LOBELS BREAD (PRIVATE) LIMITED v HARDLIFE CHAUKE (362 of 2025) [2025] ZWHHC 362 (19 June 2025)

5 HH 362-25 REF CASE HCHCIV4780/24 LOBELS BREAD (PRIVATE) LIMITED versus HARDLIFE CHAUKE HIGH COURT OF ZIMBABWE DUBE JP & FOROMA J HARARE, 23 January 2025 & 19 June 2025 **CIVIL APPEAL** _R.G. Zhuwarara,_ for the appellant _Tapera G,_ for the respondent DUBE JP: 1. This is an appeal against the entire judgment of the Magistrates Court for the Province of Mashonaland sitting at Harare, dated 21 October 2024. The respondent issued out summons in the Magistrates Court claiming damages for malicious prosecution against the appellant resulting in an award of damages. The appellant appeals against the decision of the court _a quo._ _**Background facts**_ 2. The appellant is Lobels Bread (Private) Limited and the respondent its former sales manager whose duties entailed supervising the selling of bread through salesmen on behalf of the appellant. Salesmen would make deliveries, collect cash from the company’s credit customers and bank it into the respondent’s account who in turn was expected to remit it to the appellant. During an internal process, the appellant realized a cumulative debt of USD $35 423, 37 in the respondent’s account resulting from bread deliveries. On 5 October 2022 the respondent acknowledged the debt but maintained that the money was with customers and committed to tracking and recovering it. On 21 October 2022, the appellant made a criminal complaint to the police leading to his arrest and prosecution on a charge of theft of trust property as defined in s113(2)(d) of the Criminal Law (Codification and Reform) Act, [_Chapter 9:23_]. The allegations were that the respondent violated a trust agreement with appellant which required him to sell bread, collect money from debtors and remit it which he failed to do. He appeared before the Mbare Magistrates Court where he was granted bail, tried and found not guilty and acquitted at the close of the State case. _**Proceedings before the court a quo**_ 3. Following his acquittal, the respondent instituted a claim for damages for malicious prosecution against the appellant alleging that it caused his arrest and instigated his subsequent prosecution without reasonable and probable cause and with malice, there being no evidence of commission of an offence. He claimed that the appellant fabricated charges against him and falsely claimed that he had collected USD$35 423, 37 and banked only USD $2000.He stated that the appellant forced him to sign an acknowledgement of debt (AOD) by threatening to call the police and that if he did not do so, he would lose his job. After the allegations surfaced, he went into the market with Mr Kachidede and Mr Saurombe and met customers who requested time to pay the outstanding moneys and signed AODs. According to him, none of the customers claimed that they had paid any money to him in respect of their debts which he failed to account for. 4. On the allegation that the prosecution was instigated, he told the court _a quo_ that upon his arrest, Mr Nyasha Nyakurera brought police details and pointed at him as the accused person in the presence of his work colleagues. He was arrested and detained at Stoddart Police Station for 2 days. The respondent claimed that a police officer named Komboni said he was not clear what offence had been committed suggesting that the matter be settled outside court but Mr Nyakurera refused opting for his detention arguing that he was a flight risk and took his passport which was released two weeks later. 5. The respondent appeared at Mbare Magistrates Court later for trial and was found not guilty and acquitted at the close of the State case. He testified that the State papers were prepared by the police based on information given by Mr Nyakurera, the appellant’s risk and loss control manager. He claimed that there was no evidence to support commission of an offence and as a result, when the matter was being vetted for set down, the prosecutor suggested an out of court settlement but Mr Nyakurera again refused. He contended that the prosecution was malicious because State witnesses testified to his innocence. He maintained that the prosecution was motivated by malice there being no reasonable and probable cause for the prosecution. As regards the damages suffered, the respondent testified that his right to liberty and freedom of movement was denied as a result of the malicious prosecution. Further that he lost business and his reputation was tarnished due to the allegations he was facing and incurred legal costs as a result of the malicious prosecution. He had marital issues after his arrest arising from trust issues. He claimed general damages in the sum of USD $25 000, USD $10 000 for legal costs and USD$5 000 for loss of business. 