraigned before the Regional Magistrates Court, Harare, for contravening s 3 (1) (a)(i) of the Prevention of Corruption Act [Chapter 9:16].
The trial magistrate found him guilty and sentenced him to three years' imprisonment of which one year imprisonment was suspended for five years on condition of future good behaviour.
The effective sentence was two years' imprisonment.
Aggrieved, Nherera filed an appeal before the High Court against both conviction and sentence.
On 19 November 2009, the High Court quashed the conviction and set aside the sentence.
By then, he had served the effective sentence of two years.
The claim for damages was instituted soon thereafter.
Among other things, Nherera in his claim said he was subjected to humiliation from the time of arrest up to his acquittal.
As a result of his arrest, prosecution and imprisonment at the instance of Shah, he suffered injury to his reputation, both locally and internationally and injury to his dignity.
He was also deprived of his liberty. He lost his positions as the Vice Chancellor of the Chinhoyi University of Technology and as the Chairperson of the ZUPCO Board of Directors.
But Shah denied having reported Nherera maliciously.
Shah insisted that Nherera had solicited a bribe from him and the information was true.
He maintained that the decision to arrest the respondent was made by the police and not by him after the police had formulated a reasonable suspicion that an offence had been committed.
"He also denied causing the prosecution of the respondent. He argued that the decision to prosecute the respondent was made by the Attorney General in the exercise of his constitutional mandate," the court heard.
Shah also said the decision to imprison Nherera was made by the trial magistrate after due consideration of the evidence placed before her during the trial.
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The magistrate held that there was evidence that the Nherera had solicited a bribe.
According to court papers, it was his evidence that he did not make a report to the police as alleged by Nherera but informed several people about his conduct.
These included the ZUPCO Board, the then Minister of Local Government, Ignatius Chombo, the then Governor of the Reserve Bank, Gideon Gono, the then Minister of State Security, Nicholas Goche, and some Central Intelligence Officers.
He informed them that Nherera solicited a bribe in 2003 to facilitate the renewal of a lease agreement between Gift Investments and ZUPCO.
He had paid Nherera and Bright Matonga a total of $20 000.00.
The High Court however upheld Nherera's appeal ruling that Shah should pay him US$130 000 instead.
Aggrieved, Shah mounted the present appeal submitting that the High Court erred in finding that his statement was not given in good faith among other things with no luck.
However, in a case between Gift Investments and Nherera, the Supreme Court in 2020 found there was corruption.
Gift Investments had filed an appeal challenging an order of the High Court evicting it after a legal battle had erupted.
