A GUIDE TO THE ZIMBABWEAN LAW

OF DELICT
January 2018

by

G. Feltoe

Copyright – G. Feltoe

All rights reserved

ISBN 0-908312-63-6
 Preface

This Guide provides an outline of the main aspects of the Zimbabwean Law of Delict with
reference to relevant case law and legislation. It is intended for use by students and legal
practitioners.

This Guide should be read together with South African textbooks such as:

J Burchell, Principles of Delict (Juta & Co, Capetown, 1993).

J Neethling et al, Law of Delict, (Sixth Edition, Lexis Nexis, Durban, 2010).
The Law of Delict in South Africa, Ed Loubser and Midgley (OUP Southern Africa 2011)
PQR Boberg, The Law of Delict 1: Aquilian Liability. (Juta & Co, Capetown, 1984).
J Neethling, JM Potgieter and PJ Visser Law of Personality (1996)
J Burchell, The Law of Defamation in South Africa (Juta & Co, 1993)
PJ Visser and JM Potgieter, Law of Damages (Juta 2003)
RG McKerron, The Law of Delict, (Juta & Co)

CHAPTER 1 - INTRODUCTION 1
Definition of a delict 1
Purpose of the law of delict 1
Interests protected by the law of delict 2
Courts in which delictual claims can be brought 3
Delict, contract and crime 3
Delict and crime 3
Delict and contract 4
Can affected third parties claim? 7
Fault liability system 7
Sources of law of delict 8
Onus of proof 8
Financial means of defendants 8
Development of law of delict under constitution by courts 9
Delictual actions in general law 10
CHAPTER 2 - AQUILIAN ACTION 11
Requirements for liability 11
Fault requirement 11
Intention 12
Negligence 13
Determining whether there has been negligence 13
Reasonable foreseeability 14
Foreseeability of general nature of harm and general manner of it occurring 16
Must harm to P be reasonably foreseeable? 16
Negligence in the air not enough 17
Would reasonable person guard against harm? 18
Some specific situations of negligence 22
Dangerous conditions on land and in buildings 22
Interfering with rights of landowners and occupiers 25
Defective products 25
Defective services by garage and inadequate maintenance of vehicles 28
Carriers of goods by land 28
Liquidators of companies 29
Children 29
Negligence in allowing children access to firearms 29
Supervision of young children 29
Running down children 29
Handling of heavy equipment 30
Security guard from security firm failing to guard premises 30
Sudden emergency 30
Learner drivers 31
Driving without licence 31
Persons with physical disabilities 31
Capacity to be negligent 32
Voluntary conduct 32
Res ipsa loquitur 33
Professionals 34
Medical practitioners 35
Legal practitioners 40
General 40
Allowing claim to prescribe 41
Security for loans 42
Negligent handling of trust funds 42
Other cases 42
Liability of lawyers to third parties 43
Compensation for persons suffering loss from dishonesty by lawyers 44
Court work 44
Accountants and auditors 45
General 45
Liability to client 45
Liability to third parties 46
Liability to share investors 46
Engineers, architects and constructors 47
Failure to allow rape victim a timeous termination of pregnancy resulting from rape 47
Trainees and newly qualified professionals 47
Apportionment of damages (contributory negligence) 48
General 48
Intentional wrongdoing 49
Failure to wear seat belts or crash helmets 49
Contributory negligence of children 50
Concurrent and joint wrongdoers 51
Joining of wrongdoers 52

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 Apportionment in respect of dependant’s claim 52
Defence of voluntary assumption of risk in respect of dependant’s claim 54
No deduction of certain benefits 54
Wrongfulness (unlawfulness) 54
Range of Liability 55
Areas where wrongfulness issue arises 56
Omissions 56
Creation of a dangerous situation by prior conduct 57
Control over a potentially dangerous situation which D did not create 57
Public office or calling and special or protective relationship 57
Municipality cases 58
New legal duties 59
Negligent misstatement inducing contract 67
Negligent misstatements causing purely pecuniary loss 68
Purely financial loss caused other than by negligent misstatements 72
Cases where no potentiality for multiplicity of claims 73
Cases where exist no potentiality for multiplicity of claims but legal policy reasons for denying liability 74
Cases with potentiality of multiplicity of claims 75
Third parties injured 77
Illegitimate trading practices 78
Injurious falsehood (disparagement of P’s business or P’s goods) 81
Passing off 82
Stealing or disclosing trade secrets 86
Interference with contractual relations and business 89
Other forms of unlawful interference in trade or business 90
Other forms of unlawful interference in trade or contractual rights 91
Nervous shock 91
Situations in which nervous shock can be caused 92
Fear for personal safety 93
Shock due to witnessing injury to third party 93
Aftermath cases 94
Coming to rescue of victims in disaster like train crash 95
Witnessing a disaster involving injury to numerous people 95
Problems with the reasonable foreseeability test as the sole determinant of liability 95
Intentional infliction of nervous shock 95
Duty of care concept 95
Causation 96
General 96
The thin skull rule 100
CHAPTER 3 - DEFAMATION AND OTHER ACTIONS UNDER ACTIO
INJURIARUM 102
General 102
Defamation 102
Competing interests 102
Animus injuriandi 103
Liability of distributor of published material 104
What constitutes defamation 104
 Test for defamation 108
Primary and secondary defamation 110
Proof of bad character of plaintiff 111
Persons who can be defamed 111
Reference to plaintiff 112
Publication 114
Liability of D for re-publication 114
Electronic publication 115
Interdict 115
Defences to defamation 117
Unavailable defences 117
Justification 118
Non-negligent publication by press of information in public interest which turns out not to be correct 120
Fair comment 121
Privilege 124
Compensation 132
Jest 132
Rixa 132
Consent 132
Damages 133
Punitive damages 136
Customary law defamation 137
Newspapers and defamation 137
Test applied 137
Defences 138
Disclosure of sources 138
Reporting Parliamentary proceedings 138
Reporting court proceedings 139
Reporting proceedings of other public bodies 141
Reporting public meetings 141
Investigative reporting 142
Accuracy 142
Suggested changes to law 143
Actio injuriarum(excluding defamation) 144
Insulting, humiliating and degrading treatment 144
Invasion of privacy 145
Wrongful court proceedings 150
Actions for injuria involving police misbehaviour 150
Defences to action for injuria 151
CHAPTER 4 - DELICTS ARISING OUT OF ARREST, IMPRISONMENT AND
LEGAL PROCEEDINGS 152
Unlawful arrest and imprisonment (false imprisonment) 152
Abuse of legal proceedings (Malicious legal proceedings) 157
CHAPTER 5 -ASSAULT 162
CHAPTER 6 - HARM CAUSED BY ANIMALS 164
Aquilian action 164

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 Pauperien action (domesticated animals) 165
The action 165
Defences 166
Quasi-pauperien action (wild animals) 167
Edict concerning wild animals (Edictum de feris) 167
Harm caused by grazing animals (Actio de Pastu) 168
Nuisance 168
Cattle and other animals on rural roads 169
CHAPTER 7 - NUISANCE 170
Private nuisance 170
Public nuisance 171
CHAPTER 8 - SPECIAL DELICTS RELATING TO THINGS FALLING FROM
BUILDINGS 172
Actio de effusis vel dejectis 172
Actio de positu vel suspensi 172
CHAPTER 9 - DELICTS RELATING TO SEXUAL INTERCOURSE AND TO
MARRIAGE 172
Seduction 172
General law 172
Customary law 173
Breach of promise to marry 173
Adultery 173
Abduction, enticement, harbouring of another’s spouse 177
Bigamy 177
CHAPTER 10 - BREACH OF STATUTORY DUTY 177
CHAPTER 11 - NEGLIGENT PERFORMANCE OF STATUTORY DUTY 178
CHAPTER 12 - STRICT LIABILITY UNDER STATUTE 179
CHAPTER 13 - VICARIOUS LIABILITY 181
Doctrine 181
Does vicarious liability have to be specifically pleaded? 181
Rationale for doctrine 181
Requirements 183
Employee who is not independent contractor 183
Course of employment 183
Deviation from course of employment 185
Cases where D still in course of employment despite deviation 185
Cases where employer not liable because employer had abandoned the work 186
Disobeying instructions 188
Cases where instructions merely regulated conduct within sphere 188
Cases where instructions limited the sphere of employment 190
Crimes committed by employees 191
Where employer still liable 192
Where employer not liable 194
Other cases on vicarious liability 196
Claim by employer against employee 196
Liability of employer based on negligence 196
Delicts committed by independent contractors 197
Client engaging lawyer not vicariously liable for delict of lawyer 199
Liability for person not employed by defendant 200
 Vicarious liability of State 200
Parents 203
Spouses 203
Vicarious liability for wrongful property attachment by Sheriff & Messenger of Court 204
CHAPTER 14 - DEFENCES 204
Authority 204
Necessity 205
Private defence 206
Provocation 206
Voluntary assumption of risk 207
General 207
Which test should Zimbabwe adopt? 209
Intentional infliction of harm 210
Dependant’s action 210
CHAPTER 15 - EXEMPTION CLAUSES EXCLUDING DELICTUAL LIABILITY 211
Consumer protection legislation 211
Exemptions that are not allowed 212
Requirements for exemption clauses to apply 213
Inevitable accident 214
Public policy 214
Trivialities 215
Negligence of third party 215
Contributory negligence 215
CHAPTER 16- REPRESENTATIVE AND CLASS ACTIONS 215
Representative actions 215
Class actions 217
CHAPTER 17 - PRESCRIPTION 218
CHAPTER 18 - LEGISLATIVE COMPENSATION SYSTEMS 220
Workers compensation 220
War victims 221
Persons suffering loss due to activities of dishonest lawyers 221
Persons injured by uninsured or hit and run drivers 221
Victims of crime 221
CHAPTER 19- INSURANCE 222
CHAPTER 20 - ASSESSMENT OF DELICTUAL DAMAGES 223
General aspects 223
Single action 224
Special and general damages 226
Medical and hospital expenses 227
General damages 227
Pain and suffering 229
Disfigurement 231
Disability 231
Loss of amenities of life 232
Loss of earnings and of earning capacity 232
Loss of support 235
Parties who may sue in cases of bodily injuries and death 239
Father 239
Husband 239

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 Wife and children 240
Children 241
Parent 241
Sibling 241
Relatives under customary law 241
Employer 241
Heirs 241
Property damage 242
Interest on damages 243
Duty to mitigate loss 243
Collateral source rule (res inter alios actae) 244
Gratuitous payments 244
Indemnity and non-indemnity insurance 244
Collateral source rule in South Africa 245
Benefits not deducted from damages claim 246
Benefits deducted from the damages claim 246
Subrogation in motor accident delictual cases 249
Cases where D is at fault for accident 249
Cases where insured party is at fault 249
Statutory provision applying in Zimbabwe 250
Loss of support damages generally 250
Compensation of workers 251
Inflation (fall in value of money) 251
Selected cases on damages for personal injury 251
REFORMING LAW OF DELICT 256
Social context 257
Individual responsibility 257
Social responsibility 258
Operational defects of fault system 259
Particular shortcomings of fault system for underprivileged people 260
Need for reform 261
Possible reform measures 261
Government no-fault scheme 261
Private no-fault scheme 261
Strict liability 262
Harm caused by criminals 262
Establishment of a Road Accident Fund 262
DELICTUAL ACTIONS IN CUSTOMARY LAW 263
General aspects 263
Specific customary law delicts 263
Unlawful killing 263
Rape 263
Assault 263
Wife and child beating 264
Unreasonable criticism of wife 264
Harm caused by animals 264
Defamation 264
Speaking disrespectfully to another 264
Lying 264
Quarrelling 264
Adultery 264
Persuading wife to leave husband 265
Seduction 265
Apportionment of damages 266
Collision between vehicles 266
Collision at robot controlled intersection 267
Collision at night with stationary vehicle on road 267
Collision with parked stationary vehicle obstructing traffic 268
Vehicle turning right colliding with overtaking vehicle 268
Collision with pedestrian 269
Collision with cattle on road 269
Other cases 270
Contributory negligence of children 270
Intentional wrongdoing 270
Joint wrongdoers 271
Dependant’s action 271
Additional compensation under workers’ compensation system 271
Costs where apportionment 271
Failure or refusal by passenger to wear seat belt or crash helmet 271
Concurrent wrongdoers 272
Joint wrongdoers 272
List of Zimbabwean legislation 273
List of Cases 274

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Note

Throughout this Guide the following abbreviations will be used–

“P” for Plaintiff;
and
“D” for Defendant.

CHAPTER 1 - INTRODUCTION
Definition of a delict
The word “delict” is derived from the Latin word delictum, meaning a wrong. In England and
America the term used for what we call a delict is a tort. The word “tort” is also derived from a
Latin word, namely, tortus meaning twisted or wrong. In oursystem we refer to the law of delicts,
whereas in English and American law they refer to the law of torts.

The law of delict is a branch of private law fallinNg under the law of obligations. It deals with
civil wrongs as opposed to criminal wrongs. It does not, however, cover all civil wrongs. The
special rules relating to the legal consequences of breaches of contracts,which are also civil
wrongs, are dealt with under the law of contract and not the law of delict. Although the same act
or omission may constitute a delict and a crime,or both a delict and a breach of contract, the law
of delict must be carefully distinguished from criminal law or contract.

A delict has been variously defined as:

 A civil wrong to an individual for which damages can be claimed for compensation
and for which redress is not usually dependent on a prior contractual undertaking to
refrain from causing harm.
 An unlawful, blameworthy act or omission which causes damage to a person or his or
her property, or injury to personality, and for which a civil remedy for recovery of
damages is available.
 A breach of a general duty imposed by law giving rise to a civil action at the suit of the
injured person.
 The breach of a duty, imposed by law, independently of the will of the party bound,
which will ground an action for damages at the suit of any person to whom the duty
was owed and who has suffered harm in consequence of the breach.

Purpose of the law of delict

From these definitions we can discern that the essential purpose of the law of delict is to afford a
civil remedy, usually by way of compensation, for wrongful conduct that has caused harm to
others. This civil remedy is not in any way dependent upon the existence of any contractual
relationship between P and D. The law, thus, imposes a general duty upon all persons not to harm
others wrongfully and sets out to define when an act or omission is wrongful so as to attract civil
delictual liability. An English writerdepicts this as follows:

The law of torts constitutes a body of liability rules. These rules signal when a person is to
compensate another by the payment of damages or to be restrained from doing certain acts by
way of injunction. [In our law this is known as interdict.] Those rules, then, indicate whether
or not losses caused by human conduct will be shifted from one party to another (or the loss
will be where it falls).

In broad terms, the law of delict acts as a regulator of social conduct in the sense that it
establishes how people should behave in relation to one another by laying down when one
person is delictually liable to another. The wrongdoer who causes harm is made to pay
compensation to the wronged person.

The two main types of loss for which compensation can be claimed under the law of delict are
wrongs of substance leading to financial loss; and wrongs to personality leading to sentimental
loss. Wrongs of substance are wrongs that cause tangible harm, such as injury to person
(including psychological harm), damage to property and harm to economic interests. Wrongs to
personality are those that cause intangible harm, for example, by harming reputation or
subjecting a person to indignity.

Not every type of harm suffered by a person is actionable in the field of delict. A person can only
sue successfully in delict if the law of delict recognises that there is legal liability for that type of
harm. An easy example of where the law of delict does not provide a remedy for loss is where P
and D are both store-owners and D lowers the prices of his goods so as to attract to his business
the customers who have previously been buying those goods from P’s store. Trade competition is
the essence of a free market economy and, in such an economy, the law allows such competition
and thus provides no remedy for the person who suffers economic loss as a result of such
competition.

Interests protected by the law of delict

The law of delict seeks to protect against or provide remedies for:
 injury to persons;
 damage or destruction of property;
 harm to personality interests (harm to reputation, dignity and privacy;
 business, trade and economic interests.

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Courts in which delictual claims can be brought

The High Court, the Magistrates Court and the Small Claims Court hear delictual cases. Which
of these courts hears the case depends upon the financial jurisdiction of the court. The Small
Claims Court can hear delictual claims involving an amount up to $1000. (SI 34 of 2016)

Delict, contract and crime

Delict and crime
The main object of a criminal prosecution is the punishment of the offender whereas a delictual
action is a civil action in which the injured party will be claiming compensation. Many wrongs,
however, can lead to both criminal prosecution and, also, a civil claim. Wrongs, such as negligent
driving resulting in a collision with another vehicle, assault, and rape, are all crimes for which
persons can be punished and delicts for which the wrongdoers can be made to pay compensation
to the persons injured by the wrong. Some wrongs, however, are only delicts and are not crimes,
such as, seduction and adultery.

Section 4 of the Criminal Procedure and Evidence Act [Chapter 9:07] provides that neither a
conviction nor an acquittal following on any prosecution will be a bar to a civil action for
damages at the instance of any person who may have suffered any injury from the commission of
any alleged offence. See Mpofu v Delta Beverages HH-131-14 where it is pointed out that the
doctrines of autrefois convict and autrefois acquit do not apply in this situation.

Section 31 of the Civil Evidence Act deals with proof of a previous criminal conviction in a civil
case. The effect of this section is that evidence is admissible in a delict case that the defendant
has been convicted by any court or military court in Zimbabwe or elsewhere. It further provides
that in any civil proceedings if it is proved that a person has been convicted of a criminal offence,
it will be presumed unless the contrary is shown—
 that he did all acts necessary to constitute the offence; or
 where the offence is constituted by an omission to do anything, that he omitted to do that
thing;

However, the section that evidence of a conviction may not be adduced if there is an appeal
pending until the appeal has been finally determined or has lapsed or been withdrawn or
abandoned. On the other hand, evidence of a conviction can be adduced even if the person has
subsequently been pardoned.

The section provides what documentary evidence of a conviction can be produced as prima facie
evidence of a conviction. The documents in this regard are a document—
 that purports to be a copy of the record of the criminal proceedings concerned or a copy
of any part of the record which shows that the person was convicted of the offence; and
  that is proved to be a true copy of the original record or part thereof or purports to be
signed and certified as a true copy by the official having custody of the original record.

It is permissible to produce any other evidence that proves that a person has been convicted of an
offence.
Delict and contract
The main object of a contractual action is either to enforce the contractual obligation or to obtain
damages for breach of the contract. This is different from a delictual action. The table below sets
out the major differences between a delict and a contract.

Delict Contract

General obligation imposed by law
Compensation for monetary or sentimental loss
Fault is normally the basis of liability although,
for a few delicts, liability is strict and does not
require proof of fault
Obligation derives from agreement between parties
Compensation for breach of contract
Proof of fault not required

Obviously P can’t obtain double compensation by claiming damages both for breach of contract
and in delict.

It should be noted that, whereas delict requires fault for liability, the person claiming for breach
of contract is not required to prove fault on the party of D. Also, in delict, there can be a claim
for intangible harm such as pain and suffering whereas this cannot be claimed for breach of
contract.

It is accepted that where a doctor contracts to treat P and fails to do so or negligently performs
medical procedure and as a result P suffers physical harm, Pcan sue in either contract or delict.
(It may be better to sue in delict as P can then claim damages for pain and suffering.) In the case
of Chibage v Ndawana 2009 (2) ZLR 387 (H) the court decided that, in a case of professional
negligence by a doctor, our law acknowledges a concurrence of actions where the same set of
facts can give rise to a claim for damages in delict and in contract, and permits the plaintiff in
such a case to choose which he wishes to pursue.

It is often better to sue in delict because the patient may obtain damages in delict, not only for
patrimonial loss, but also for sentimental harm such as pain and suffering.

This approach was adopted in the case of Cathkin Park Hotel & Ors v Makesch Architects & Ors
1993 (2) SA 98 (W). Here Ps claimed damages suffered in consequence of a fire in a hotel owned
by P1 and leased by P2. The Ds had all been involved in either the design or construction of the
hotel. They brought an Aquilian action alleging that D1 and D2 breached their duties of care
towards Ps, such breaches being breaches of their contractual obligations to the Ps. The Ps

4
claimed delictual damages. D1 excepted on grounds that the claim should have been in contract
and not in delict. D1 argued that that the grounds of negligence did not give rise to a duty of care
in the light of the contractual relationship between the parties.D2 also excepted to the claim,
averring that its duties to P1 arose out of and pursuant to a contract between them and P1,
accordingly, had nocause of action arising out of theAquilian actionand was limited to its
contractual rights.

The court dismissed the exceptions, holding that the damages claimed were classically those of
patrimonial damages, as distinct from contractual loss, arising out of physical damage to
property: the present case was not one of pecuniary or economic loss. Where the case was one of
physical injury to person or property, the Aquilian action clearly lay and no extension of the
Aquilian action was necessary. If the breach of the duty of care was accompanied bynegligence,
damages could be claimed in delict: such duty was owed to the first plaintiff; it had been clearly
spelled out, it was a contractualduty which had been breached accompanied bynegligence.

This approach is, however, confused as a result of the decision in Otto v Santam Insurance &
Another 1992 (3) SA 615 (O). In this case P’s car was involved in an accident. P was insured by
insurance company. The insurance company sent the car for panelbeating. The panel beaters
negligently performed the work. The chassis of the car had bent in the accident and the panel
beaters had not bent it back enough. This caused the car’s cooling system to malfunction and this
resulted in damage to the engine. P sought to sue both the insurance company and the
panelbeaterfor damages in delict.

The court held that P should have sued the insurance company in contract. The insurance
company was liable to P under the insurance contract for damage caused to the car in the
accident. The insurance company had elected to repair car and therefore had a contractual
obligation to repair the damage in a proper and workmanlike manner to the extent that the
vehicle was for all practical purposes restored to the same condition in which it was before the
accident.

Burchell Principles of Delict at p 7 argues that, as the loss here resulted from physical harm to
property, an action in delict should have been allowed.

In respect of purely economic loss if there is a contract , again the question arises whether the
claim should be in contract or in delict.

In Lillicrap, Wassenaare and Partners v Pilkington Brothers (SA) (Pty) (Ltd) 1985 (1) SA 475
(A) P, glass manufacturer, contracted structural engineers to examine the suitability of soil for
construction of float glass works.For this type of glassworks, the level of the ground and of the
buildings is of utmost importance. The engineers gave a favourable report on the soil for this
purpose. The engineers had also agreed to design the works and supervise their construction. P
went ahead with construction under the supervision of engineers. After some work had been
done, P assigned his rights and obligations under agreement with the engineers to S, the main
contractor. After the works were completed, it was found that because of movements in soil, the
functioning of vital areas of glass works was impaired and P sustained substantial loss in
repairing faults in works.P then sought to sue the engineers for the loss suffered, claiming they
had been negligent in their examination of soil by failing to exercise the necessary professional
skill and care, thereby causing P the loss. (P could not sue in contract as the contractual claim
had prescribed.) The majority held (with one dissent) that it is undesirable to extend the Aquilian
action to duties subsisting between parties to contract of professional service like this one. The
delictual remedy is unnecessary and parties should not be denied their reasonable expectation
that their reciprocal rights and obligations would be regulated by their contractual arrangements
and would not be circumvented by the law of delict. These considerations did not fall away when
contract was assigned: the same arguments militating against delictual duty applied where the
relationship is tripartite.

Burchell at p 7 also criticizes this case. Burchell gives this example: P employsan architect to
design a building. The architect then sub-contracts a builder to construct the building and the
builder negligently uses sub-standard materialsand as a result the building is unsafe. He points
out that if the building collapses and P is injured, he can claim delictual damages from the
negligent builder. But, the Lillicrap case would seem to say that if the building does not collapse,
but P has to spend money to repair the building and make it safe,he can’t claim the purely
financial loss from the builder in delict but must instead sue the architect in contract.

Neethling and Potgieter and Visser at pp 259-260 say that it appears that the courts will not
readily allow a delictual remedy independently of a contract in cases of purely economic loss.
Normally where professionals like legal practitioners, auditors and architects act negligently, P
will only be able to claim in contract. But they then say that in the case of Pinshaw v Nexus
Securities Pvt Ltd 2002 (2) SA 584 (W) the court held that the Lillicrap judgment did not apply
to contracts with quasi-professionals like those providing financial services who present
themselves as experts. Further, in the case of Holzhausen v ADSA Bank 2000 (5) SA 630 (SCA)
the court laid down that even where the claim is for purely economic loss, a delictual claim for
damages would be allowed there the claim did not depend upon breach of a contractual duty but
rather general delictual principles of negligence. Here the claim was for negligent
misrepresentation.

If the Zimbabwean courts follow this approach, then in certain instances delictual claims for
purely economic loss will be allowed in some instances even though the parties were in a
contractual relationship. For instance, if the imposition of liability on D will lead to liability to a
multiplicy of actions

6
Can affected third parties claim?
Loubser and Midgley at pp 218-219 refer to a situation where security company is engaged by
the owner of a building to guard the entire building. If the security company fails to carry out the
guard duties properly can it be held delictually liable to third parties occupying portions of the
building, such as those who rent apartments or offices in the building or to persons who park
their cars in a parking garage? If the security company negligently performs the contract and
items are stolen from the premises which belong to third parties, can third parties bring a
delictual claim against the security company? The authors say that the security company will be
delictually liable to the third parties if it can be found that the security company owed a legal
duty to them because it has created an expectation on the part of the third parties that their
property will be protected. They go on to say this. “Creating such an expectation is not
conclusive and the courts will take into account whether the plaintiff could reasonably have
relied on the security services for protection, and all the other circumstances of the case,”

In the case of J Paar & Co (Pvt) Ltd v Fawcett Security 1987 (2) SA 140 (ZS) a security
company contracted with an oil company to guard its premises. A transport company had certain
vehicles on the premises as part of its contract with the oil company. One of these vehicles was
stolen by an employee of the oil company and destroyed. The transport company instituted action
in delict against the security company claiming damages in delict for the loss of the vehicle
alleging the negligent breach by the security company of a duty of care owed by it to the
transport company to prevent the theft of its vehicle. The court held that the security guard was
not negligent in failing to prevent the theft of the vehicle. Obiter, however, the court stated that
negligent infringement of a contractual obligation may give rise to delictual liability even where
there would have been no initial obligation to act but for the contract. A duty of care arises where
there is sufficient proximity of relationship between the parties concerned. Such proximity did
not exist between the parties in this case. But see (1988) 105 SALJ 395 for heavy criticism of the
approach of the Supreme Court in the J Paar case.

Fault liability system

Most delictual actions in our system require proof of fault. There are only a few strict actions,
such as the Pauperien action, where no proof of either intention or negligence is required. All the
rest of the actions require proof of either intention or negligence. Some actions, such as fraud and
assault, require proof of intention. By far the most frequently brought action in our system, the
Aquilian action, requires proof of either intention or negligence. Most Aquilian actions are based
upon allegations of negligence. Negligence is, thus, the most important species of fault in our
system of delict.

The theory underlying the fault liability system is that a blameworthy individual who injures
another intentionally or carelessly should be made to compensate the injured party. The
defendant is “punished” by having to pay money to the plaintiff. This causes him suffering and
acts as a deterrent in the future and thus helps to reduce the accident rate in society. However, the
defendant should only be made to pay for the loss (i.e. the loss should only be transferred to him)
if defendanthas been at fault. It is seen as being unfair to make defendant pay the loss if not at
fault. But this theory is premised upon payment for the loss by the wrongdoer himself. In many
instances in the modern world, the defendant will be covered by liability insurance and the
insurance company, and not the defendant, will pay the loss. The only “punishment” that the
insured person may suffer is that they may sometimes lose their no claim bonus. As the injurer
does not personally pay for the loss, there is little deterrent effect. Loss spreading also
undermines deterrence. For example, a manufacturer who is made liable to pay damages for the
harm caused by a poorly manufactured product may be able to absorb the costs of this liability
by passing them on to customers by raising the prices of the products. (There are clearly limits to
this process. Manufacturers are likely to go out of business if they continue to manufacture
shoddy products and seek to pass the liabilities incurred for harm caused by such products on to
their customers.)

The fault liability system has been the subject of a lot of criticism. These criticisms will be dealt
with later in the section entitled “Reforming the Law of Delict.”

Sources of law of delict

Zimbabwe’s general law of delict is derived from Roman law, as received and developed in
Holland and further developed in Southern Africa. It has been heavily influenced by South
African law. The law of delict has been adapted to suit the contemporary conditions in
Zimbabwe. The customary law relating to the field of delict was developed in Zimbabwe.

Onus of proof
The general evidential rule that applies in all delict cases is that the plaintiff must prove his or
her claim on a balance of probabilities. Where a defendant seeks to rely upon a defence to
liability, he or she must prove the defence on a balance of probabilities.

Financial means of defendants

In deciding upon liability in delict the financial means of D is not considered: the fact that D is
poor does not affect liability or serve to reduce the amount of damages to be awarded. The
amount of damages is assessed on the basis of the loss or damage caused and not on the basis of
the capacity of D to pay.However, in practical terms, there will be no point in suing a completely
impoverished, uninsured defendant.

Development of law of delict under constitution by courts

The law of delict is not a static branch of the law. It has shown itself to be capable of
development and adaptation in the light of changing conditions in society. For instance, the

8
concept of negligence can be applied to situations arising out of modern industrial and
technological developments. Particularly in South Africa, the ambit of legal duty for public
authorities in respect of liability for omissions has been broadened based upon the concept of the
legal convictions of the community. We need to explore how the constitutional provisions can be
used to develop and expand the common law of delict further. We can draw from South African
case law in which the courts have relied on constitutional values and fundamental rights
guarantees to re-shape certain areas of the law of delict. The Constitution of Zimbabwe contains
many values and rights which are identical, or at least very similar, to those in the South African
Constitution. Therefore the jurisprudence in these South African cases is of importance in the
development of the law of delict in Zimbabwe.

The Constitution of Zimbabwe obliges the courts to develop the common law in line with the
Constitution, delict being a branch of law that is governed primarily by the common law. Section
46(2) of the Constitution of Zimbabwe provides that when developing the common law, every
court must promote and be guided by the spirit and objectives of the fundamental rights
provisions in Chapter 4 of the Constitution.

Section 176 provides that the Constitutional Court, the Supreme Court and the High Court have
inherent power to develop the common law, taking into account the interests of justice and the
provisions of this Constitution. Like the Zimbabwean Constitution the South African
Constitution in section 19(2) provides that when developing the common law, every court must
promote the spirit, purport and objects of the Bill of Rights.

Section 3 of the Constitution of Zimbabwe contains the founding values and principles that must
be respected. These include the supremacy of the Constitution, the rule of law, fundamental
rights and freedoms, the recognition of the inherent dignity and worth of each human being,
equality, gender equality and good governance. Chapter 4 contains the fundamental rights
provision such as the right to life, the right to personal liberty, the right to dignity and the right to
personal security.

In South Africa, as will be seen later, the courts have been active in developing the common law
of delict so as to accord with the constitutional provisions. This has been most evident in relation
to the development of the law on omissions by expanding the ambit of legal duty, especially by
state institutions such as the police. It has also been seen in the development of the issue of
vicarious liability of the State for illegal actions by the police.

Delictual actions in general law

By far the most important actions in our law of delict are the Aquilian Action (actio legis
Aquiliae) and the actio injuriarum. The overwhelming majority of cases brought to court are
Aquilian actions for negligent causing of harm. Actions brought under the actio injuriarum
usually involve the claiming of damages for defamation.

Essentially, the Aquilian action provides a remedy for what are known as wrongs of substance. It
provides a remedy for loss due to:
 injury to person including psychological harm (for example, where a person is injured
in a motor vehicle accident);
 for damage to property (for example, where D starts a fire on his land and the fire
spreads to P’s land and causes damage to his property);
 harm to economic interests (for example, where D defrauds P and causes him financial
loss); and
 loss of support (for example a young child is left without support when her parents are
killed in a motor vehicle accident).

On the other hand, the actio injuriarum provides a remedy for wrongs to personality. It provides
a remedy for sentimental loss or intangible harm. This harm can be:
 harm to reputation, that is, harm to one’s standing in the eyes of others (for example a
newspaper publishes an article about P in which it alleges that P has engaged in
corruption);
 harm to dignity, (for example, D makes sexual advances to P, a woman); and
 invasion of privacy (for example, D, a policeman, enters P’s house to carry out a
search of the premises when he has no search warrant and there was no lawful
justification to carry out the search).

In Ritenote Printers (Pvt) Ltd v A Adam & Co (Pvt) Ltd 2014 (2) ZLR 314 (H) the court set out
in detail the distinctions between the Aquilian action and the actio injuriarum and pointed out
that where one wrongful act causes both patrimonial loss and personality harm both causes of
action must be pleaded separately. In this case P1 had been wrongfully evicted by D from
premises P1 was leasing from D. P1 was claimed it had suffered patrimonial loss as a result of
loss of trade arising from the eviction. P2 was a director in P1’s company claimed that the
eviction of P1 had led him to suffer from chronic depression and made him unable to run the
affairs of P1.

In addition to these two major actions, there are certain other delictual actions which have their
own separate and distinct requirements, such as the Pauperien action for harm done by animals,
the action for seduction, the action for wrongful arrest and imprisonment, and so on.

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 CHAPTER 2 - AQUILIAN ACTION
This action is the cornerstone of our law of delict. Most of the delictual actions that are brought
are Aquilian actions.

Requirements for liability

The requirements for this action are:

 There must be patrimonial loss to P, a person’s patrimony being his or her property
and finances. There must be some quantifiable financial loss stemming from D’s
conduct. This financial loss usually arises out of damage or destruction of property or
physical injury to a person or the causing of the death of a breadwinner. Sometimes,
however, the loss is purely financial not flowing from harm to person or property.
Loss includes prospective loss, e.g. loss of profits. Frequently, in an Aquilian action
for personal injury, damages are also claimed for pain and suffering.
 D must have inflicted the patrimonial loss intentionally or negligently (the fault
requirement); and
 There must have been some conduct on D’s part (i.e. an act or omission) which the law
of delict recognises as being wrongful or unlawful (the wrongfulness requirement);
 There must be a causal link between D’s conduct and the loss (the causation
requirement).

Fault requirement
It must be proved that D caused the harm either intentionally or negligently.The fault element
must be specifically pleaded.

In Nyaguse v Skinners Auto Body Specialists & Anor 2007 (1) ZLR 296 (H) the court pointed out
that fault is requirement for the Aquilian action. The fault element must be specifically pleaded
and proved in all Aquilian actions. This must be so even where P is able to establish wrongful
conduct and consequential harm and then relies on the principle of res ipsa loquitur to prove
fault on the part of D. Here, although fault might be inferable from the nature and circumstances
of the harm occasioned, it would still be necessary for P to plead some form of fault, viz. actual
intention or negligence, in order to enable a reasonable inference of liability to be drawn from
the proven facts. Even if fault can be implied from the peculiar circumstances of the case as a
matter of prima facie evidence, D’s reprehensible intention or negligence must be explicitly
articulated as a matter of pleading.
In Ndlovu v Debshan (Pvt) Ltd & Anor HH-362-12 the court observed that in an Aquilian action,
P must establish a wrongful act or omission as well as fault, in the form of intention or
negligence, in addition to causation and patrimonial loss. Failure to specifically plead fault
renders a declaration fatally defective as not disclosing a valid cause of action. In the present
case, Ds pleaded to the claim as couched. They saw it fit not to raise any complaint pursuant to
rule 140(1) of the High Court Rules to have the defect rectified. The matter proceeded through a
pre-trial conference, where the parties agreed that what was being pleaded was the lex Aquilia
and that the real issue for determination was whether D1 was vicariously liable for D2’s
wrongful and unlawful act of discharging a firearm at P. Where a trial is held, the defendants
having pleaded without complaint and having agreed to the issues at the pre-trial stage, fault can
be implied from the evidence led or to be adduced despite P not having specifically pleaded it in
the declaration.

In Rinenote Printers (Pvt) Ltd v A Adam & Co (Pvt) Ltd 2014 (2) ZLR 314 (H) the court stressed
the need for proof of both wrongfulness and fault. D had wrongfully caused the eviction of P
from premises it was leasing from. D but the court was not satisfied that there had been proof of
fault on the part of D because he was under a misapprehension about the law having relied upon
the wrong advice of its legal practitioner

Intention
Only rarely is the basis of the delictual action an allegation of deliberate and intentional infliction
of harm, although, of course, crimes such as assault and malicious harm to property are delictual
wrongs as well as criminal wrongs. Intention includes both knowing and deliberate infliction of
harm as well as cases where the main object is not the infliction of the harm but D recklessly
engages in some enterprise with realisation that the harm will probably or possibly occur.

Fraud is a delictual wrong that is based upon intentional action, namely, the intention to defraud.
This delict is committed when D, with intent to defraud, makes a statement to P knowing or
suspecting that the statement is false and intending that P will act upon the statement to his or her
prejudice.If P suffers financial loss as a result of such fraudulent deception, he is entitled to claim
damages.

In Coomer’s Motor Spares v Albanis 1979 ZLR 96 (GS) a car seller had fraudulently lied about
the car for sale. He lied about the model and its average price on the market. The buyer would
have paid less for the vehicle if he had known the true facts. The seller was liable to pay damages
for fraudulent misrepresentation and the amount of damages was the difference between what P
paid for the car and a reasonable price for a vehicle in that condition.See also Colt Motors v
Kenny 1987 (4) SA 378 (T) (D misrepresented year of a car being sold.)