5. The appellant defended the claim through Mr Nyakurera whose testimony is to the following effect: The anomaly arose out of non- banking of cash and cash collecting. The respondent acknowledged the debt on 5 October 2022 and promised to settle it by 14 October 2022. He voluntarily offered his car and passport as security for the money owed. He initially surrendered his passport but picked it up after 2 days as it was accepted that it was not worth holding it for USD$35 423,27. He was charged with misconduct, suspended from employment and subsequently dismissed. He together with the respondent and other officials of the appellant went into the market and engaged appellant’s customers. Some of the customers claimed to have paid monies owed to the respondent in full whilst others said they hadn’t paid and still owed the defendant. Because of information gathered they concluded that some of the money had been unlawfully converted to respondent’s own use. They obtained 4 acknowledgments of debt from customers which amounted to USD$8400 thereby reducing sums converted to USD $25 000. After they received a list of the customers owing from the respondent, he submitted internal reports to the police who carried out their own investigations resulting in the respondent’s arrest. 6. He denied that the appellant instigated the respondent’s arrest and detention asserting that appellant merely reported the matter to the authorities, based on reasonable and probable cause on its part that an offence had been committed. He refuted that he pointed the respondent to the police and called him a thief maintaining that he introduced him by his name as there were other sales persons in the room with him. He denied that the respondent was ever detained. It is incorrect that he took part in the vetting of the police docket nor did the prosecutor suggest to him that the matter should be settled out of court. The charge sheet and State outline were prepared by the State based on investigations conducted. He maintained that the respondent’s acquittal did not mean that there was no reasonable and probable cause for the arrest or that the prosecution was malicious. 7. The appellant also adduced evidence from its Regional Sales Manager, Mr Kachidede who testified that he was part of the team that visited the market for purposes of investigations. He told the court that only a few customers acknowledged owing the appellant in the sum of USD $2000. He too confirmed that the respondent acknowledged the sums established as owing, signed an AOD and offered to surrender a vehicle while he collected outstanding monies, which offer was rejected before he volunteered to surrender his passport as additional security. Wilson Saunyama another of appellant’s witnesses told the court that he was present when the respondent signed the AOD and disputed that the respondent was forced to sign the AOD. He confirmed that the appellant made investigations to establish what caused the shortfall before the respondent was arrested. _**Determination of the court a quo**_ 5. The court _a quo_ found that the appellant instigated the respondent’s arrest and detention and that there was no reasonable and probable cause for the prosecution and that the prosecution was malicious. Awards of USD $4000 in general damages for malicious prosecution and USD $10 000 for legal fees were made. 6. Aggrieved, the appellant noted the present appeal based on 6 grounds of appeal which call for the court to determine whether the respondent discharged the burden of proving instigation, lack of reasonable and probable cause to prosecute the respondent and whether the prosecution was instituted _animo iniuriandi_ (i.e. with the intention to injure) on the part of the appellant, if so, the quantum of damages suffered. The appellant seeks an order to set aside the court _a quo’s_ decision and dismissal of the respondent’s claim. _**Submissions before this court**_ 5. Advocate _Zhuwarara_ submitted on behalf of the appellant that the court a _quo_ erred in finding that the appellant had instigated the prosecution it not having been shown that Mr Nyakurera did more than simply reporting the case to the police. Furthermore, that the appellant had reasonable and probable cause to believe that the respondent had misappropriated the funds leading to a police report based on the facts available at the time when it was unclear where the missing funds were. He contended that there was no evidence of malice arguing that the court should have understood this chronology before concluding that the prosecution was malicious. 6. On the subject of damages, he submitted that the non-taxation of legal costs awarded by the court a _quo_ to the respondent contravenes the law on taxation of legal fees arguing that based simply on questioned receipts without taxation of the costs, there was no way the court was to verify the reasonableness or justification of the costs. He contended that the court a _quo made_ a grave error in considering that the respondent had marital issues, was depressed and detained in the absence of evidence supporting such. 7. Per _contra,_ the respondent’s counsel, Mr _Tapera_ submitted that Mr Nyakurera not only reported the matter to the police but also played a significant role in facilitating the respondent’s arrest and detention by providing transport to the arresting details thereby actively participating in the prosecution and instigating it. He submitted in addition that Mr. Nyakurera, ignored advice from police officers and prosecutors who indicated that there was no evidence to support theft charges and insisted with the prosecution thereby exhibiting malice in its actions. He contended that the appellant had no reasonable and probable cause to report commission of an offence arguing that its claim was based on assumptions as evidenced by failure to consult with customers before reporting the matter to the police. Furthermore, that its actions demonstrate malice and a clear intent to harm the respondent. 