FORMER ZUPCO chairman Charles Nherera will smile all the way to the bank, with a US$130 000 award for malicious prosecution, following a Supreme Court ruling confirming the damages he was awarded by the High Court three years ago.
The confirmation follows an appeal by businessman Jayesh Shah against the High Court decision forcing him to pay hefty damages to Prof Nherera for malicious prosecution that led to the latter serving a two-year sentence before he was acquitted on appeal, and that jail time explains the very high level of the award.
A three-judge panel of Deputy Chief Justice Elizabeth Gwaunza, Justice Antonia Guvava and Justice Felistus Chatukuta also slapped Mr Shah with punitive costs of the suit, noting that his appeal had an element of harassment against his victim. This means Mr Shah basically also pays the fees for Prof Nherera's lawyers, who handled the civil appeal.
Prof Nherera was jailed for two years in 2006 for soliciting a bribe from Mr Shah, who operated Gift Investments, so that his company could be awarded a tender to supply Mazda Swaraj buses to Zupco. But he was subsequently acquitted by the High Court on appeal, but only after serving the full sentence.
Mr Shah reported him to the police and his allegations were the entire basis for the criminal charges against Prof Nherera.
In his civil suit, Prof Nherera claimed a whopping US$400 000 in damages against Mr Shah for causing his wrongful arrest, prosecution and imprisonment for corruption. The High Court ruled in favour of Prof Nherera finding that his arrest was driven by malice.
The court, however, reduced the award to US$130 000, saying the amount claimed was excessive. Unhappy with the High Court decision, Mr Shah took the matter to the Supreme Court on appeal.
His bid to quash the adverse order made against him failed after the court unanimously dismissed the appeal for lacking merit. Writing the judgment for the court, Justice Chatukuta ruled that the appeal was frivolous and vexatious and a clear abuse of court process. The ruling also criticised Mr Shah for being unrepentant.
"He has not shown an iota of contrition," said Justice Chatukuta.
"Because of his unrepentance, he has kept the respondent (Prof Nherera) on the judicial radar for the past 18 years, since 2005 when the respondent was arrested.
"This appeal reflects the appellant's (Mr Shah) resolve at not taking full ownership of his malicious conduct and the consequences thereof. He, in fact, 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 own term, "unrelentingly persisted with (the respondent's) persecution".
The ruling means Prof Nherera has been vindicated in the courts and has been awarded hefty damages at the prevailing exchange rate. The ruling also confirmed all the findings of the High Court which ruled that the criminal complaint by Mr Shah was without foundation and intended to cause harm or injury to Prof Nherera.
Then High Court judge, Justice Nicholas Mathonsi, in his ruling noted that Prof Nherera was held in very appalling and humiliating prison conditions. Prof Nherera was taken away from his family and lost his job and other contacts.
"In fact, the loss of liberty in itself is such deprivation of a constitutional right that it cannot be countenanced where the basis for it is malice," said Justice Mathonsi, now a Supreme Court judge.
Through his lawyer Advocate Thembinkosi Magwaliba, Prof Nherera argued that 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 Mr Shah, Adv Magwaliba said his client suffered injury to his reputation, both locally and internationally and injury to his dignity.
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He was also deprived of his liberty. He lost his positions as the Vice Chancellor of Chinhoyi University of Technology and as the Chairperson of ZUPCO Board of Directors, argued Adv Magwaliba.
But Mr Shah, while admitting having made the report to the police, denied having done so maliciously. Mr Shah insisted, through his lawyer Adv Lewis Uriri, that the decision to arrest Prof Nherera 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 Prof Nherera, arguing that the decision to prosecute was at that time consigned to the Attorney General in the exercise of a constitutional mandate, while the decision to imprison Prof Nherera was vested in the magistrate after due consideration of evidence placed before her during trial.