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In Industrial Equity v Walker 1996 (1) ZLR 269 (H) D was guilty of fraud when he had sold
shares sent to him in error. D knew he had no right to the shares and had sold the shares knowing
that he had no right to do so. He was held liable on the basis of unjust enrichment.

See Smith & Youngson (Pvt) Ltd v Dubie Bros 1959 (1) R&N 351 (FS) (This case involved a
company director) and Best v Wonder Motors (Pvt) Ltd 1975 (1) RLR 124 (GS) (On damages.)

Where a person has sustained loss due to the dishonesty of a registered legal practitioner in the
course of his work as a legal practitioner, the injured party may be able to claim compensation
out of the Compensation Fund in terms of s 54 of the Legal Practitioners Act of 1981.

Rape is also a delictual wrong based upon intentional wrongdoing. In Nkosi NO v Moyo HB-43-
91 a fifteen-year-old girl was awarded damages for rape and in N v T 1994 (1) SA 862 (C) the
court awarded substantial damages for the horrifying crime of rape of an 8-year-old child. See
also M v N 1981 (1) SA 136 (Tk).

Negligence
Almost all Aquilian actions are based upon allegations of negligence. Negligence is a societal
norm (interpreted by judges) of socially desirable and acceptable behaviour. It is a community
standard to measure conduct. Negligence is a dynamic concept which can be adapted to social,
economic, scientific and technological changes in society.
Determining whether there has been negligence
Negligence is concerned with the protection of society against the dangers posed by a conduct
that falls below the standard of the average prudent person. The test applied for negligence is the
objective standard of the reasonable person.

In Munorwei v Muza HH-804-15 the judge said that when deciding upon whether there has
been negligence “a judicial officer called upon to give a value judgment is guided by his
own notions of justice and fair play. He is guided by the general norms and sense of values
generally prevailing in society. He makes an objective assessment.”

The first stage in any case of alleged negligence is for the court to decide the facts. The facts will
frequently be in dispute. P will be trying to establish facts that point clearly in the direction of
clear-cut negligence, whereas D will be seeking to show a version of the facts that point to a
complete lack of negligence. More rarely, the facts may not be in dispute but the parties will be
in dispute as to whether or not, on the agreed facts, there was negligence. The facts are vitally
important in a case of alleged negligence as whether or not there was negligence may turn on a
number of particular facts. Where the facts are disputed the court must carefully decide which
version of the facts to accept.
After the facts have been decided, the court has to determine how an ordinary, average,
reasonably careful Zimbabwean would have behaved in the circumstances. Often, the situation
may be one that has arisen in the past and there will be previous court rulings setting out what
constitutes negligence in a particular situation. This is particularly the case in motoring
situations. To take one example, there are numerous cases laying down that it is negligent for a
driver to attempt to overtake on a blind rise when there may be oncoming traffic. But if the
situation has not arisen in the past and the courts have thus not ruled on what constitutes
negligence in that situation, the court must decide what standard of care a reasonable person
would have exercised in that situation. Once it has determined this standard, the court will then
decide whether D’s conduct measured up to this standard. If it did not, he or she will be adjudged
to have been negligent. Negligence is thus the failure to display the same degree of care in
avoiding the infliction of harm which the reasonable person would have displayed in the
circumstances. The decisions in criminal cases which revolve around principles of negligence,
e.g. culpable homicide and negligent driving, can be cited as authority in civil cases because the
same tests for negligence which are applied in civil cases are also applied in criminal cases.

More specifically, the issue of negligence is examined by asking two main questions, namely,
whether the harm was reasonably foreseeable and, if it was, what steps would a reasonable
person have taken to guard against the harm ensuing.
Reasonable foreseeability
The first question to decide is whether in the particular circumstances of the case, the harm was
reasonably foreseeable.Below are some illustrative cases:

In Witham v Minister of Home Affairs 1987 (2) ZLR 143 (H) a mentally unstable policeman was
given a weapon and assigned to guard a house. He wandered off and shot some civilians. The
Ministry was held to have been negligent in arming him knowing of his mental state. It was
reasonably foreseeable that he might end up harming members and the Ministry owed a duty of
care to members of the public.

The case of Sea Harvest (Pty) Ltd v Duncan Cold Storage (Pty) Ltd 2000 (1) SA 827 involved a
situation in which someone fired a distress flare that landed on a store roof and set fire to the roof
guttering, leading to the destruction of the store. The building was made of non-combustible
material and the guttering could only ignite from a very high intensity heat source. There was no
sprinkler system inside the building, although there was fire fighting equipment. The court held
that although the possibility of fire was foreseeable and indeed foreseen, the maner in which the
fire started was not foreseeable and therefore the action against the engineer and the authority
that owned the building must fail.

In Minister of Safety and Security v De Lima 2005 (5) SA 575 (SCA) when interviewing an
applicant for a firearm licence the police officer was required to enquire into the suitability of the

14
applicant to have such licence. The police negligently failed to make proper enquiries and to
detect that the person concerned had a tendency to lose control of himself. The licence was
granted and later the licence holder shot and seriously injured P. The police were held liable to
the person shot as the act of the licence holder was reasonably foreseeable.

In Workmen’s Compensation Commissioner v De Villiers 1949 (1) SA 474 (C) a lorry nudged a
door as it entered into a municipal market. A workman was on a ladder resting against the door
unbeknown to the lorry driver. The impact with the door caused the workman to fall off the
ladder and he suffered injuries. The court found D not liable to the injured workman because the
presence of the workman was not foreseeable.

In Clarke v Welsh 1976 (2) SA 484 (A) when D, a beginner in golf, struck the ball, it travelled
almost at a right angle and had hit P in the eye. This occurrence was extremely rare even for a
beginner. The court found that this freak accident was not reasonably foreseeable and D was not
therefore liable for the injury sustained by P.

In Gordon v Da Mata 1969 (3) SA 285 (A) the trial court found D not liable as it was not
reasonably foreseeable that during the cutting of cabbage leaves a small piece of cabbage leaf
would fly that distance and land under P’s foot causing her to slip and fall and be injured in the
shop. The Appeal Court reversed this decision, deciding that the harm was reasonably
foreseeable in the circumstances.

In Stratton v Spoornet 1994 (1) SA 803 (T) P’s son aged 8½ climbed a pylon abutting a railway
line close to his home. He was badly injured when he was shocked by live cable suspended
across lattice-rack over railway line from a pylon on one side of the line to a pylon onother side.
There was no proper fence preventing access to railway line or pylon. P had repeatedly warned
his son not to venture onto the railway line but had not warned his son against climbing pylon
since it never crossed his mind that his son might do so.The court decided that D was not liable.
It accepted that it was reasonably foreseeable that a child might stray onto the railway line and
might be injured by being run down by a train. But it was not reasonably foreseeable that a child
would climb to the top of the pylon, climb along the latticework and suffer an electric shock or
fall from latticework. The records over 30 years disclosed that no such accident had ever
occurred.

In Palsgraf v Long Island Railway Co (1928) 284 NY 339 a passenger boarding a train dropped a
package due to negligence of two railway guards. The package contained fireworks and there
was an explosion. The force of the explosion caused some scales at the other end of the platform
to be knocked over. The railway company was not liable as it was not foreseeable that the
negligence in causing the package to be dropped would result in injury to P.
Foreseeability of general nature of harm and general manner of it occurring
Various cases have laiddown that it is neither necessary for the exact nature,nor exact extent, of
the loss to be reasonably foreseeable, nor for the precise manner of the harm occurring to be
reasonably foreseeable for liability to result. All that is necessary is that the general nature of
harm and general manner of the harm be reasonably foreseeable.

For example, in Minister of Police v Van Aswegen 1974 (2) SA 101 (A) a prisoner was being
conveyed in an ordinary vehicle by two police officer. The prisoner, who was in the back seat,
leant over, grabbed and sharply turned the steering wheel. The car swerved and collided with an
oncoming vehicle. The other vehicle happened to be carrying P’s valuable stud cattle. The
accident resulted in bad injury to some of the cattle which had to be destroyed. The court found
that the police officers ought to have foreseen and guarded against the prisoner’s attempt to
escape which might endanger other road users. The general manner of the harm occurring was
reasonably foreseeable as was the general nature of the harm and thus there was delictual
liability.

See also Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747 (A) at 768G.

This approach accommodates the thin skull rule where if harm is foreseeable D is liable for the
greater harm that arises from the victim having a special susceptibility or vulnerability like a
weak heart. See later under Causation.

But what if what is reasonably foreseeable was harm of a particular type (for instance, trivial
harm) but not harm of the character which actually occurred (such as serious harm)?

In Murray v Union Insurance 1979 (2) SA 825 (D) the kind or type of harm (grave injury to the
eyes of a motor cyclist who was not wearing gogglesfrom the exhaust fumes emitted from a bus)
was not reasonably foreseeable in the circumstances. What was foreseeable was minor irritation
and not serious permanent damage to the eyes from carbon and soot particles contained in the
exhaust fumes.

See also R v John 1969 (2) RLR 23; BAT Ltd v Fawcett Security Ltd GS-22-72; Kruger v van der
Merwe 1966 (2) SA 266 (A); Botes v van Deventer 1966 (3) SA 182 (A) and Doughty v Turner
Manufacturing Co (Ltd) [1964] 1 All ER 98.
Must harm to P be reasonably foreseeable?
The question also arises as to whether harm to the particular plaintiff must be reasonably
foreseeable or whether it is enough if the plaintiff formed part of a class of persons who might be
injured by the conduct in question.

16
In our law, negligence is a relative or directional concept. Thus, it is said that ‘negligence in the
air’ will not be sufficient to found delictual liability. Before P can succeed in a delictual claim, he
or she has to establish that D was negligent in relation to him. In other words, there may be
situations where D was negligent in his or her conduct, but yet he or she was not negligent as
regards the particular harm that P suffered. It may have been reasonably foreseeable that harm to
some other person might result but not reasonably foreseeable that in particular P would be
adversely affected.
Negligence in the air not enough
In Local Authorities Pension Fund v Nyakwawa & Ors 2015 (1) ZLR 103 (H) for several years
two of P’s employees stole from P. They conniving with two employees from bank to store the
stolen funds in fictitious bank accounts opened by them with the bank. P’s employees identified
pensioners to whom lump sum benefit payments were due. They would forward the details to the
bank employees who would open fraudulent bank accounts in the names of the pensioners, at one
of the bank’s branches. The bank employees would then illicitly facilitate the storage of the
stolen monies in those accounts. Afterwards P’s employees, with the assistance of the bank
employees, would then withdraw the loot and share it amongst the four of them.

P brought an action against the bank claiming that it was negligent in the conduct of its
operations. P averred that the bank was under a statutory duty to take measures to prevent the
bank from being used to commit or facilitate financial crime; that the bank had poor internal
standards, inadequate policies and procedures and internal controls that promote high ethical and
professional standards and poor to non-existent “know your customer” procedures, all of which
amounted to negligence on the part of the bank; and that there was a causal link between the
bank’s negligence and the defrauding of P. The bank excepted to the claim, on the basis that there
was no duty of care to the plaintiff; that the creation of the irregular accounts did not amount to a
delict on the bank’s part.

The court decided that negligence is the failure, judged objectively, to exercise that degree of
care expected in any given circumstances. It involves a duty of care and a breach of that duty. To
found a cause of action there must have been a duty of care owed to P that D ought reasonable to
have guarded against. Negligence in the air does not suffice. P was not a customer of the bank. If
the bank was negligent in the manner that it ran its operations, then such negligence was
classically negligence in the air. There was simply no nexus between such negligence and the
misfortunes of P at the hands of its own employees.

The fund has also argued that the bank was in breach of its obligations in terms of statutory
provisions, but it did not specify the statutory provisions. The court decided that even if P had
specified such statutory provisions, the breach of such provisions by the bank would have been
liable to suffer criminal sanction, that breach would still not transform into civil liability to the
plaintiff. As with negligence in the air, this would be “criminality in the air” in relation to the
fund.

This concept of relative negligence must not, however, be taken to mean that it is invariably
required that harm to a specific pre-identified plaintiff must have been prospectively reasonably
foreseeable. In many situations it is quite sufficient that it was reasonably foreseeable that harm
would result to persons within the field of danger created by D’s negligent conduct. For example,
if due to carelessness at a chemical factory there is an explosion and numerous people some
distance away in a public street are injured, the question is not whether those victims were pre-
identified but simply whether it was reasonably foreseeable that the explosion would result in
injury to any persons who happened to be in the street. This is sometimes expressed by saying
that injury to the class of persons of whom P was a member must be reasonably foreseeable.

Clearly, if D drives carelessly and loses control over his vehicle, D is liable to anyone who is
within the ambit of the danger created. If the vehicle veers to the wrong side to the road, and
collides with another vehicle causing injury to the other driver and passengers, D is delictually
liable for the injuries to all the injured persons including, for instance, a child asleep on the back
seat of the vehicle. If the car careers some distance off the road and hits a person, D is liable to
the injured person even if he or she did not see that person before he or she left the road.

However, in some cases in South Africa the court has declined to impose liability if harm to the
particular plaintiff was not foreseeable. In Prince v Minister of Law and Order1987 (4) SA 231
(E) D’s police officers fired shots at a fleeing vehicle in attempting to get the driver to stop. One
shot struck and severely injured P who was lying asleep on the back seat of the car. The court
held that P’s presence was not reasonably foreseeable to the police officers and the Ministry was
not liable to P.
Would reasonable person guard against harm?
The second question is whether the reasonable person would have guarded against that
harm. This enquiry is necessary because there are some situations where, despite the fact that
harm was reasonably foreseeable, the reasonable person might not necessarily have taken any
steps at all to prevent that particular harm or he or she might only have taken certain limited
precautions. Therefore, in addition to reasonable foreseeability, the question of what steps, if any,
the reasonable person would have taken has to be investigated. The way in which the enquiry is
customarily broken down into its component parts is as follows:

 If the reasonable person would have foreseen harm, would the reasonable person have
taken steps to prevent that harm from eventuating?
 If the reasonable person would have taken steps, what steps would the reasonable person
have taken?

18
  When deciding whether the reasonable person would have guarded against harm that was
reasonably foreseeable the courts will take into account the following factors:
 The degree of risk that the harm would occur (was it probable or unlikely that the harm
would occur?)
 The nature of the harm that would occur (if the harm occurred would it be serious harm
or only trivial harm?)
 The nature of the precautions required to prevent the harm (were these elaborate and
expensive or easy and inexpensive?)
 The objective that D was seeking to attain (was this legitimate or illegitimate?) or the
utility of his or her conduct.

See Mills v Farmery 1989 (2) ZLR 336 (H).

These factors are weighed against one another and the court then decides whether, on balance,
the reasonable person would have taken certain precautions. For instance, if D was pursuing a
legitimate objective, the risk of harm was very slight, the harm that might occur was likely to be
very slight, and the precautions necessary to prevent the harm were complicated and costly, the
court may well find that the reasonable person would not have guarded. On the other hand, if the
harm would be great and it was very probable that it would occur and the precautions to guard
against it are straightforward and not costly, the court will be likely to find that the reasonable
person would guard.

Below are some illustrative cases of how these four factors have been applied.

In City of Salisbury v King 1970 (1) RLR 141; 1970 (2) SA 528 (RA) the court decided that the
municipality was not liable. P had slipped on vegetable material at a vegetable market and had
been injured. The court found that it had not been established that the municipality had a
reasonable opportunity to remove the vegetable material before P slipped on it. The court found
that there were practical difficulties in keeping the floor free of vegetable matter at all times. The
size of the market and practical circumstances indicated that no reasonable precautions could
have ensured that there would ne no vegetable material on the floor.

In Lomagundi Sheetmetal v Basson 1973 (1) RLR 356 (A) dry maize stalks had been stacked
against the side of silo. A company engaged to erect a roof on the silo had been doing some
welding and the molten metal had landed on the dry material and the resulting fire had damaged
the silo and a nearby field. The court found that there had been negligence. Although the risk of
the fire starting was remote the damage would be extensive if it did start and the precautions
necessary to avoid the harm were straightforward.

In Mills v Farmery 1989 (2) ZLR 336 (H) a fire had started on D’s vacant piece of land and had
spread in a residential area causing damage to P’s property. D had allowed his land to become
overgrown with grass and this constituted a fire hazard. D was held liable as it was reasonably
foreseeable that a fire might start and spread to adjoining properties. A reasonable person would
have taken the relatively simple and inexpensive precaution of slashing or cutting the grass to a
point where it would be harmless. It did not matter that the fire may have been started by an
unauthorized person who had come onto D’s land as unauthorised persons had easy access to D’s
land.

In Peattie & Ors NNO v Clan Syndicate 1984 (4) SA 829 (W) a fire had started on D’s estate and
spread to P’s farm. The fire had started as a result of the use of a chainsaw. The court found that
there was negligence. Although the risk of a fire starting was slight, the damage would be
extensive and the precautions required would not be excessive in relation to the magnitude of the
risk.

In Young v Nortje 1979 (4) SA 97 (C) an old shotgun which was loaded but uncocked was left on
the floor of a truck. Either P or D had bumped it and it had gone off hitting P on the leg and
causing severe injuries. Although the chances of the shotgun being discharged were not great, if
it did go off there was a potentiality of severe injury and it was easy to take precautions against
this happening. D was held liable.

In Ngubane v SA Transport Services 1991 (1) SA 756 (A) P had suffered serious injury when he
fell off a train shortly after it had started moving to leave a station. It was the duty of the ticket
examiner to make sure that all intending passengers had embarked on the train and that all
disembarking passengers had in fact done so. The trial court found that it had not been proved
railway company had been negligent and had failed to prove that other reasonably effective
precautions could in the circumstances have been taken to prevent the appellant's fall from the
train in the circumstances and the company had proved that the risks to which P had been
exposed could not have been eliminated or minimised without substantial difficulties,
disadvantages and exorbitant costs, such factors outweighing the magnitude of the risk so that
the reasonable person would not in the circumstances have taken steps to prevent the risk of
harm. P appealed against the dismissal of his claim, contending that it had been proved that the
respondent had been negligent in failing to ensure that it was safe for the train to commence
moving. The Appeal Court held that whether the reasonable person would take measures to
prevent the occurrence of foreseeable harm depended on the circumstances of the case and that
there were 'four basic considerations in each case which influence the reaction of the reasonable
man in a situation posing a foreseeable risk of harm to others: (a) the degree or extent of the risk
created by the actor's conduct; (b) the gravity of the possible consequences if the risk of harm
materialises; (c) the utility of the actor’s conduct; and (d) the burden of eliminating the risk of
harm' that, on the evidence, it could hardly be contended that considerations (a) and (b) would
not have prompted a reasonable man to take steps to prevent the occurrence: the risk - in fact the
near certainty - of serious, if not fatal, injury resulting from starting a train when persons were in
the act of leaving or boarding a coach was as obvious as could be. On the facts of the case
20
factors (c) and (d) were not material: the evidence amply demonstrated that the act complained
of created a high risk of serious injury and to have prevented its occurrence, by carrying out the
procedures prescribed, would have involved no extra cost to the respondent; nor could the delay
involved therein, if it was at all significant, possibly weigh against the other considerations
requiring the necessary safety precautions to be taken. The court a quo’s reasoning missed the
point: the ‘effective precautions’ which would have prevented the occurrence were really
unrelated to difficulties of costs and requirements of public utility; the overcrowded coach in the
vicinity of the doorway may have played some part in P being thrust from it, but the real cause
thereof was the conduct of the railway officials in ordering or allowing the train at that stage to
proceed. Accordingly, that it had been proved that the negligence of the company’s employee had
caused P’s injuries.

In Wagon Mound (No) 2 1967 AC 617 the court decided that although the risk of a fire starting
was very slight, the precautions to prevent the possibility of a fire breaking out were very easy. D
was therefore held liable.

In Paris v Stepney Borough Council 1951 AC 367 the court found that although it was not usual
in the trade to supply goggles to workmen, the worker in question had only one eye and therefore
the injury that would occur if his remaining eye were harmed would be particularly serious. The
employer therefore had a duty to take special precautions to prevent injury to the worker’s eye by
supplying him with goggles. The failure to do this was negligent in the circumstances.

In Bolton v Stone 1951 AC 850 the court found that the precautions taken by the cricket ground
to prevent a cricket ball being hit out of the ground and injuring a passer-by were reasonably
adequate.

On injuries caused to passengers by trains moving off when passengers trying to alight from
them (which would also apply to buses moving off when passengers are still disembarking) see
Khupa v SA Transport Services 1990 (2) SA 627 (W) and Ngubane v SA Transport Services 1991
(1) SA 756 (A).

See also Straw v Porter & Anor GB-1-81 and Bickle v Minister of Law and Order 1980 ZLR 36
(G).

If the court decides that harm was reasonably foreseeable and that the reasonable person, having
foreseen this harm, would have taken certain precautions to prevent the harm from occurring, it
will find D guilty of negligence if, either, he or she failed to advert to the risk of that harm and,
because of this failure to appreciate the risk, he or she failed to take reasonable precautions to
prevent it, or if, although he was aware of some risk of harm, he or she failed to take reasonable
steps to prevent it.
Some specific situations of negligence
In actions based on negligence the courts have to deal with a wide range of situations. For
example, injury, death, property damage or harm to economic interests caused by:
 careless driving;
 dangerous conditions on land and in buildings;
 defects in manufactured products;
 faulty design or construction of buildings and bridges;
 careless handling of dangerous substances and firearms;
 improper medical treatment;
 inadequate control over dangerous animals;
 negligent advice by a lawyer or accountant to his client;
 failure to allow rape victim a timeous termination of pregnancy.

Some specific situations:

Dangerous conditions on land and in buildings

Note:
In English Law according to the doctrine in the 1867 case of Rylands v Fletcher, an occupier of
land is strictly liable if he or she brings onto his land an object or gathers on his land matter
which creates more than an ordinary risk of causing harm if it escapes from his land, e.g. water
in a dam or reservoir or explosives. The Rylands v Fletcher doctrine is not part of our law (See
Boberg p 17). In our law, ordinary principles of negligence would be applied to decide liability in
this situation.

In Spencer v Barclays Bank 1942 (2) SA 230D was liable to P who had slipped on highly
polished stairs at his block of flats.

In Burton v Cotton Research Board 1950 (4) SA 34 a factory was liable for injuries caused from
a hidden hazard (sunken alleyway) alongside the factory.

In City of Salisbury v King 1970 (1) RLR 141 (A) P was injured by slipping on some vegetable
matter on the floor of a vegetable market. The municipality was held not liable as it had taken
reasonable precautions to remove vegetable deposits from the floor by regular sweeping.

In Gent v Taylor 1972 (2) RLR 336 (A) P suffered injury as a result of a floorboard in a hotel
collapsing when he walked on it. The floorboard had probably been weakened by employees of
the hotel moving furniture over the floorboards. The hotel was held liable.

22
In Norman v Highway Construction 1975 (2) RLR 108 (G) a motorist hit a gravel dumps left on
the road. The company was held liable as it had taken totally inadequate steps to warn motorists
of the hazard.

In Jones v Maceys 1982 (1) ZLR 1 (H) an elderly customer, P, slipped on small piece of icecream
that had dropped onto shop floor. The supermarket was held not liable as had taken reasonable
precautions to keep walkways clean.

In Mungate v City of Harare & Ors HH-328-16 P suffered a broken leg after falling into a catch-
pit, part of a storm water drainage system maintained by the respondent council. The catch-pit,
located on a traffic island, was surrounded by uncut grass and was not covered by a lid and there
were no warning signs near it. There were no street lights illuminating the area.
The court held that the council was liable for P’s injuries. The state of the area, the lack of a
cover, and the lack of signage and lighting were clear signs of dereliction of duty by the council.
Whilst it was true that the catch pit lids were often stolen by thieves and destroyed by vandals,
there was no reason why the council failed to mow the grass, to provide street lighting and to put
warning signs of hazardous places like uncovered catch pits. The excuse that the council was
facing financial challenges was a lame one. A person is liable if, in terms of the law, he has a
legal obligation to take preventive action or positive action to prevent harm from occurring.
Uncovered catch pits were deadly hazards to people and the council had a legal duty to ensure
that they were regularly inspected to ensure that they were properly covered and that they did not
pose a danger to the public. The council was negligent and was not quick to take reasonable steps
to prevent occurrences such as happened to the plaintiff. It was the council’s duty to do
maintenance work on the catch pits. If the lids of the pits were stolen, the council had a duty to
replace them in order to prevent harm to the public. In light of frequent reports of uncovered
catch pits and being aware of the rampant thefts of catch pit lids, the council should have been
doing regular inspections of the catch pits, replacing the missing lids, mowing the grass around
the catch pits to ensure visibility, maintaining adequate street lighting to ensure visibility at night,
erecting danger warning signs to warn members of the public of the existence of open catch pits
and erecting barriers to block public access to the catch pits. The council failed to take any of
these steps in spite of its duty to maintain its infrastructure and preserve it in a manner that does
not pose danger to members of the public. Any failure in this duty which leads to injury attracts
liability.

In Cape Town Municipality v April 1982 (1) SA 259 (C) the municipality operated a number of
playgrounds in parks. At one of the playgrounds vandals had ripped out a plank from a revolving
platform upon which children played. A little girl jumped onto the platform when it was in
motion and her leg went through the gap created by the removal of the plank. She suffered
injuries. The court held that the municipality was not liable as it had taken reasonable steps to
ensure that the playground equipment in its parks was maintained.
In Van der Merwe v Zak River Estates 1913 CPD 1053 P’s property was damaged by a bursting
dam. D was held liable because he had failed to inspect and detect the fault in the dam and to
take steps to prevent the dam from collapsing.

In King v Dykes 1971 (2) RLR 151; 1971 (3) SA 540 (RA) the court decided that if a fire spreads
onto a farmer’s land he has a legal duty to take reasonable precautions to stop the fire from
spreading further, although he did not start the fire.

In De Villiers v Godley & Anor 1975 (1) RLR 108 (G) the court again dealt with a situation
where a fire had spread in a farming area.

In Cape Town Municipality v Paine 1923 AD 207 the municipality was negligent as it had failed
to take reasonable precautions to ensure that a wooden stand used by spectators was not unsafe.
A spectator was injured when he put his foot through a wooden plank on the stand.

In Kruger v Coetzee 1966 (2) SA 428 (A) P’s husband collided with a horse belonging to D. P
alleged that D had been negligent in failing to provide a guard at the gate to the field where the
horses were kept to ensure that the horses did not escape through this gate. The Appeal Court
decided that D was not liable as he had taken sufficient precautions to guard against the horses
going onto the road.

In Gordon v Da Mata 1969 (3) SA 285 (A) the trial court found that D was not liable as it was
not reasonably foreseeable that during the cutting of cabbage leaves a small piece of cabbage leaf
would fly that distance and land under P’s foot causing her to slip and fall and be injured. The
Appeal Court disagreed with the trial court decision found that the harm was reasonably
foreseeable and D was liable.

In Monderwa Farm v BJB Kirstein Ltd 1993 (2) ZLR 82 (S) a farmer built a dip tank. The
chemicals in the tank overflowed and contaminated a public stream during a storm. This resulted
in the poisoning of fish in the downstream fishery belonging to P. The chemical was harmless on
land, but it was dangerous if it polluted a stream. The pollution of a public stream is an offence
under the Water Act. D had a duty to take reasonable precautions to prevent the pollution of the
nearby river. He was liable as he had failed to take such steps and the harm was reasonably
foreseeable.

In Van Buuren v Minister of Transport 2000 (1) ZLR 292 (H) P’s aeroplane had been badly
damaged when it fell into a hole when taxiing across a grass patch at an aerodrome. Pilots had
been warned not to use this grass patch whilst taxiing but the air traffic controllers had not
enforced this prohibition. There was evidence that the grass patch was inspected daily because
pilots were using it. P claimed damages for negligence. The court held that before D could be
24
held liable, it would have to be shown that his servants were aware of the existence of the hole or
that their failure to notice it was due to negligence. The duty to guard against the likelihood of
harm presupposes that D is aware of the existence of a source of danger. In this case, the
employees did what was reasonably prudent to ensure the safety of the aerodrome. They had not
been shown to have been negligent.
Interfering with rights of landowners and occupiers
There is no separate delictual action for trespass in our law. If the owner of land can establish
that patrimonial loss was suffered through physical damage or through deprivation of occupation,
the action which should be brought is the Aquilian action. (See Boberg p170. McKerron The
Law of Delict at p 212 who say that the actio injuriarum could also be brought in certain
circumstances.)
Defective products
In order to recover damages from the manufacturer in Zimbabwe for harm, P must prove on a
balance of probabilities that the manufacturer was negligent in allowing the defect which caused
the harm to be present in the product when it left the factory. The manufacturer is only liable if
the defect was not caused as a result of mishandling of the item after it left the factory, for
instance, by a retailer and was not caused by failure by P to follow clear instructions by the
manufacturer on how to handle the product safely.

This used to be the position in South Africa but in 2008 legislation was passed the effect of
which is to make producers of defective products strictly liable for harm caused by their
products. Strict liability is also imposed upon those who distribute manufactured products.

The law in Zimbabwe follows the approach enunciated in the much referred to case of Donoghue
v Stevenson 1932 AC 562. In that case,P found a decomposed snail in a ginger beer bottle after
she had consumed half of its contents. She suffered shock and impairment of health. The court
held that in this sort of case the manufacturer could be liable if it was negligent in allowing its
products to be dangerously defective as it was reasonably foreseeable that the ultimate consumer
would suffer harm if the bottle of ginger beer contained such foreign objects. The bottle was
opaque and there was no possibility of any intermediate inspection before the consumer
consumed the contents.

In the case of Grant v Australian Knitting Mills 1936 AC 85 a doctor, P, suffered severe
dermatitis after wearing underpants which contained excess sulphites from the location where the
underpants were manufactured. The factory was held liable as the contamination of the
underpants caused the harm and it was foreseeable that they would be worn by the buyer without
being washed first.
In Zimbabwe there have been two cases involving substances found in a soft drink bottle and a
beer bottle respectively. Both cases primarily revolved around issues other than the negligence of
the bottling company but the court in both cases made some comments about the issue of
negligence.

In Delta Operations (Pvt) Ltd v Maraura S-106-99 P had drunk the remainder of the contents of
a bottle of beer left by his friend. It tasted flat and unpleasant. He abandoned it and started
drinking another beer. It was then discovered that there was a foreign object stuck at the bottom
of the beer bottle. P started vomiting and was taken to hospital. It was then discovered that the
foreign object was a used female contraceptive known as a diaphragm.The Appeal Court found
that the evidence was more consistent with the insertion of the foreign object by a third party
after it has left the brewery, and therefore D was not responsible for it being in the bottle. It was
thus unnecessary for the court to deal with what would have been the position if the object had
been in the bottle when it left the production line. But, even if the object had been in the bottle
before it left the bottling company, the Appeal Court said the nature of the object at the bottom of
the bottle would have made it difficult to detect and the cleaning and inspection processes in
place were reasonably adequate.

In Delta Beverages v Rusito 2013 (2) ZLR 298 (S) P claimed damages arising out of finding a
rusty nail and a blackish foreign substance in the Coca Cola that he was drinking. His action was
unsuccessful, firstly, because it had not been proven that he had suffered nervous shock and
secondly, because it had not been proven that the bottling company had been negligent.

There are a number of relevant South African cases decided before the imposition of strict
liability by statute.

In Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd en 'n Ander 2002 (2) SA 447 (SCA),the court
decided that where a manufacturer produces and markets a product without conclusive prior tests
and when utilisation of the product in the recommended manner is potentially hazardous to
consumer, such negligence exposes the manufacturer to delictual liability to the consumer. It is
not required that there is a contractual nexus between the manufacturer and the
consumer.Liability arises from the manufacture and distribution of the product, and extends via
the distributor in favour of the consumer who suffers damage upon utilisingthe product in
prescribed manner. The conduct of the manufacturer in distributing a product commercially,
which causes damage to a consumer as result of a latent defect, is wrongful according to legal
convictions of community.

In Wagener v Pharmacare Ltd; Cuttings v Pharmacare Ltd 2003 (4) SA 285 (SCA) the court
decided that there were no convincing grounds for the imposition of strict product liability. The
incremental development of existing Aquilian (fault-based) liability is preferable. Possible
developments included extension of the ambit of res ipsa loquitur doctrine and shifting the onus
26
to the manufacturer to prove absence of negligence. If strict liability is to be imposed it will have
to be done by the Legislature.

In Amalgamated Beveridge Industries Natal Pvt Ltd v Durban City Council 1992 (3) SA 562 (N)
the company was charged with an offence under a by-law for supplying a cold drink in which
there was a bee. The court decided that this offence was a strict liability offence.

In A Gibb & Son Ltd v Taylor & Mitchell Timber Supply Co 1975 (2) SA 457 (W) D, a timber
dealer, supplied timber to P who used it in scaffolding. One of the planks supplied broke and a
workman was injured. Because the plank contained a large knot which was plainly visible, the
dealer was held not liable as the use of the plank for this purpose without prior inspection was
not reasonably foreseeable. However, the court stated that a dealer may be delictually liable for
harm caused by defects in the items he supplies without inspecting them first. Liability would
depend on factors such as the methods employed in that trade and the expectations of those
customarily engaged in the trade.

See also Junior Books v Veitchi Co Ltd [1983] 1 AC 520 which involved the negligent laying of a
floor by a contractor.

There are compelling arguments in favour of imposing strict liability upon manufacturers for
harm caused by defects in their products.

It is argued firstly that it is that it often very difficult for the injured party to prove negligence on
the part of the manufacturer even with the aid of doctrine of res ipsa loquitur. Theproducer is
likely to claim that it had taken all reasonable measures to avoid products being hazardous and
the claimant is faced with the daunting task of trying to prove otherwise.P is not knowledgeable
about a complex production system.

Secondly, it is argued that it is fair to make the producer liable for harm. The producer makes
profit out of its enterprise and creates the risk that its products may cause harm. It is best able to
control the danger or is able to spread the losses when they occur through insurance or increased
prices.

However, there is a possible counter argument that strict liability may be unduly burdensome
upon manufacturers especially when in Zimbabwe many manufacturers are struggling to survive.
It is argued that strict liability could end up stifling economic growth.

The South Africans, however, have now opted for strict liability in this area. South African
legislation is imposing strict liability for defective or unsafe products. The South African
Consumer Protection Act, 2008 provides in section 61 that a producer, as well as an importer, a
distributor or a retailer of goods, is liable irrespective of whether any negligence, if it supplies
unsafe or defective goods or provides inadequate instructions or warnings to consumers about
any hazard associated with the use of the goods. However, the producer is not liable:
 if the defect developed after leaving producer, for example, as a result of improper
handling of goods by the distributor;
 if the product is safe and reliable if used properly and clear instructions have been given
about how to use the product safely and the customer fails to follow these instructions.

It is also provided that the distributor or retailer of the product is not liable if it is unreasonable
to expect them to have discovered a defect in product, having regard to their role in marketing
goods to consumer.
Defective services by garage and inadequate maintenance of vehicles
A garage may be liable in delict for harm caused as a result of negligent failure to carry out
properly repairs to a vehicle. For example, a garage undertakes to repair the brakes of a vehicle.
It fails to do this job properly but it assures the owner of the vehicle the brakes had been
repaired. The owner is unable to stop at an intersection outside the garage because the brakes do
not work and he collides with another vehicle. The garage could be sued in delict by the injured
parties.

In Transport and Crane Hire (Pty) Ltd v Hubert Davis 1991 (1) ZLR 190 (ZS) D company
negligently assembled a lorry, so that the steering wheel was incorrectly assembled. After some
distance the steering failed, there was an accident and the lorry was a total write-off. The court
decided that the harm was reasonably foreseeable and it rejected the argument that P’s failure to
detect and repair the defect in the steering column was the proximate cause of the accident.

See also Bulford v Bob White’s Service Station (Pvt) Ltd 1973 (1) SA 188 (RA); Blore v Standard
Insurance 1972 (2) SA 89 (O);Dube v Super Godlwayo (Pvt) Ltd HB-129-84.
Carriers of goods by land
Carriers are strictly liable for loss caused by them whilst transporting goods. In Cotton
Marketing Board of Zimbabwe v National Railways of Zimbabwe 1988 (1) ZLR 304 (S) the court
said it is good law and good common sense that the strict liability imposed by the Edict on public
carriers by water should be extended to public carriers by land, particularly in Zimbabwe, where
the Edict forms part of the common law and the main mode of transportation is by land. In any
action against a carrier for the loss of or damage to goods the owner of the goods need not prove
how the goods were damaged, lost or destroyed. The onus is on the carrier to prove that the loss
was due to vis major or to damnum fatale, to inherent vice in the goods or to the negligence of
the owner of the goods. All that he or she requires to shake-off liability is to prove that the
occurrence resulting in the event was unforeseen, unexpected and irresistible and that human
foresight could not have guarded against it. The use of the word “sole” in the phrase “at the sole
risk of the sender or consignee” merely emphasized that the risk is the sender’s or consignee’s,

28
but added nothing that helped in the interpretation of the clause, nor did it help to explain
whether the head of damage arising from negligence is included or excluded. While carriers may
contract out of the strict liability imposed on them by the common law or by contract limit their
liability, the clause exempting the carrier from liability must do so in clear terms, with an express
reference to negligence. In the absence of such clear terms, the clause is to be construed as
relating to a different kind of liability and not to liability based on negligence.
Liquidators of companies
In Kerbels Flooring & Carpeting (Pty) Ltd v Shrosbree & Anor 1994 (1) SA 655 (SE) it was stated
that a liquidator of a company can be held liable for causing of loss to others arising out of the
negligent performance of his duties.
Children
Negligence in allowing children access to firearms
If a parent negligently allows a young child to have access to his or her firearm and the child
takes the weapon and whilst playing with it fires the weapon by mistake and injures another
child, the parent can be held liable for the damages for the harm caused by his or her child.