8. Mr _Tapera_ maintained that the lengthy criminal trial and detention had a significant impact on the respondent’s life, resulting in job rejections, depression, and a broken marriage entitling him to general damages as awarded by the court. He argued that there was clear documentary evidence, including receipts, showing the legal costs incurred, which directly resulted from the appellant’s malicious prosecution and moved the court to dismiss the appeal in its entirety. _**The law**_ 5. The law on malicious prosecution is well settled. The delict of malicious prosecution is committed in circumstances where a defendant causes the arrest and prosecution of another person by filing an unfounded criminal charge for some improper purpose or merely for the purpose of harassing or ruining another’s reputation, the objective being to harm or penalise the person accused in circumstances where the prosecution amounts to an abuse of court process. G Feltoe in _A Guide to the Zimbabwean Law of Delict_ (2006) states that the delict of malicious prosecution or proceedings is committed in the following circumstances: “When D maliciously and without reasonable and probable cause brings legal proceedings against another. Every citizen has a right to use legal proceedings legitimately for the purpose of upholding and protecting his rights. He or she does not, however, have the right to abuse the legal process for the purpose, not of upholding and furthering his or her rights, but instead solely for the purpose of causing harm to P because he or she has malice towards P.’’ 5. Not every acquittal results in a successful claim for malicious prosecution, see _Mupanga_ v _Mupepa_ HH157/17. A plaintiff in a malicious prosecution case must show that the defendant: (a) set the law in motion i.e. instigated or instituted the proceedings, (b) acted without reasonable and probable cause for the prosecution, (c) was actuated by malice or _animus iniuriandi_ and (d) the prosecution failed. 6. Whilst there is an overlap between the first three requirements, each is a standalone requirement. Failure to prove any one of the key elements of a malicious prosecution renders the claim unsuccessful. See _Beckenstrater_ v _Rottcher and Theunissen_ 1955 (1) SA 129 (A) at 136A-C; _Van der Merwe_ v _Strydom_ 1967 (3) SA 460 (A) at 467C-E; _Groenewald_ v _Minister van Justisie_ 1973 (2) SA 480 (O) at 482G-H; _Relyant Trading (Pty) Ltd_ v _Shongwe and Another_ [[2006] ZASCA 162](/akn/za/judgment/zasca/2006/162); [2007] 1 All SA 375 (SCA). In addition to proving malicious prosecution, the plaintiff must prove that he suffered injury, damages or harm resulting from the malicious prosecution, see _Bande_ v _Muchinguri_ 1999 (1) ZLR 467. **Whether the appellant instigated the arrest** 5. The mere making of a report to the police does not automatically amount to instigation entitling one to an award of damages for malicious prosecution. In _Bande_ v _Muchinguri_ (supra)the court relied on the test laid down in _Backet_ v _Christine_ 1920 WLD 14 to determine whether a defendant had instigated a prosecution without probable cause and malice and held that the test is “whether the defendant did more than tell the detective the facts and leave him to act on his own judgment.” The court relied on sentiments stated in J.G Flemming _, The Law of Torts (7 ed)_ 1987 _at 582_ where it is stated thus: “The defendant must have been actively instrumental in setting the law in motion. Simply giving candid, account however incriminating, to the police, ---- is not the equivalent of launching a prosecution. The critical decision to prosecute not being his, “the stone set rolling [is] a stone of suspicion only. But besides giving information he proceeds to lay a charge, this amounts to an active instigation of proceedings which he cannot shrug off by saying that they were in the last resort initiated at the discretion of the public authority.” See also _Benator v Benator_ HH 675/15. 5. Simply providing information to the police does not equate to instigation where institution of prosecution proceedings is left entirely to the discretion of the police. See _Econet Wireless Limited and Ors_ v _Sanangure_ SC 52/13; _Nherera_ v _Shah_ HH 845/13; _OK Zimbabwe_ v _Musundire_ SC 23 /15. In _Waterhouse_ v _Shields_ 1924 CPD 155 at _160_ , the court stated that it must be shown that the defendant was actively instrumental in the prosecution of the charge and remarked as follows: “where a person merely gives a fair statement of the facts to the police, and leaves it to the latter to take such steps thereon as they deem fit, and does nothing more to identify himself with the prosecution, he is not responsible, in an action for malicious prosecution, to a person whom the police may charge. But if he goes further, and actively assists and identifies himself with the prosecution, he may be liable. “The test,” said _Bristowe J in Baker v Christiane_ 1920 WLD 14, “is whether the defendant did more than tell the detective the facts and leave him to act on his own judgment”. What these authorities succinctly make clear is that persons who have reasonable and probable cause in a prosecution should not be deterred from setting the law in motion against those they believe have offended against the law entitling them to make reports to the police. See _Reliant Trading (Pty) Ltd_ v _Shongwe(supra)._ 20. It is common cause that the appellant initiated the prosecution by making a report to the police which was concluded in the respondent’s favour. Suspecting that the respondent had committed an offence, the appellant set the stone rolling by providing information of the alleged facts to the police leaving them to investigate the matter, act on their own judgment and decide whether to arrest the respondent. There is no evidence that the appellant’s representative pressured the police into preferring the theft charge or any other action the police would not otherwise have taken. Any instigation would have been apparent from the statement of the complainant which it was not. The appellant’s statement to the police did not suggest the charge to prefer leaving this decision to the discretion of the police following independent investigations. No evidence was led to support the suggestion that the appellant prevailed upon the prosecution and police to arrest, detain and prosecute him. The appellant’s representatives simply made a report of the alleged crime and did nothing more leaving it to the police to exercise their own judgment over the matter. 21. In _Econet Wireless Limited & Ors _v _Sanangure_ (supra), the court held that “placing information and facts before the police does not in itself amount to instigating prosecution and that it would amount to instigation if, besides giving information, the defendant proceeds to lay a charge or over bears on the police to institute proceedings which they would not otherwise commence or institute”. The appellant did not suggest the charge to be preferred. This case is distinguishable from the case of _Bande_ v _Muchinguri_ (supra) where a complainant suggested the charge to be preferred to the police. In _Benatar_ v _Benatar_(supra) the person making a report to the police went as far as proposing the section to be charged and was found to have instigated the prosecution. 22. It cannot be said that the appellant did more than just report the matter to the police or that its actions or conduct amounts to an abuse of court process. The respondent’s suggestion that Mr Nyakurera insisted that the respondent must be detained as he is a flight risk was not corroborated. The respondent’s contention is inconsistent with the fact that he was allowed to recover his passport which he had offered as security. Contrary to the suggestion by the respondent that Mr Nyakurera pointed him out as a thief, the contention that Mr Nyakurera identified the respondent to the police does not amount to instigation when one has regard to the fact that he had to be identified for purposes of investigations. The fact that the appellant provided transport to the police is inconsequential as it is common practice for complainants to provide transport to the Zimbabwe Republic Police due to transport constraints police sometimes face. There being no evidence of active instigation and participation in the prosecution, the _court a quo_ erred and misdirected itself when it found that the appellant instigated the respondent’s arrest and subsequent prosecution. Consequently, the appellant's third ground of appeal has merit and is upheld. _**Did the defendant pursue the prosecution without reasonable or probable cause**_ 20. In order to succeed in a claim for malicious prosecution, a plaintiff must show that the person who made the report of the allegedly offensive criminal conduct had no reasonable grounds to believe in the guilt of the person accused to do so. The test for reasonable and probable cause is an objective one and is not based on the subjective beliefs or motives of the prosecutor, See _Prinsloo and Another_ v _Newman_ 1974 ZASCA 12 _._ Reasonable and probable cause exists if a reasonable person would have concluded that the accused was probably guilty on the facts available to the prosecutor at the time. A complainant need not have evidence establishing a _prima facie_ case or proof beyond a reasonable doubt when deciding to make a police report. 21. In _Hicks_ v _Faulkner_ , 1878 QBD at pages 167-171, quoted with approval in _Sanangure_ v _Econet Ltd_ _SC52/13_ , the court defined reasonable and probable cause as follows: “An honest belief in the guilt of the accused based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances, which assuming them to be true, would reasonably lead to any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.” 