See Flowers v Towers 1962 R & N 221 (FS) and Maylett v Du Toit 1989 (1) SA 90 (T)
.
Supervision of young children
See Rusere v Jesuit Fathers 1970 (4) SA 537 (R) which deals with the extent to which school
authorities had a duty to supervise children during breaks.

In S v Chipinge Rural Council 1988 (2) ZLR 275 (S); 1989 (2) SA 342 (ZS) the Council
negligently failed to employ a lifeguard at a swimming pool used by children, but Council
nonetheless was not held liable as it had not been established that if a guard had been employed
the death of child would have been avoided.
Running down children
Drivers must exercise extra care when there are children in the vicinity of the roads on which
they are driving because children are prone to be incautious about their own safety and may run
out onto the road. The driver who is driving in an area where children are in the vicinity such as a
school must moderate his or her speed and be on his or her guard against children running out
onto the road.

See Tena v UANC & Anor HS-367-81; Levy NO v Rondalia Assurance 1971 (2) SA 598 (A);
Santam Insurance v Nkosi 1978 (2) SA 784 (A); S v Chimimba S-62-86; S v Ferreira 1992 (1)
ZLR 93 (S); S v Notje HB-23-03.
Handling of heavy equipment
In Roeloffze v M Ranchod & Sons (Pvt) Ltd 1972 (1) RLR 353 (A) P was injured by a reversing
front end loader in a loading zone. P, who was involved in conversation, did not keep a proper
look out for the loader. The court found that the loader operator was not negligent as he could not
reasonably be expected to have anticipated such a likelihood. The company was thus not held
liable for the injuries to P.
Security guard from security firm failing to guard premises
Where a security firm undertakes to provide security at D’s premises and assigns one of its
guards to perform this duty.

In J Paar & Co (Pvt) Ltd v Fawcett Security 1987 (2) SA 140 (ZS) a security company
contracted with an oil company to guard its premises. A transport company had certain vehicles
on the premises as part of its contract with the oil company. One of these vehicles was stolen by
an employee of the oil company and destroyed. The transport company instituted action in delict
against the security company claiming damages in delict for the loss of the vehicle alleging the
negligent breach by the security company of a duty of care owed by it to the transport company
to prevent the theft of its vehicle. The court held that the security guard was not negligent in
failing to prevent the theft of the vehicle.

In Modcraft Transport (Pvt) Ltd v Vultures Security (Pvt) Ltd HH-81-03 a security guard who
was guarding premises saw intruders on the premises but did not try to apprehend them or
disturb them: he simply went and informed the company’s security officer, who took a long time
to respond. By the time he had responded the intruders had already stolen property and got away.
The guard’s employer was liable in negligence for the theft.
Sudden emergency
In Chaguma v Kondani 2001 (2) ZLR 216 (H) P, a passenger in a commuter bus, was seriously
injured when a car coming from the other direction, and driven by D, struck the bus. The
evidence showed that a tread had unexpectedly stripped off a rear tyre of the car, causing the car
to swerve to one side then the other. D tried to bring the car under control, but was unable to do
so before it hit the bus. He had travelled for a mere 50 metres, and for only a few seconds, after
the tread stripped. The court held that D could not be held to be negligent, and his failure to bring
the car under control before it struck the bus was in the circumstances not unreasonable.

On the other hand, in Flanders & Anor v Trans Zambezi Express (Pty) Ltd 2009 (4) SA 192
(SCA) a bus driver had been blinded by the bright lights of an oncoming vehicle and had
collided with stationary vehicle protruding onto road and this had resulted in injuries to two
passengers. He was negligent as he had failed to apply his brakes or reduce his speed. He ought
to have foreseen the possibility of some obstruction being in his path, and he should have applied
his brakes immediately on being blinded by lights of oncoming vehicle. The bus company was
held liable.

30
Learner drivers
Learner drivers need to acquire skills by practice on the roads but if the law were to apply the
standard of the “reasonable learner driver” injured plaintiffs would often end up going without
compensation. Additionally, the standard of the reasonable learner driver would be difficult if not
impossible to apply. Thus, in the interests of ensuring proper compensation of injured parties, the
standard of the reasonable driver who is not a learner is applied in such cases. But where the
supervisor/instructor of the learner is primarily to blame, the supervisor/instructor is also
delictually liable for the resulting harm to P; e.g. an instructor taking a brand new driver into
busy traffic conditions, or he falls asleep in the passenger seat leaving the learner driver to fend
for himself.

See Rv Msongelwa 1960 (4) SA 699 (SR) D was not guilty of negligent driving. It was not
proved that the bad driving was due to anything beyond want of skill. A non-skilled learner
driver with a learner’s licence is permitted to drive on the roads. (This case is criticised in
Cooper Motor Law Vol 2 pp 51-2.)

See also S v Mtizwa 1984 (1) ZLR 23; S v van der Merwe S-211-88; S v Claasen 1979 RLR 323
(A); McCrone v Riding [1938] 1 All ER 157 (KB); Nettleship v Weston [1971] 3 All ER 581 (CA)
The test to be applied is that of the ordinary driver and no allowance is made for the
inexperienced driver. See (1961) 78 SALJ 140 and Macintosh & Scroble Negligence in Delict p
294.
Driving without licence
In Ndava v Takaruwa & Anor 2013 (2) ZLR 692 (S) the court pointed out that whilst driving
without the requisite driving licence is not on its own sufficient evidence of negligence when
considered in light of all the circumstances of the case, driving requires a special skill and
experience commensurate with the standard of due care which a driver owes to his
passengers as well as other road users. Wen a person has no driver’s licence for the vehicle in
question, there is a presumption that his manner of driving which forms part of the particulars
of negligence was as a result of lack of requisite skill and experience expected of a
reasonable driver in possession of an appropriate driver’s licence.

Persons with physical disabilities

Allowances are expected to be made for people with disabilities e.g. a blind man crossing the
street with a white stick. The same sort of approach would be adopted here as in relation to cases
where young children are on or in the vicinity of the road. In such cases,drivers are expected to
exercise special care and caution because children are prone to run out into the road. So too, a
motorist seeing a person with a white stick should exercise special caution. But obviously it is
negligent for a blind person to attempt to perform a task that his disability prevents him from
performing, such as driving a car.
Capacity to be negligent
D must have the capacity to commit a delict. A child under the age of 7 does not have the
capacity to be negligent. See Tena v UANC HS-367-81. However, the parent of a child under the
age of 7 or the person responsible for the supervision of a mentally incompetent person could be
guilty of negligence if that person fails to take reasonable steps to ensure that the person lacking
capacity does not commit a delict. So too, on the basis of the qui facit per alium facit per se
doctrine, if a person uses a person who lacks capacity to commit a delict, the person who does
this can be guilty himself or herself of the delict even though the “instrument” was a person
lacking capacity.

Children between ages of seven and fourteen are presumed to be culpae incapax until the
contrary is proved by the party alleging negligence. See Eskom Holdings Ltd v Hendricks 2005
(5) SA 503 (SCA). If the child between 7 and 14 is found to be culpae capax the question then
arises as to whether the standard to be applied is that of the reasonable child of that age or that of
the reasonable adult. This issue has arisen in the context of cases of contributory negligence and
will be dealt with in detail under the topic of contributory negligence but basically the test that
the South African courts have applied to contributory negligence of children who are culpae
capax is that of the reasonable adult. This approach has been subjected to criticism.

So, too, a mentally incompetent person would not have the capacity to be negligent.On the other
hand, in America it would seem that the mentally deranged can be held liable for causing
accidents. See Prosser and Keaton on Torts 5 Ed pp 177-178.
Voluntary conduct
The conduct of D must be voluntary. Thus, if X had a sudden and unforeseeable blackout or
epileptic fit whilst driving his vehicle, he would not be liable. On the other hand, if he continued
to drive a motor vehicle after he knew he was prone to blackouts or epileptic fits he would be
liable for the harm caused on the basis of his negligence.

In the criminal case of S v van Rensburg 1987 (3) SA 35 (T) X had undergone blood tests which
had led to a fall in his blood sugar level. His doctor did not warn him that this might happen and
it was not reasonably foreseeable. X was thus not responsible for the accident and he was found
not guilty of negligence.

On the other hand, in Wessels & Anor v Pickles 1985 (4) SA 153 (C) D was found guilty of
negligence. While driving he had suffered a diabetic coma due to low blood sugar. He had
suffered a previous attack, resulting in an accident. He knew of his condition and how to control
even if not told this by his doctor.

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Res ipsa loquitur
Sometimes a person seeking to recover damages for harm done to him does not know how the
occurrence that caused the harm came about and he cannot produce any evidence to establish
this. In these circumstances, he may seek to invoke the concept of res ipsa loquitur. This
expression means that the occurrence speaks for itself. If the occurrence in question would not
normally occur without negligence this may lead to an inference of negligence. This doctrine can
only be invoked where the cause of the occurrence is unknown and thus there is no direct
evidence that can be led to establish negligence. In order for the inference to arise:

 the injury must have been caused by a thing which was under the control of D; and
 that sort of occurrence would not have taken place if reasonable care had been exercised.

Res ipsa loquitur cannot be relied upon where it is possible for the claimant to call evidence of
how the occurrence came about.

In Pine v Boka Enterprises (Pvt) Ltd 1990 (2) ZLR 292 (H) a truck belonging to D was being
driven in the course of the employment of the driver. The truck was towing another vehicle when
the tow hitch broke and the vehicle being towed veered across to the wrong side of the road and
collided with an oncoming vehicle being driven by P. P alleged that the accident was caused due
to negligence as the tow hitch was unsafe and the truck was being driven at an excessive speed.

The court found that the doctrine of res ipsa loquitur applied and it was incumbent on D to
adduce evidence that the breaking away from the tow hitch of the vehicle being towed was not
due to any negligence on the part of the driver of the truck. On the evidence D had failed to do
this and the court decided that P had established on a balance of probabilities that the collision
was a result of negligence attributable to D.

In Mafusire v Greyling & Anor HH-173-10 the court pointed out that there is no obligation on a
person who is driving along a road to ride through all the ruts and other rough patches on the left
of the road. He is at liberty to avoid such obstacles. If he can find a better part of the road, he is
entitled to ride on that part of the road, especially when driving in the country, but then he must
use more care than when he is on his own side of the road. If there is a vehicle in the way, and he
wishes to pass it, then whether the road on his left is rough or not he must keep to his left. If he
does drive on the incorrect side of the road, he must exercise greater care and take every
precaution to avoid colliding with vehicles approaching him: persons travelling on the correct
side of the road have a paramount right and are entitled to preference in the use of the road. If
any danger of collision arises, it is his duty first to give way. He must swing to his left as far, and
as quickly, as possible in the face of approaching vehicles. Failure to do may be negligence. If a
collision occurs between two vehicles travelling in opposite directions along the same road when
D’s vehicle is on the incorrect side of the road, the fact that it is on the incorrect side of the road
is, as a general rule, prima facie evidence of negligence.

When P proves that D’s vehicle for no apparent reason suddenly swerved on to its incorrect side
of the road, an inference of negligence could, in the absence of an explanation, be drawn against
D: res ipsa loquitur. D is then required to produce evidence sufficient to displace the inference of
negligence which arises from the fact that he was on the wrong side of the road. If he fails to do
so, the prima facie evidence becomes sufficient to discharge the onus which rests on P. But if D
gives an explanation, P can succeed only if, at the conclusion of the case and on the evidence as a
whole, there is a balance of probabilities in his favour that the defendant was negligent.

See also Dunlop v West 1974 (1) RLR 89 (G) a car leaving road and colliding with tree; Hammar
& Anor v Nunes 1976 (1) RLR 202 (G) a car moving to incorrect side of road; Freelance
Contracting v de Clerk 1982 (1) ZLR 193 (S) D, refrigeration mechanics brought in to fix a
defective fridge. Thereafter the fridge continually broke down. Ds were not liable as they gave
explanation for breakdowns that were inconsistent with negligence on its part. In this case the
court gave the example of a bus leaving road and careering down embankment) and Wallace v
Goncalves S-35-93.

See further Hamilton v Mackinnon 1935 AD 114 (in which the court gives an example of D
driving his car into P’s parked car); Naude NO v Transvaal Boot and Shoe Manufacturing Co
1938 AD 114 (a car parked on an incline ran down a hill and injured P. But there was not
sufficient explanation by D that the brakes were defective); Arthur v Bezuidenhout & Anor 1962
(2) SA 566 (A) (a car suddenly swerving onto the wrong side of road); Marais Caledonian
Insurance Co Ltd 1967 (4) SA 199 (E) (a vehicle on the wrong side of the road); Star Motors v
Swart 1968 (3) SA 60 (T) (An explanation that the car brakes were defective does not exonerate
D unless it is proved that the defect was unknown to D and not discoverable by the exercise of
ordinary skill and care); Jadezweni v Santam Insurance Co (Ltd) & Anor 1980 (4) SA 310 (C);
Keown v Ned-Equity Insurance Co Ltd 1982 (2) SA 391 (C); Smit v SA Vervoerdienste 1984 (1)
SA 246 (C); Leon Bekaert SA (Pty) Ltd v Rauties Transport 1984 (1) SA 814 (W).

Professionals
Where an allegation of negligence is made against a professional or skilled person, such as a
doctor, an engineer or a lawyer, it would obviously be inappropriate for the court to use the
standard of the ordinary reasonable person who has no expertise in that professional field. Thus,
the test that will be applied in this situation is how the ordinary, reasonable skilful professional
person operating within that field would have dealt with the situation. For example, the test that
will be used to decide whether a doctor has been negligent is how a reasonable doctor would
have dealt with that situation. Naturally, it is negligent for a person without any training within a

34
skilled field to attempt any procedure requiring proper training and expertise for that procedure
to be carried out safely.

Medical practitioners
Doctors receive lengthy and intensive training to equip them with the necessary skills to practise
their profession proficiently. After qualification, doctors acquire practical experience under
supervision and if they wish to become specialists, they have to sit further examinations after
acquiring specialist skills under supervision. Doctors therefore have skills that others do not have
and they are required to make good use of these skills.

The law requires doctors to behave as ordinary, reasonably skilful doctors would have behaved
in the circumstances. They are not obliged to exercise the highest possible skill. If a patient
suffers harm as a result of the negligence of a doctor, he/she is entitled to sue the doctor for
compensation. If a patient dies as a result of the doctor’s negligence, the doctor may be
prosecuted for culpable homicide. In a legal action, the doctor’s degree of negligence does not
have to be gross before the doctor is liable. Any degree of negligence suffices. This standard is
used in respect of cases involving allegations of negligence in relation to diagnosis, treatment
and post-operative care.

The test for establishing the negligence of a professional requires that the allegedly negligent
professional be judged by the standards set by his peers.

Patients who allege that they have been harmed by medical negligence face a daunting battle to
obtain compensation. The onus is on the injured party to prove on a balance of probabilities that
he or she has suffered harm as a result of medical negligence. The injured party will need the
assistance of a lawyer to litigate the matter and the lawyer will need to call medical testimony to
try to prove that there has been negligence on the party of the medical practitioner who is being
sued. Many patients will not be able to afford to engage a lawyer and the expense of calling an
expert witness. Even if the patient can afford the fees for the matter to be brought to court, there
is the added difficulty in the context of Zimbabwe and that is to find a medical expert who is
prepared to testify against a medical colleague. This is because in Zimbabwe the medical
profession is small and closely knit and members of the profession know each other on personal
levels. To some extent testifying against a fellow professional is still frowned upon as being in
itself unprofessional and thus evidence of negligence may be difficult to come by. In her article
entitled “Towards Defining and Reforming the Current Law of Medical Malpractice” 1999 Vol 1
No 1 Legal Forum 36. Ms Pepetua Dube points out some of the other evidentiary problems faced
by litigants. She points out that medical records may not have been kept properly or may be lost
or even deliberately altered or destroyed. She also points out the difficulties in pinpointing the
medical professional who was the person who was at fault as different nurses and different
doctors may have been caring for the patient at different stages. In the light of these difficulties,
Ms Dube suggests a series of measures to try to make it easier for victims of medical negligence
to sue, such as by reversing the onus of proof and requiring the medical practitioner to prove that
he or she was not at fault.

Doctors are not expected to be miracle workers who will undertake always to cure their patients.
Nor are they expected to be infallible. Certain mistakes are excusable. In S v McGown 1995 (1)
ZLR 4 (H) at 30D the court quoted with approval this statement of the law from an English case:
“it is not every slip or mistake which imports negligence.”

In Castell v de Greef 1993 (3) SA 501 (C) the court said that both in performing surgery and in
his post-operative treatment, a surgeon is obliged to exercise only reasonable diligence, skill and
care; no more than the general level of skill and diligence possessed and exercised by members
of the branch of the profession to which he belongs. The mere fact that an operation was not
successful, or that the treatment he administered did not have the desired effect, does not
necessarily justify the inference of lack of diligence, skill or lack of care on the surgeon’s
part.The test remains always whether the practitioner exercised reasonable skill and care or, in
other words, whether or not his conduct fell below the standard of a reasonably competent
practioner in his field. If the ‘error’ is one which a reasonably competent practitioner might have
made, it will not amount to negligence. If it is one which a reasonablycompetent practitioner
would not have made, it will amount to negligence.

In Hucks v Cole [1968] 118 New LJ 469 ([1993] 4 Med LR 393 it was stated:

“With the best will in the world things sometimes goes amiss in surgical operations or
medical treatment. A doctor was not to be held negligent simply because something went
wrong.”

In Buls v Tsatsarolakis 1976 (2) SA 891 the doctor treating a person for a wrist injury failed to
detect that there was a fracture of the wrist. It was only detected later by an orthopedic surgeon.
The court found that the original doctor’s failure to detect the fracture was not negligent. The
mistake was honest and reasonable in the light of the expert evidence that such fracture was
often missed and would normally only be detected by a specialist.

In Ruth Sai v Avenues Clinic HH-26-17 the plaintiff failed to prove that her miscarriage was due
to medical negligence.

What are not excusable are blatant, indefensible mistakes that would not be made by reasonably
competent doctors. It is these sorts of errors that rightly attract sanctions. See Thebe v Mbewe t/a
Checkpoint Laboratory Services 2000 (1) ZLR 578 (S) at 585-586.

In a South African case, the test for medical negligence was stated in these terms:

36
 Both in performing surgery and in his post-operative treatment, a surgeon is obliged to
exercise only reasonable diligence, skill and care, no more than the general level of skill
and diligence possessed and exercised at the time by members of that branch of the
profession to which he belongs. The mere fact that an operation was not successful or that
the treatment he administered did not have the desired effect does not necessarily justify
an inference of lack of diligence, skill or care on the surgeon’s part.

As regards doctors who are specialists, the court will apply the test of how would a reasonably
skilful doctor specialising in that particular branch of medical practice have dealt with the
situation.

When applying the test for negligence, a court of law will take into account the circumstances in
which the doctor was working. A doctor dealing with an emergency, with inadequate facilities,
and under great pressure, is not judged by the standard of the doctor working in more ideal
circumstances. It must be noted that, not infrequently, medical accidents are not so much the
result of poor professional behaviour, but rather of intolerable pressure on doctors due to under-
staffing. Indeed, it must be said that drastically overworked doctors working under great pressure
will eventually end up making mistakes. The situation is compounded where a shortage of
specialist skills leads to junior doctors being given only minimal supervision.

One of the ways to seek to prove negligence is to allege that the doctor who caused harm
deviated from a usual and normal practice. If there is a widely recognised way of dealing with a
particular condition or there is a generally accepted precaution that needs to be taken, departure
from the normal practice will point to negligence and the doctor will have to justify this
departure. But this will only apply where there is a commonly accepted approach. Where there
are differing medical opinions as to the best way to proceed, the doctor is entitled to adopt the
approach that he believes is the most appropriate.

Resort to innovative techniques may be appropriate in certain circumstances but doctors should
be cautious in employing such techniques, especially where they carry greater risks than more
conventional forms of treatment. In deciding whether resort to a novel technique is justified the
court takes into account such facts as the seriousness of the patient’s condition, his previous
response to more conventional treatment, and his attitude to the use of the new procedure upon
him. In S v McGown 1995 (1) ZLR 4 (H) the court stated that if a doctor departs from a general
and approved practice for no good cause and damage results he is likely to be found to have been
negligent. But such deviation is not necessarily evidence of negligence. It is in the public interest
that new forms of treatment should be developed and the law should not stifle such development.
The procedure adopted would have to be shown to be one which no reasonable skilled medical
practitioner would not have adopted. In Turner v Health Professions Council 2000 (1) ZLR 722
(H) medical practitioner was found not guilty of improper professional conduct where he had
injected a number of patients intravenously with a drug which was licensed only for external
application because terminally ill patients consented to this procedure and medical literature
showed that the drug could have a beneficial effect on patients if applied internally and the drug
in most instances had such a beneficial effect on the patients.

In Magwara v Minister of Health NO 1981 ZLR 315 (H) casualty medical staff was negligent in
applying and failing thereafter to check a plaster cast for a fracture of the ankle.
In Correira v Berwind 1986 (1) ZLR 192 (H) the court found that surgery had been performed
negligently. It ruled that medical staff owe a duty of care to their patients, whether or not a
contract exists between them.

In S v McGown 1995 (1) ZLR 4 (H) an anaesthetist was held criminally liable for causing the
deaths of two patients. He had used an anaesthetic technique which required careful monitoring
of the patient’s condition after the operation and had failed to take reasonable steps to ensure that
the facilities were available for the post-operative monitoring.In this case the court quoted a
dictum from an English case as follows: “It is not every slip or mistake which imports negligence
and, in applying the duty of care to the case of the surgeon, it is peculiarly necessaryto have
regard to the kinds of circumstance.”

In Chibage v Ndawana 2009 (2) ZLR 387 (H) it was pointed out that the issue of whether to
bring claims of professional negligence against medical practitioners, in delict or in contract, is
not new. The line of division where negligence is alleged is not always easy to draw; for
negligence underlies the field both of contract and of delict. It is not necessary for a plaintiff to
plead a contractual relationship between the parties to enable him to bring an action in delict
against a defendant medical practitioner. Our law acknowledges a concurrence of actions where
the same set of facts can give rise to a claim for damages in delict and in contract, and permits
the plaintiff in such a case to choose which he wishes to pursue. Where the conduct of a
defendant medical practitioner towards a plaintiff, who may not be his patient, is unlawful and
causes injury to the plaintiff, the medical practitioner is liable if his conduct was negligent. The
particulars of negligence alleged against a medical practitioner can only be validated by
reference to the standard operating procedures of other medical practitioners in that field. This is
so because, to test the negligence of a professional, one has to first establish what an average
reasonable professional in the shoes of the defendant would have done. An average professional
is not one who is so careful that he will weigh each and every risk attendant upon the task at
hand and advise the client of all such risks before proceeding. He will weigh the obvious risks
and advise the client of same. The reasonable professional is one who will bring his training to
bear on the task at hand to assess the attendant risks and proceed with alertness. He has a certain
degree of confidence in his capacity and skill that allows him to proceed without undue timidity
and is, to a large extent, a practical person who wishes to achieve a specified result.

38
In Van Wyk v Lewis1924 AD 438 at 456 the judge said the following on the standard of
competence of a surgeon “…the surgeon will perform the operation with such technical skill as
the average medical practitioner in South Africa possesses and that he will apply that skill with
reasonable care and judgment…(he) is not expected to bring to bear on a case entrusted to him
the highest possible professional skill but is bound to employ reasonable skill and care and is
liable for the consequences if he does not.”

In Thebe v Mbewe t/a Checkpoint Laboratory Services 2000 (1) ZLR 578 (S) P had a routine
blood test for insurance purposes. The test, carried out in D’s laboratory, showed positive for
AIDS. P immediately went for further tests, both with her own doctor and at the instance of the
insurer. The results of both these further tests were negative for AIDS. P claimed damages for
shock and suffering caused by D’s alleged negligence. The court held that D’s laboratory as a
professional institution was obliged to exercise reasonable skill and care. The laboratory had
been guilty of professional negligence. It had made an error in the collecting and labelling of the
blood sample in question. This error was in relation to the most fundamental aspect of blood
testing. The laboratory was thus liable to P. This negligence was not an “inherent risk” of the
kind that is attendant on surgical procedures, nor was it an excusable error of judgment of the
kind a professional person might make.

In Maksimovich v Dominguez & Mater Dei Hospital and Mater Dei Hospital v Domiguez &
Maksimovich HB-94-15 it was alleged that the doctor, an ear and nose specialist, had negligently
carried out an incorrect and inappropriate reduction of the double-fractured mandible leaving the
plaintiff with a variety of facial injuries problems including paralysis of the left eye. He also
failed to discover pieces of glass in the plaintiff’s ear.

See also Chimusoro & Anor v Minister of Health HH-254-89; Dale v Hamilton 1924 WLD 184 a
radiologist negligently performed a diagnostic X-ray and the patient had been badly burned);
Blyth v van der Merwe 1980 (1) SA 191 (A) a doctor put fractured arm in a plaster cast and then
negligently failed to detect sepsis and take appropriate action; Edouard v Administrator, Natal
1989 (2) SA 368 (D) a doctor negligently failed to perform a sterilization operation which he had
undertaken to carry out on a woman; Mtetwa v Minister of Health 1989 (3) SA 600 (D) deals
with whether the Ministry was vicariously liable for negligence by professional doctors under its
command but not subject to the dictation of others; S v Kramer 1987 (1) SA 887 (W) an
anaesthetist negligently placed the oxygen tube in the oesophagus instead of in the trachea and
the patient died; Roe v Minister of Health & Ors [1954] 2 All ER 131 (CA) contaminated
anaesthetic was injected into patients who then were paralysed from the waist down. The
Ministry of Health was held not liable as the contamination of the anaesthetic was not reasonably
foreseeable. Friedman v Glicksman 1996 (1) SA 1134 (W) a doctor wrongly advised pregnant
woman that she was not at greater risk than normal of having abnormal or disabled child. After
she gave birth to a disabled child, the woman was entitled in her personal capacity to sue doctor
for damages under the lex Aquilia for expenses of maintaining and rearing her disabled child and
future medical and hospital expenses. But she was not entitled to sue as mother and natural
guardian for child's general damages and loss of earnings either in contract or delict.

Some English cases:

Clarke v McLennan & Anor [1983] 1 All ER 416 (QB) the gynaecologist failed to comply with a
recognised medical precaution; Ashcroft v Mersey Regional Health Authority [1983] 2 All ER
245 (QB); Whitehouse v Jordan & Anor [1981] 1 All ER 267 (HL); Pringle v Administrator of
Transvaal 1990 (2) SA 379 (W) doctor using excessive force to remove small growth on chest
caused massive bleeding and brain damage – doctor liable; Wilsher v Essex Area Health Board
[1986] 3 All ER 801.

See also Chapter 1 of Feltoe & Nyapadi Law & Medicine in Zimbabwe.

Junior doctors are expected to exercise reasonable care consistent with their training. Thus, in S v
Mkwetshana 1965 (2) SA 493 (N) a junior doctor negligently administered the wrong dosage of a
drug, thereby causing the death of the patient. The doctor was found guilty of culpable homicide.
Even though the doctor was inexperienced and was dealing with an emergency, the doctor had
insufficient knowledge of drug to administer it as he did and should have checked first about
correct dosage of drug or called in more experienced doctor.

Other medical practitioners such as physiologists and nurses are expected to behave in a manner
which is reasonably competent.

Legal practitioners
General
In South Africa, over the last few years there have been an increasing number of claims against
lawyers for negligence. As Zimbabweans become more litigious it is likely that a similar pattern
could emerge in Zimbabwe.

Lawyers are trained professionals. In performing their professional legal work, they are expected
to exercise reasonable skill and competence. If they fail to measure up to this standard they can
be sued for damages by their clients.

A legal practitioner dealing directly with a client is in a contractual relationship with his or her
client. An implied term of the contract is that the legal practitioner will perform the contract with
reasonable skill and competence. Where the legal practitioner fails in this duty and the client
suffers financial loss, the client can sue either in contract or in delict.

40
An error of judgment will not attract liability unless the error of judgment would not have been
made by a reasonably competent legal practitioner. This was stated in Honey & Blanckenberg v
Law Society 1966 (2) SA 43 (R). In this case the lawyer misinterpreted words in a statute and this
led to a failure to commence proceedings in time. The court held that the lawyer had not been
negligent in the circumstances.

A legal practitioner will be negligent if he or she undertakes a case where he or she should have
realized that he or she did not have the required expertise to handle the matter properly.

A common situation where lawyers have been sued successfully for damages is where they have
negligently allowed claims to prescribe. As regards damages, if the negligence deprives P of the
chance of bringing proceedings, the damages would be the value of the opportunity that has been
lost. If there was a good chance of the claim succeeding, an award can/will be made of most of
what would have been recovered if the claim had not been allowed to prescribe.

In a case where there was a good defence to the claim, but due to the lawyer’s negligence it was
not raised and P had to pay out on the claim, the measure of damages would be the amount P had
to pay out. If the lawyer has settled P’s claim for a paltry amount without authorisation, the
amount claimable would be the difference between the settlement amount and the amount
originally claimed.

A person who is not party to the contract may also sometimes sue a negligent legal practitioner.
For example, a legal practitioner negligently draws up a will which is invalid as a result of which
a beneficiary does not receive his or her inheritance. Here the disappointed beneficiary can sue
the legal practioner for the loss of his or her inheritance.
Allowing claim to prescribe
In Erasmus Ferreira & Ackermann & Ors v Francis 2010 (2) SA 228 (SCA) attorneys failed to
institute proceedings for loss of support and the claim prescribed. The client's claim against
attorneys was based on professional negligence, not loss of support. The attorneys were held
liable.The damages were assessed as the damages suffered by the plaintiff as a result of the
negligence of the defendants in having allowed her claim for loss of support to prescribe.

In Manase v Minister of Safety and Security & Anor 2003 (1) SA 567 (Ck) an attorney had not
issued summons and the claim was time barred.

In Ritenote Printers (Pvt) Ltd & Anor v A Adam & Co (Pvt) Ltd S-26-16 a legal practitioner had
executed against the property of another on behalf of his client without following the proper
procedure.
In Moatshe v Commercial Union 1991 (4) SA 372 (W) D failed to issue summons in time to
prevent a claim from prescribing. The lawyer was held liable.

In Slomowitz v Kok 1983 (1) SA 130 (A) a lawyer was negligent in allowing a claim to prescribe.
He left it to the last minute and was not able to effect service.

In Manyeka v Marine & Trade Insurance Co Ltd 1979 (1) SA 844 (SE) a summons was not
issued in time and the claim prescribed.

See also Kitchin v Royal Air Force [1958] 1 WLR 563.

Security for loans
In Mouton v Mine Workers Union 1977 (1) SA 119 (A) D failed to ascertain that a person was
competent to stand surety for loans and D’s client lost the money that he had loaned. D was held
liable. (At p 143 of this judgment there is a comment on the Honey & Blanckenberg case.)

In Rampal Ltd v Brett, Wills & Partners 1981 (4) SA 360 (D) a lawyer, D, was negligent in
failing to ensure that the security was adequate to cover the loans that his client was to advance.
D was liable for the portion of loans P was unable to recover.
Negligent handling of trust funds
In Hirschowitz Flionis v Bartlett & Anor 2006 (3) SA 575 (SCA)and Du Preez & Others v
Zwiegers 2008 (4) SA 627 (SCA) attorneys were held liable for negligent handling of trust fund
deposits.

Other cases
In Eyeluth Properties (Pvt) Ltd v Harvey HH-408-15 a legal practitioner failed to invest money
being held by him in an interest bearing account. However, P’s claim for the loss sustained failed
because P failed to establish the extent of the loss that he had suffered.

In Washaya v Washaya 1989 (2) ZLR 195 (H) a legal practitioner erroneously consented to
judgment on behalf of his client. The lawyer made to bear the costs of his negligence.

In Doelcam (Pvt) Ltd v Pichanick & Ors 1999 (1) ZLR 390 (H) a judgment creditor had certain
of its property attached in execution of a judgment debt. The judgment was actually given
against another company. The attorney for the judgment creditor had gone to the Registrar of
Companies to find the address for the judgment debtor. A company with a similar name was
found, with an address in an office building in Harare. The office was in fact occupied by the
plaintiff company. The Deputy Sheriff removed items of property which were sold in execution
of the debt, and the proceeds paid to the judgment creditor. The plaintiff company sued the
attorneys for the judgment creditor.
42
In Khan v Mzovuyo Investments 1991 (3) SA 47 (Tk) D prematurely enrolled a case before it was
ripe for hearing. The case had to be postponed on a number of occasions. D was found liable as
he was negligent.

In Immelman v Loubser & Anor 1974 (3) SA 816 (A) various mistakes were made in connection
with bringing an appeal. The lawyer was held liable.

In Masama v Borehole Drillers 1993 (1) ZLR 116 (S) a negligent lawyer was ordered to bear the
costs himself and the matter was reported to the Law Society.

See also Samakange & Anor v The Master S-174-93.

Liability of lawyers to third parties
In Tinarwo v Hove & Ors 2003 (2) ZLR 148 (H) P’s property was sold in execution when he
failed to service a mortgage bond. The building society had instructed a firm of legal
practitioners to sue P. Default judgment was taken against P and the messenger of court removed
P’s goods for sale. P instructed his own legal practitioners to apply for rescission and for the sale
in execution to be stayed. By consent, rescission was granted but the messenger of court was not
informed; he proceeded with the sale. P claimed for the loss from the building society and its
legal practitioners, claiming that they should have advised the messenger of court. Their failure
to do so constituted a breach of a duty of care they owed him.

The court held that the legal practitioners were agents of the building society. A legal practitioner
who is instructed by his client to carry out a transaction that will affect an identified third party
owes a duty of care towards that third party in carrying out the transaction, since such a third
party is a person within the legal practitioner’s direct contemplation as someone who is likely to
be so closely and directly hurt by his acts or omissions. The legal practitioner can reasonably
foresee that the third party is likely to be injured by those acts or omissions.

However, P’s own legal practitioners brought the application for rescission against the messenger
of court. It was for them to do their duty towards P and to protect his interests by having the
papers served on the messenger. They failed to do so.

In Pretorius en Andere v McCallum 2002 (2) SA 423 (C)an attorney drew up a will that failed to
comply with formal requirements of Wills Act, thus rendering will invalid. The court decided
that there was no reason in principle why a claim by 'disappointed beneficiary' based on
attorney's duty of care to ensure that the expectation of an intended beneficiary realised should
not be upheld.
In Ross v Caunters [1979] 3 All ER 580 D negligently drew a will which was invalidated. D was
liable to the beneficiary who would have benefited had the will not been invalidated.

In White v Jones [1993] 3 All ER 481 a lawyer failed to draw a will for his client prior to his
death. The court decided his liability to disappointed beneficiaries under the will.
Compensation for persons suffering loss from dishonesty by lawyers
Section 54 of Legal Practitioners Act provides for compensation for person suffering loss due to
dishonesty of client. The claimant must prove to the satisfaction of the Law Society that he has
sustained loss through the dishonesty of a legal practitioner. The policy is applied whereunder the
aggrieved party must first claim against the other partners where the responsible legal
practitioner practiced in a firm of lawyers.
Court work
In respect of court work, it seems that under the common law lawyers have immunity from
delictual liability. This is the position in England. See Rondelv Worsley [1969] 1 AC 191 (HL)
and Sarif Ali v Sydney Mitchell & Co & Ors [1978] 3 All ER 1033 (HL).

The main rationale for this immunity is that lawyers owe an overriding duty to the court when
appearing in court and if they were liable to be sued by their clients, they might find it very
difficult to discharge their duty to the court. Another reason advanced for the immunity is that if
clients could sue for negligent performance of court work, this would result in having to retry
cases.

The immunity, however, does not cover pre-trial work that is not so intimately connected with
the conduct of the case in court that it constitutes a preliminary decision on the way the case is to
be conducted when the case is tried.

For criticism of the blanket immunity of lawyers in respect of court work see (1977) 94 SALJ
184. The author argues that, in certain cases, lawyers could be held liable without any adverse
effect on their duty to the court e.g. a lawyer uses an entirely wrong procedure, or the lawyer
arrives drunk in court and is incapable of presenting the case, or he fails to come to court at all
when he was fully aware of the court date. The author of this article argues that lawyers should
not be allowed to get away with such blatant blunders.

Loubser and Midgley at p 269 has this to say:

There is no authorative South African case that deals generally with the liability of advocates
for negligence. However, courts are likely to impose the same standard of knowledge,
competence, skill and care that is expected of other legal professionals, rather than maintain a
historical immunity based on a questionable distinction between handling a case in court and
other professional work.