20. The reasonable cause requirement is that which would operate on the mind of the person making the charge that the other party committed an offence and that the laying of charges is justified. See _Rambajan Baboolal_ v _Attorney General of Trinidad and Tobago_ [2001 TTHC 17](http://www.commonlii.org/tt/cases/TTHC/2001/17.html) .In _Econet Wireless Limited & Ors v Sanangure _ (supra ), the court defined “ _reasonable and probable cause_ ” as an honest belief in the guilt of the accused, based on circumstances that would lead a cautious person to conclude that the accused was likely guilty. The focus is on the mental state of the accuser. The consideration of probable cause must be based on the belief of the person making the criminal report who must show that based on the facts available at the time he held an honest belief that the facts available constituted an offence based on reasonable grounds, that a prosecution is justified and that a reasonable person in the same position as him would have formulated the view that the plaintiff had committed an offence. 21. In considering the existence of reasonable and probable cause, the court considers a number of factors including the available information, investigations carried out to obtain the information, the suspect’s response to the allegations and the reliability of the information. Where the accuser fails to fully investigate the facts surrounding the allegations, this gives rise to a finding of lack of probable cause. 22. In a malicious prosecution claim involving a report of theft by conversion, the plaintiff must be shown to have conducted a reasonable investigation to gather evidence before a report is made to the police. The person making the report must honestly believe that an offence was committed and the belief must be objectively reasonable based on the circumstances and evidence available. The court is required to apply a reasonableness standard and evaluate all the circumstances including the evidence and facts known at the time the report was made to determine if the person making the report had reasonable and probable cause to do so. 23. In _casu,_ the appellant’s representative gave a statement of the facts upon which the complaint was based. Upon discovery of the shortfall, reports revealed that the appellant was not remitting cash. The respondent gave out that money was still with customers and he signed an AOD and undertook to pay USD 35 423,37. He was given an opportunity to recover the money and failed resulting in the appellant visiting the market to carry out its own investigations. The respondent failed in his AOD to give a satisfactory explanation as to where the amount of the shortfall could be found, a factor which would have raised strong suspicion in any reasonable man’s mind that he had been paid by debtors and converted the money to his own use. 24. The appellant conducted a reasonable investigation by speaking to the customers involved and gathering information to establish the facts before reporting the matter to the police. The appellant’s representatives testified that they went into the market to conduct their own investigations and most of the customers revealed that they had paid the respondent for the bread delivered save for deliveries made which did not exceed USD 2000.00 thereby discounting the respondent’s account for the shortfall. After investigations cash unaccounted for stood at USD 33,751.37. The respondent acknowledged that he went into the market to follow up the payments with the appellant’s representatives. 20. The investigation gave credence to the belief the appellant held giving rise to the need for a criminal complaint. At the time of reporting the matter to the police, the appellant held an honest belief based on reasonable grounds, that a prosecution is justified. Any reasonable person would have held the view that an offence had been committed particularly since the respondent’s explanation for the shortfall had largely been discredited in respondent’s presence. The trial court erred in finding that the respondent having shown a willingness to show them the customers owing, the appellant failed to investigate the allegations and that the report for theft by false pretences can only have been actuated by malice. It is important to bear in mind that the respondent’s suggestion that the money was held by customers as debtors had been discounted through appellant’s investigations conducted in the respondent’s presence. 21. The appellant was not required to establish a _prima facie_ case or proof beyond a reasonable doubt when deciding to report the matter. It was not necessary to have conclusive evidence of commission of an offence, it being the responsibility of the police to investigate the allegations and gather evidence to assist them in determining if an offence had been committed. Suspicion of guilt based on reasonable grounds suffices in making a report of the matter. The appellant having gone into the market, was fully justified to formulate the belief that it held that the appellant had unlawfully converted the money to his own use. 22. The appellant’s belief that the money had been converted was not random or without any justification, its own investigations having confirmed that the respondent had been paid most of the money and failed to account for it. The respondent provided the appellant with a list of the customers who he claimed to be owing the appellant the amount of the shortfall which the appellant used in its investigations. The mere indication by some of the customers to the appellant that some of the money had been collected and not remitted to the company would have given rise to any reasonable person concluding that such money had been stolen by the respondent. The fact that the appellant formulated a similar view can therefore be easily understood. The appellant gathered through its investigations such information as would lead a reasonable person to conclude that an offence had been committed. 23. All the appellant was required to do was to provide sufficient information to the police to enable them to conduct a proper investigation, gather evidence from which to decide whether or not to charge the accused. Armed with the list of customers, the police were well equipped to investigate the matter. The appellant was not obliged to provide conclusive evidence of theft before making the police report. A reasonable suspicion that a crime was committed was sufficient to warrant the matter being reported to the police. The report to the police did not have to be conclusive of the respondent’s guilt it being based on mere suspicion. It was the responsibility of the police to carry out their own investigations to establish the veracity of the allegations and decide whether to charge the respondent. 24. The police carried out their own independent investigations and were satisfied that the respondent had been paid some amounts which he converted to his own use and hence confirmed the appellant’s position. Being satisfied that a sound case had been made for the prosecution, the police duly went ahead and charged the respondent. The prosecution was based on an assessment of investigations made by the police which involved the weighing of evidence available. When the docket was presented to the prosecution, it was accepted on the same basis. The prosecution vetted the matter and decided to put the respondent on trial. It was not shown that the appellant’s representatives were present during the vetting of the matter for prosecution. 25. The allegations in the State outline were that the respondent collected some cash from customers and did not bank all of it. No evidence was led in the court _a quo_ from the customers to refute the evidence gathered by the appellant to the effect that the customers paid to the respondent amounts which the respondent converted to his own use. When one considers that the police acted without any instigation and were satisfied through investigations, that there was evidence showing that the respondent did not remit some of the monies collected, it cannot be concluded that the report was baseless or that the appellant had no reasonable or probable cause to make the report. 26. The fact that the respondent was acquitted and that the charge sheet did not specify the amount allegedly converted to the respondent’s own use does not detract from the fact that the appellant had a probable cause to report the commission of an offence. A complainant in a criminal trial has no responsibility to draft State papers and has no say in what constitutes a valid charge or the conduct of the trial. We are satisfied that the appellant had an honest belief in the guilt of the respondent which it held on reasonable grounds that constitute reasonable and probable cause. The appellant’s representatives gave a balanced and objective account of the facts to the police. The appellant did not have to prove the respondent’s guilt beyond a reasonable doubt before making a report. Any reasonable person faced with the same facts would have believed that the respondent converted some of the money to his own use. The court _a quo_ erred when it found that the appellant did not have reasonable and probable cause to make a report to the police. The fourth ground of appeal succeeds. _**Did the defendant act with malice and pursue the prosecution well knowing that it was without**_ _**merit**_ 20. A prosecution is malicious where a defendant made improper use of the legal process to deprive the plaintiff of his liberty. In _Relyant Trading (Pty) Ltd_ v _Shongwe and Another_ [[2007] 1 All SA 375](https://www.saflii.org/cgi-bin/LawCite?cit=%5B2007%5D%201%20All%20SA%20375) the court stated the following regarding the requirement of “malice” or _animus iniuriandi_ : “Although the expression ‘malice’ is used, it means, in the context of the _actio iniuriarum_ , _animus iniuriandi._ In _Moaki v Reckitt & Colman (Africa) Ltd & another_, Wessels JA said: “Where relief is claimed by this _actio_ the plaintiff must allege and prove that the defendant intended to injure (either _dolus directus_ or _indirectus_). Save to the extent that it might afford evidence of the defendant’s true intention or might possibly be taken into account in fixing the quantum of damages, the motive of the defendant is not of any legal relevance”. 