44
Accountants and auditors
General
Accountants are responsible for keeping accurate books of account and they also give financial
advice on matters such as investment and taxation. If they perform their work carelessly, this can
result in financial loss. For example, his client, P, asks D, an accountant, whether he should
invest money in a certain corporation. D says the investment would be a good investment. Acting
on D’s advice, P invests in the company. The company goes insolvent soon after P had invested
in it and P loses the money he has invested. In these circumstances, D would be liable to P if a
reasonable accountant would not have given the advice to P that D gave, as the reasonable
accountant would have known of the bad financial position of the company or would have found
it out had he taken reasonable care.

Auditors carry out audits of various institutions such as commercial companies in order to
provide independent and reliable information of the true financial position of the institution in
question at the time the audit is carried out.
Liability to client
One of the main reasons for carrying out audits is to uncover errors and fraud in commercial and
other institutions that are handling money. The auditor is expected to perform these tasks with
due care, diligence and competence. It is not always negligent for an auditor to fail to detect a
fraudulent practice within the company he is auditing. The fraud may be so ingenious and
difficult to uncover that no reasonable auditor performing his work diligently would have
uncovered the fraud in question; if this is the case the auditor who failed to detect the fraud will
be found not to have been negligent. If, on the other hand, the reasonable auditor would have
uncovered the fraud, the commercial corporation that employed him to carry out the audit could
sue the auditor.

In the case of Thoroughbred Breeders’ Association v Price Waterhouse 2000 (4) SA 551 (SCA)
the South African Supreme Court set out in detail the duties of auditors towards their clients. The
decision is based on the South African Auditing Profession Act 26 of 2005.In this casean auditor
negligently failed to appreciate and pursue discrepancies in the accounts. Had the auditor done
so, he would have discovered that the company’s financial manager was involved in large-scale
thefts from company. The loss suffered was not too remote from the negligence and the auditor
was liable for the loss. However, the company was somewhat to blame for its own loss. It had
appointed financial manager knowing he had a previous conviction for theft and carelessly failed
to supervise him properly, despite its awareness of his criminal record. The company did not
inform the auditor of this fact. Both sets of carelessness contributing to loss. But the claim
allowed in full because the apportionment legislation in South Africa did not apply to this
situation.
Liability to third parties
Auditors have sometimes been held liable when a third party relies on an audit report. In
International Shipping v Bentley 1990 (1) SA 680 (A) an auditor was sued by a financing
company for loss caused by negligent misstatements contained in report of an auditor of a group
of companies. The report misleading in that it did not give accurate picture of bleak financial
situation of the group of companies for which appellant was providing financial facilities - Court
finding that the auditor had acted negligently andunlawfully. However, the loss suffered was
found to be too remote because, for instance, P had continued to provide money to the companies
when it already knew that the financial position of the companies was fairly bleak. D was
therefore found not liable for the loss suffered.
Liability to share investors
If the audit creates a completely false picture of the company as being financially sound when it
is in deep financial trouble, can current shareholders or new shareholders who invest money on
the strength of the audit report sue the auditors for the losses they have suffered? Does it make
any difference that the audit report was included in a prospectus soliciting share investment and
the auditors knew that the audit report was going to be put in the prospectus? The courts in
England and South Africa have generally been unwilling to make auditors liable to persons other
than those who engaged them to carry out the work. The reason for this reticence has been the
fear of opening the floodgates to a huge scale of liability.

In Axiam Holdings Ltd v Deloitte & Touche 2006 (1) SA 237 (SCA) an auditor misstated the
company's financial position leading to loss by claimants after they purchased shares in audited
company. The auditing firm excepted to the claim on the grounds that it did not owe duty of care
to companies purchasing shares. The exception was dismissed.

The South African Public Accountants and Auditors Act provides in section 26(9) that an auditor
is liable to a third party if he knew or should have known that his client would use the statement
to induce a third party to act in prejudicial way in which he did. He is also liable to third party
where the auditor represented to a third party that the statement was correct and the auditor knew
or should have known he would rely on the statement for the purpose of acting in the prejudicial
way in which he did.

South African Auditing Profession Act 26 of 2005. This Act governs the delictual liability of
accountants and auditors to third parties who are not their clients who rely on negligently
formulated opinions, reports or statements. (There is no similar provision in the Zimbabwean
Chartered Accountants Act [Chapter 27:02])

See also Al Saudi Banque v Clarke Pixley [1989] 3 All ER 361 (Ch D); Caparo Industries v
Dickman [1990] 1 All ER 568 (HL).

46
For further discussion on these issues, see under “Negligent misstatementscausing purely
pecuniary loss” below.)

Engineers, architects and constructors

Professionals in the construction industry are expected to exercise the general level of skill and
diligence possessed and exercised at the same time by the members of the branch of the
profession to which they belong. In the South African case of Randeree & Ors v WH Dixon &
Associates & Anor 1983 (2) SA 1 (A), the court cited with approval this passage from a book on
engineering contracts:

The architect or engineer is under a special duty to take the best advice available upon the
use of such new techniques and to advise his employer of any potential risks; and where the
selection of the technique is the architect’s, the onus of justifying his action will be
correspondingly heavier, since nearly all building and civil engineering techniques are
empirical in origin and have evolved gradually by experience and trial and error, and non-
traditional methods are notoriously susceptible to unexpected difficulties and failure.

If there is proof that a precaution is usually observed by other persons, a reasonable and
prudent man will follow the usual practice in the like circumstances.

See Municipality of Kwekwe v Imprecon (Pvt) Ltd 1984 (1) SA 38 (ZS) (liability of contractors.)
Failure to allow rape victim a timeous termination of pregnancy resulting from rape
See Mapingure v Minister of Home Affairs, Minister of Health and Child Welfare and Minister of
Justice, Legal and Parliamentary Affairs 2014 (1) ZLR 369 (S).

Trainees and newly qualified professionals

As regards newly qualified professionals, these persons will be negligent if they attempt to do
something which they do not have the competence to do, for example, a newly qualified doctor,
engineer or lawyer must not try to perform a complex and difficult procedure beyond their
capabilities. A newly qualified doctor, however, may be able to rely on the defence of necessity if
he attempts to perform a medical procedure when the patient is in a critical condition and there
isn’t a qualified doctor available, or by the time a more qualified doctor is summoned the patient
would have died. Conversely, if a senior doctor instructs a newly qualified doctor to carry out a
difficult or complex procedure, the major responsibility for any harm that eventuates may lie
with the senior doctor.
Apportionment of damages (contributory negligence)
General
This matter is relevant in regard to cases under the Aquilian action based upon negligence. The
type of situation with which we are dealing here is, for example, where a vehicle being driven by
D collides with P, a pedestrian. It turns out that both parties were negligent in causing the
accident because P tried to cross the road without ensuring that it was safe to do so and because
D was driving at an excessive speed and was not keeping a proper look out. In the event of P
suing D for damages, how does our law deal with the claim?

Since 1971 we have had apportionment legislation, namely, the Damages (Apportionment and
Assessment) Act [Chapter 8:06]. Under this legislation, if P and D were involved in an accident
and both were at fault, and P sues D for damages, P’s claim will be reduced to such an extent as
the court deems ‘just and equitable having regard to the respective degrees of fault of the
claimant’ and of D ‘insofar as the fault of either of them contributed to the damage’.
Apportionment is thus based on ‘the equitable precept that a person should not recover in full for
damage caused partly by his own fault.

For instance, if P was 20% at fault, and D was 80% at fault, P will be able to recover 80% of his
damages from D and D in turn will be able to recover 20% of his damages from P. This
methodology of examining the respective degrees of fault of the two parties in relation to one
another is the one that is usually employed in these sorts of cases. (In a motor accident situation,
where the events happened over a very brief space of time, it is, however, by no means easy to
apportion blame.) Sometimes our courts have used a more complicated methodology to deal with
apportionment. This entails measuring individually the percentage deviation of the two parties
from the norm of the reasonable person and then reducing these figures to proportions. To give
an example of this manner of computation:
If P deviates from the norm by 20% and D by 40%
Reduced to proportions this is 1:2
Therefore, P is liable to pay one third of D’s loss and D is liable to pay two thirds of P’s loss.

See. for instance, Munorwei v Muza HH-804-15

For cases on apportionment see the Appendix.

Intentional wrongdoing
Fault does not include intentional wrongdoing and the intentional wrongdoer will have to pay the
full damages incurred by the person he or she has injured. See Minister of Law and Order &
Anorv Ntsane 1993 (1) SA 560 (A).

48
Failure to wear seat belts or crash helmets
Following English and South African cases to similar effect, the Zimbabwean High Court in
Koenv Keates1989 (3) ZLR 9 (H) ruled that the failure by a front seat passenger to wear a seat
belt fitted in the car can amount to contributory negligence under s 4(1) of the Damages
(Apportionment and Assessment) Act [Chapter 8:06]. This provision reads as follows:

4 Apportionment of liability in case of contributory negligence

(1) Where any person suffers damage which was caused partly by his own fault and partly by the
fault of any other person, a claim in respect of that damage shall not be defeated by reason of the
fault of the claimant, but the damages awarded in respect thereof shall be reduced by the court to
such extent as the court may deem just and equitable having regard to the respective degrees of
fault of the claimant and of such other person in so far as the fault of either of them contributed to
the damage.

Although the failure to wear a seat belt did not contribute to the accident, s 4(1) requires that
damages are to be reduced to an extent deemed just and equitable if the fault of the claimant
contributed to his or her damage. The failure to wear a seat belt amounted to fault on the part of
the claimant as not only was it a negligent failure to take reasonable safety precautions, but it
also amounted to a breach of a statutory duty under s 4(1) of the Road Traffic (Safety-Belt)
Regulations SI 288 of 1983 and as such constituted fault as defined in s 4(6) of the
apportionment legislation. Such fault would have contributed to the damage suffered (unless
exactly the same injuries would have been suffered even if the seat belt had been worn) and thus
the court would be obliged to reduce P’s damages. However, in this type of situation the
negligent driver must bear the greater share of responsibility. (In the Koen case, P’s damages
were reduced by 15%.)

In General Accident v Uijs NO 1993 (4) SA 228 (A) the Appeal Court pointed out that allowance
was made for the fact that P had in no way contributed to the accident, and that his fault in failing
to wear his seat belt was of a different kind to that of the driver. His damages were reduced by
one third.
The same approach would have to be applied in cases involving failure by motor cyclists and
pillion riders to wear crash helmets, it being compulsory under Zimbabwean legislation that
crash helmets be worn. See s 60A of the Roads and Road Traffic (Construction, Equipment and
Use) Regulations RGN 412 of 1972 as amended by RGN 223 of 1975.

Boberg argues that the reduction should only apply to the extra damage which would not have
been suffered had safety precautions been taken. But in practice it will usually be very difficult to
separate out which harm would have occurred in any event and which harm is the extra harm
which would not have occurred had the safety precautions been taken.
Contributory negligence of children
If a child runs across a road and is hit by a car and the driver is sued for damages for the injuries
that the child has sustained, the issue of contributory negligence on the part of the child may
arise. Where the child is under 7, the child is irrebuttably presumed to lack capacity (to be culpae
incapax) and thus the child cannot be found to have been guilty of any contributory negligence
such as to reduce the damages payable to that child. See Muchechetere v Boka HH-148-89. On
the other hand, with children between 7 and 14 the presumption that they are culpae incapax is a
rebuttable one. If the presumption is rebutted, and the child in question is found to be culpae
capax, the issue that arises is whether the degree of contributory negligence of the child is to be
assessed according to the standard of the reasonable adult or the reasonable child of that age? In
South Africa, the standard of the reasonable adult is applied (to assess the degree of contributory
negligence on the part of the child) whereas in the United Kingdom the courts ask what
reasonably could be expected of a child of that age and development. (In the UK, capacity and
negligence issues are merged and the question is whether an ordinary child of that age could be
expected to have done any more than P or was he simply following instincts natural to a child of
that age. The Pearson Commission recommended that in car accident cases contributory
negligence should not be a defence where a child is under 12 (Vol 1 para 1077).

The reasonable adult test has been severely criticised as being harsh, unrealistic and unfair in its
consequences. (See 1973 Annual Survey of SA Law 160-162, Boberg pp 674-682.) Although the
South African courts still apply the reasonable adult test, the stringency of this approach has been
somewhat alleviated as a result of the SA Appellate Division case of Weber v Santam Insurance
1983 (1) SA 381 (A).

First, the court in the Weber case stated that in deciding whether or not the child is culpae capax
courts must be careful not to place ‘an old head on young shoulders’. Not only must facts like
age, knowledge and experience be taken into account to decide this, but also it must be
remembered that knowledge is not the same as experience and therefore it must also be decided
whether the particular child was mature enough to control the impulses which children often
have to act heedlessly. Under this approach, many children under 14 may be adjudged to be
culpae incapax.

Second, even if the child in question is found to be culpae capax, the negligence of the motorist
knocking down the child would always be adjudged to be greater than that of the child in
circumstances where the driver knew or should have known that children might be in the vicinity
and he failed to take extra care to guard against childish folly. Special care and vigilance must
guard against the propensity of children to dash across the road, etc. In other words, in
apportioning in circumstances where both the driver and the child who is culpae capax are guilty
of contributory negligence, the driver will be held to be guilty of greater negligence than the
child even testing the child against the austere standard of the reasonable adult.

In Haffejee v South African Railways and Haulage 1981 (3) SA 1062 (W) a ten year old boy ran
through a level crossing for trains and was hit by a train. He was chasing his friend. Although he
sometimes acted like a child of seven, the court found that he had the capacity to appreciate the
50
dangers from railway lines and trains. The court found him accountable and found he was guilty
of negligence. The court, however, also found that the railways were also at fault by allowing
thick vegetation to grow in the vicinity which made it difficult to see when a train was
approaching. It also found that the train driver had failed to take into account that the line passed
through a densely populated area and there were likely to be children in the vicinity of the
railway line. It decided that the child and the railways were equally to blame for the accident and
therefore reduced the award of damages in respect of the father’s claim on behalf of the child by
50%.
See also Eskom Holdings v Hendricks 2005 (5) SA 503 (SCA)

There is no Zimbabwean case dealing with this situation. However, in the criminal case of S v
Ferreira 1992 (1) ZLR 93 (S) the court stressed that motorists must exercise special care and
vigilance when they know that there are children in the vicinity of the road, as it is known that
children have a propensity for impulsive and irrational behaviour. It would be open to our courts
to adopt the less harsh standard of a reasonable child of comparable age and experience instead
of the full-blown reasonable adult standard if the child is found to beculpae capax. The standard
of the reasonable child, however, would be difficult to apply in practice. As the Weber case goes
so far in the direction of not placing an old head on young shoulders at the stage that the child’s
capacity is considered, it could be maintained that our law should go one stage further and adopt
the position that the childish heedlessness of children under 14 should not be held against them at
all in these sorts of cases. It could simply say that as the adult driver has been negligent in not
guarding against harm to the child, he should be made solely liable and apportionment should not
apply in respect of a child under 14. In other words, the law could excuse the foolhardiness of
young children by laying down that below the age of 14 all children are irrebuttably presumed to
be culpae incapax thereby casting the responsibility solely on the driver to guard against harm to
these young children. Against this it could be said that this approach does not encourage children
to display greater caution on the roads and it would be unduly harsh upon the negligent motorist.
Concurrent and joint wrongdoers
Concurrent wrongdoers are persons who acting independently both cause harm to P whereas
joint wrongdoers act in concert in causing harm to P.
When two or more persons have contributed either equally or in varying proportions to the
commission of a delict then all are liable jointly and severally. The injured party can sue them all
together in one action or any one of them.

The one sued and who has paid reparation can recover a contribution from the others. This can
be by third party proceedings or after the case is concluded. He recovers the amount that the
court considers just depending on their respective contribution to the delict.

Previously, there was no provision for apportionment between concurrent wrongdoers. Thus, if A
and B, acting independently of one another, were both at fault in causing harm to P, even if A
was 80% at fault in causing P his injuries and B was only 20% at fault, P could still nonetheless
claim 100% of his damages from either A or B. The concurrent wrongdoer who has paid the
damages, was, however, entitled to claim a contribution of 50% from the other concurrent
wrongdoer (or if there were two other concurrent wrongdoers he can claim a third from each or if
there were three others a quarter from each and so on). In other words, the proportion of
contribution which concurrent wrongdoers were obliged to pay was not dependent upon their
respective degrees of fault.

However, an amendment was made to our apportionment legislation in 1985 allowing our courts
to apportion damages as between concurrent wrongdoers or between joint wrongdoers. Under
this amendment, (Act 28 of 1985) a court may either make a single award or may apportion
liability as between concurrent or joint wrongdoers in the light of the respective degrees of fault
of the wrongdoers. Thus, if A and B are concurrent wrongdoers who cause harm to P who is
blameless and the court decides that A is 90% at fault and B is 10% at fault in the causing of P’s
harm, the court can now order A to pay P 90% of his damages and B to pay P 10% of his
damages. If A pays the entire amount of damages to the injured party he can claim a contribution
from B based upon his respective degree of fault.
Joining of wrongdoers
The plaintiff should join all wrongdoers in the action otherwise he will be barred from claiming
damages from the other wrongdoers unless they can obtain leave of the court on good cause
shown: See (s 6(1)(a)).

A defendant should join all wrongdoers in the action otherwise he will be barred from claiming a
contribution from other wrongdoers not joined in the action unless they can obtain leave of the
court on good cause shown: See (s 6(1)(b)).

For a commentary on these provisions, see 1988 Legal Forum Volume 1 Number 2 p 34.
Apportionment in respect of dependant’s claim
A is dependent upon B for support. B is killed or is seriously injured. B’s death or injuries were
caused partly as a result of C’s negligence and partly as a result of B’s own negligence. What
happens if A sues for loss of support?

The section of the Damages (Apportionment and Assessment) Act, [Chapter 8:06] that used to
cover this situation before it was repealed in 1985, s 4(4), simply stated that:

Damages recoverable by any person in consequence of the death or injury to another

person shall be reduced to such an extent as the court may deem just and equitable having
regard to the respective degrees of fault of the person killed or injured and of the other
party in relation to the occurrence which resulted in such death or injury.

52
Under this provision, the court would simply reduce the damages payable to A based upon the
proportionate degree of fault of B.

In 1985, s 4(4) was repealed and s 8 was inserted. Under s 8, A’s claim is no longer subject to
reduction on the basis of the negligence of B. What now will happen is that if A sues C, B (if he
is alive) or his estate (if he is dead) will be treated as a joint wrongdoer with C in relation to the
dependant. If the court apportions liability in terms of s 5 between C and B, it could hold C and
B, or B’s estate, liable to pay damages to A in amounts proportional to their degrees of fault. If C
pays the dependant’s damages, he can then claim a contribution from B (if B is injured but does
not die) or from B’s estate if B had died in the accident.

In South Africa the legislation also provides for the breadwinner or his estate to be treated as a
joint wrongdoer. However, the South Africans have added this proviso (which we do not have in
Zimbabwe):

Provided that if the court in determining the full amount of the damage suffered by P
deducts from the estimated value of the support of which P has been deprived by reason of
the death of any person, the value of the benefit which P has acquired from the estate of
such deceased person, no contribution which the joint wrongdoer may so recover from the
estate of the deceased person shall deprive P of the benefit or any portion thereof.

Commenting upon this proviso Burchell states at p 244 of his Principles of Delict that:

The effect of this proviso is unsatisfactory in the amount of protection it gives to

dependants. In many cases, the bulk of a deceased breadwinner’s estate consists of
insurance monies or pension benefits. Since, in terms of the Assessment of Damages Act 9
of 1969 these insurance or pension benefits are not taken into account in reduction of the
dependant’s damage, they are available for the satisfaction of the joint wrongdoer’s action
for a contribution against the breadwinner’s estate. The only possible limit to such claim is
in terms of s 40 of the Insurance Act 27 of 1943 which protects on death the proceeds of
life policies against creditors up to a certain amount. Perhaps a practical way of avoiding
the unsatisfactory result of s 1 of the Assessment of Damages Act read with s 2(6)(a) of
the Apportionment of Damages Act is for the breadwinner to stipulate in the insurance
policy that the benefit is to be paid to the dependants i.e. they become the beneficiaries not
the estate.

Defence of voluntary assumption of risk in respect of dependant’s claim

It would seem that the defence of volenti should not be able to be successfully raised by D as a
full defence in respect of an action by a dependant for loss of support due to the death of a
breadwinner, as the duty of support of the breadwinner is independent of the duty of care owed
to the deceased.See Jameson’s Minors v CSAR 1908 TS 575. The position appears to be different
in English law. See Salmond & Heuston The Law of Torts 19 Ed p 650.
No deduction of certain benefits
In Zimbabwe section 9 of Damages (Apportionment and Assessment) Act [Chapter 8:06]
provides for certain benefits to be excluded in assessment of damages in a claim for loss of
support. It reads as follows:
9 (1) In this section—
“benefit” means any payment by a friendly society or trade union for the relief or maintenance of
a dependant of a member;
“insurance money” includes a refund of premiums and any payments of interest on such
premiums;
“pension” includes a refund of contributions and any payment of interest on such contributions
and also any payment of a gratuity or other lump sum by a person or provident fund or by an
employer in respect of the employment of any person.
(2) In assessing damages for loss of support as a result of the death of a person, no insurance
money, pension or benefit which has been or will or may be paid as a result of the death shall be
taken into account.

Wrongfulness (unlawfulness)
This requirement operates as a device for controlling the scope of actionable negligence.

It has these main roles, namely–

 to decide whether there is any liability at all for a particular type of conduct;
 to restrict the ambit of liability where liability is recognized;
 in certain situations like liability for omissions to expand the range of situations in which
there is liability.

In Musadzikwa v Minister of Home Affairs & Anor 2000 (1) ZLR 405 (H) the court stated that in
order to determine the wrongfulness or reasonableness of any given conduct the court is enjoined
to make a value judgment based on, among other things, contemporary boni mores, in the sense
of the convictions of the community as to what is fair, just and equitable. In this case the police
had used automatic weapons to quell a riot, injuring an innocent passer-by. The court found that
it is not conducive to harmonious community relations for the police force to unleash its
members onto an urban shopping centre located in the centre of a densely populated suburban
residential area armed with FN rifles. While they were entitled to use firearms to disperse the
rioters, it was unreasonable to use FN rifles and so they were liable to P. (This case seems to mix
up the concepts of wrongfulness and negligence. On the facts of the case, the issue of
wrongfulness did not pose a problem as the law of delict recognizes that it is always wrongful to
cause by a positive act physical injury by negligence.)

54
In Nyaguse v Skinners Auto Body Specialists & Anor 2007 (1) ZLR 296 (H) the court pointed out
that wrongfulness and fault are separate and distinct requirements. Wrongfulness is determined
by reference to public policy or the legal convictions of the community. Both fault and
wrongfulness must be pleaded and proved.

In Country Cloud Trading CC v MEC, Department of Infrastructure Development, Gauteng 2015

(1) SA 1 (CC) the court said:

“Wrongfulness is an element of delictual liability. It functions to determine whether the

infliction of culpably caused harm demands the imposition of liability or, conversely,
whether “the social, economic and others costs are just too high to justify the use of the
law of delict for the resolution of the particular issue”. Wrongfulness typically acts as a
brake on liability, particularly in areas of the law of delict where it is undesirable or
overly burdensome to impose liability.”

In Border Timbers Limited v ZIMRA 2009 (1) ZLR 131 (H) the court stressed that in an Aquilian
action it is necessary to plead and proved both negligence and wrongfulness.

In most cases the wrongfulness requirement poses no problem. The law of delict lays down that
it is always wrongful or unlawful intentionally or negligently to cause by a positive act physical
harm to person or property resulting in financial loss.

Where, however, there was not a positive act but instead an omission (i.e. a failure to act
positively), or the positive act did not result in physical harm to person or property but only
purely financial loss, or the harm caused was psychological harm, the courts have used the
wrongfulness criterion to limit the range of liability in these cases further than would be the case
if the fault criterion was the sole determinant of liability.
Range of Liability
Negligence

Wrongfulness

Areas where wrongfulness issue arises

The law of delict provides that it is always wrongful for D intentionally or negligently to cause
by a positive act physical harm to the person or property of P resulting in financial loss to P.

There are only a limited number of particular types of harm that result from negligent conduct
where the issue of wrongfulness is a live one.
The situations are:
  Liability for omissions;
 Liability for causing purely economic loss by negligent misstatements;
 Liability for causing purely economic loss other than by negligent misstatements; and
 Liability for causing nervous shock.

As regards liability for omission, the law has mapped out when it is appropriate to impose
liability for an omission and in recent years has expanded the scope of liability for omissions
using the policy based criterion of wrongfulness.

In regard to situations where purely economic loss is involved the courts have been concerned
that if liability were to be based simply upon negligence, the scope of liability would be far too
extensive and far too onerous. As a matter of legal policy, the courts have sought to impose
further legal requirements based upon policy so as to limit the extent of liability for the negligent
causing of financial loss to avoid imposing liability “in an indeterminate amount to an
indeterminate number of plaintiffs over an indeterminate period”.

Finally in respect of infliction of nervous shock, the courts have imposed certain requirements to
ensure that the extent of liability is not too wide.
Omissions
Where patrimonial loss accrues as a result of harm caused by an omission as opposed to positive
physical conduct there are special rules which apply. In general terms, there is no delictual
liability for an omission unless, in the circumstances, the law recognises that there is a legal duty
to take positive action to prevent the harm from occurring. Thus, even though harm may have
been clearly foreseen or was foreseeable and the good citizen would have felt himself morally
obliged to take action and the harm could have been easily prevented by D, D will still not be
liable for the harm unless the situation was one recognised by the law as one in which there was
a legal obligation to take preventive action.

The situations recognised as leading to such a legal duty are:

 Creation of a dangerous situation by prior conduct;
 Control over a potentially dangerous situation which D did not create;
 Protective relationship (which includes both blood relationships, such as a mother and
her own child, and other relationships, such as baby-sitter who is looking after a
child);
 Public office or calling (e.g. a policeman or prison officer);
 Statutory duty; and
 Contract or undertaking.
Creation of a dangerous situation by prior conduct
An easy example is where you light a fire and fail to ensure that it does not spread and cause
harm to a neighbour’s property.

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In Mapuranga v Mungate 1997 (1) ZLR 64 (H) P was assaulted at D’s house by D’s brother and
by D. D was liable for the assault by his brother because D had invited P to his house knowing
that he was going to confront him with an allegation that he had committed adultery with D’s
wife. The court held that although the doctrine of common purpose, applicable in criminal cases,
has not been accepted in civil actions, D will be liable for a delict committed by another where
he has by his acts created the situation leading to the delict or has failed to act to prevent its
commission when he was under a legal duty to act. P had been invited to D’s house and D had
thereby assumed a legal duty to protect him from foreseeable harm. D’s brother had been invited
to confront P on an emotional subject which a reasonable person would have foreseen would be
likely to provoke an assault. D, observing the assault by his brother, did nothing to prevent it and
even joined in.

Control over a potentially dangerous situation which D did not create

In Mills v Farmery 1989 (2) ZLR 336 (H) a fire had started on D’s vacant piece of land and had
spread in residential area causing damage to P’s property. D had allowed his land to become
overgrown with grass and this constituted a fire hazard. D was held liable as it was reasonably
foreseeable that a fire might start and spread to adjoining properties. A reasonable person would
have taken the relatively simple and inexpensive precaution of slashing or cutting the grass to a
point where it would be harmless. It did not matter that the fire may have been started by an
unauthorized person who had come onto D’s land as unauthorised persons had easy access to D’s
land.

In Blore v Standard General Insurance 1972 (2) SA 89 (O) a garage negligently failed to notify
the owner of a defect in his vehicle; Rabie v Kimberley Municipality 1991 (4) SA 243 (NC).
Public office or calling and special or protective relationship

In Minister of Police v Ewels 1975 (3) SA 590 (A) the police failed to stop an assault upon P at
the police station by an off-duty police officer. The Ministry was held liable to the injured
person.

In Minister of Police v Skosana 1977 (1) SA 31 (A) a sick prisoner in police custody was not
taken timeously for medical treatment. The Ministry was held liable for his death.The police
officers had been negligent in failing to obtain prompt medical treatment for the prisoner. This
failure was the cause of the death because, according to the expert testimony, if the prisoner had
been given treatment earlier in all probability he would have survived.
In Geldenhuys v Minister of Safety and Security 2002 (4) SA 719 (C) a man was found lying on
the ground unconscious. He was drunk and had been involved in a fight with another drunken
man. He was arrested by the police for being drunk in a public place. He was not physically
examined before he was placed in a cell. The police also negligently failed to realize he was
badly injured. When finally they did and rushed him to hospital he had already suffered brain
damage. He successfully sued the police for damages.

In Minister of Safety and Security v De Lima 2005 (5) SA 575 (SCA) the police failed to take
reasonable steps taken to determine the suitability of an applicant for a firearms permit.The
person shot and injured a person with the weapon. The police were held liable as it was
reasonably foreseeable that if an unsuitable person was granted a firearms permit he might end
up harming a third party with the weapon.

Minister of Safety and Security v Van Duivenboden 2002 6 SA 431 (SCA) Under statute the
police had power to take measures to deprive an unfit person of a firearm. The police that it were
in possession of information that a person was unfit to be granted the permit but did not take
action and the person used the weapon to kill his wife and daughter and to injure a third party. It
was held the police owed a legal duty to members of the public to take reasonable steps to act on
information in order to prevent harm to members of the public.

In Dorset Yacht Club v Home Office [1970] AC 1004 (HL) the detaining authorities negligently
allowed youths in custody to escape. The youths took out a boat belonging to the club and caused
damage to the boat. The Home Office was held liable to pay damages.
Municipality cases
In Halliwell v Johannesburg Municipal Council 1912 AD 659 the situation involved thenon-
repair of dangerous road and an accident occurred. The court held that the municipality was not
liable unless it had introduced new source of danger. On the other hand, in the case of van der
Merwe Burger v Warenton Municipality 1987 (1) SA 899 (NC) the court held that a municipality
is not in a specially privileged position regarding negligent omissions. It is not required that the
municipality introduces a new source of danger before there can be liability.
New legal duties
In addition to these recognised categories, in the leading case of Kingv Dykes 1971 (2) RLR 151
(A) the appeal court reserved to itself the power to create additional legal duties to act positively
in cases falling outside the scope of these specific categories. It would recognise such further
legal duties only in borderline cases where, on a value judgment, the court decides that it is
appropriate that an undoubted moral duty should be translated into a legal duty. The fact situation
in King v Dykes which led to the court exercising this power to create a new legal duty was one
of fire spreading in a farming area. The appeal court laid down that there was a legal duty on a

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farmer who had not started the fire but onto whose land a fire had spread from an adjoining
property, to take reasonable steps to fight the fire and to try to prevent it from spreading further.

Since the decision in King v Dykes, the power to translate moral duties into legal ones has not
been used by the Zimbabwean courts to impose new legal duties in any other situations than fire
spreading. It seems that most situations that arise can be fitted into the traditional categories of
liability for omission thus avoiding the need to create new legal duties outside these categories.

In Mapingure v Minister of Home Affairs & Ors 2014 (1) ZLR 369 (S) the appellant was raped
by robbers at her home. She immediately lodged a report with the police and requested that she
be taken to a doctor to be given medication to prevent pregnancy and any sexually transmitted
infection. Later that day, she was taken to hospital and attended to by a doctor. She repeated her
request, but the doctor only treated her for an injured knee. He said that he could only attend to
her request for preventive medication in the presence of a police officer and that the medication
had to be administered within 72 hours of the sexual intercourse having occurred. She went to
the police station the following day and was advised that the officer who dealt with her case was
not available. She then returned to the hospital, but the doctor insisted that he could only treat her
if a police report was made available. Three days after the rape, she attended the hospital with
another police officer. At that stage, the doctor informed her that he could not treat her as the
prescribed 72 hours had already elapsed. Eventually, a month after the rape, the appellant’s
pregnancy was formally confirmed.Thereafter, the appellant went to see the investigating police
officer who referred her to a public prosecutor. She told the prosecutor that she wanted her
pregnancy terminated, but was told that she had to wait until the rape trial had been completed.
Four months after the rape, acting on the direction of the police, she returned to the prosecutor’s
office and was advised that she required a pregnancy termination order. The prosecutor then
consulted a magistrate who stated that he could not assist because the rape trial had not been
completed. She finally obtained the necessary magisterial certificate nearly six months after the
rape, but the hospital matron who was assigned to carry out the termination felt that it was no
longer safe to carry out the procedure and declined to do so. Eventually, after the full term of her
pregnancy, the appellant gave birth to her child.The applicant brought an action against the
Ministers of Home Affairs, Health and Justice for damages for physical and mental pain, anguish
and stress suffered and for maintenance for the child until the child turned 18. The basis of the
claim was that the employees of the three Ministries concerned were negligent in their failure to
prevent the pregnancy or to expedite its termination. The particulars of negligence were itemised.
Her claim was dismissed.The questions for determination on appeal were whether or not the
respondents’ employees were negligent in the manner in which they dealt with the appellant’s
predicament; and if they were, whether the appellant suffered any actionable harm as a result of
such negligence and, if so, whether the respondents were liable to the appellant in damages for
pain and suffering and for the maintenance of her child.
There was a professional relationship between the appellant and the doctor. His duties required
him to attend to all the physical injuries arising from the sexual assault inflicted upon her.
Consequently, he was under a special duty to be careful and accurate in everything that he did
and said pertaining to his relationship with her. He should have exercised that level of skill and
diligence possessed and exercised at the time by the members of his profession. A reasonable
person in his position would have foreseen that his failure to administer the contraceptive drug,
or his failure to advise the appellant on the alternative means of accessing that drug, would
probably result in her falling pregnant. He should have taken reasonable steps to guard against
that probability. However, despite the appellant’s quandary and persistent pleas for treatment, he
stubbornly failed to take any steps to mitigate her condition.

The situation before the police was that of a victim of sexual violence requiring their urgent
assistance. They were called upon either to compile a report on the assault or to accompany the
appellant to the doctor within a specified period. The circumstances were such as to create a legal
duty on the part of the police to assist the appellant in her efforts to prevent her pregnancy. They
failed to comply with that duty, which they could have done with relative ease. Their inaction
amounted to unlawful conduct by reason of their omission to act positively in the circumstances
before them. They were under a legal duty to act reasonably and they dismally failed to do so.

The Ministry of Health and the Ministry of Home Affairs were held delictually liable for the
negligent failure by the doctor and the police officer respectively in respect of the failure to avoid
the pregnancy. Although the originating cause of the appellant’s pregnancy was the rape, its
proximate cause was the negligent failure to administer the necessary preventive medication
timeously. But for that failure, the appellant would not have fallen pregnant. The police and the
doctor failed in their duties. These unlawful omissions took place within the course and scope of
their employment with the first and second respondents respectively, who must be held
vicariously liable to compensate the appellant in respect of the harm occasioned through the
failure to prevent her pregnancy. The appellant’s claim for damages must be limited to the period
between the date of her rape and the date of confirmation of her pregnancy. The matter would be
remitted to the trial court for assessment of the damages to which the appellant was entitled.
After it was remitted, the High Court awarded an amount of $6 500 being general damages for
pain and suffering that was incurred by Mapingure for wrongful pregnancy.

The court held, however, that there was no delictual responsibility arising out of the conduct of
the prosecutor and the magistrate in respect of the matter of the obtaining of a termination of
pregnancy. In terms of ss 4 and 5 of the Termination of Pregnancy Act [Chapter 15:10]
permission for the termination of pregnancy pursuant to unlawful intercourse may only be
granted by the superintendent of a designated institution. The precondition for that permission is
the production of a certificate from a magistrate within the same jurisdiction. The issuance of a
magisterial certificate is preceded by a complaint having been lodged with the authorities and the
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submission of relevant documents by those authorities. The term “authorities” is not defined in
the Act but, in the context of unlawful intercourse, i.e. rape or incest, it would ordinarily apply to
mean the police authorities. The critical question was whether the responsibility for instituting
proceedings in the magistrates court lies with the relevant authorities or the victim of the alleged
unlawful intercourse. On a correct reading of the Act and the case law, the victim of the alleged
rape must depose to an affidavit or make a statement under oath in addition to being present for
possible interrogation by the magistrate. Given the ex parte nature of the procedure, an affidavit
on its own may not always suffice to enable the magistrate to make the necessary determination,
on a balance of probabilities, that the applicant was raped and that her pregnancy resulted
therefrom. However, the applicant’s affidavit or statement under oath is essential and required in
every case, whether or not the magistrate decides to examine the applicant or any other person as
he may deem necessary. It is the responsibility of the victim of the alleged rape to institute
proceedings for the issuance of a magisterial certificate allowing the termination of her
pregnancy. The role of the police and the prosecutor, upon request by the victim or in response to
a directive by the magistrate, is to compile the relevant reports and documentation pertaining to
the rape for submission to the magistrate. The role of the magistrate is to issue the requisite
certificate upon being duly satisfied in terms of s 5(4), while that of the superintendent of the
designated institution is to authorise its medical practitioner, upon production of the certificate,
to terminate the unwanted pregnancy. Even on the broadest interpretation of the Act, taken as a
whole, it is not within the scope of prosecutorial or magisterial functions to give legal advice on
the procedural steps required to terminate a pregnancy. It was for the appellant to have sought
that advice aliunde, as soon as possible after she became aware of her pregnancy. The
prosecutors and magistrate could not be held liable for failing to take such reasonable steps as
may have been necessary for the issuance of the requisite certificate.In coming to this conclusion
the court adopted the approach in the South African case of Minister of Law and Order v Kadir
1995 (1) SA 303 (A)

The Appeal Court was clearly correct about the prescribed roles of the prosecutor and magistrate
under the Termination of Pregnancy Act and that the Act did not impose upon them a duty to
provide legal advice to a victim. But the facts show that advice was indeed offered to the victim
by both the prosecutor and through the magistrate and the advice offered was erroneous. She was
told by the prosecutor that she would have to wait until the rape trial had been completed for her
pregnancy to be terminated. When she returned to the prosecutor to the direction of the police,
she was advised that she required a pregnancy termination order. The prosecutor in question then
consulted a magistrate who stated that he could not assist because the rape trial had not been
completed. By the time the victim obtained the termination certificate, it was too late to carry out
a safe termination. Reliance on this erroneous advice could well have caused the victim to delay
initiating the proceedings for the issuance of the magisterial certificate for authorising the
termination of the pregnancy, leading to the issuing of the certificate when it was too late to have
a safe termination. If it had been established that this is what had in fact happened, the appellant
would have had a basis for her claim based upon reliance upon completely misleading advice
which led to her not being able to have a termination of pregnancy in time. Although the
prosecutor and magistrate had no legal obligation to offer advice, once they decided to do so,
they had a duty to give proper advice and not to give advice that may have led to the denial of a
termination of pregnancy in time. If this was the situation there would have been no danger of
opening up the floodgates to a deluge of claims.It is regrettable that this issue was not properly
investigated leading the Appeal Court to state that there was insufficient evidence on record to
show what had occurred between the appellant and these functionaries.

For a critical appraisal of the this judgment see “The challenge of constitutional transformation
of society through judicial adjudication Mildred Mapingure v Minister of Home Affairs & Ors S-
22-14 by J. Tsabora Midlands State University Law Journal Vol 1 2014 and “Reflections on the
tortuous tale of Mildred Mapingure” by Sarudzayi Njerere, 10/07/14 ZWLA.

J.Tsabora cogently argues in a detailed critique of this judgement that the Supreme Court was
wrong in denying the appellant’s delictual damages for lying in expenses and maintenance of the
child born after she failed to obtain a lawful termination of her pregnancy. Essentially he argues
that the court should have taken the opportunity to develop the common law in line with
constitutional values and this should have led it to conclude that the authorities involved in this
matter should be held responsible for the failure of the victim of the rape to obtain a lawful
termination. The failure by the victim to follow the procedures for obtaining the magistrate’s
authorization for a lawful termination should not have been treated as breaking the causal link
between the original negligent failure of the doctor and police to perform their legal duties in
respect of the victim obtaining emergency contraception to prevent pregnancy and the eventual
giving birth to an unwanted child. The police, the doctor, the prosecutor and the magistrate
should have been held responsible and they, and their Ministries, should have been held liable to
pay damages to Ms Mapingure for her lying in expenses and maintenance of the child.

South African test

In South Africa, the courts have laid down that in a situation where there is no precedent for
making D liable in this type of case, the courts will only recognise a legal duty so as to impose
liability if in that situation, not only does the omission evoke moral indignation but also the legal
convictions of the community demand that the omission be regarded as wrongful and that the
loss should be compensated by the person who failed to act positively. See the cases of Minister
of Police v Ewels 1975 (3) SA 590 (A) and Minister of Law and Order v Kadir 1995 (1) SA 303
(A). There appears to be little difference between the test applied in South Africa and that applied
in Zimbabwe to decide whether a new legal duty should be recognised because the final decision
will obviously revolve around policy considerations such as social utility, practicality of
enforcing a new duty, and the likely impact upon the D’s activities of such a duty. There have
been a series of cases in South Africa in which the courts have addressed the issue of legal duty.

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In Minister of Police v Ewels 1975 (3) SA 590 (A) a civilian was assaulted at a police station by
a police sergeant who was not on duty at the time. The assault took place in the presence of
several members of the police (including a sergeant) who could easily have put an end to the
assault. The court held that the police officers on duty had a legal duty to intervene and assist the
person being assaulted. The Ministry was vicariously liable. The court said the time had come
where an omission should be actionable where it occasions not only moral indignation but where
the legal convictions of the community require that the omission be regarded as unlawful.

In Minister of Police v Skosana 1977 (1) SA 31 (A) a prisoner died due to the failure timeously
to procure medical attention for him. The prisoner probably would have survived had he been
taken for treatment timeously. The police had failed in their duty towards the prisoner and they
were liable for the death of the prisoner.

In Moses v Minister of Safety and Security 2000 (3) SA 106 (C) a person detained in a police cell
died after being assaulted by fellow inmates. The assault took place between cell inspections
which were 25 minutes apart. The police were unaware of the propensity of assailants towards
violence and the assailants had not exhibited signs of aggressiveness. The police had limited
manpower available and had other duties. In the circumstances the reasonable person would not
have done more than the police had done.

In Shabalala v Metrorail 2008 (3) SA 142 (SCA) a commuter was accosted by robbers on train
who demanded money from him. When he said he had none, one robber produced a firearm and
shot him twice in the leg and once in the arm.The commuter sued the railway company alleging
that it had been negligent in failing to provide a security guard in each carriage to prevent such
occurrences. The court decided that it was not reasonable to expect the railway company to
provide such guards in the circumstances. Only if such violent robberies were particularly
prevalent would such precaution be called for.

In Mashongwa v Passenger Rail Agency of South Africa 2016 (3) SA 528 (CC) P, a sole passenger on a
train operated by D, was attacked by armed men and thrown out of the train through doors which were
left open whilst the train was in motion. P argued that the operator was negligent in not have security
guards on the train and in not keeping the train doors closed whilst the train was in motion. The High
Court found for P and awarded damages. The Supreme Court found for the D. The Constitutional Court
found for P. The Court held that safeguarding the physical well-being of passengers was a central
obligation of public carriers, including PRASA. This duty is further reinforced by the specific
constitutional obligation to protect passengers’ bodily integrity that rests on PRASA as an organ
of state. Taking these factors into account, this Court found that PRASA had breached its public
law obligations. It also found that the norms and values derived from the Constitution demand
that a negligent breach of those duties, even by way of omission, should, absent a suitable non-
judicial remedy, attract liability to compensate injured persons in damages. The Court also held
that the harm caused was reasonably foreseeable and that PRASA had a legal duty to ensure that
the doors were closed while the train was in motion. It further held that P would probably not
have sustained his injuries had PRASA done so. It concluded that it was wrongful and negligent
of PRASA not to observe the important practice of keeping the train doors closed while the train
was in motion.

In Minister of Safety and Security v Hamilton 2004 (2) SA 216 (SCA) the police were held liable
when a person injured another with a firearm. The police had failed to inquire into the
psychological fitness of the person who had applied to the police for a firearms licence.

Carmichele v Minister of Safety and Security

One of the cases which best illustrates the way in which constitutional provisions help to shape
the law of delict in South Africa is the Carmichele case. The summary of the judgments in this
case draws from the summary by Loubser and Midgley. In the case, X was charged with
attempted rape and attempted murder. The investigating officer was aware of X’s previous
convictions for sexual offences. Despite this, he told the prosecutor there was no reason to
oppose bail and the prosecutor did not oppose bail. X was released on bail and a few months
later he broke into C’s house and attempted to murder her. He was convicted for these offences.
C claimed damages against the police and the prosecution for the harm she had suffered.

The Supreme Court of Appeal originally dismissed the claim for damages finding that neither the
police not the prosecutor had acted wrongfully as there was no legal duty to act positively to
oppose bail. The matter was then taken to the Constitutional Court. [Carmichele v Minister of
Safety and Security 2001 (4) SA 938 (CC)]

The issue there was whether the court should develop the law of delict in this regard in the light
of the contention by C that her rights to life, human dignity, equality and security as well as the
constitutional provisions on the duties of the police had been violated. In particular, she alleged
that the State had a duty to protect women against violent crime and sexual abuse. The
Constitutional Court reiterated that Constitution is the supreme law and the Bill of Rights applies
to all law and that under section 39(2) of the Constitution provides that when developing the
common law, every court must promote the spirit, purports and objects of the Bill of Rights and
remove deviations in the common law where these are found to exist. The Court said that it was
implicit in C’s case that the common law had to be developed in this case beyond existing
precedent. The court would consider whether the common law is in need of development and, if
it is, what way it should be developed. It pointed out that the State has positive duties to promote
and uphold the spirit, purport and objectives of the Bill of Right and is obliged not to perform
any act that infringes the rights to life, human dignity and the freedom and security of the person.

The Constitutional Court then referred the matter back to the Court of first instance to reconsider
the matter in the light of the principles raised by the Constitutional Court. The court of first
instance, having heard further evidence, found in C’s favour. Carmichele v Minister of Safety
and Security 2004 (3) SA 431 (SCA) paras 21-22 There was then an appeal to the Supreme Court

64
of Appeal. This court dismissed the appeal and found in C’s favour. It accepted that both the
police and the prosecutors have a public duty either to oppose bail or to place all relevant and
readily available facts before the Court. It found that they had failed in this duty. It referred to the
principles it has set out in the earlier decision of Minister of Safety and Security v Van
Duivenboden 2002 (6) SA 431 (SCA) and found that someone in the position of C had no other
effective remedy against the State except an action for damages in delict. This remedy would
therefore be available unless there were public policy considerations that required that the
remedy should not be granted, such as whether in the present case that granting of the remedy
would inhibit the police or the prosecution in the performance of their duties. The Court found
that in the present case there was no reason to depart from the general principle that the State will
be liable for its failure to comply with its constitutional duty to protect C who pre-eminently was
a person requiring the State’s protection.

In granting the damages, the Supreme Court of Appeal found that the police and prosecution had
acted negligently and the harm to C was foreseeable in the circumstances given the proximity of
the parties.

In Van Eeden v Minister of Safety and Security 2003 (1) SA 389 (SCA) the State was held liable
for a rape committed by a known dangerous criminal and serial rapist who had escaped through
an unlocked gate from police cells where he was being held for an identification parade. The
court noted that an omission is wrongful under the common law if D is under a duty to act
positively to prevent harm to P. D is under a legal duty if it is reasonable for him to have taken
positive measures to prevent the harm, reasonableness being assessed according to the court’s
conception of the legal convictions of the community (i.e. the convictions of legal policy-makers
such as judges and the legislature). The court noted, with apparent approval, a minority judgment
in the case of Minister of Safety & Security v Van Duivenboden 2002 (6) SA 431 (SCA), which
held that the police were under a positive duty to act to protect citizens from assault, even on an
application of the traditional test for delictual wrongfulness.

In Minister of Safety and Security & Ors v W H 2009 (4) SA 213 (E) P was raped. A warrant for
the arrest of the rapist had been issued previously but the police had failed to arrest the rapist
within a reasonable period of time and during this time the rapist had raped P. P sued the police
for damages. The court held the police liable, finding that the police inaction was both the factual
and legal cause of the rape.

In McCarthy Ltd t/a Budget Rent A Car v Sunset Beach Trading 300 CC t/a Harvey World Travel
& Anor 2012 (6) SA 551 (GNP) D, a travel agent, issued car rental vouchers to 'customers' who
then stole rental cars from P, rental company. P company sought to sue D agency for the loss of
their vehicles alleging failure (omission) by the travel agent to take reasonable steps to ensure
that the customers were genuine. The legal convictions of the community would assume that
adequate security checks would be made by P company before it released cars, rather than trying
to hold D agency liable. D agency was held not liable.

In Administrator, Natal v Edouard 1990 (3) SA 581(A) the court considered whether there were
policy reasons for denying the claim. It decided that there were no such policy reasons and
allowed the claim. In this case there had been a negligent failure to perform an agreed
sterilization operation. The result of this failure was the birth of a healthy unplanned child. The
parents were awarded compensation for the financial burden of having to raise an unwanted
child.

In Minister of Law and Order v Kadir 1995 (1) SA 303 (A) the police attending to a traffic
accident failed to record the particulars of the driver who caused the accident. The result of this
failure was that a person who had been injured in the accident was unable to locate the driver and
sue him. He then sought to sue the police. The appeal court held that the police did not owe the
injured party a legal duty to record information relating to the identity of the driver or his vehicle
and thus the injured party was not entitled to sue the police.The court decided that this case was
completely different from that of Ewels. At 321H-322B the court said:

Viewing the matter objectively society will take account of the fact that the functions of the
police relate in terms of the Act to criminal matters and were not designed for the purpose of
assisting civil litigants. Members of the community will realise that services are rendered by
the police in connection with road accidents in the course of what was described in Dease v
Minister of Justice 1962 (3) SA 215 (T) at 218B-C as “exceptional duties falling outside the
meaning of the term ‘police duties’ as ordinarily understood,” and that these duties, largely
self-imposed, may well be terminated or curtailed if the Courts penalise less than perfect
performance. Bearing this in mind society will baulk at the idea of holding policemen
personally liable for damages arising from what was a relatively insignificant dereliction of
duty.

Negligent misstatement inducing contract

Under this heading, the special situation of negligent misrepresentation inducing contract needs
to be considered. The situation under consideration here is as follows: P and D are negotiating a
contract. During the course of the negotiations, D makes certain material representations to P that
induce P to enter into the contract. The representations made by D at the pre-contractual stage are
not made terms of the contract. They are, however, erroneous and the effect of these erroneous
statements is that P suffers financial loss at the post-contractual stage because the contractual
deal is inferior to that which P was led by D’s representations to believe it would be. P seeks to
sue D in delict for negligent misrepresentation.

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Until the 1980s, the approach in South Africa was that the courts adopted the position that it was
unnecessary to allow recovery in delict in this type of case, the main reason being that any
reasonable business-person would extract guarantees as to the accuracy of any such material
representations, have them included as contractual terms, and would thereby be able to sue in
contract if the representations proved to be erroneous. Under this approach, it was argued that to
allow an additional delictual right of action would lead to unnecessary proliferation of actions.

Later, however, in the Cape Provincial Division decision in Kern Trust v Hurter 1981 (3) SA 607
(C) (which decision was approved in the Zimbabwean case of Autorama (Pvt) Ltd v Farm
Equipment Auctions 1984 (1) ZLR 162 (H)), the court held that there was no compelling reason
for denying a delictual right of action in this type of case, it being unreasonable to expect P to
have included as contractual terms every single representation which has been made to him at the
pre-contractual stage. He should rather be able to expect reasonable care from D in making
statements that would induce P to conclude the deal.

In the Autorama case D, an auctioneer, sold a motor vehicle to P after representing to P that the
owner of the vehicle was a finance company whereas it was in fact selling it on behalf of the
person who was buying the vehicle under a hire purchase agreement with the finance company.
Before P could obtain the vehicle he had to pay the balance owing under the hire-purchase to the
finance company. P claimed damages from D for the amount he had to pay to the finance
company. P argued that the representation by D about the ownership of the vehicle was material
representation in inducing P to enter into the contract. P alleged that D was negligent in failing to
ascertain the true owner as it was known to D that persons regularly attempted to fraudulently
selling motor vehicles subject to hire-purchase agreements before leaving Zimbabwe with the
money. D excepted to the claim on the basis that it disclosed no actionable claim. The court
dismissed the exception.

The South African Appellate Division has ruled emphatically that there can be liability in this
situation. See also Bayers SA Ltd v Frost 1991 (4) SA 559 (A).
Negligent misstatements causing purely pecuniary loss
Where D makes a negligent misstatement that ends up causing purely economic loss to P, the
question is whether D will be held liable for the loss.To allay fears of limitless liability (the
spectre of exposing D to “liability in an indeterminate amount to an indeterminate time to an
indeterminate class”)the question that will be asked is whether there is a legal relationship
between the parties which create a legal obligation on the part of D not to give misleading
information or advice.

Where a person suffers physical harm to his person or property and resultant patrimonial loss by
acting upon a negligent misstatement, no issue of wrongfulness arises. In such a case, provided
there was a cause and effect relationship between the negligence and the physical harm, D’s
conduct will automatically be deemed to be wrongful and the loss will be recoverable.

Where there is an issue of wrongfulness is in cases where there is no physical harm or damage
but only pecuniary loss.

Because of fears of liability in this context in an indeterminate amount to an indeterminate

number of persons over an indeterminate period arising out of the volatile character of words and
statements and their potentiality for reaching many people, our courts have adopted a test for
causing purely pecuniary loss by negligent misstatements which imposes further restrictions on
top of the negligence criterion. This requires reference to legal policy considerations.

In Taunton Enterprises (Pvt) Ltd & Anor v Marais 1996 (1) LRZ 527 (H) Ps bought a second-
hand motor car from D, who made it clear that he was selling the car on behalf of someone else.
Before buying the car P2 asked D to check the car’s provenance to ensure that it was not stolen.
D agreed to do so and subsequently assured Ps that he had checked with the Police in South
Africa, Botswana and Zimbabwe and was satisfied that the car was not stolen. His checks were
not thorough enough, however. Ten months after the sale, evidence came to light that the car had
been stolen in South Africa. To avoid losing it, Ps agreed to buy it from the true owner for R70
000. Ps sued D for damages in the sum of R70 000, alleging that he had caused Ps loss by a
negligent misstatement that the car was not stolen.
The court held that in determining whether or not a person was under a duty of care not to make
an incorrect statement, the following essential elements should be looked for:
 P should have made a serious inquiry of D, or sought important information from him, on
a matter relating to a business or professional transaction whose nature he revealed to D.
 D should have voluntarily assumed the responsibility of providing P with correct
information on the subject-matter of his inquiry.
 D should have known, from the nature of the transaction, that the inquiry was serious,
that the information was wanted for a serious purpose, and that P intended to rely and act
on the answer.
 D need not have been in the business of giving advice on the matters sought, nor need he
have held himself out to possess special skill or competence in those matters.
 D should have made the misstatement to P without a disclaimer of responsibility for or
qualification of its accuracy.
 P should have relied and acted on the misstatement, and should have suffered loss as a
result.
 It should have been reasonable in the circumstances of the case for P to rely and act on
the D’s misstatement.

In Masiya & Anor v Sadomba & Anor HH-28-12 the court held that the question of whether a
legal duty of care arises in a particular situation of negligent misrepresentation has to be

68
approached in two stages: (a) as between the alleged wrongdoer and the person who has suffered
damages, whether there is a sufficient relationship of proximity or neighbourhood such that, in
the reasonable contemplation of the former, carelessness on his part may be likely to cause
damage to the latter, in which case a prima facie duty of care arises; and (b) if there is, are there
any policy considerations which ought to negative or reduce or limit the scope of the duty or the
class of person to whom it is owed or the damages to which a breach of it may give rise.

In Murimba & Anor v Law Organization (Pvt) Ltd & Ors HH-265-10 the court held that for an
action based on negligence to succeed it is necessary for P to prove patrimonial loss, provided
the damages are not too remote. P must therefore allege and prove the causal connection between
the negligent act and the damages suffered. An action will lie for damages based on negligent
misstatements only if D owed a duty of care in making the statement – for example, by reason of
a contractual relationship between the parties. P must allege facts upon which wrongfulness can
be inferred. Wrongfulness on the part of D may then constitute a breach of a duty of care. P must,
however, allege the particular duty of care owed and the act or omission which is the basis of his
cause of action. Where P relies on the breach of a duty of care, P must set out the facts that could
or should have been foreseen by D. When P is seeking relief based on the basis of negligence P
has an onus to establish that a reasonable person in the position of D would foresee the
reasonable possibility of his conduct injuring another in his person or property and causing him
patrimonial loss and would take reasonable steps so as to guard against such an occurrence and
that the defendant failed to take such steps.

In such cases the following factors are taken into account:

 the information was desired for a serious purpose;

 the recipient intended to rely on the information;
 if the information was erroneous the recipient would suffer loss; and
 the relationship of the parties, arising out of contract or otherwise, must be such that in
morals and good conscience the recipient had the right to rely upon the other for
information and the giver of the information owed a duty to give it with care.

There are two main types of cases of negligent misrepresentation that can arise:

 Where the misrepresentation is made to the person who suffers the loss;
 Where persons suffer loss as a result of relying on a misrepresentation made to
anotherperson

Where the misrepresentation is made to the person who suffers the loss
An example of this situation is where P is considering extending credit facilities to X and
approaches D an accountant and requests D to ascertain the creditworthiness of X. D informs P
that he has carried out a check and has ascertained that X’s financial position is sound. P extends
credit facilities but soon thereafter X goes insolvent and P loses the money he gave to X on
credit. A similar example would be P, asks D, his accountant, whether he should invest money in
a certain corporation. D says the investment would be a good investment. Acting on D’s advice,
P invests in the company. The company goes insolvent soon after P had invested in it and P loses
the money he has invested. In these circumstances, D would be liable to P if a reasonable
accountant would not have given the advice to P that D gave, as the reasonable accountant would
have known of the bad financial position of the company or would have found it out had he taken
reasonable care.

Here the loss is specific to P and to make D liable would not open up the floodgates to a
multiplicity of actions. Still nonetheless, the question will be asked if the nature of the
relationship between the parties was such that there was a legal duty on D not to cause P
financial loss by negligently misinforming P by making a misstatement to him.

In Wood v Northwood Service Station 1974 (1) RLR 49 (G) P, a customer at a garage, asked the
garage to value his car. The garage negligently told him that the engine was a write off and it
would be uneconomic to repair it. Acting on this erroneous advice, P sold the vehicle for a small
price but the buyer, after carrying out minor repairs, was able to sell it for a much bigger price
than what he paid. The court held the garage liable for the loss suffered. The advice had been
required for a serious purpose and the relationship between the parties was such that the garage
had a legal duty to avoid giving erroneous advice.

In Autorama (Pvt) Ltd v Farm Equipment Auctions 1984 (1) ZLR 162 (H) an auctioneer made a
negligent representation that a car which was being sold was not subject to a hire purchase
agreement.This resulted in the purchaser of the car suffering financial loss.

In Stanbic Bank Zimbabwe Ltd 2007 (1) ZLR 398 (H) the bank had opened the account for the
customer on the basis of a recommendation by D. The customer then defrauded the bank. The
bank then sued D for the financial loss it has sustained. The court decided that a legal duty of
care would arise in this situation where there is a legal relationship between the parties which
would create an obligation on the part of D to exercise such duty in relation to P. In the present
case there was no such relationship and in any event the bank itself was at fault in sustaining the
loss.
In 1Masiya & Anor v Sadomba & Anor HH-28-12 was a property consultant who was employed
by a firm of estate agents. The property consultant had introduced a purported seller of a piece of
land to the estate agent. P then sought to buy the piece of land through the estate agent. P paid the
money for the sale to the estate agent which then released it to the purported sellers. It then
turned out that the sellers were not the owners of the land. P then sued the estate agent and the
property consultant for the financial loss he had suffered.

70
The estate agent had assured Ps that he was a professional who would protect their interests and
not allow them to be defrauded meant that he therefore owed them a duty of care. Accordingly,
as between the Ds and the Ps, there was created a sufficient relationship of proximity such that in
the reasonable contemplation of the former, negligence or carelessness on their part might be
likely to cause damage to the latter. Every person has a right not to be injured in their property by
the negligence of another. The transaction in the instant case took place at a time when the real
estate industry was awash with prospective innocent purchasers being conned of their hard
earned money by fraudsters who thrived on the innocence or gullibility of the former. Where,
therefore, a purchaser entrusts his money to a professional estate agency or property consultant
who assures him that the money will be safe, a duty of care is thereby established. If the estate
agency negligently breaches the duty of care so created, it must be held liable in damages for the
ensuing harm where a reasonable person would have foreseen the danger and guarded against it.
The standard practice, in conformity with the actions of a reasonable person in the field of real
estate, is releasing the cash against transfer, not against mere signing of the necessary transfer
papers. When the fly by night sellers in this case proposed to the estate agent to insert the release
clause, without having even produced the original title deeds, D1 should have been put on his
guard and should have reasonably foreseen the likelihood of loss being occasioned to the
plaintiffs if the purchase price were released before the actual transfer of the stand had gone
through.
It was thus not only equitable but good law that in the real estate industry, an estate agent or
property negotiator/consultant can be held liable for negligently breaching a duty of care which
occasions financial loss to a client and an estate agency is vicariously liable for the negligence of
its property negotiator.

In Murimba & Anor v Law Organization (Pvt) Ltd & Ors HH-265-10 an estate agent was
engaged by a person to sell a certain stand in Harare.The purported seller in fact did not own the
stand and acted fraudulently in claiming to be the owner, having obtained documents in the name
of another person. The estate agent then advertised the sale of the stand, giving details of its
location.Ps visited the stand and went to the estate agent and entered into an agreement to buy
the stand. Having paid transfer fees, Ps then learned that the stand belonged to another
person.The fraudster could not be located, so Ps sued the estate agent for the financial loss
sustained.

The court decided that the estate agent was not liable. There was no suggestion that the estate
agent was a party to the fraud. Whilst a principal is liable for the fraudulent misrepresentations of
his agent, an agent is not liable for the fraudulent misrepresentations of his principal.

Where persons suffer loss as a result of relying on a misrepresentation made to another

person
For example, if the audit creates a completely false picture of the company as being financially
sound when it is in deep financial trouble, can current shareholders or new shareholders who
invest money on the strength of the audit report sue the auditors for the losses they have
suffered? Does it make any difference that the audit report was included in a prospectus
soliciting share investment and the auditors knew that the audit report was going to be put in the
prospectus?

The courts in England and South Africa have been somewhat reluctant to make auditors liable to
persons other than those who engaged them to carry out the work. The reason for this reticence
has been the fear of opening the floodgates to a huge scale of liability.

In Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747 (A) the bank had
made a misleading report upon the financial position of a company.P had relied on the report and
had lost money by giving credit to the company. The bank was held liable for the loss sustained
by P.

See also Al Saudi Banque v Clarke Pixley [1989] 3 All ER 361 (Ch D); Caparo Industries v
Dickman [1990] 1 All ER 568 (HL).
Purely financial loss caused other than by negligent misstatements

In this category D has not caused economic loss by a negligent misstatement, but instead he or
she has negligently taken certain action that has resulted in purely financial harm to P.

One example of a situation that can arise is the following: D is digging a ditch near a factory
belonging to P. Whilst digging this ditch D negligently severs the power cable supplying P’s
factory with electricity and the factory cannot resume operations until the cable is repaired.
During this time, P suffers financial loss due to lack of production. The question here is whether
D is liable for the financial loss that has been suffered by the factory. What if the power cable
which is severed supplies power to an entire factory area and numerous factories in that area
suffer loss of production because they have no electricity?

In respect of cases falling into this category, the courts have again adopted the approachthat there
must be some further limiting criteria additional to the criterion of negligence because in some
cases liability could be almost limitless if such further restrictions are not imposed. The courts
have stressed that liability for purely economic loss must be confined within reasonable and
manageable bounds and the court must decide in each case on the basis of policy considerations
whether there should be liability or not. The courts have stressed that there must be finality in
litigation against the defendant and that the defendant must not be exposed to a potentially
endless succession of further claims which will result in crushing damages being imposed upon
him or her.

72
The main policy considerations that are to be taken into account in such cases were set out in the
case of Music Room (Pvt) Ltd v ANZ Grindlays Bank Zimbabwe Ltd 1995 (2) ZLR 167 (H) at
168. These include:

 whether the loss is finite;

 whether the number of potential claimants is limited and identifiable;
 whether the success of the action will result in a multitudinous train of claims for
incalculable loss;
 whether D is to be regarded as possessing skills and special responsibility in the
particular commercial activity in which he is engaged;
 the desirability of maintaining long-established principles of law which are currently
being acted upon;
 whether there is need to place the ground of action within the extended scope of the lex
Aquilia; and
 the conduct of P.

In Tobacco Finance v Zimnat Insurance 1982 (1) ZLR 47 (H) the court stated only where the
loss is specific and will not expose D to a multiplicity of claims is the loss recoverable. P must
not simply be part of an indeterminate or unascertained class of potential claimants.

Cases where no potentiality for multiplicity of claims

In Tobacco Finance v Zimnat Insurance 1982 (1) ZLR 47 (H) a farmer’s wheat crop was insured
by D against loss or damage. The crop was damaged by hail.A company had advanced loans to
the farmer and had registered a stop order under legislation. It had then ceded its claims against
the farmer to P.D negligently paid the insurance directly to the farmer instead of to Registrar of
Stop Orders as required under legislation. It failed to check whether a stop order had been so
registered.The farmer disappeared with the money. P, whose loan to the farmer was secured by
the insured property, suffered economic loss as it could not recover the loan.D was held liable to
P. The loss was finite and specific and there was no public policy reason for denying P damages.

In Zimbabwe Banking Corp v Pyramid Motor Corp 1985 (1) ZLR 358 (S) a cheque drawn by
Pyramid that was endorsed ‘account payee only’ and ‘not negotiable’ was stolen. A person other
the payee presented the cheque to the collecting bank for payment and the bank paid out to this
person despite the restrictive endorsement. P suffered purely economic loss as a result. The court
held that the bank was liable to P. There was no danger of opening Pandora’s Box. The parties
were limited by the endorsement and there would not be a multiplicity of claims. The recognition
of this duty would not wreak havoc in the commercial world.(In Rhostar (Pvt) Ltd v Netherlands
Bank of Rhodesia 1972 (1) RLR 56 (G) the bank again negligently paid out on a restrictively
endorsed cheque and P suffered economic loss. The bank was held liable. The court, however,
failed to address the issue of wrongfulness in this case. (See 1972 Annual Survey of SA Law pp
134-136).)

In Coronation Brick v Strachan Construction 1982 (4) SA 371 (D) D negligently severed as
power cable to P’s brickworks. D knew that this cable supplied P’s brickworks. P suffered loss of
profits as he was unable to make bricks whilst the power was off. D was held liable. The loss was
specific and finite. D was liable.

Cases where exist no potentiality for multiplicity of claims but legal policy reasons for denying
liability

In Border Timbers Ltd v Zimbabwe Revenue Authority 2009 (1) ZLR 131 (H) P claimed that he
had suffered economic loss as a result of incorrect calculation of duty by the Zimbabwe Revenue
Authority. The court ruled that inquiry as to wrongfulness in situations where P has suffered pure
economic loss as occurred in this matter involved a determination of the existence or otherwise
of a legal duty owed by D to P to act without culpa. The inquiry into whether or not D owed P a
legal duty would be a matter for judicial judgment, involving criteria of reasonableness, policy
and, where appropriate, constitutional norms. Having approached the court for an order
redressing pure economic losses, P had to persuade the court to make a value judgment to the
effect that D owed P a duty not to cause it loss through the incorrect calculation of duty. No
evidence was led as to what a reasonable collector of revenue would have done in the
circumstances and whether to hold D liable in the circumstances of the matter would promote
any social or economic norm that is consistent with current policies on revenue collection.

Cases with potentiality of multiplicity of claims

In Music Room (Pvt) Ltdv ANZ Grindlays Bank Zimbabwe Ltd 1995 (2) ZLR 167 (H) the court
decided that the bank should not be held liable as this would open the floodgates to such a
multiplicity of actions. This case involved a situation where an employee of the bank negligently
handed over a chequebook belonging to one of its customers, the plaintiff company, to a person
falsely claiming to be a messenger of the customer and one of these cheques was then used to
defraud the plaintiff company. The court decided that the bank was not liable as it would not be
in the interests of society to impose a legal duty of care on the Bank in respect of economic loss
suffered by P. The legal convictions of the community did not demand that this negligent act be
regarded as unlawful. A reasonable person is likely to say that both parties were victims of fraud
and the loss should lie where it falls. P’s employee should have acted with very much
circumspection in the circumstances. No compelling reasons existed in this case for extending
the scope of the lex Aquilia so as to impose a legal duty of care on a drawee bank towards a third
party who suffers economic loss as a result of its negligent act of giving its customer’s cheque
book to a wrong person who uses a cheque therefrom to defraud the third party, thereby causing
him economic loss.

74
In Shell & BP (Pvt) Ltd v Osborne Panama 1980 (3) SA 653 (D) D negligently damaged a buoy
that was used by ships transporting oil to offload the oil. This led to a number of ships being
delayed in the offloading of oil. P was one of the parties who suffered such loss because he was
liable to the charterer for damages for any delay in delivering the oil. The court held that D
should not be held liable as P was merely one of an unascertained class of potential sufferers and
if he was held liable to P there could be a possible multiplicity of claims.

In Weller & Co v Foot & Mouth Disease Institute [1965] 3 All ER 560 D negligently allowed a
virus to escape from its Institute and this led to the imposition of a quarantine of cattle in the
surrounding area. Ps, who were cattle auctioneers, suffered economic loss as they were unable to
conduct any cattle auctions. The court decided that the Institute was not liable because if liability
were to be imposed it would open the floodgates to a multiplicity of actions from such persons as
butchers, dealers in dairy products, suppliers of cattle feeds, etc.

In Franschoekse Wynkelder (Ko-operatief) Bpk v SAR& H 1981 (3) SA 36 (C) D had sprayed
vegetation along railway line with poisonous weedkiller. The soil adjacent to farms growing
vines was contaminated and these farms were not able to supply grapes to P’s wine making co-
operative. The court held that even though D was negligent it was not liable to P as there was no
special relationship between D and P and to impose liability would open up floodgates to
indeterminate liability in this case.

In Bank of Credit and Commerce Zimbabwe Ltd v UDC Ltd 1990 (2) ZLR 397 (S) a finance
house had negligently agreed to finance the sale of a non-existent farm and had issued a cheque
in the name of the alleged seller, Mixed Tums (Pvt) Ltd. No such company existed. The person
who received the cheque paid it into a bank account which he operated in the name of his
company, Mixed Tans (Pvt) Ltd, the bank having failed to notice the discrepancy in the names
even though the cheque was crossed and endorsed “not negotiable account payee only”. The
finance house then sued the bank for the amount of the cheque. The court held that the finance
house was negligent to greater degree than the bank.

The court held that the collecting banker for the cheque was negligent and could have prevented
the loss through fraud if he had properly examined the cheque and detecting the discrepancy in
the names even though the cheque was crossed and endorsed “not negotiable account payee
only”. The collecting bank was held partially liable for the financial loss that occurred.

In Biddulphs Removals & Storage (1981) Pvt Ltd v Standard Chartered Bank Ltd & Anor 1996
(2) ZLR 206 (H) P issued a cheque to a fuel company to pay for petrol products it had bought.
The cheque was stolen before it reached the fuel company and an endorsement was forged on the
back of the cheque to make it look as if the fuel company had endorsed the cheque to the person
named in the endorsement. The cheque was deposited into a building society account. The
building society cleared the cheque and banked it with Standard Bank, who was their own
bankers as well as P’s bankers. The bank then cleared the cheque, as a consequence of which P’s
account with the bank was debited. The person who had stolen the cheque was then able to
withdraw money from the building society account. P sued the building society and bank to
recover the amount it had had to pay the fuel company to make up for the lost cheque.

The court held that in terms of s 59 of the Bills of Exchange Act [Chapter 14:05] a banker is
protected in all cases where in good faith and in the ordinary course of business, he pays out to a
person whose title to payment purports to be derived from an endorsement, whether or not the
endorsement is genuine. If he pays out in good faith he will not be liable even if he has been
negligent. However, the effect of the proviso to this section is that only the banker on whom the
cheque is drawn is protected; the collecting bank is not protected. A collecting bank is liable for
purely economic loss that is caused as a result of the bank failing to exercise reasonable care to
avoid causing loss to the owner of a stolen cheque.As banks and building societies are aware of
the incidence of fraud involving forged cheques, they are obliged to adopt reasonable measures
to guard against such fraud. There is an even greater need for care in respect of third party
cheques. Where there are facts or circumstances which would lead a reasonable banker to inquire
further, it would be negligent to fail to make such further inquiries. Taking into account the
duties of the building society and the bank when dealing with a cheque of this nature and taking
into account the information the respective tellers had before them when handling the cheque,
the building society had been negligent. It is a moot-point whether the bank in these
circumstances should have exercised more care than it did. In this sort of situation, the building
society will usually have considerably more information than the bank and must therefore
appreciate that the bank will rely to a large extent on the fact that the building society would
have made preliminary investigations and satisfied itself of the entitlement of the account holder
to the proceeds of the cheque. The building society had failed to exercise reasonable care in the
handling of the cheque to ensure that the account holder was entitled to the proceeds before the
cheque was referred to the bank and had negligently allowed the forged cheque to be deposited
with it. The building society had been the proximate cause of the loss and was therefore liable
under the Aquilian action for the economic loss sustained by P. The bank was not liable.