20. In _Luke Davies_ v _Premier Finance Group Limited_ HH235/10, PATEL J (as he then was) at pages 10-11, defined the word “malice’’ as follows: “… As regards malicious prosecution, the case of _Bande v Muchinguri_(1999) points out that the term ‘malice’ did not here mean spite or ill-will or a spirit of vengeance; it had a wider connotation. It included any motive different from that which is proper for the institution of criminal proceedings, which is to bring an offender to justice and thereby aid in the enforcement of the law” 20. A prosecution is malicious when it is instituted for an improper purpose. Malice connotes an intentional or deliberate act on the part of the accuser. The motive for the prosecution must be suited for the purpose of pursuing a prosecution and must be shown to be one that is proper and necessary for the institution of the prosecution to ensure the ends of justice. In some cases, the absence of an honest belief in the criminal allegations made constitutes evidence of malice. Each case depends on its own circumstances. Clearly however, findings of recklessness or negligence of any degree does not constitute malice. 21. The requirements for malice and reasonable and probable cause are factual and require a consideration of the evidence available and all surrounding circumstances. See _Mabona_ v _Minister of Law and Order_ 1988 (2) SA 654 (SE) at 658E. A defendant in a malicious prosecution case has no reasonable and probable cause for prosecution where he lacks information that would lead a reasonable man to conclude that an offence had been committed. He must be shown to have objectively believed in the guilt of the plaintiff. The requirements are inseparable and tend to overlap. The absence of reasonable and probable cause to institute a prosecution suggests evidence of malice. 22. The conduct of the appellant is in no way indicative of malice on its part as at the time of the police report as there was reasonable suspicion of commission of an offence based on claims by some of the customers that they had paid some money to the respondent and yet the money was not accounted for. We are not convinced that the prosecution was actuated by malice or that it was instituted merely for the purpose of intimidating harassing and causing harm or ruining another’s reputation. In our view, the evidence in the court _a quo_ failed to discharge the onus on the respondent to show that the prosecution malicious. 23. It is significant to note that the appellant’s representatives were not shown to have been present when the decision to prosecute was made nor did they participate in the making of that decision at all. The assertion that Mr Nyakurera instructed or unduly pressurised the police to arrest the respondent or that the police together with the prosecution department were unwilling to prosecute the respondent and only did so as a result of persuasion or unlawful threats from the appellant was not proved on a balance of probabilities. None of the persons allegedly involved were called to testify. The court _a quo_ erred in accepting this evidence without ado despite it being disputed by the appellant. Besides, it is highly unlikely that a Risk and Loss Control Officer not having the relevant legal knowledge would dare least of all successfully bring pressure to bear on both the police and prosecutors to pursue a prosecution in circumstances where they had concluded that no criminal offence had been committed The respondent was unable to show that the appellant’s representatives were influenced by personal opinions or improper motives**.** It was not shown that the prosecution was motivated by anything other than a desire to ensure enforcement of criminal laws of the land. 24. The respondent was charged with failure to perform his duty having failed to account for cash collected daily leading to a shortfall of USD 35 423,37 on 28 October 2022 and was duly convicted on 12 November 2022. In the criminal complaint made on 21 October 2022, the allegations were that the respondent collected the same amount of money and failed to remit it to the appellant. The criminal trial and disciplinary proceedings are independent of each other. The appellant was entitled to institute disciplinary proceedings against the respondent based on an unexplained shortfall. The charges are not contradictory and not suggestive of malice. In our view the successful instituting of disciplinary proceedings vindicates appellant’s defence to allegations of malicious prosecution. 25. Given the finding that there was an objectively reasonable basis to prosecute the respondent, the finding that the appellant had reasonable and probable cause to institute the prosecution establishes the absence of malice on the part of the appellant. In the absence of a positive finding of malice on the part of the appellant, a claim of malicious prosecution must fail entitling this court to interfere with the decision of the court _a quo._ The sixth ground of appeal accordingly succeeds. 