Other South African cases

The Oil Rig South Seas Driller: Sheriff of Cape Town v Pride Foramer SA & Ors 2001 (3) SA
841 (C); Pinshaw v Nexus Securities (Pty) Ltd & Anor 2002 (2) SA 510 (C); Hirschowitz Flionis
v Bartlett & Anor 2006 (3) SA 575 (SCA); Trustees, Two Oceans Aquarium Trust v Kantey &
Templer (Pty) Ltd 2006 (3) SA 138 (SCA); Thatcher & Anor v Katz & Anor 2006 (6) SA 407
(C); Steenkamp NO v Provincial Tender Board, Eastern Cape 2006 (3) SA 151 (SCA); Kantey &
Templer (Pty) Ltd & Anor v Van Zyl NO 2007 (1) SA 610 (C); Minister of Finance & Ors v Gore
NO 2007 (1) SA 111 (SCA); Holtzhausen v Absa Bank Ltd 2008 (5) SA 630 (SCA); Page v First
National Bank & Anor 2009 (4) SA 484 (E); mCubed International (Pty) Ltd & Anor v Singer &
Ors NNO 2009 (4) SA 471 (SCA); South African Post Office v De Lacy & Anor 2009 (5) SA 255
(SCA); Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 (2) SA 150 (SCA);
76
Delphisure Group Insurance Brokers Cape (Pty) Ltd v Dippenaar & Ors 2010 (5) SA 499
(SCA); AB Ventures Ltd v Siemens Ltd 2011 (1) SA 586 (GNP).

English cases:
SCM Ltd v W J Whittal [1970] 3 All ER 245 cutting of power supply to factory; Dutton v
Bognor Regis Building Co & Anor [1972] 1 All ER 462 (CA) builder negligently laying
foundations - liability to subsequent purchaser; Spartan Steel Ltd v Martin & Co Ltd [1972] 3 All
ER 557 (CA); [1973] QB 27; [1972] 3 WLR 502 cutting of power supply to factory; Caltex Oil
(Australia) v The Dredge “Willesmstadö” [1976] 136 CLR 429; Junior Books Ltd v Veitchi Co
Ltd [1982] 3 All ER 201 (HL) sub-contractor (D) for builders constructing a factory for P
negligently laid a factory floor. The entire floor had to be re-laid and P claimed from D the cost
of replacement and consequential economic loss such as the cost of moving machinery and loss
of profits. The court held that the relationship between D and P was a proximate one and that P
could claim in delict against P.

Third parties injured

Sometimes third parties who are in contractual relationships with injured parties suffer purely
economic loss. For example, if D carelessly burns down A’s factory, can A’s workers sue D for
damages for loss of wages if they are put out of work as a result of the destruction of the factory?
Or if P, who owns the factory, is killed in a motor accident due to the carelessness of D and P’s
factory closes as a result, can P’s workers sue for damages for their lost wages? Or if P’s
employee A is negligently injured by D, and P has to pay A whilst he is off work and has to pay
someone else to do A’s work whilst he is away, can P sue D for his economic loss? It would seem
that in all these cases the indirect economic loss to the third parties is not recoverable.

See Union Government v Ocean Accident & Guarantee Corp 1956 (1) SA 577 (A).When his
employee was injured, the employer claimed damages for the loss of services of employee. This
action failed. Cottle v Stockton Waterworks Co (1875) LR 10 QB 453; Spartan Steel Ltd v
Martin & Co Ltd [1973] 1 QB 27 (CA) at 36; Pickard v Bindura Haulage HH-318-84; Windmill
v Minister of Justice & Anor HH-635-87 The Registrar of Stop Orders failed to register a stop
orders submitted for registration; Combrinck Kliniek v Datsun (Pty) Ltd 1972 (4) SA 185 (T)
Defects in a vehicle. The cost of repairs was claimed from the manufacturer. The action was
unsuccessful. It is arguable that this case is wrongly decided:see the contrary decision in Colgate
1990 (2) SA 520; Greenfield Engineering v NKR Construction 1978 (4) SA 901 (N) payment was
made by cheque as requested but the cheque, which was inaccurately made out, was stolen and
payee suffered loss. P’s action was successful; E G Electrical v Franklin 1979 (2) SA 702 (EC)
D negligently certified that electrical wiring in a building was in sound condition. The purchaser
of the home suffered loss. His action was successful.
Illegitimate trading practices
Introduction
The right to trade is a fundamental right in terms of the Constitution. Section 64 provides that
every person has the right to carry on trade, but the practice of trade may be regulated by law.

The law relating to trade competition was developed within a capitalist economic system and
very much reflects the ideology of that system. Thus, for instance, as robust trade competition is
an integral part of the whole capitalist economy, the law adopts the stance that it should not
normally interfere when such trade competition occurs even if there is fierce trade rivalry
resulting in financial loss. Competition in the market place is supposed to produce beneficial
results; those who produce the best quality products at the most reasonable products will attract
customers. Monopolistic tendencies are thus discouraged. The Competition Act [Chapter 14:28]
establishes an Industry and Trade Competition Commission whose functions include the control
and prevention of monopolies and restrictive trade practices.

However, certainglaring excesses within the field of trading are categorised as being ‘unfair’ and
illegal and the law will provide remedies when such practices are utilised. Section 64 of the
Constitution guarantees the right to trade but it also provides that this right may be regulated by
law.

As these actions are brought under the Aquilian action the fault element can be either intention or
negligence. Thus in the case of Elida Gibbs (Pty) Ltd v Colgate Palmolive (Pty) Ltd (1) 1988 (2)
SA 350 (W) the court stated that dolus is not an essential element of wrongfulness in a claim for
unlawful competition.

The loss caused by unfair trade competition is economic loss arising from loss of goodwill. With
the situations under trade competition there is no prospect of indeterminate liability; the loss will
be specific to P. Wrongfulness here is used to define the types of trade competition that will be
considered to be illegitimate.

This actions in this area “fall within the extended field of the application of the lex Aquilia.”
Neethling et al The Law of Delict (6th Ed) p 310.In Atlas Organic Fertilizers (Pty) Ltd v
Pikkewyn-Ghwano (Pty) Ltd & Ors 1981 (2) SA 173 (T) the court said that the law of South
Africa recognises and grants a general action in the case of unlawful competition based on the
principles of thelex Aquilia.

Is there a closed list of unlawful trade practices?

Trade competitiors are continually devising new ways of unfairly competing with their rivals.
Thus in South Africa, the approach of the courts has been to provide that it is not necessary to
pigeon hole the remedy in one of the previously recognised categories. A general remedy for

78
unlawful competition is available based upon public policy.In Bress Designs (Pty) Ltd v C Y
Lounge Suite Manufacturers (Pty) Ltd & Another 1991 (2) SA 455 (W) at 473F the judge said
this
As a general rule every person is entitled freely to carry on his trade or business in
competition with his rivals. The competition must, however, remain within lawful bounds.
If it is carried on unlawfully in the sense that it involves a wrongful interference with
another's rights as a trader that constitutes an injuria for which the Aquilian action lies if it
has directly resulted in loss. In order to succeed in an action based on unfair competition
the plaintiff must establish all the requisites of Aquilian liability, including proof that the
defendant has committed a wrongful act. In such a case the unlawfulness which is a
requisite of Aquilian liability may fall into a category of clearly recognised illegality or
may consist of unfairness and dishonesty. The latter are to be determined with due regard
to the boni moresand the general sense of justice of the community. Questions of public
policy, like the importance of a free market and of competition in our economic system,
may be relevant in a particular case. In short, the delict of unfair competition occurs where
the competition is contra bonos mores.

In Sage Holdings Ltd & Anor v Financial Mail (Pty) Ltd & Ors 1991 (2) SA 117 (W) the court
decided that the test for unlawful interference with business is the objective one of public policy.
See also Schulz v Butt 1986 (3) SA 667 (A).

Factors that are taken into account by the South African courts when deciding whether a trade
practice will be deemed to be unlawful
 whether the practice is unfair and dishonest;
 the motive of the actor;
 the morals and ethics of the business sector in question;
 whether parties are competitors;
 the importance of a free market and strong competition in the economic system,

In Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn-Ghwano (Pty) Ltd & Ors 1981 (2) SA 173 (T)
the court said that the norm to be applied in such a case is the objective one of public policy. This
is the general sense of justice in the community, theboni mores, manifested in public opinion. In
determining and applying this norm in a particular case, the interests of the competing parties
have to be weighed, bearing in mind also the interests of society, the public weal. As this norm
cannot existin vacuo, the morals of the market place, the business ethics of that section of the
community where the norm is to be applied, are of major importance in its determination.

Fraudulent and negligent advertising

If a customer sustains financial loss by relying on fraudulent advertisement or an advertisement
which is negligently misleading, the customer will have an action for damages.In the first
schedule of the Competition Act there is this list of misleading advertisement which constitute
unlawful trade practices:

2. Misleading advertising
(1) For the purposes or in the course of any trade or business, publishing an advertisement—
(a) containing a representation which the publisher knows or ought to knows false or misleading in a
material respect; or
(b) containing a statement, warranty or guarantee as to the performance, efficacy or length of life of
anycommodity, which statement, warranty or guarantee the publisher knows or ought to know is not
basedon an adequate or proper test thereof; or
(c) containing a statement, warranty or guarantee that any service is or will be of a particular kind,
standard,quality or quantity, or that it is supplied by any particular person or by a person of a
particular trade,qualification or skill, which statement, warranty or guarantee the publisher knows or
ought to know isuntrue.
(2) For the purposes of subparagraph (1), a representation, statement, warranty or guarantee expressed
on orattached to an article offered or displayed for sale, or expressed on the wrapper or container of
such an article,shall be deemed to have been made an advertisement.

In Elida Gibbs (Pty) Ltd v Colgate Palmolive (Pty) Ltd (1) 1988 (2) SA 350 (W) P and D,both
toothpaste manufacturers, started advertising campaigns. P alleged that certain of the claims
made by D for its product were false and misleading, and that D's conduct had been
wrongful.The court held that, while commercial warfare was not proscribed by our law, there
were certain forms of conduct, whether or not the conduct complained of was deliberate, which,
when tested against the boni mores of the market place, remained unacceptable, especially where
the remedy sought by P was only an interdict.Dolus is not an essential element ofwrongfulness in
an action where P relied upon unlawful competition and P is still entitled to a remedy where the
deception was innocent.

In Post Newspapers (Pty) Ltd v World Printing and Publishing Co Ltd 1970 (1) SA 454 (W) the
proprietor and publisher of a newspaperapplied for an interim interdict restraining the proprietor
and publisher of another newspaper, The World, which competed with it for advertising, from
continuing to circulate certain documents. A report was put out designed to persuade the
recipients to place advertising with the respondent's newspaper instead of that of the applicant,
on the grounds that:(a)the documents misrepresented the relative merits of the rival newspapers;
these misrepresentations were false to the knowledge of the respondent and were made
maliciously; they were calculated to cause the applicant patrimonial loss; and consequently they
constituted an injurious falsehood;(b)the respondents had published material based ondatawhich
they knew to be unreliable; that this would have the effect of filching advertising from the
applicant; and that this conduct amounted to unfair competition.
The court held that as the applicant had failed to show that any statement in the reports was false,
that it had failed to make out a case on the first ground. It also held that as it did not constitute

80
'unlawful competition' merely for a seller to express opinions in advertising material which he
did not honestly hold, that applicant had also failed to make out a case on the second ground.

Injurious falsehood (disparagement of P’s business or P’s goods)

Whereas with fraud the false statement is made to P who acts upon it to his detriment, with this
delict the false statement about P is made to a third party or parties and the third party or parties
act upon the statement thereby causing financial loss to P.

This delict is committed when D intentionally published to a third party a statement concerning P
or P’s business which D knows or suspects is false intending that the third party will act upon the
statement and that P will be caused financial loss. Thus, if a trade competitor of P deliberately
spreads false stories about the nature of P’s products (e.g. that his aspirins will cause cancer or
are poisonous) and P suffers loss as a result of his customers buying D’s products instead of his
own, P will be able to claim damages or obtain an interdict against D.

Injurious falsehood can be committed in the context of comparative advertising. D is entitled to

give a fair comparison of his or her product in comparison with those of his or her trade
competitors, but if D deliberately lies about the characteristics of his or her competitors’
products, P can bring an action for unlawful trade competition.

In Standard Chartered Finance Ltd v Georgias & Anor 1998 (2) ZLR 488 (S) an employee of D
finance company had told another company that P company was in financial trouble as a result of
which company had withdrawn from a contract with P causing P financial loss. However, there
was no evidence that the employee was acting in the course of his employment in making this
statement and D company was not vicariously liable).

In International Tobacco v United Tobacco 1955 (2) SA 1 (W) agents of a tobacco manufacturer
mounted a deliberate and malicious propaganda campaign to stop customers buying the
cigarettes of a rival tobacco company. The prejudiced tobacco company was entitled to damages.

Passing off
This delict is committed when D, by means of a misleading name, mark or description or
otherwise, represents that his business or merchandise is that of another, so that members of the
public are misled. In other words, if D uses a business name which he is not entitled to use so
that his business is mistaken for that of P’s and, in this way, he unfairly procures P’s customers,
or D packages his goods in such a way that they are likely to be mistaken for P’s goods, P can
obtain an interdict to prevent D continuing this practice and can claim damages for any loss
which he has suffered as a result of the public being misled.

Passing off involves deception in the form of taking unfair advantage of a trade reputation that P
has built up. In F W Woolworth & Co (Zim) (Pvt) Ltd v The Store & Anor 1998 (2) ZLR 402 (S)
the court said that the purpose of the action for passing off is to protect a business against
misrepresentation by D that his business, goods or services is that of P or associated therewith.P
must thus prove that D has misrepresented his business, goods or services as being those of P or
associated therewith.

This action is a species of the Aquilian action. Although D may often have intended to deceive,
negligence will suffice for liability. See Loubser and Midgley The Law of Delict in South Africa
(2009) p 240; Neethling et al in the Law of Delict p 310 footnote 292.

The test applied by the courts when deciding upon whether the similarity in trade name or
packaging was likely to mislead is: is there a reasonable likelihood that members of the public
would be deceived or confused into believing that D’s business or goods was that of P. In this
regard, factors such as the nature of the businesses, how they operate and the localities in which
they operate will be taken into account.

In National Food Ltd v Midlands Milling Co (Pvt) Ltd 1996 (1) ZLR 159 (H) the parties were
both millers of grain products, including mealie meal. For over 25 years, the applicant had sold
"super-refined" mealie meal in a light blue package which bore the brand name of "Pearlenta"
and a logo consisting of a device of a red seal with the words "Red Seal" superimposed on it.
Some years later, the respondent started to produce super-refined mealie meal. Initially this was
marketed in a white pack. The respondent believed that this confused customers, as one of its
other products was also marketed in a white pack, so the colour of the package was changed to
blue. The super-refined meal was described on the package as "Pearl White". On the
pack appeared a logo, consisting of the initials of the respondent (MMC), drawn in such a way as
to resemble a coronet. The logo was dark blue in colour. The respondent argued that there was no
difficulty in distinguishing the two brands. The court held that in order to establish a claim of
passing-off, it was necessary to show that the defendant's get-up wascalculated to deceive, that
is, that there was a reasonable likelihood that members of the public might be confused. The
likelihood is a matter for the court to decide. The decision must not be surrendered to any
witnesses. In considering whether the respondent's product was calculated to deceive or cause
confusion, the court had to look not only at the distinctive features, but also at what the purchaser
would be likely to be guided by, that is, the general appearanceand the whole get-up of the
article. Where, as here, the colours of the containers were similar, but the prominent design
marks were distinctively different, not only in shape but also in colour, there was no reasonable
likelihood of confusion.

In Kellogg v Cairns Food Ltd 1997 (2) ZLR 230 (S) P was selling a breakfast cereal unde the
name Froot Loops. The cereal was made of small rings of different colours. This product has sold
well. D, a known competitor of P made a similar cereal, which consisted of circular individual
cereals and marketed under the name Fruit Hoops. The court held that there was a reasonable
likelihood that D’s product would confuse consumers and result in loss of the goodwill of P.
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In F W Woolworth & Co (Zim) (Pvt) Ltd v The Store & Anor 1998 (2) ZLR 402 (S) the court
stressed that this delict is only committed in relation to a business that has acquired goodwill.
Goodwill is the totality of attributes that lure or entice clients or potential clients to support a
particular business. As passing off harms the reputational element of goodwill, P must prove that
he has acquired a business reputation associated with his business name. In the present case, P
had failed to prove that it had acquired a trading reputation in its name or that there was a
reasonable probability that members of the public would confuse the two businesses given the
radically different character of their businesses.P must prove that D has misrepresented his
business, goods or services as being those of P or associated therewith. In order to do this, he
must establish that there was a reasonable probability that members of the public would be
deceived or confused into believing that D’s business was that of P. In this regard, the court will
take into account factors such as the nature of the businesses, how they operate and the localities
in which they operate will be taken into account.

In Zimbabwe Gelatine (Pvt) Ltd v Cairns Foods (Pvt) Ltd 2003 (1) ZLR 352 (S) the court held
that once a trade mark is registered it gives the registered owner of the trade mark an exclusive
right to use it concerning the goods for which it is registered. Persons who purchase goods with
the registered trade mark associate those goods with the owner of the trade mark. Use of the
trade mark on goods other than those of the owner of the trade mark is an infringement generally
referred to as “passing off”. It amounts to a misrepresentation. A person who believes his rights
have been infringed can either proceed in terms of the Trade Marks Act if he has a registered
trade mark, or at common law in an action for passing off. In this case, the respondent produced
dog food in pellet form. The food was marketed under the name “kibbles”, which name had been
registered as a trade mark. The appellant subsequently started to produce similar, but cheaper,
dog food, which it also described as “kibbles”. The respondent complained of both passing off
and infringement of a registered trade mark, and obtained an interdict preventing the appellant
from using that name. The court held that the appellant was not entitled to manufacture a similar
product and then give it the same name as that of the respondent’s product. There was no reason
for the appellant to use the name “kibbles”; it could have used a different name for its product,
the word not being descriptive of the dog food manufactured by the parties.

In Zapchem Detergent Manufacturers CC v Polaris Zimbabwe (Pvt) Ltd 2003 (1) ZLR 481 (H)
the court held that the question was who has the right to the goodwill of a product manufactured
by one person in one country and sold or marketed almost exclusively by another person in
another country. Goodwill, the attracting force of an undertaking, is determined by a multiplicity
of factors – the reputation of the undertaking, the fact that it is well-known, its creditworthiness
but, more particularly, the undertaking’s locality, the personality of the entrepreneur or another
person such as an employee who is connected with the business. However goodwill is created or
however it comes into existence, it cannot be created or come into existence independently of or
outside the context of an undertaking. The only situation in which a trader in the position of the
respondent can acquire goodwill in respect of a product which is manufactured by another but
sold by itself is where such a person is not a mere conduit for the goods of another but markets
its own product under its own name. This was not the case here, as the packaging indicated that
the goods were manufactured by the applicant.

In Unilever plc & Anor v Vimco Pvt) Ltd & Anor 2004 (2) ZLR 253 (H) the applicants for many
years had been the registered owners of the trade mark “Vim”, which was the name given to a
household scouring powder. That powder had been sold in this country for many years. The
respondent company, Vimco (Pvt) Ltd, sold several products, among them a scouring powder.
The applicants sought an order interdicting the respondent from infringing its trade mark and
from passing off its goods as those of the applicants. The application was granted as the court
found that the trade mark used by first respondent so nearly resembled the applicants’ registered
trade mark as to be likely to deceive or cause confusion.

In Polaris Zimbabwe (Pvt) Ltd v Zapchem Detergent Mfrs CC 2004 (2) ZLR 351 (S) the court
held that the owner of goods, or the person who has proprietary rights in the goods, or the
assignee of the goods, has the locus standi to sue for passing-off if his rights are infringed by the
act complained of. The only situation in which a trader in the position of the appellant could
acquire goodwill in respect of a product which is manufactured by another but sold by itself is
where such a person is not a mere conduit for the goods of another but marketed its own product
under its own name. This was not the case here, as the packaging indicated that the goods were
manufactured by the respondent.

In Royal-Beech-Nut Ltd t/a Manhattan Confectioners v United Tobacco Co Ltd t/a Willards
Foods 1992 (4) SA 118 (A) the court stated that passing off involves a trader adopting the trade
mark of his rival or one so closely resembling it that his goods are those of or connected in some
way with those of his rival,a trader. P is required to establish reputation in his trade mark, i.e. that
trade mark has become associated with goods emanating from P and thus distinctive of his goods
Where traders are trading in disparate goods but are using very similar unregistered trade marks,
the court will not readily conclude in such circumstances that D's products will be regarded as
coming from P in the absence of cogent grounds to justify such conclusion. What must be
gauged is the reaction of ordinary members of purchasing public to the goods. On the facts of the
present case it was not likely that a substantial portion of the public would be confused by D's
use of the name in question.

In Adcock-Ingram Produces Ltd v Beecham SA (Pty) Ltd 1977 (4) SA 434 (W) the court refused
to grant an interdict to stop D from using a design for its bodyspray with a domed closing device
similar to that of a competitor because the applicant had failed to show that the design had come
to be associated with P’s product and there was any likelihood that the consumer public was be
deceived or confused into thinking that D’s product was that of P.

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In Capital Estate and General Agencies (Pty) Ltd & Ors v Holiday Inns Inc 1977 (2) SA 916 (A)
the court said that although passing off normally applies to trade completion where the
competitors are operating in common fields of activity, the delict can sometimes be committed
even though the competitors are not operating in common fields. In this case, a well-known hotel
group sought to restrain a property developer from using its trade name for a shopping centre and
a complex of duplex flats. Although the parties were involved in dissimilar trading activities
there was a likelihood that members of the public would be deceived or confused by the
misrepresentation that the activities of the parties were associated. There was no potentiality of
diversion of custom because the parties were involved in different trading activities but the
offending conduct involved misappropriating a trade name and this could result in harm such as
diluting the commercial value of the trade name and harm to its reputation.

In Stellenbosch Wine Trust Ltd & Anor v Oude Meester Group Ltd 1972 (3) SA 152 (C) it was
stated that the Court has power to interfere where there has been a calculated attempt to pass off
goods as those of a competitor in trade, even though the latter's goods are not yet on the market.

In Federation International De Football & Ors v Bartlett & Ors 1994 (4) SA 722 (T) the court
dealt with a situation involving the concept of character merchandising (the use of popular
names, characters and insignia in order to boost sales of those consumer products in relation to
which they are used).

In Lorimar Productions Inc & Ors v Sterling Clothing Manufacturers (Pty) Ltd 1981 (3) SA
1129 (T) a company used characters, logos, names etc from the film produced outside South
Africa in connection with the sale of its products and services. The agent for the film company
applied for a temporary interdict against respondents restraining them from using these
characters etc. The court held that the applicants had not created an association in the public’s
mind between the television film and the goods or services of the respondents. The requirement
of established goodwill for the passing off action had not been met. There was no evidence that
public was likely to be deceived. Character merchandising not so well-known in South Africa
that it can be assumed that the person in the street has knowledge thereof.

In Zambezi Conference of Seventh Day Adventists Church v Seventh Day Adventists Association
of Southern Africa 2000 (1) ZLR 179 (H) the court held that the principles of a passing-off action
apply also to the unauthorised use of the name of a non-trading body. Thus a mother church
which was a long established and well-known religious body with branches world-wide was
entitled to the protection of the law insofar as its name is concerned.

See also Blue Bell Inc v Lennard Clothing Manufacturing (Pvt) Ltd HH-54-84 (Trade mark
registered but not presently trading in Zimbabwe); Bon Marchệ (Pvt) Ltd v Brazier & Anor S-68-
84; Rixi Taxis Owners’ Association v Machidza HH-203-86; Saybrook (Pvt) Ltd & Anor v
Girdlestone S-119-86; and Rixi Taxi Co-op v Matigi & Ors HH-451-88; Sea Harvest
Corporation v Irvin and Johnson 1985 (2) SA 355(C); Capital Estate and General Agencies
(Pty) Ltd & Ors v Holiday Inn Inc & Ors 1977 (2) SA 916 (A) (Housing estate developers
unlawfully using name Holiday Inn).

As regards registration and protection of trade names and trade descriptions by legislation, the
provisions of the Trade Marks Act [Chapter 26:04],the Industrial Designs Act [Chapter 26:02]
and the Copyright and Neighbouring Rights Act [Chapter 26:05] are the most important pieces
of legislation. See also sections 20 and 21 of the Companies Act [Chapter 24:03] regarding non-
registration and de-registration of company names identical to or so similar to other company
names that the public is likely to be misled.

Stealing or disclosing trade secrets

On legislative protection of inventions and designs, see the Patents Act [Chapter 26:03], and the
Industrial Designs Act [Chapter 26:02]. See also the Copyright and Neighbouring Rights Act
[Chapter 26:05].

The basis of the delictual action that has been developed in South Africa is the lex Aquilia.
Where P by his skill and knowledge has made a certain discovery or invented a formula or
designed a certain system and D, by surveillance or by extracting information from an ex-
employee of P’s, has gained information about this invention or design which P was keeping
confidential, there may be an action for an interdict or damages.

In Harvey Tiling Co (Pty) Ltd v Rodomac (Pty) Ltd 1977 (1) SA 316 (T) P company had
purchased from a foreign company the patent in the manufacture of a tile. One of its employees,
R, had been instrumental in perfecting the use of such tile. R had left P's employ and became
instrumental in forming the first defendant company of which he became a shareholder and its
managing director. The rival company manufactured a tile in competition with that manufactured
by P. The Court found that R had used confidential information gained while employed by P and
had used such knowledge and know-how in the manufacture of the competitive tile. An interdict
was granted against the defendants and the issue of damages was postponed for further
determination of quantum.

In Harchris Heat Treatment Pty Ltd v Iscor 1983 (1) SA 548 (T) P had developed a furnace by
experiment and expenditure of time and money. D had previously placed orders for the furnace
with P and P had allowed D’s experts to liaise with plaintiff in the expectation of obtaining
further orders. D then copied the furnace design and started selling steel plate treated in this
furnace. P obtained an interdict against D and the claim for damages was postponed.

In Stellenbosch Wine Trust Ltd & Anor v Oude Meester Group Ltd 1972 (3) SA 152 (C) the court
stated that a trader who filches information from a competitor, information which heknows to be
86
secret and confidential, and which has been developed by the competitor's skill and industry, is
acting unfairly and dishonestly if he uses the information for his own profit and to the detriment
of his rival. His conduct amounts to deliberate misappropriation of a business asset which was
acquired by another's skill and industry. This conduct does not differ in principle from the
conduct of a man who steals goods from the shelves of a rival's shop. Both types of conduct
constitute unlawful interference with the trade of another: both types of conductare actionable
and fall with n the principles of theLex Aquilia.

The applicants were about to market a new wine to be sold under a new label which had been
designed by advertising agents and printed in secret. Both the agents and the printers were bound
to observe a strict confidence but this confidence was breached, the label came into the hands of
respondent in a clandestine manner before the applicants' wine was on the market. Respondent
copied the label with all expedition and proceeded to market its own product under a label
whichwas a close imitation of the applicants' label. It was held that the applicants were entitled to
an interdict and ancillary relief.

In Knox D’Arcy Ltd & Ors v Jamieson Ltd & Ors 1992 (3) SA 520 (W) the court stated that
when deciding whether an employee should be prohibited from utilising confidential information
acquired during his employment with a former employer, a distinction has to be drawn between:-
(a) ‘trade secrets’, in a broad sense, being confidential information of an employer to which an
employee may have access and which is of such a nature that the employee may never use it
except for the benefit of the employer, and which theemployee remains bound to keep secret at
all times after leaving that employer's employ; and
(b)other confidential information of an employer which an employee must guard as confidential
as long as he remains employed by the employer by virtue of his general implied duty of good
faith to his employer (the extent of which duty varies according to the nature of the contract), but
which is of such a nature that 'it is inevitably carried away in the employee's head after the
employment has ended', and which the employee then remains free to use for the benefit of
himself or others, provided that he has not, while still employed by that employer, broken his
duty of good faith by, for example, making or copying a list of that employer's customers or
deliberately memorising such a list.

In the present case the confidential information was of type(b). It related principally to the fact
that the applicants, who were management consultants, had made approaches to a number of
business entities and had developed, and were continuing to develop, relationships with
particular officers of such business entities in the expectation that that would lead to the
applicants' services being engaged. Some such information would inevitably have been carried
away in the heads of the first and second respondents when they had left the applicants' employ,
and that to that extent they would have been free to use it, provided that they had not, by
breaching their fiduciary duties to the applicants, wrongfully and unlawfully prepared themselves
a 'springboard' to save themselves the time, trouble and expense of having to find and cultivate
their own customers in the wayinwhich the applicants had had to do.

In Schultz v Butt 1986 (3) SA 667 (A) a designer of a boat sought to interdict a competitor from
manufacturing and marketing a boat with an identifical hull design. The hull design has been
developed with expertise and expense over a long period of time. The competitor got hold of the
hull and used it to construct a mould which he then copied and sold the hull. The designer of the
hull obtained an interdict against the competitor.

In Dun and Bradstreet (Pty) Ltd v SA Merchants Combined Credit Bureau (Cape) (Pty) Ltd 1968
(1) SA 209 (C) using skill and labour a company had collected credit information which it
distributed on a confidential basis to its clients. A competitor had gained access to this
information and had knowingly used it to expand his business. The company which had
compiled the information was awarded damages.

In Sage Holdings v Financial Mail & Ors 1991 (2) SA 117 (W) the court held that a company
entitled to regard confidential oral and written communications of its directors and employees as
sacrosanct and it is entitled to a remedy where access to such information is obtained by illegal
means.

See Girdlestone v Saybrook (Pvt) Ltd & Anor HH-363-83 (protection of small industries from
large industries.)

Interference with contractual relations and business

Inducement to breach of contract

This delict is committed by D who, knowing or suspecting that A has a contract with P,
intentionally induces A to break his contract with P. For example, if A is employed by P, and D,
knowing that A has a contract with P, deliberately persuades A to break his contract causing P
financial loss, P can claim damages.

In Trojan Nickel Mine v RBZ 2013 (1) ZLR 444 (H) the court found that D had unlawfully and
intentionally interfered with the P’s bank thereby causing P’s bank to breach its contract with P.P,
a public company, sued D for payment of a little over US$1 million, together with interest
and costs of suit, being P's money appropriated by D from P’s bank in pursuance of a
monetary policy statement issued in terms of s 46 of the Reserve Bank Act [Chapter
22:15]and a directive issued to banks in terms of s 35(1) of the Exchange Control
Regulations SI 109 of 1996. D, which was established in terms of s 4 of the Act, was charged
with, inter alia,the regulation of Zimbabwe's monetary system, the supervision of banking
institutions and the smooth operation of the payment system, as well as acting as banker and
financial advisor to, and fiscal agent of, the State. In the discharge of those duties, the

88
defendant issued a monetary policy statement on 1 October 2007, centralising all foreign
currency accounts and directing the lodgement with it of all corporate foreign currency
balances held by authorised dealers. One such authorised dealer was the bank where P
maintained a foreign currency account. P’s bank complied with this directive. P, being
unable to access its money, sued D to recover the money. D contested the action, averring that
there was no causal nexus between the parties, given that P and D did not enjoy any banking
relationship and that P should have proceeded against its own bank, and not against D.P argued
that it had a cause of action against D because D wrongfully procured a breach of the contract
between P and its own bank, such an action existing in our law for the intentional and wrongful
interference with contractual rights. In addition, P was entitled to recover from D the procured
money on the basis of unjust enrichment, it having been enriched at the expense of P.

The court held that it is well established that the intentional inducement of a breach of contract
is an actionable wrong. After appropriating P's money, D did not return that money and had
not even begun to give any indication as when, if at all, it will repay the money. It
contented itself with hiding behind the non-existence of a contractual relationship between
it and P. Quite how and why D could come to the conclusion that it could just acquire the
money and refuse to repay it to the owner was unfathomable. The right to private property
is sacrosanct. P should be protected against the arbitrary deprivation of its equity deposited at
its bank, which institution was powerless against D's directive and was now unable to
perform its contractual obligations, namely paying the money to P on demand.

The directive which led to the appropriation of P’s foreign currency balance at its own bank
constituted a wrongful interference with contractual rights. While D was the monetary
authority charged with the management of the banking sector and the formulation of banking
rules, no authority was cited which entitled D to proscribe the release of deposits to depositors
or indeed to interfere with bankers' obligations to pay balances to their clients on demand. In
any event, on the basis of unjust enrichment, D could not escape liability.

However, it would be inappropriate, bearing in mind the banking relationship between the
parties, to direct that the money be paid directly to P. The correct approach would be for D to
return the money to P's banker.

In Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn-Ghwano (Pty) Ltd & Ors 1981 (2) SA 173 (T)
the court stated that a delictual remedy is available to a party to a contract who complains that a
third party has intentionally and without lawful justification induced another party to the contract
to commit a breach thereof. The court decided that it is not unlawful competition to induce an
employee to terminate his contract of employment lawfully. But public policy would dictate that,
where the aim in inducing a competitor’s employees to terminate their employment is not to
benefit from their services but to cripple or eliminate the business competitor, this action be
branded as unlawful competition..
A delictual action on "breach of confidence" can only be a manifestation of the Aquilian action
on unlawful competition and it has to be determined according to the principles applicable to
such an Aquilian action on unlawful competition.The Court held that D had breached his
fiduciary duties by canvassing certain employees of the company he was leaving for the new
company during the period of notice.

See also New Kleinfontein Co Ltd v Superintendent of Labourers 1906 TS 24; Solomon v Du
Preez 1920 CPD 401.

Other forms of unlawful interference in trade or business

The law in this regard is not as fully developed as in the United Kingdom but it would seem that
the following forms of intentional interference will be considered as being unlawful in
Zimbabwe.

Intimidation
By actions which are unlawful in relation to third parties, e.g. destroying the tools of P’s
workmen so that they cannot perform their work; assaulting or threatening to assault P’s
workmen to induce them to cease to work for P; threats by one firm that it will stop dealing with
another firm in breach of a contract between them unless the threatened firm ceases to trade with
P’s firm; damaging company vehicles; destroying P’s advertising posters etc.

Conspiracy
Where a number of defendants, acting in concert, deliberately take action not intended to further
their own trade interests, but intended only to cause financial loss P.

It is possible that the same may apply when one defendant, acting alone, deliberately causes
financial loss to P without in any way seeking to further his own trade interests. (But in the
United Kingdom in the absence of a combination of persons, no tort is committed.)

See Crofter Hand Woven Harris Tweed v Veich [1942] AC 435 (HL).

Other forms of unlawful interference in trade or contractual rights

In Deneys Reitz v South African Commercial, Catering and Allied Workers Union & Ors 1991
(2) SA 685 (W) a trade union had decided to pressurise and embarrass a firm of attorneys and to
picket their offices because of firm’s alleged 'union-bashing tactics' activities by assisting
employers in labour disputes and because of its alleged anti-labour stance in relation to proposed
amendments to labour legislation. The attorneys applied for an order declaring that a decision
taken by the trade union was unlawful The court held that this decision impacted to
impermissible extent upon attorneys' rights and duties and could not be tolerated. The application
was granted.

90
See Murdoch v Bullough 1923 TPD 495; Tothill v Gordon & Ors 1930 WLD 99; Ebrahim v
Twala & Ors 1951 (2) SA 490 (W); Hawker v Life Offices Association 1987 (3) SA 777 (C)
unlawful interference with right to earn a living; Dantex Investments v Brenner & Ors 1989 (1)
SA 390 (A); Rookes v Barnard [1964] AC 1129.

Nervous shock
Whereas damages can be claimed for pain and suffering, damages cannot be claimed for
transient nervous distress which does not lead on to a recognised psychiatric complaint requiring
treatment. Where, however, nervous shock has resulted in psychiatric harm necessitating medical
treatment, in certain circumstances, damages can be claimed for such harm.

There are few decided Zimbabwean cases dealing with nervous shock.

In Thebe v Mbewe t/a Checkpoint Laboratory Services 2000 (1) ZLR 578 (S) a laboratory had
been negligent in carrying out a routine blood test. The test showed positive for AIDS. P
immediately went for further tests and these correctly found that she was negative. P claimed
damages for shock and suffering caused by D’s alleged negligence. In awarding damages, the
court found that the trauma suffered by P was transitory and there was no evidence that she
needed counselling or psychiatric care. It therefore decided that no more than a small sum of
damages was justifiable.

In Phida & Anor v East View High School 2015 (1) ZLR 991 (H) the court held that damages can
be claimed under the Aquilian action for nervous shock where the shock is substantial and not of
short duration and provided that the shock is reasonably foreseeable. There must be a particular
relationship of proximity between the between the claimant and the party said to owe the duty.
Proximity is not confined to particular relationships, such as husband and wife or parent and
child; it includes proximity to an accident in terms of time and space and may also include
nervous shock suffered when informed about an accident. There is no difference between
nervous shock and emotional and psychological trauma as both affect a person’s mental
condition. A person who is especially susceptible to nervous shock can claim for more extensive
psychiatric damage attributable to his or her pre-existing weakness provided that psychiatric
injury of sufficient gravity to be actionable is foreseeable.

In this case a woman’s minor daughter was drugged and raped at a party. It was alleged that the
school attended by the daughter was liable for damages arising out of the rape in that it had
allowed child to leave school premises without the authority of the mother, despite the fact that it
was a standard and agreed policy known to both the mother and the school’s staff members that
the girl could only be released from school with parent’s verbal or a written authority and on
condition that parent collects her child from the school. It was argued that as a result of the
school’s gross negligence and failure to exercise its quasi-parental obligation to protect the girl,
she attended a sexual party where several other minor children from the school were and was
drugged and raped by one of the form four boys who were pupils at the school.