26. As regards ground number 5, the appellant submitted that the court _a quo_ misread the evidence led during the criminal trial leading it to adopt an incorrect approach**.** The finding by the criminal court that the outstanding balances were signed for by the salesmen is erroneous . The supposed AODs by the salesmen, Alford Karimanzira and Tichaona Motsi are not AODs but statements showing what they would do after delivering bread, issued invoices. They state that the respondent would then collect the monies and the total amount of invoices issued**.** They do not acknowledge owing monies nor do they state that the monies were still in the market. All this was supposed to be common cause with no need to call them as witnesses. The court _a quo_ associated itself with the finding of the criminal court that the State failed to call the customers who were supposed to have paid their debts to the respondent and also that it failed to state the stolen amount in the charge sheet. This according to the court _a quo_ explains why the prosecution did not succeed. This however had no bearing on the conduct of the appellant in reporting the matter to the police. We are satisfied that indeed the court _a quo_ misread the evidence led at the criminal trial as argued by the appellant. 27. The court _a quo_ misunderstood and misinterpreted the import of Mr Nyakurera’s report to the police, the import of which is that when the issue of the missing funds arose, the respondent acknowledged the debt giving out that he had not collected the money and undertook to collect same. When the respondent failed to collect the money, the appellant commenced investigations which established that some of the monies had been paid to the respondent by customers but the respondent had not been remitted to the appellant leading to the police report. Clearly, the AOD highlighted that the shortfall amount represented the money unpaid by customers with subsequent investigations revealing otherwise. 28. The finding by the court _a quo_ that Mr Nyakurera during the criminal proceedings said that “ _they assumed that the money was either used by the defendant or clients had cheated on him…_ ” is not part of the criminal record of evidence and has no basis as it is only found in the respondent’s submissions in the application for discharge. The court _a quo_ erred in relying on it, it not having been shown to have been the testimony of Mr Nyakurera. The court a quo erred in finding the contents of the respondent’s AOD as established and yet it had been discredited to a large extent. The court _a quo_ placed too much emphasis on the respondent’s dismissal disregarding that the appellant had an entitlement to institute disciplinary proceedings against the respondent and indeed nothing turns on turns on the fact that disciplinary charges were different from charges in the criminal proceedings as the pleadings are different in their nature and effect . 29. When assessing the existence or otherwise of reasonable and probable cause to prosecute the respondent, the court _a quo_ erroneously found that in the criminal trial, Mr Nyakurera indicated that the money was either used by the respondent or he failed to collect it or the customers had not paid concluding that appellant failed to prove the existence of reasonable and probable cause. The trial court paid too much attention on the evidence in the criminal proceedings and overlooked that the same witnesses had testified in the malicious prosecution case and thus necessitating the assessment of their evidence. The court _a quo_ did not comment on the evidence Mr Nyakurera gave which is a misdirection. For these reasons, ground number 5 must succeed. 30. There is no evidence indicating that the appellant was actuated by an improper motive or malice in the prosecution of the respondent. An appellate court will not interfere with the factual findings of a lower court unless the findings are a result of misdirection, are irrational or grossly unreasonable, see _Hama_ v _National Railways of Zimbabwe_ 1996 (1) ZLR 664 at page 670 C – E where the court had this to say: “The general rule of law, as regards irrationality, is that an appellate court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such conclusion.” 20. In light of the foregoing, we find that the respondent failed to discharge the onus on him to prove the requirements of a malicious prosecution. As a result, we find that the appeal has merit. In light of our finding that the respondent did not prove that the prosecution was malicious, it will not be necessary to deal with grounds of appeal dealing with quantum of damages. The appellant has shown an entitlement to the order sought. Costs follow the result. In the premises, we make the following order: 1. The appeal succeeds with costs. 2. The judgment of the court a _quo_ is set aside and substituted with the following: “The plaintiff’s claim is dismissed with costs.’’ DUBE JP: …………………………………………………………. FOROMA J: ……………………………………………... Agrees _Mawere Sibanda Commercial Lawyers_ , Appellant’s Legal practitioners _Tapera Muzana & Partners_, respondent’s Legal practitioners