Damages were claimed by the girl for pain and suffering suffered by her as a result of the rape
and the use of drugs administered to her that affected her emotional, physical and psychological
integrity. Damages were also claimed by the mother for the emotional and psychological trauma
she endured as a result of the rape and exposure to drugs of her daughter.

The Defendant excepted to the actions on various grounds but the exceptions were dismissed.

Situations in which nervous shock can be caused

The diagram below illustrates the range of situations in which nervous shock can be inflicted:

Mother, father, sibling, spouse, lover, friend

Mother
On spot witnessing accident Told af

Accid
causi
Stranger
On spot witnessing injury
accident dea

Strangers on spot witnessing disaster such as Hillsborough Soccer

Fear for personal safety

First, it is clearly established that where the psychiatric harm was sustained as a result of P’s
being in fear for his own safety, then damages will be awarded. Thus, if D drives carelessly and

92
nearly knocks down P, if P is so badly shocked by narrowly escaping death that he suffers
psychiatric harm requiring treatment, P can recover damages from D.

Shock due to witnessing injury to third party

What is the position if a person suffers psychiatric harm not because he/she has been in fear for
his/her own safety, but because of traumatic shock from observing someone else being physically
injured? For example, a mother witnesses her own child being run down due to the carelessness
of a driver; she is so shocked that she suffers deep-seated, emotional disturbance of more than a
transient nature requiring psychiatric treatment.

Over the years, a wide variety of fact situations have come before the English and South African
courts wherein the psychiatric harm has occurred when one person has been shocked about what
has happened to another person. These situations include cases where persons have suffered
nervous shock when they have witnessed their close relatives being killed right in front of them,
cases where the witness is a stranger to the person who dies or is injured, and cases where a
relative has not seen the accident but is shocked when he is informed about it sometime later.

The present position in South Africa is that liability in all such cases is to be determined simply
by applying the ordinary test for negligence, namely, reasonable foreseeability. See Bester v
Commercial Union 1973 (1) SA 769 (A). Prior to this decision, a debate had raged as to whether,
in addition to the test for negligence, other limiting factors should be applied, such as the
closeness of relationship between the person physically injured and the person emotionally
harmed, and the proximity of the emotionally harmed person to the scene of the accident. In the
Bester case a young person was very close to his brother when the brother was knocked down
and killed by a car.The young person suffered nervous shock. D was held liable.

In Masiba v Constantia Insurance Co Ltd 1982 (4) SA 333 (C) a person had been assaulted and
had witnessed his wife being hit by a car and his car in which his children were present was
struck by another car and left precariously perched on the side of a bridge. The person who had
been suffering from hypertension prior to this incident suffered nervous shock and had a stroke
and died. It made no difference that P was particularly susceptible to nervous shock and would
suffer more drastic consequences when shocked because of his heart condition.

In England, also, the highest court decided in the case of McCloughlinv O’Brian [1982] 2 All ER
289 (CA) that the sole test for liability was that of reasonable foreseeability. However, the House
of Lords in the Alcockv Chief Constable of South Yorkshire [1991] AC 310 (HL) decided that
additional factors to reasonable foreseeability had to be weighed such as the closeness to the
scene of the accident.
Aftermath cases
What if the person was not at the scene of the accident but suffers nervous shock on learning
about it later.

In the McCloughlin case a mother learnt of a car accident involving her children and her
husband. She suffered nervous shock when she went to the hospital and saw the condition of
members of her family. D was liable for nervous shock to the mother.

In N v T 1994 (1) SA 862 (C) D had raped an 8 year old girl. The girl’s mother suffered severe
emotional shock and trauma as a result of the rape of her daughter. She was awarded damages.

In Kralj v McGrath 1986 1 All ER 54 Sally Kralj was admitted in hospital for the expected
birth of twins. In the course of delivery, without the use of anaesthetic, the consultant
obstetrician put his hand inside Mrs Kralj in an effort to turn the second twin, who was lying
in a transverse position by manual manipulation of its head. There was expert opinion that
such treatment was horrific and wholly unacceptable and must have caused the patient
excruciating pain. The obstetrician’s efforts were unsuccessful and the baby was later
delivered by Caesarean section. The child was born with severe disabilities that resulted from
the obstetrician’s attempt to turn it and it died eight weeks later. Liability was admitted. The
question that arose was how much compensation should be paid? 1 The court held that the
concept of aggravated damages was not appropriate to claims arising out of medical
negligence. Compensatory damages could be increased if the impact of what happened to the
patient was such that, it would be more difficult for the patient to recover. She was also
entitled to damages for nervous shock as a result of learning what had happened to the child
and of seeing it and was also entitled to have those damages increased because of her grief at
the loss of the child. If medical negligence resulted in the death of the child during
pregnancy, the financial loss suffered by the mother in replacing the dead child was not too
remote to be recovered.

Can damages be awarded for grief if there has not been nervous shock?

In the South African case of Komape & Ors v Minister for Basic Education & Ors High Court
(Limpopo Division. Polokwane Case No 1426 of 2015) the court considered whether the
common law should be developed to enable a plaintiff to claim damages for grief even without
proof of a psychiatric injury. The court noted that grief is not itself a condition, but a common
human experience which flows inevitably from the death of a loved one. For this reason, the
court found that only a claim substantiated by expert evidence should be allowed. Otherwise, the
court said, “bogus” and “limitless” claims could be made for every conceivable form of grief
regardless of whether it was significant or not. The court found that a person should only be

1Kralj v McGrath 1986 1 ALL ER 54.

94
compensated for a recognisable psychiatric illness and that this was a well-established principle
in our law.

IN THE HIGH COURT OF SOUTH AFRICA

(LIMPOPO DIVISION, POLOKWANE)

CASE NO: 1416/201

Coming to rescue of victims in disaster like train crash

In Chadwick v British Railways Board [1967] 1 WLR 912 P voluntarily went to the assistance of
passengers injured in a train crash caused by D’s negligence. Afterwards P suffered severe shock.
He successfully sued D.

Witnessing a disaster involving injury to numerous people

In the Alcock case numerous people died at a football ground when they were crushed to death
due to overcrowding at the ground. D was responsible for the deaths because he had allowed the
ground to become overcrowded and unsafe. Some people witnessed the deaths from other parts
of the ground and others saw recorded television pictures. The court held that to establish a claim
in respect of psychiatric illness resulting from shock it was necessary to show not only that such
injury was reasonably foreseeable, but also that the relationship between P and D was
sufficiently proximate; that there were ties of love and affection between the parties; and that P
had to show closeness in time and space to the accident or its immediate aftermath. The court
decided that none of the Ps was entitled to succeed in their claims because to allow liability in
such a situation would open the floodgates to almost limitless liability.

Problems with the reasonable foreseeability test as the sole determinant of liability
The reasonable foreseeability test is certainly not without its difficulties as the sole determinant
of liability in these sorts of cases which span a wide spectrum of differing situations. On the
other hand, criteria such as proximity and relationship are also very difficult to apply with any
precision. There is no leading Zimbabwean case laying down definitively what approach is to be
adopted in this sort of situation and if such a case comes before our courts a decision will have to
be made as to how we should tackle this sort of case.

See also Lutzkie v SARH & Anor 1974 (4) SA 396 (W); Muzik v Canzone Del Mare 1980 (3) SA
470 (C); Attia v British Gas [1987] 3 All ER 455.

Intentional infliction of nervous shock

In Boswell v Minister of Police & Anor 1978 (3) SA 268 (E) D, a police officer, deliberately and
callously told an elderly woman falsely that her nephew had been shot and she should come to
the police station to identify his body. The woman had assumed responsibility for the nephew
after his mother had died. She suffered shock which had a substantial effect on her health,
aggravating her problem with high blood pressure. D was held liable.

Duty of care concept

The phrase “duty of care” is frequently used in cases decisions on the Aquilian action. The
phrase is, however, somewhat confusing insofar as it is used in two separate and distinct senses.
It is therefore necessary to identify in which of the two senses the expression is being used in the
context concerned. The first sense in which it is used is in connection with negligence. A person
is said to have breached the duty of care (i.e. to have been negligent) when he fails to foresee and
guard against harm which the reasonable person would have foreseen and guarded against. The
second connotation of this phrase is in connection with wrongfulness. When it is used to denote
wrongfulness, it will be used in this sort of way– although the reasonable person would have
foreseen and guarded against harm, D is not liable in the circumstances as the law does not
recognise any duty of care to avoid causing that sort of harm (i.e. the conduct was not wrongful
or, to put it another way, there was no recognised legal duty to avoid causing harm by negligent
conduct).

The following two cases can be used as examples of how the duty of care concept can be used in
these different senses.

In Witham v Minister of Home Affairs 1987 (2) ZLR 143 (H) the court decided that, because the
harm was reasonably foreseeable, there was a duty of care. In this case a mentally unstable
policeman was given a weapon and was assigned to guard a house. He wandered off and shot
some civilians. The Ministry was held to have been negligent in arming him knowing of his
mental state. It was reasonably foreseeable that he might end up harming members and the
Ministry owed a duty of care to members of the public.

On the other hand, in the case of Stanbic Bank Zimbabwe Ltdv Durand 2007 (1) ZLR 398 (H)
the court found that the nature of the relationship between the parties was not such as to create a
legal duty of care. In this case a customer had defrauded a bank. The bank had opened the
account for the customer on the basis of a recommendation by D. The bank then sued D. The
court decided that a duty of care would arise in this situation where there is a legal relationship
between the parties which would create an obligation on the part of D to exercise such duty in
relation to P. In the present case there was no such relationship and in any event the bank was at
fault in sustaining the loss.

96
Causation
General
Even though D’s conduct is proved to be wrongful and negligent, D is still not liable for the harm
unless it is proved that D’s conduct was the cause of the harm suffered by P.

The conduct of D must be both the factual and the legal cause of the harm to P. The test for
factual cause is: but for D’s action would that harm have occurred to P? If the harm wouldhave
occurred even without D’s conduct then D’s conduct is not the factual cause of the harm.

The test for legal cause is the narrower test of reasonable foreseeability, namely, was it
reasonably foreseeable or was it within the range of ordinary human experience that the harm
would result from D’s conduct? (The direct consequences test has not been used in Zimbabwe.)
In overall terms the primary question which is being asked is whether, on a common sense basis,
there was a sufficiently close connection between D’s conduct and the harm to justify imposing
delictual liability upon him or her.

D’s con

Legal cause is a device to further restrict liability where liability based solely on factual cause may lead to ov

A common sense test to ensure that sufficient connection between conduct and result exists to justify making

The direct consequences test is not used in Zimbabwe.

As the test for legal cause is essentially the same test as for the fault requirement where
negligence is alleged, it has been suggested that the two tests could be merged together into a
single inquiry, namely, whether the particular harm to that plaintiff in respect of which he is
suing was reasonably foreseeable. However, the inquiry into causation contains a policy element,
at times it seems that the test for legal cause is applied in a more extensive fashion than that for
negligence and that the test for legal cause is applied with hindsight knowledge, namely, looking
at the events which actually occurred the courts enquire as to whether that sequence of events
was so exceptional as not to be reasonably foreseeable. On the other hand, in the fault context the
test for negligence has more of a prospective character and the question asked is: would a
reasonable person placed in the shoes of D have foreseen the harm which flowed from the
conduct?

In the South African case of Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431
(SCA) the court said that in respect of factual causation, P must establish that the wrongful
conduct is a probable cause of loss. This requires a sensible retrospective analysis of what would
probably have occurred if a hypothetical course of lawful conduct had been pursued, based on
evidence and on what could be expected to occur in ordinary course of human affairs.

The following cases provide some examples of how the requirement of causation has been
applied in differing fact situations.

In Kruger v van der Merwe 1966 (2) SA 266 (A) there was a motor accident due to negligence of
D. A passenger was thrown out of D’s car after the collision. He was lying on the road and was
run over by another car. The subsequent event was reasonably foreseeable and D was liable for
his death.

In Portwood v Svamvur 1970 (1) RLR 225 (A); 1970 (4) SA 9 (RA) a dog was caught in fence. P
tried to rescue the animal and was bitten. The court awarded damages against the owner of the
dog under the Aquilian action. It found that the dog was a savage dog and the owner ought to
have foreseen that it might bite an innocent person.The court held that the fact of the dog getting
caught in the gate could not here be regarded as a novus actus interveniens breaking the chain of
causation: it was an immaterial event in the chain of causation, i.e. simply one of an infinite
variety of situations which might cause a dog with a savage nature to bite an innocent person.
The plaintiff's action in trying to release the dog could not be regarded as wholly unreasonable in
the circumstances, that the defendant had not proved that the plaintiff had been guilty of
contributory negligence.

In Sadomba v Unity Insurance HS-131-78 there was a motor accident caused by D’s negligence.
P, who was injured, was dragged from vehicle and placed on the side of the road in an
unconscious state. His watch and shoes were stolen while he was lying there unconscious. He
was entitled to claim for these losses of property, as it was reasonably foreseeable that such
losses could occur in the circumstances.

In Bickle v Minister of Law and Order 1980 ZLR 36 (G) D’s negligent act triggered a freak
accident leading to damage to an aircraft. Nonetheless the court held that the damage was
sufficiently related to negligence to make D causally responsible.

98
In Mbulawa v Mutandiro 1989 (3) ZLR 83 (S) the court said that as a general rule, intervention
by means of intentional or negligent conduct, whether it be that of P or a third party, interrupts
the chain of causation. However, if a reasonable person in the position of D would have foreseen
the possibility of such intervention and guarded against it, D is negligent if he fails to do
likewise. He cannot rely on the intervention of a novus actus interveniens. (This is a new and
independent act that breaks the causal link.) Similarly, the negligent act of P or a third party,
which was itself an inherent risk created by the negligent conduct of D and which was
reasonably foreseeable by him, can never amount to a novus actus relieving him of liability. In
this case the driver (D), who had been drinking, drove dangerously by overtaking another vehicle
at an excessive speed on a narrow bridge. He started to return to his side of the road before he
had fully passed the vehicle being overtaken. The passenger in the front seat, thinking that a
collision was about to take place, grabbed the steering wheel and moved it to the right. As a
result, D lost control of the car, which went off the road and overturned. The passenger was
killed and P, who was in the back seat, was severely injured. It was held that the action of the
deceased arose out of the exigencies of the situation created by D’s own conduct and was one
which, together with the resultant accident, a reasonably prudent man would have foreseen.

In United Bottlers (Pvt) Ltd v Shambawamedza 2002 (1) ZLR 341 (S) P hired a paraffin
refrigerator from D. It was a term of the agreement that D would service the fridge and keep it in
good working order. A mechanic employed by D lit the burner of the fridge but failed to position
the tank correctly beneath the chimney. As a result, heat generated by the burner melted solder on
the burner which ignited paraffin that the mechanic had spilled on the tank and omitted to wipe
off. When P, who was unaware of what had happened, opened the cover of the tank in order to
adjust the flame of the burner, he was engulfed in flames and suffered severe burns. The court
found that the mechanic had been negligent. The subsequent harm to P was reasonably
foreseeable and should have been guarded against. P’s act in opening the cover of the tank was a
reasonably foreseeable consequence of the mechanic’s negligence and was therefore not a novus
actus interveniens that broke the causal link. There was also no contributory negligence on the
part of P.

In Ruvinga v ZEDTC (2) 2012 (2) ZLR 276 (H) the court pointed out that not only must D’s
action be the factual cause of the consequences but it must also be the legal cause and the test for
legal cause is that of reasonable foreseeability. P paid to have electricity connected to his farm
and the installation included a transformer. Some years later D, without the knowledge and
consent of P, connected other farms to P’s point of supply. This increased the load beyond the
capacity of the transformer and caused a fall in the voltage and damage to the electric motors and
this meant that P could not irrigate his crops. He claimed for: the loss of his crops; the cost of
replacing the damaged electric motors; and mental anguish, anxiety and depression.
The court held that the moment of causing damage is the relevant one in determining reasonable
foreseeability. It held that the anguish, anxiety and depression suffered by P was so remotely
connected to D’s conduct that D could not be held liable for it.
In Groenewald v Groenewald 1998 (2) SA 1106 (SCA) D physically assaulted P, threatening to
kill her. He locked her inside an office. She had tried to escape from D previously but the attempt
was unsuccessful and had led to the assault and threats. After being locked in the office, P had
sought to escape by climbing out of the office window onto a ledge outside the third storey of a
building. She had fallen from the ledge and sustained injuries. The court found that, by
assaulting, confining and threatening to kill P, D had intentionally committed a wrongful act.
This wrongful act factually caused the plaintiff to fall from the ledge and sustain injuries. P’s
attempt to escape via the outside ledge did not affect the chain of causation to such extent as to
preclude D from liability for damages. No considerations of legal policy militated against D's
liability. It waseminently reasonable, fair and just to hold D liable.

In Fourie NO v Hansen & Anor 2001 (2) SA 823 (W)a car rental company hired a vehicle with
defective tyres. It was held that it was liable for the harm caused to passengers in the vehicle
when there was an accident due to the defective tyres. The failure by the claimant to detect the
defective condition of the tyres did not constitute a novus actus interveniens.

In Van der Spuy v Minister of Correctional Services 2004 (2) SA 463 (SE) P, a bystander, was
shot by an escapee during a prison escape. At least one of the escapees was considered a
dangerous person. The prison officials were negligent in not preventing the escape, particularly
of the dangerous person. The general kind of injuries sustained by P and the general way in
which P sustained his injuries was reasonably foreseeable. The damages were not so remote that
the chain of causation should be regarded as having been interrupted. The Ministry was held
liable to P.

In Minister of Safety and Security & Orsv W H 2009 (4) SA 213 (E) a woman had been raped.
Prior to this rape, there had been a warrant for the arrest of the man and a protection order. Three
police officers had failed to arrest P's rapist on the Saturday afternoon prior to the rape on the
Tuesday. The court held that the police were liable in delict for their negligent failure to arrest the
man before P had been raped. The harm was not too remote. The police inaction was both the
factual and legal cause of the rape.

See also Mercer & Stafford v Pearl 1952 SR 151; R v John 1969 (2) RLR 23 (A) (it was
reasonably foreseeable that if one pursued a person with murderous intent across broken ground
one could fall into a hidden hole and might end up dying); Van den Bergh v Parity Insurance
1966 (2) SA 621 (A) motor accident; Murray v Union & SWA Insurance Co Ltd & Anor 1979 (2)
SA 825 (D).

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The thin skull rule
The thin skull rule applies in the field of delict as it does in criminal cases. The courts have laid
down that it is reasonably foreseeable that some people in society suffer from ailments and other
physical conditions which make them more susceptible to injury or more serious injury than
persons who do not suffer from those conditions. The general rule is that defendants must take
their victims as they find them and if, for instance, the victim in the case of a collision caused by
D’s negligence has a weak heart and the shock of the accident induces a fatal heart attack, D may
be liable to the victims even though a person without that condition would not have died in the
accident.

In Wilson v Birt (Pty) Ltd 1963 (2) SA 508 (D) a worker on a construction site suffered greater
injury than the normal person because he had a thin skull. The court however went on to say that
a victim who is especially vulnerable must take reasonable precautions to protect himself and
failure to do so will amount to contributory negligence.

In Smith v Leech, Brain and Co [1961] 3 All ER 1159 (QB) a fleck of molten metal splashed on a
workman’s lip because D had failed to provide him with a shield. The burn turned cancerous and
he died. D was held liable for the death.

In R v John 1969 (2) RLR 23 (A); 1969 (2) SA 560 (RA) the court held that if you assault a
person moderately it is reasonably foreseeable that he may have a thin skull and may end up
dying.

In S v Ndlovu HB-204-16 a woman caused the death of a child by beating it. The fact that the
child was HIV positive did not prevent the woman being convicted of culpable homicide as the
court applied the thin skull rule,

However, in S v Ncube GB-47-80, during a minor tussle one of the people involved, Y, suffered
haemorrhaging into lung cavity probably precipitated by exertion of the struggle combined with
the tubercular condition from which Y suffered. The court held that the thin skull rule did not
apply as death was not reasonably foreseeable in the circumstances.

In Santam Insurance Co (Ltd) v Paget 1981 ZLR 73 (A) an accident aggravated a pre-existing
back complaint. The court applied the thin skull rule.
 CHAPTER 3 - DEFAMATION AND OTHER
ACTIONS UNDER ACTIO INJURIARUM
General
The leading textbook on this subject is Burchell The Law of Defamation in South Africa.
However, as substantial differences exist between South African and Zimbabwean law arising
out of differing approaches to the concept of animus injuriandi, care should be taken in relying
upon this South African text. As English law has heavily influenced our law in the field,
reference should be made to English texts. Additionally, the chapter in McKerron’s book The
Law of Delict 7 Ed dealing with defamation in South Africa is a useful reference as it states the
South African law prior to the subjectivisation of animus injuriandi, which subjective approach
has not been adopted in Zimbabwean law.

Defamation
Competing interests
The law of defamation seeks to achieve a satisfactory balance two competing interests. On the
one hand, it recognises the right of the individual to be afforded protection against harm to his
reputation. On the other hand, it also recognises that the public have a right to free speech and to
proper access to information. Put in the context of newspaper reporting it is vitally important that
there should be a free press that keeps the public informed, especially about public affairs. This
free press should not be stifled by highly restrictive defamation laws. But at the same time the
law cannot ignore the fact that newspapers and other broadcasting media are extremely powerful
agencies which are able to reach enormous numbers of members of the public and that, if they
publish defamatory material, the end result can be devastating harm to reputation. It should also
be borne in mind that harm to reputation is extremely insidious and once reputation has been
damaged it is very difficult to repair the damage. There is much truth in the Shakespearean
saying “Who steals my purse steals trash; it is something, nothing. But he who filches my good
name robs me of something which not enriches him, and makes me poor indeed”.

The provisions in the Constitution of Zimbabwe are relevant in relation to the balancing of
competing interests. Section 61 provides for the fundamental rights of freedom of expression and
freedom of the media. Freedom of expression includes the right to communicate information to
others and to receive information. Section 61(5) excludes from the rights of freedom of
expression and the mediaexcludes, amongst other things, malicious injury to a person’s
reputation or dignity.

102
These rights may also be limited in terms of section 86 of the Constitution but only in terms of a
law of general application and to the extent that the limitation is fair, reasonable, necessary and
justifiable in a democratic society based on openness, justice, human dignity, equality and
freedom, taking into account all relevant factors including:
(a) the nature of the right or freedom concerned;
(b) the purpose of the limitation, in particular whether it is necessary in the interests of
defence, public safety, public order, public morality, public health, regional or town
planning or the general public interest;
(c) the nature and extent of the limitation;
(d) the need to ensure that the enjoyment of rights and freedoms by any person does not
prejudice the rights and freedoms of others.
(e) the relationship between the limitation and its purpose, in particular whether it imposes
greater restrictions on the right or freedom concerned than are necessary to achieve its
purpose; and
(f) whether there are any less restrictive means of achieving the purpose of the limitation.

Animus injuriandi
English law substantially influenced the Zimbabwean law on defamation. A similar heavy
influence was found in early South African law but, in more recent years, the South African
courts have made concerted efforts to remove this influence and to revert to “pure” Roman-
Dutch law. The outstanding result of this effort by these courts has been to subjectivise the law of
defamation by ruling that under the Roman-Dutch law the requirement of animus injuriandi (in
this context intention to defame) was not a fictional requirement, but a real one and thus if
subjective intention to defame is absent, P should not be able to recover damages. The opposition
to the subjective approach clearly emerges in the Zimbabwean case Smith NO and Lardner-
Burke NO v Wonesayi 1971 (2) RLR 62 (G). See also Tekere v Zimbabwe Newspapers & Anor
1986 (1) ZLR 275 (H). From a policy standpoint, it was argued that a move towards subjectivism
would create a position where the reputational interests of plaintiffs would be afforded
insufficient protection.

However, in the case of Garwe v Zimind Publishers (Pvt) Ltd 2007 (2) ZLR 207 (H) the High
Court dealt with the defence of absence of intention to defame that was raised in that case as if
this defence is applicable in Zimbabwe.It stated that animus injuriandi is a subjective intention
on the part of an individual, as opposed to the mass media, to defame or injure the reputation of
the plaintiff. The court found on the facts that D had intention to defame.

This case, however, did not change the position in relation to the mass media where apparently
the court still accepted that the legal position that applied in South Africa at that time still applied
in Zimbabwe and the position in South Africa at that time was that liability of the mass media
was strict and there was no requirement that the media had to have had the intention to defame.
Liability of distributor of published material
In Zvobgo v Kingstons Ltd HH-485-86 at p 17 it was stated that the liability of the distributor of
published material is based on negligence and not intention. This also applies to publishers.

What constitutes defamation

Defamation causes harm to reputation, that is, the estimation in which a person is held by others
(his good name and standing). A defamatory statement is one which is published orally or in
writing which injures the person to whom it refers:
 by lowering him or her in the estimation of reasonable, ordinary persons generally;
 by diminishing his or her esteem or standing in the eyes of ordinary members of the
general public;
 by causing the person to be shunned or avoided or exposing him or her to hatred, ridicule
or contempt;
 by casting aspersions on his character, trade, business, profession or office.

In most cases P will allege that the facts forming the basis of the defamation were false.
However, exceptionally even if the statement about P is true P can still argue that it was not in
the public interest to publish this true statement about him or her. This would apply to a story
about P that reveals that he or she committed a minor offence when her or she was young but has
since then behaved in an exemplary way. Thus it is laid down that it is not in the public interest
to dredge up long forgotten minor wrongdoing.

A few examples may be given to show the range of statements encompassed by this definition.
Reputation would be damaged and defamation would be committed if I say of a person that he is
engaging in criminal activities, of a woman that she is a prostitute, of a politician that he is
corrupt, of a businessman that he is deliberately falsifying his expense account or of a newspaper
editor that he is deliberately distorting the facts in order to give a false picture of events.

In the following situations each P was awarded damages for the harm to his or her reputation:

Accusations of criminal or dangerous conduct

Haas v Greaterman Stores (Rhodesia) Ltd & Anor 1966 RLR 313 (G) D made a verbal
insinuation that P had committed shoplifting in front of a number of bystanders.
Mavromatis v Douglas 1971 (1) RLR 119 (G) D, in the presence of one other person, accused P
of criminal conduct.
Musukutwa v Marova HH-20-94 D said that another railway worker had caused the death of a
workmate through witchcraft or similar means.
Tabanie v Chimanzi HB-75-90 a police constable was falsely accused by a member of CIO of
providing assistance to two armed bandits and sharing in the spoils of the robbery and attempted
murder committed by them.

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Prakash v Wilson & Anor S-208-92 in the headline to a story about P, it was incorrectly stated
that P, a businessman, was sought by Interpol. This implied that he had been guilty of criminal
conduct rather than that he had simply committed a breach of contract.
Associated Mine Workers Union & Anor v Gwekwerere & Ors GS-202-81 D accused P of theft.
Birchall v Mararike HH-43-86 P made a false allegation that P had assaulted and abused him.
Mupita v Bayayi HB-31-89 P was accused at her workplace of theft within the hearing of her
subordinates and some customers.
Macheka v Metcalfe & Anor HH-62-07 In front of others, P, a prophet, was accused of theft and
was arrested by D’s workers at the instigation of D.

Accusations of immoral conduct

Khan v Khan 1971 (1) RLR 134 (A) D called a woman a prostitute.
Moyo v Abraham HH-467-84 D made an accusation that woman was a prostitute.
Bikwa v Ndlovu HB-18-92 D published to Community Court Presiding Officer’s superiors and
others a number of false allegations of an immoral relationship between P and D’s wife and of
abusing his office to set up this immoral liaison.
Mugwadi v Dube & Ors 2014 (1) ZLR 753 (H) the article created the impression that a female
musician, who was healthy, robust and lively during her sober days, but was now shabby, unkept,
disoriented and addicted to alcohol, dagga and other hard core drugs, and the situation had
deteriorated to such an extent that she was now pitiful and had been sexually abused by her
fellow musicians. It depicted her as a wild child of Zimbabwean music who was now unable to
control her urge to get drunk or high and was now a prostitute or a vagabond.

Accusations of misconduct
Nyamwanza v Kambadza & Ors HH-104-87 D made unfounded allegations against a headmaster
that he was inefficient and was guilty of dereliction of duty and sexual impropriety.
Mahomed v Kassim 1972 (2) RLR 517 (A) D told the audience that P had dishonourably failed to
repay a loan.

Corruption and financial mismanagement and corruption

Ireland v Chihambakwe HB-65-85 D made an allegation that that the P’s activities had destroyed
his company and country’s economy.
Bushu & Anor v Nare HH-97-95 D made a series of allegations of financial mismanagement by
Ps in respect of their handling of the affairs of the Public Service Association Investment
Company.

Unsuitability for leadership

Zvobgo v Kingstons Ltd 1986 (2) ZLR 310 (H) a report that a Minister was a “regionalist” and
conduct not been that expected of leader.
Arnold v Majome HH-431-86 Information was supplied that chairman of a co-operative society
had been suspended by the Registrar because funds donated to the society could not be
accounted for.

Tekere v Zimbabwe Newspapers 1986 (1) ZLR 275 (H) a newspaper unjustifiably accused a
prominent politician of being lazy, inefficient, irresponsible and hypocritical and of not attending
properly to his political duties, but instead spending his time womanising.
Darangwa v Bushu HB-68-89 a factory manager was falsely accused of unjustly demoting a
worker because the latter had stated publicly that the manager had gone fishing with his
girlfriend during working hours.
RP & P Co & Ors v Howman NO 1967 RLR 318 (GD) accusation that Minister of Information
of deliberately presenting an incorrect, unbalanced and biased picture of the news.
Parsons v Cooney 1970 (2) RLR 75 (A); Parsons v Cooney 1971 (1) SA 165 (RA) Ratepayer
gratuitously giving defamatory information about a municipal employee to the head of his
department. D was actuated by malice and he was found liable.
Marongwe & Anor v Tsvaringe HH-5-91two persons were ridiculed in front of subordinates by
calling them mad and also making other insulting remarks about them.
Madaka v McLean HB-86-91 D took default judgment against a farmer after he had paid in full
and caused publication of the judgment in Dun’s Gazette, causing the AFC to threaten
foreclosure.
Remba v Sanyangara HB-12-94 a senior factory nurse told a labour hearing that another nurse, P,
was a danger to human life and unfit for her calling. When sued for defamation, she did not
justify the comments and admitted that they were not necessary. As a result of her statements, P
had been suspended and later given work only in a storeroom. Her relationship with her
employer had suffered.
Chikukwa v Marisa & Anor HH-3-92 a newspaper published a misleading article in which it was
stated that P had been dismissed following maladministration by him.

Accusations of corruption
Association   of   Rhodesian   Industries   &   Ors  v  Brookes   &   Anor  1972   (2)   RLR   1   (GD)   In   a
newspaper report, Ps were accused of corruption in the allocation of foreign exchange;
Chinengundu v Modus Publications (Pvt) Ltd HH­135­92 a newspaper published allegations that
P, at a time when he was still a politician, had bought votes during an election. This story was
published at a time when the President had been considering appointing him as a judge;
Levy v Modus Publications (Pvt) Ltd 2000 (1) ZLR 68 (H) a businessman was awardeddamages
arising out of two newspaper articles dealing with the construction of a shopping complex. The
articles   pointed   out   that   the   construction   had   commenced   before   building   permits   had   been

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obtained   and   they   implied   that   the   businessman   was   a   crook   who   had   used   his   wealth   and
political connections to subvert Ministers and officials.
Transtobac (Pvt) Ltd & Anor v Jongwe Printing and Publishing Co (Pvt) Ltd HH-67-94 a
newspaper alleged that a tobacco company and its financial director had victimised workers,
illegally detained them, and fired some of them because of their political affiliation and that they
had detained and tortured people including the President.

Chinamasa v Jongwe Printing & Publishing Co (Pvt) Ltd 1994 (1) ZLR 133 (H) a magazine
published a story reporting that the police were re-opening an old case of fraud involving P, the
Attorney-General. In this story it was stated that lawyers were concerned about P’s fitness for his
post.
Shamuyarira v Zimbabwe Newspapers (1980) Ltd 1994 (1) ZLR 445 (H) a newspaper published
a story exposing widespread abuse of power by Government Ministers and other senior officials.
P was implicated in this story. P was found by the commission of enquiry into the scandal not to
have been guilty of any abuse of his position.
Mudukuti v Hove & Ors HH-152-94 Ds drove their executive officer from his jobs by vitriolic
verbal attacks upon him.
Zimbabwe Newspapers (1980) Ltd & Anor v Bloch 1997 (1) ZLR 473 (S) two newspapers of the
defendant published articles accusing of well-known economist of racism, hypocrisy, insanity
and fuelling tribal conflicts.

Accusations of unprofessional conduct

Remba v Sanyangara HB-12-94 a senior factory nurse told a labour hearing that another nurse, P,
was a danger to human life and unfit for her calling. As a result of her statements, P had been
suspended and later given work only in a storeroom. Her relationship with her employer had
suffered.
In Nyatanga v Editor, The Herald & Anor 2001 (1) ZLR 63 (H) the court said allegations which
impugn the integrity of a person holding the post of Master of Sheriff of the High Court are
defamatory in the highest degree and call for punitive damages. They are much more serious
than allegations defaming a politician or businessman. To attack falsely the honesty and integrity
of a person holding high office in the judicial system undermines the confidence that the public
should have in the judicial system of the country.
In Robertson v Eriksen HH-256-93 P, a gynaecologist, was widely defamed by D’s complaint
that he was rude, incompetent, greedy, generally unprofessional and unethical, and had assaulted
her. D made her complaint to the Health Professions Council, did not retract it, and it became
widely known in the medical profession.

In Kawonde v Dun & Bradstreet (Pvt) Ltd 2003 (2) ZLR 352 (H) P was a legal practitioner who,
through a misunderstanding, had a default judgment granted against him for non-payment of a
debt. When the misunderstanding was cleared up the judgment was rescinded. Shortly after the
rescission, D published an issue of Dun’s Gazette in which it recorded that judgment had been
granted against P. Although D did not know, and had no way of knowing, that judgment had been
rescinded, D declined to remove P’s name from the list for 5 months after being informed of the
rescission. The initial publication of P’s name was privileged because D did not know and had no
way of knowing that the judgment had been rescinded. However, after D was made aware of the
true facts the situation changed, and any continued publication of the information in the Gazette
or through D’s computers became unlawful. The court awarded D damages for defamation.
Test for defamation
The basic test to determine whether a statement is defamatory is to examine how ordinary,
reasonable people would respond to the statement.

No distinction is drawn in our law between written and verbal defamation. The requirements for
both are exactly the same. In other words, the English law distinction between written
defamation (libel) and verbal defamation (slander) does not exist in our law.

In respect of written material, the test obviously does not take account of how a reader with a
morbidly suspicious mind or how an abnormally sensitive or supercritical reader would respond
to the contents. It should also be stressed that the test is not how highly virtuous people who
always think perfectly rationally and are totally devoid of all prejudices would respond to the
material. Instead, it is the likely reaction of ordinary people of average intelligence. Thus, if a
person is being prosecuted for a crime, but has not yet been convicted, the highly ethical
individual who is completely fair-minded would adopt the stance that a person is presumed
innocent until his guilt is proven and thus he would suspend all judgment upon the guilt of the
accused until the court has ruled. The response of ordinary people, however, would be more
likely to be that the prosecution would never have been brought unless the police had cogent
evidence that he was guilty. So too, the moralistic person would have nothing but sympathy for a
victim of rape; but to say of a woman that she has been raped will lower her reputation in the
eyes of many people in the general public.

In Mapuranga v Mungate 1997 (1) ZLR 64 (H) the court held that to accuse a person of
committing adultery is still defamatory, in spite of great changes in general notions on the
subject. Although adultery is no longer criminal, the reason why an allegation of adultery is
defamatory is because adultery is an act of sexual incontinence which brings the perpetrator into
odium from a social point of view. Adultery is still widely reprobated by public opinion and the
defamation was inherently serious.

This test pays heed to contemporary social and political values and if, over time, values undergo
change what is defamatory may alter within the society. To give an extreme example, in the
fascist white-ruled “Rhodesia” the courts would have looked upon the term “Communist” as

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being defamatory, whereas in post-independent Zimbabwe at a time when a socialist economic
path was being pursued the use of this term certainly was not defamatory.
The test is the response of ordinary, reasonable people generally. Under this test, a sectional or
segmental test is not used. It has, however, been argued that the test should rather be whether a
substantial and respectable group of society members would construe the remark as defamatory
so as to accommodate the situation where a remark would seem innocuous in the society as a
whole, but amongst people with similar beliefs to P, say Hindus, the remark would be construed
as being highly defamatory, e.g. that a Hindu eats beef which is completely forbidden for people
of his faith. There was support for the sectional test approach in Velempini v Engineering
Services Dept of Works 1988 (2) ZLR 173 (H).

Where the alleged defamatory statement is contained in a newspaper article the court is entitled
to examine the article as a whole and not just the words specified by P. See Ndewere v Zimbabwe
Newspapers (1980) Ltd & Anor 2001 (2) ZLR 508 (S).

In Masuku v Goko & Anor 2006 (2) ZLR 341 (H) the court stated that, in determining whether or
not a person has been defamed, the court should adopt a three-stage approach:
(a) consider whether the words complained of are capable of bearing the meaning attribute
d to them, that is, whether the allegedly defamatory meaning is within the ordinary mea
ning of the words;
(b) assess whether that is the meaning according to which the words would probably be rea
sonably understood; and
(c) decide whether the meaning identified is defamatory.

In this case the court found that the plain meaning of the offending article was that P was being i
nvestigated for improper or unethical behaviour and that he had committed acts of corruption ren
dering him unfit to hold public office. Its overall tenor suggested that he was already under invest
igation and that the case against him had overtaken mere allegations of corruption. Applying the t
ests cited, the words, as understood by the ordinary reader, were defamatory of P, in that they cas
t aspersions on his character, lowered him in the estimation of ordinary reasonably persons and, h
aving regard to the diverse public offices he held, exposed him to public ridicule and contempt.

In Garwe v Zimind Publishers Ltd & Ors 2007 (2) ZLR 207 (H) the court said that the ordinary
meaning of the words is determined by looking at the context in which they were uttered. The
court must decide both whether the words in their ordinary significance are capable of bearing a
defamatory meaning and whether the ordinary reader would understand the words as being
defamatory. The reasonable reader is a person who gives a reasonable meaning to the words
used, within the context of the document as a whole. The reasonable reader will not engage in an
exercise to subtly, elaborately or intellectually analyse a word and come up with a meaning
different from that ordinarily assigned to it.
In Mugwadi v Dube & Ors 2014 (1) ZLR 753 (H) applied the three stage approach to decide how
ordinary reader of a newspaper would have understood an article about a female musician.

Test where exception that P’s declaration that it does not disclose cause of action
In Mnangagwa v Alpha Media Hldgs (Pvt) Ltd & Anor 2013 (2) ZLR 116 (H) the court ruled that
where exception is taken to P’s declaration on the ground that it did not disclose a cause of action
in a defamation case, the test of what constitutes defamatory matter is different from that at the
trial stage. All the court is called on to decide at this stage is whether a reasonable person of
ordinary intelligence, having heard D’s words and having knowledge of the circumstances might
reasonably understand these words as meaning that P had been guilty of illegal or criminal
conduct. The test on exception is, therefore, whether a reasonable person of normal intelligence
and with knowledge of the circumstances could or might regard the statement as defamatory,
whereas at the trial stage the test is whether a reasonable person would regard it as defamatory.
The question which must be answered is: what immediate impact would the contents of the
article in question have on the mind of the ordinary reader of the publication and what would be
the overall impression gained by him? Or, put another way, in the contest of the article as a
whole; are the words used reasonably capable of conveying to the reasonable reader the
defamatory meanings ascribed to them by P in his declaration?

Primary and secondary defamation

Material can be defamatory either in a primary or in a secondary sense. Where it is alleged that
the material is per se defamatory, it is not permissible to call witnesses to testify as to how they
understood that material. It is for the court to decide how reasonable people generally would
have been likely to construe that material. See Mavromatis v Douglas 1971 (1) RLR 119 (G).

Where, however, P is alleging innuendo (i.e. that in the primary sense the words are not
defamatory but because of special circumstances they assume a secondary meaning which is
defamatory), it is necessary and permissible for P to call witnesses to testify that they were aware
of the special circumstances and that, given those special circumstances, P’s estimation was
lowered in their eyes. (The court still has to consider such witness testimony from the standpoint
of whether the witnesses were reasonably justified in interpreting the material in this fashion.)
See Mahomed v Kassim 1972 (2) RLR 517 (A); 1973 (2) SA 1.

Although words are per se defamatory, P may still allege an innuendo, the object of which is to
highlight the sting of the imputation. The highlighting of the sting of the imputation is not an
innuendo in the true sense, as the imputation can be derived from the words themselves. The
highlighting of the sting has been referred to as a quasi-innuendo. See Zvobgo v Kingstons Ltd
1986 (2) ZLR 310 (H) and Zvobgo v Mutjuwadi & Ors 1985 (1) ZLR 33 (H).

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In Moyse & Ors v Mujuru 1998 (2) ZLR 353 (S) the court decided that a person claiming
damages is bound by the specific meaning selected by him as being defamatory and the court
will deal with that meaning and no other.

Proof of bad character of plaintiff

In Jansen v Naylor 2006 (3) SA 546 (SCA) the court stated that for the
purposes of assessing appropriate damages, ‘evidence of a plaintiff’s general
bad character is admissible,’ but ‘evidence of particular acts of misconduct is
not’ (para 15). It went on to say, however, that evidence that falls short of
justifyingconduct, could nonetheless mitigate the impact of the words: In
some instances the evidence could show that, although not all of it, at least a
portion of the statement was justified.

Persons who can be defamed

An action for defamation can be brought by:
 a natural person;
 a trading or non-trading corporation when the status or reputation of that corporation
has been damaged. See Boka Enterprises v Manatse & Anor 1989 (2) ZLR 117 (H);
Dhlomo NO v Natal Newspapers & Anor 1989 (1) SA 945 (A); and PTC v Modus
Publications (Pvt) Ltd 1997 (2) ZLR 492 (S).
In Caxton Ltd & Ors v Reeva Forman (Pty) Ltd & Anor 1990 (3) SA 547 (A) the court
stated that a trading corporation may claim damages to compensate for the actual loss
sustained as a result of defamation. The extent of harm to business is to be decided
with reference to nature of the defamation, the character of the business and the likely
impact thereon of the defamation. Damages are to be assessed in accordance with
principles relating to claims for defamation, bearing in mind that corporation has no
feelings to outrage or offend;and
 a political party Argus Printing and Publishing Co Ltd v Inkatha Freedom Party 1992
(3) SA 579 (A).

But Government itself cannot sue for defamation because to allow such an action would inhibit
freedom of speech. People have the right to criticize government and government should not be
able to suppress criticism by suing for defamation using state funds.

It would seem that local authorities also cannot sue on the basis that they are elected bodies
which should again be open to criticism.

As to whether statutory corporations can sue for defamation, the Supreme Court dealt with this
issue in the case of Postal and Telecommunication Corporation v Modus Publications(Pvt) Ltd
1997 (2) ZLR 492 (S). The PTC sought to sue a private newspaper for defamation damages. The
court decided that statutory corporations which are part of the governance structures of the
county should not be able to sue for the same policy considerations that apply in respect of
statutory corporations that are in effect part of governance structures. The court examined the
statutory framework of the PTC and decided that it was a state organ that was not independent of
government. Thus in respect of other statutory corporations and other institutions such as state
universities, their statutory framework would have to be examined in order to determine whether
they are simply the alter egos of government or whether they have a sufficient degree of
independence from government that would enable them to be treated as separate entities that
have the right to sue for defamation.

The court however pointed out that statutory corporations were still entitled to bring actions for
economic loss that they suffer as a result of scurrilous false statement about them. This action
can be brought under the delict of injurious falsehood.

A person cannot sue in respect of defamatory statements about his dead relative. Only if the
statements about the dead relatives have the effect of defaming him personally can he sue.

Reference to plaintiff
P must show that the defamatory statement was made about him or her.

When a statement is made about an entire class or group of persons (say all university lecturers),
P, who is a member of that class, can only sue for defamation if reasonable people generally
would have understood the statement as referring to P individually as well as to others in the
class and therefore they would have thought less of P himself or herself. See Arnold v Majome
HH-431-86.

The P does not necessarily have to be referred to by name. That person can be identified by
reference to the position or office that person holds, as, for instance, where D refers to the
managing director of a company or a Minister holding a specified portfolio.

In Ndewere v Zimbabwe Newspapers (1980) Ltd & Anor 2001 (2) ZLR 508 (S) a defamatory
article referred to the in-house lawyer of the company. P was the corporate secretary and legal
advisor of the company. P asserted that her friends, relatives, acquaintances and colleagues
would have known that she was the company’s in-house lawyer and would have understood that
the article referred to her. The court accepted that the article was understood by a limited number
of persons as referring to her.

In Moyo v Chipanda 2004 (2) ZLR 67 (H) P sued D for defamation. The statement, published in
a newspaper, did not refer to P by name or by description. However, the newspaper subsequently
published articles in which P was identified and linked to the earlier statement. The court held

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that publication of defamatory words and identification of the person intended to be defamed
need not occur contemporaneously. The evidence of such subsequent publication was therefore
admissible.

In Manyange v Mpofu & Ors 2011 (2) ZLR 87 (H) the court said that P is required to prove that
the injurious statement referred or related to him, not necessarily that he was specifically
mentioned by name. With a series of statements, the publication of defamatory words and the
identification of the person intended to be defamed need not occur contemporaneously. Evidence
of a subsequent statement identifying P is admissible as proof that an earlier defamatory
statement referred or related to him. In the present case once the later articles, which mentioned
P by name, were published, the reasonable reader, taking all four articles conjunctively, would
undoubtedly have identified P as one of the mining commissioners who was being transferred on
the grounds of corruption. The articles taken together imputed to P (amongst others) a proclivity
towards corrupt behaviour, illegal activities, dishonest and unprofessional conduct and
attempting to cover up illegalities. Such imputations were unquestionably defamatory in
accordance with the applicable tests laid down by the courts.

In Mohadi v The Standard & Ors 2013 (1) ZLR 31 (H) P, one of the co-Ministers of Home
Affairs, claimed damages for defamation following the publication of an article in a newspaper.
The article referred to the large scale theft of copper wiring alongside the main Gweru-Harare
road and the lack of action by the police, and went on to say: “Recently the co-Minister of Home
Affairs responsible for the Police had his 30-tonne truck impounded with 30 tonnes of stolen
copper wire on board … a close relative has been running a gang stripping wire from power lines
for several years. The police at Beitbridge are well aware of this and have done nothing ...” The
article did not name P. Ds excepted to the claim, on the grounds that the words complained of
contained no reference to P and, further, that the declaration made no proper allegations of what
facts would enable the ordinary reader to identify P as the person referred to. P claimed damages
in the sum of US$35 million.

The court held that in order to succeed in a claim for defamation damages, a person must
establish that the material complained of referred to or concerned him. The test for determining
whether in any publication the reference is to P is an objective one: whether the ordinary,
reasonable person hearing the speech would have understood the words complained of to apply
to P. There are two stages in the inquiry into the question whether the material complained of
refers to or concerns P. The first is whether the statements complained of are reasonably capable
of referring to P, either in their ordinary meaning or by reason of some special circumstances.
This is a question of law which can be determined on exception. Evidence is not admissible in
that enquiry. The second leg of the inquiry is whether a reasonable person would regard the
words complained of as referring to P. Only the first stage needed to be considered in the present
case.Where P is not identified or referred to by name or description, such as his office or
occupation, he must state the facts upon which he relies as showing that the statements
complained of referred to or concerned him. While it was possible to identify P as the co-
Minister of Home Affairs being referred to (the other co-Minister being female), it was clear that
the defamatory aspects of the article which P sought to rely upon did not refer to or concern P as
co-Minister of Home Affairs. They concerned a relative of his, as well as the police who were
being accused of inaction. The article did not say or imply that P was responsible for vandalising
the electrical system. The allegation that the police impounded a motor vehicle owned by P
carrying thirty tonnes of copper wire did not in any way mean that the plaintiff was involved in
the stealing of the copper wire. Although, the article stated that a close relative of P had been
leading a gang of persons responsible for stealing copper wire from the railway company, there
was no suggestion that P is responsible for the conduct of his relative. The article did not state or
suggest in any way that P ran a criminal gang that had been stealing copper wire. That allegation
related to a relative of P. There was no suggestion that P influenced the police not to arrest the
persons who stole the copper cables. The exception would accordingly be upheld.
Publication
If a defamatory statement about P is published only to P, he may be able to sue for injuria, but he
cannot sue for defamation because, by definition, defamation is onlycommitted when there is
publication of the defamatory statement to at least one person other than P. (This requirement is
satisfied if D publishes it to P’s spouse. However, because of the closeness of the marital
relationship as an exception to this rule, publication is not deemed to have taken place if the
publication is only to the D’s own spouse.)

The fact that other people have previously published the same defamatory statement is no
defence.

See Grindlays Bank v Louw 1979 ZLR 189 (G) publication to P’s agent.

Liability of D for re-publication

If another person re-publishes a statement originally made by D, D will also be liable to pay
damages for that further publication of his defamatory statement if:
 he or she authorised or intended the repetition; or
 to his knowledge, the other person had a moral duty to repeat the matter; or
 the publication flows in the ordinary course from the original publication.

See Maketo v Medical Investments (Pvt) Ltd & Anor HH-324-88 in respect of liability of D for
republication by another.

Multiple defendants

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In Mashamhanda v Mpofu & Ors 1999 (1) ZLR 1 (H) the court ruled that when P an action for
defamation against multiple defendants P should bring the action against all the defendants in
one single action.
Electronic publication
The World Wide Web has expanded enormously the scale and extent of publication.
Newspapersoften publish their copy on websites, and this means that huge numbers of persons
may read the newspaper, not only in the country where the newspaper is located but all around
the world. The harm caused by the defamatory statementscan thus be on a vast scale.

Social media, such as Facebook and Twitter, blogs, chat rooms, online forums and personal
websites can also be used to harm other people’s reputations.

In H v W 2013 South Gauteng High Court Case Number 12/10142/2013D posted on Facebook a
letter for the attention of P and for public consumption a letter defaming P.The court held that
even if the contents of the letter were true, it was not in the public interest to publish the article,
that D had acted with malice in publishing it and the defence of fair comment did not apply. The
court ordered D to remove all postings which she had posted on Facebook or any other site in the
social media which refer to P.

The question that arises is what would have happened if P had sued D for defamation damages?
If the author of the defamatory statement is known then that person can be sued but the problem
is that Internet users can easily create bogus profiles and make anonymous and unlimited
defamatory postings regarding any person.

Service providers hosting web sites in Zimbabwe are legally obliged to obtain
and record the names, addresses and other identity details of their
customers who have web sites hosted by those service providers. Thus, if
defamatory material is placed on such web sites, the persons posting the
material will be known and it will be possible to sue these persons.

There is no legislation in Zimbabwe dealing with the question of the liability of the internet
service providers located in Zimbabwe for defamatory statements appearing on, for instance,
web pages hosted by service providers. Unlike the owner of the website or the blog, the service
provider is a mere conduit of information. It is the owner of the website who controls the
contents on its website. It is the owner of the website who decides, for instance, to provide a
forum or chatroom where defamation might occur.
Interdict
The courts are reluctant to issue an order to prevent the media from publishing a story on the
basis that the story is allegedly defamatory.

For a final interdict to be granted in a case of defamation, P would have to establish that he or
she has clear right, that he or she reasonably apprehends that he or she will suffer injury if the
interdict is not granted and that he or she cannot obtain similar protection by some other ordinary
remedy.

In this sort of case the court will balance the interests of P against those of D. But the court will
take into account that an interdict could end up stifling the freedom of the media as entrenched in
s 61 of the Constitution. It will not grant an interdict if it considers that on the facts there is a
defence available to D in respect of any action for defamation. It will also take into account that
after publication P will still be able to bring an action for damages if it turns out that D cannot
successfully raise any defence to the defamation. It will take into account the financial prejudice
to the newspaper if it stopped from releasing the paper after it has already been printed.
However, it may in exceptional cases decide that P will suffer irreparable harm if the paper is not
interdicted because the article is extremely defamatory and on the facts before the court, there do
not appear to be any viable defences that can be raised

In Schweppes (Central Africa) Ltd v Zimbabwe Newspapers (1980) Ltd 1987 (1) ZLR 114 (H)
the court said that before an interdict may be granted restraining the publication of matter alleged
(or admitted) to be defamatory, the court must be satisfied not only that the matter is defamatory
but also that there is no defence (such as that the statement is true and for the public benefit) and
that nothing has occurred to deprive the plaintiff of his remedy (such as consent to publication).

In Universal Merchant Bank Zimbabwe Ltd v The Zimbabwe Independent & Anor 2000 (1) ZLR
234 (H). in the early hours of the morning on which a weekly newspaper was to be published, the
applicant bank sought an interim interdict preventing the publication of the paper. The paper
contained an article which the bank said would be damaging to it because it suggested that the
bank was in serious financial trouble. There had been an article in the previous edition of the
paper in which it was said that the bank was in trouble. The court refused to grant an interdict to
stop the circulation of the paper. It held that the bank had produced no proof that the article was
false and that the article would harm it, particularly as there had been a previous article that gave
an equally bleak picture of the bank’s situation. The court also held that there were a number of
alternate remedies available to the bank, including suing the paper for defamation. The court did,
however, point out that a newspaper has a duty to act responsibly and to take reasonably
adequate steps to satisfy itself of the veracity of the reports it publishes. This is particularly so
when a report alleges that a bank is in serious financial difficulties because of the reaction such
report can generate from the bank’s customers.

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In Moyo v Muleya & Ors 2001 (1) ZLR 251 (H) a Cabinet minister sought an interdict against
the respondents after they published an article which referred to legal proceedings being brought
against him in Kenya. The applicant had already instituted proceedings against the respondents
in respect of the article already published; the respondents had raised the defences of fair
commentand justification. The court held that the competing interests of the right to personal
dignity and integrity and the right of freedom of speech had to be balanced. In doing so, the court
should interfere as little as possible with freedom of speech. Before granting a final interdict, the
applicant had to establish a clear right. He could not do so when the existence of the right had yet
to be determined in the other case pending. The fact that the applicant was a politician was
important in assessing the respondents’ defences. Generally speaking, politicians are open to
greater scrutiny than ordinary persons. This meant that the defences being raised had a
reasonable prospect of success.

See also Hix Networking Technologies v System Publishers (Pty) Ltd and Anor 1997 (1) SA 391
(A); Van Zyl and Anor v Jonathan Ball Publishers (Pty) Ltd & Ors 1999 (4) SA 571 (W) and
Malema v Rampedi & Ors 2011 (5) SA 631 (GSJ).

Defences to defamation
As a result of certain South African Appellate Division cases since 1960, it is now a defence to
defamation in South Africa that D did not subjectively intend to defame (i.e. that he had no
animus injuriandi). This defence would not appear to be available in Zimbabwe as animus
injuriandi is a purely functional requirement because as soon as it is proved that objectively the
statement was defamatory, animus injuriandi is presumed to exist by the courts and, at this stage,
D will only escape liability if he successfully pleads one of the recognised defences,
namely,justification, fair comment, privilege, compensation, rixa or consent to the publication of
the defamatory material.

However, in the case of Garwe v Zimind Publishers (Pvt) Ltd 2007 (2) ZLR 207 (H) the High
Court dealt with the defence of absence of intention to defame that was raised in that case as if
this defence is applicable in Zimbabwe.

Unavailable defences
It is no defence to an action for defamation for D to say that the statement has already been
published in, for instance, another newspaper and that D is simply repeating what was said
elsewhere. This is because the action of spreading the story around causes more harm to the P’s
reputation. Merely putting the offending words in quotation marks provides no defence.

It is no defence to an action for defamation for a newspaper to say, for instance, that it has
merely published the letter from one of its readers which turns out to be defamatory and without
any foundation.The issue of whether the press is protected against actions for defamation if they
accurately quote what high-ranking government officials say in statements to the press or when
addressing public rallies will be dealt with later.

It is no defence to an action for defamation for the publisher of the defamatory to say that before
publishing the statement D confronted P with a defamatory allegation against him or her. The
purpose of confronting a person with an allegation is to try and check the story. If, when
confronted, P admits the allegation, the newspaper can go ahead safely and publish the story. But
if P completely denies the allegation or refuses to comment on it and the newspaper still
publishes it, the newspaper will still be liable to P if the defamatory allegation is without
substance.See Makova v Masvingo Mirror (Pvt) Ltd & Ors 2012 (1) ZLR 503 (H).

Justification

The onus is on D to prove this defence: Du Plessis & Ors v De Klerk & Anor 1996 (3) SA 850
(CC); Selemela & Ors v Independent Newspaper Group Ltd & Ors 2001 (4) SA 987 (NC).

Truth.
The statement does not have to be completely accurate in every single particular detail. It is and
in every material respect that form the basis of the complaint of defamation. What must be true is
the “sting of the charge” or the material allegations only.

Public benefit.
The publication of that statement in that manner at that time must public benefit. The element of
public interest lies in telling the public something of which it is ignorant and which is in its
interest to know. Thus, for instance, this requirement would be satisfied if the statement is about
the integrity or competence of a public official. But it would not if D publishes to a man
information that the man’s wife is committing adultery.

It is not for the public benefit to rake up long forgotten scandals, for example, the fact that a
person who is now a public figure was convicted of a minor criminal offence thirty years ago
where this has no bearing on his present conduct. See Graham v Ker (1982) 9 SC-185 and Yusaf
v Bailey & Ors 1964 (4) SA 117.

If only a section of the public have an interest in a defamatory news item, it is not justified to
publish to others.See Ferreira en Andere v Suidwes Drukkery Bpk en 'n Ander 1965 (3) SA 276
(SWA).

In Levy v Modus Publications (Pvt) Ltd 1998 (1) ZLR 229 (S) a well-known businessman sued a
newspaper for defamation arising out of two editorials criticising the manner in which the
businessman had implemented his project to develop a shopping complex. On appeal, the

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majority of the court decided that the newspaper had defamed the businessman. The editorials
implied that the businessman was a crook, that he had corruptly used his wealth and his political
connections to suborn officials who ought to have prevented the continuation of the project and
that he had bent the rules and violated the law in pushing through the project.
The majority of the court also decided that the defence of justification had not been established
as the statements had not been shown to be true. In relation to defamation, the court decided that
the court must determine the matter on the facts as they existed at the dates of publication of the
alleged defamatory articles, not as they were when the judgment was given some months later by
the court. The minority of the court decided that in a democracy the public should guard against
the tendency of prominent, wealthy and well connected people in society to get away with
breaking and bending the law and rules and trampling on the rights of other citizens. In this case,
the newspaper had a right to raise these issues pertaining to the conduct of this public figure. The
statements were generally true and the comments based on them were fair. The newspaper was
therefore not liable to pay damages for defamation.
In Manyange v Mpofu & Ors 2011 (2) ZLR 87 (H) a newspaper has published articles,
containing statements attributed to D1, in his capacity as Minister of Mines, to the effect that
certain mining commissioners had been transferred because of their corruption. It later published
two further articles in which it specifically referring to P by name. P had never been charged with
any act of misconduct involving corruption or other illegal activity. He was never interviewed by
the newspaper to present his side of the story.
The articles taken together imputed to P (amongst others) a proclivity towards corrupt behaviour,
illegal activities, dishonest and unprofessional conduct and attempting to cover up illegalities.
Such imputations were unquestionably defamatory.P claimed damages for defamation arising
from the newspaper articles, citing D1 in his personal capacity, as well as the editor and the
publisher of the newspaper.

It was argued that D1, as Minister of Mines, had a public duty to speak out against corruption.
The statements made by him were truthful and accurately reflected the endemic corruption and
malpractices within the Ministry. D2 and D3 contended that they were justified in publishing the
articles and were discharging their duty of informing the public which has a clear interest in
being informed of the matters reported. They had a duty to report on the corruption of public
officers and their resultant transfers and reassignment, and the public had a reciprocal interest in
receiving such information.

The articles contained information that was undoubtedly of considerable public interest, as the
alleged malpractices within the Ministry and the consequent reassignment of Ministry officials
were of unquestionable public importance. However, what was relevant was whether the material
imputation that P himself was corrupt and dishonest was factually true. Ds proffered nothing to
verify that imputation. In the absence of any evidence to substantiate the utterances of illegality
and impropriety against P, the claim of justification in the public interest could not avail Ds.
In Mugwadi v Dube & Ors 2014 (1) ZLR 753 (H) the court found that the defence of justification
failed because the article was based on fabrications and it was motivated by malice

See also RP & P Co v Howman NO 1967 RLR 318 (G); Mahomed v Kassim 1972 (2) RLR 517
(A); Serfontein v Irvine; De Villiers v Irvine 1980 (2) SA 63 (ZRA); Tekere v Zimpapers & Anor
1986 (1) ZLR 275 (H); Caxton Ltd & Ors v Reeva Forman (Pty) Ltd & Anor 1990 (3) SA 547;
Natal Witness Printing & Publishing Co (Pty) SA Ltd 1991 (4) SA 677 (N); Neethling v Du
Preez & Ors; Neethling v The Weekly Mail & Ors 1994 (1) SA 708 (A); Kemp & Anor v
Republican Press (Pty) Ltd 1994 (4) SA 261 (E); Gardener v Whitaker1995 (2) SA 672 (E);
McNally v M & G Media (Pty) Ltd & Ors 1997 (4) SA 267 (W); Kyriacou v Minister of Safety
and Security & Anor 1999 (3) SA 278 (O); Naylor & Anorv Jansen; Jansen v Naylor & Ors 2006
(3) SA 546 (SCA) (damages).

Non-negligent publication by press of information in public interest which turns out not to be
correct

The South African courts have developed an approach towards the liability of the press that
allows for a proper balancing the protection of reputation against the right of the press to inform
the public about matters of public interest. This approach has been used particularly in respect of
cases where the press has published articles about the fitness of public officials to hold public
office. The South African approach has not, so far, been followed in Zimbabwe.

In National Media Ltd & Ors v Bogoshi 1998 (4) SA 1196 (SCA) the court decided that
publication in press of false defamatory allegations of fact is not unlawful if, upon consideration
of all circumstances of case, publication of facts in a particular way at a particular time is
reasonable. In judging the issue of reasonableness, the court would examine the nature, extent
and tone of allegations to be taken into consideration. Relevant factors included, but were not
confined to, the nature of the information upon which the allegations were based, the reliability
of source and the steps taken to verify information, and the opportunity given for response.Thus
the press was not to be strictly liable for publication of information that turned out to be false if
the publication was reasonable.

In Thembi-Mahanyele v Mail and Guardian & Anor 2004 (6) SA 329 (SCA) the newspaper had
published an article that suggested that a Cabinet member was corrupt. On appeal, the court held
that although the words were defamatory, the newspaper was not liable for defamation.It decided
that the press is not liable for the publication of defamatory material where it is able to show
thatit had been reasonable in publishing the material. It ruled that the reasonableness of the
publication might also justify it. In appropriate cases, D should not be held liable where
publication was justifiable in the circumstances; where the publisher reasonably believed that the
information published was true. The publication in such circumstances is not unlawful. Political
speech might, depending upon the context, be lawful even when false provided that its
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publication was reasonable. The question that arose in this case was whether special principles
should be invoked to protect the press, or for that matter individuals, when they make
defamatory statements about a Government Cabinet member. Freedom of expression in political
discourse was necessary to hold members of Government accountable to the public. And some
latitude must be allowed in order to allow robust and frank comment in the interests of keeping
members of society informed about what Government did. Errors of fact should be tolerated,
provided that statements were published justifiably and reasonably: That was with the reasonable
belief that the statements made were true. That did not mean that there should be a licence to
publish untrue statements about politicians. They too had the right to protect their dignity and
theirreputations.

Where publication was justifiable in the circumstances D would not be held liable. Justifiability
was to be determined by having regard to all relevant circumstances, including the interest of the
public in being informed; the manner of publication; the tone of the material published; the
extent of public concern in the information; thereliability of the source; the steps taken to verify
the truth of the information (this factor would play an important role too in considering the
distinct question whether there was negligence on the part of the press, assuming that the
publication was found to be defamatory); and whether the person defamed had been given the
opportunity to comment on the statement before publication. In cases where information was
crucial to the public, and was urgent, it might be justifiable to publish without giving an
opportunity to comment.In the circumstances of this case, the court held that the publication of
the defamatory article was not unlawful since it was justifiable in all the circumstances, and was
not negligent.

The case of Gold Reef City Theme Park (Pty) Ltd v Electronic Media Network Ltd & Anor;
Akani Egoli (Pty) Ltd v Electronic Media Network Ltd & Anor 2011 (3) SA 208 (GSJ) dealt with
the defence of reasonable publication by the media. It stated that the test for this defence was
adherence to principles of responsible journalism. Fairness and balance was required. The court
would adopt a practical and flexible approach in assessing whether all responsible steps
weretaken before publication. The court would consider the meaning sought to be conveyed by
the publication and whether journalists in question could reasonably have believed that this was
how ordinary viewer or reader would have understood it.
See also Sayed v Editor,Cape Times, & Anor 2004 (1) SA 58 (C).

However, in Mangope v Asmal & Anor 1997 (4) SA 277 (T) the court observedthat the
constitution does not legalise character assassination of individuals merely because they are
politicians.A defamatory statement about a politician aimed at his personal dignity and reputation
and not at his public conduct is not justified.

Fair comment
The law recognises this defence subject to certain requirements in the interests of free speech. It
lays down that in certain circumstances a citizen should be immune from civil liability if that
person expresses that person’s genuine opinion concerning matters of fact which are of public
interest, even if that opinion is defamatory in its effect. The basic requirements for this defence
are:
 There must be a comment or an expression of opinion as opposed to a statement of fact.
 The comment must be “fair” in the sense that it must be an honest opinion that is relevant
to the facts. In other words, the opinion must be one which D genuinely held based upon
those facts and he must have been exercising his citizen’s right to express his opinion and
his motivation must not have been simply to cause harm to P’s reputation because he had,
say, a grudge against him.

This defence will apply even if the opinion is expressed in strong and somewhat
intemperate, exaggerated and extravagant language.if the opinion is fair in the sense that it
is genuinely held and, if D is expressing the opinion in the public interest and not because
of motives of spite or grudge towards P.The defence is extended in the interests of free
speech and this right would be substantially negated if it was an essential pre-requisite that
opinions expressed must always be well-balanced and completely impartial.

In Hardaker v Phillips 2005 (4) SA 515 (SCA) the court stated that thecomment does not
have to “be impartial or well-balanced”. “Fair” in this context means only that the opinion
expressed is that of 'a fair man, however extreme his views may be, might honestly have,
even if the views are prejudiced'.

 The facts commented upon must be expressly stated or clearly indicated in a document or
speech containing the defamatory matterunless they are so notorious as to make this
unnecessary.
 The facts commented on must also be true in their salient particulars and must be facts that
are legitimately matters of public concern.

These requirements were set out in Manyange v Mpofu & Ors 2011 (2) ZLR 87 (H) In that
case,the offending articlescontained statements of fact, drawn from the D1’s utterances and from
correspondence by P’s lawyers. There was nothing by way of comment or opinion expressed in
the articles. Even if one were to stretch the notion of comment to include the content of the
articles, Ds failed to show that the factual allegations on which the supposed comment was based
were true. Ds could not rely on the defence of fair comment.

In Mugwadi v Dube & Ors 2014 (1) ZLR 753 (H) the court found that in respect of a highly
defamatory article about a female musician most of the allegations did not amount to opinions
and the allegations were unfair.

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In Moyse & Ors v Mujuru 1998 (2) ZLR 353 (S) a politician had been acquiring business
interests in an area contrary to the leadership of the ruling party by which he was bound. A
magazine had published a story in which it referred to the “goings on” of this politician. This
story was defamatory as the ordinary reader would take this to mean that the politician had been
doing things of a dishonourable or disreputable nature and perhaps even of a dishonest nature.
However, the magazine successfully raised the defence of fair comment. The comment was fair,
it was based on true facts, the matter commented upon was a matter of public interest and,
although the facts relied upon were not stated, they were generally known to the relevant
audience.

In Ndewere v Zimbabwe Newspapers (1980) Ltd & Anor 2001 (2) ZLR 508 (S) D2 wrote an
article which appeared in a newspaper published by D1. The article was critical of a decision
made by the Zimbabwe Broadcasting Corporation, alleging that the decision was taken by the
Corporation’s “in-house lawyer”. The article referred to “the calibre of some of the people who
make decisions at ZBC” and referred to “the lawyer’s strange and warped thinking”. P claimed
that the article referred to her, as she was the Corporation’s corporate secretary and legal adviser.
She stated, though, that the decision which was being criticised was made, not by her, but by the
Corporation’s Board of Governors, although she had, in her official capacity, signed the press
statement in which the decision was announced. The court held that that to question the calibre of
people working for a particular employer necessarily implies that some are of a low calibre.
When this was followed by reference to the lawyer’s “strange and warped thinking”, this
necessarily implied that this was meant as an example of the work of a low calibre employee.
While the word “strange” may not be regarded as defamatory, to refer to the “strange and
warped” thinking of one of those employees is to make a statement calculated to lower that
person in the esteem of those who know the remark refers to him or her. If fair comment is
pleaded, the factual allegations on which it is based must be true. The article alleged that P made
the decision which was being criticised. The evidence established that the decision was not made
by P, even though she had, in her official capacity, signed the press statement. Where the
allegations are made about P, and should have been made about someone else, the defence of fair
comment must fail.

In Makova v Masvingo Mirror (Pvt) Ltd & Ors 2012 (1) ZLR 503 (H) P, a member of
Parliament, claimed damages for defamation following the publication of an article about him in
a weekly newspaper that circulated in a local area. It quoted a letter written to the management of
a mining company “from a suspected highly placed ZANU PF official threatening them that they
are likely to be abducted, tortured and even get killed for betraying the party in the area”. The
allegation that P was terrorising mine workers in the name of ZANU PF is attributed to unnamed
“impeccable sources”. The allegations that P was the major problem and cause of unrest in the
areawere also attributed to the same sources. Ds claimed the article constituted fair comment on
a matter of public interest.
The court held that for a newspaper to describe its sources as “impeccable” means that the
newspaper has associated itself with the allegations allegedly made by the sources. It in fact
validates and associates itself with the allegations through its description of the sources as
“impeccable. It was no defence for the newspaper to say that it was simply repeating what had
been said by someone else in the letter to the mining company.

See also RP & P Co v Howman NO 1967 RLR 318 (G); Tekere v Zimbabwe Newspapers & Anor
1986 (1) ZLR 275 (H); Zvobgo v Kingstons Ltd 1986 (2) ZLR 310 (H); Crawford v Albu 1917
AD 102 at 125; Pienaar & Anor v Argus Printing and publishing Co Ltd 1956 (4) SA 310 (W);
Buthelezi v Poorter & Ors 1974 (4) SA 831(W); Rautenbach v Republikeinse Publikasies
(Edms) Bpk 1971 (1) SA 446 (W); Johnson v Beckett & Anor 1992 (1) SA 762 (A); Vorster v
Strydpers Bpk en Andere 1972 (2) SA 928 (T); Heard v Times Media Ltd & Anor 1993 (2) SA
472 (C); Delta Motor Corporation (Pty) Ltd v Van der Merwe 2004 (6) SA 185 (SCA); The
Citizen 1978 (Pty) Ltd & Ors v McBride 2010 (4) SA 148 (SCA).

Privilege

There are two types of privilege, namely absolute privilege and qualified privilege. The
difference between the two is, whereas qualified privilege does not apply if D was actuated by
malice, with absolute privilege the defence still applies even if malice was the motivating force
and the statement was entirely untrue.

Absolute privilege

The sole form of absolute privilege recognised in Zimbabwe is that extended to Parliamentarians
in respect of statements made by them in Parliament. In the interests of unconstrained and
probing debate, Parliamentarians cannot be sued for defamation for statements made in during
debate in Parliament or during the proceedings of any committee of Parliament.

Section 148 provides as follows:

148 Privileges and immunities of Parliament

(1) The President of the Senate, the Speaker and Members of Parliament have freedom of speech in
Parliament and in all parliamentary committees and, while they must obey the rules and orders of the
House concerned, they are not liable to civil or criminal proceedings, arrest or imprisonment or damages
for anything said in, produced before or submitted to Parliament or any of its committees.
(2) An Act of Parliament may—
(a) provide for other privileges, immunities and powers of Parliament and its Members and officers;
(b) define conduct which constitutes contempt of Parliament, whether committed by Members of
Parliament or other people; and
(c) provide for a right of reply, through the Speaker or the President of the Senate, as the case may be, for
persons who are unjustly injured by what is said about them in Parliament; but no such Act may permit

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Parliament or its Members or officers to impose any punishment in the nature of a criminal penalty, other
than a fine, for breach of privilege or contempt of Parliament.

This absolute privilege is provided for in section 5 of the Privileges, Immunities and Powers of
Parliament Act [Chapter 3:03].

See Poovalingam v Rajbansi 1992 (1) SA 283 (A) for the limits of Parliamentary privilege in
South Africa.Here privilege did not attach to a letter allegedly defaming P delivered by hand to
all Members of House.

Qualified privilege

This defence applies where the person making the statement has a duty or right totransmit the
statement and the person receiving the statement must a reciprocal right, duty or interest to
receive the statement. See Masuku v Goko & Anor 2006 (2) ZLR 341 (H).

In the case of Thomas v Murimba 2000(1) ZLR 209 (H), Judge Chinengo referred to the wide
nature of the defence of qualified privilege. The judge quoted Burchell’s statement in The Law of
Defamation in South Africa p 245 to the effect that qualified privilege applied in three
categories
 statements published in discharge of a duty, the exercise of the right or in furtherance of a
legitimate interest;
 statements published in the course of judicial or quasi-judicial proceedings; and
 reports of proceedings of courts, parliament and public bodies.
The judge further quoted with approval this passage from Burchell on the same page that since
the basis of the defence of qualified privilege “is one of public policy, there is no closed list of
rights, duties or interests that are considered as legitimate for the purpose of the defence of
qualified privilege. To attempt to categorise the legal decisions in which the duty or interest has
been held to be legitimate might tend to create the impression that the categories are fixed.”
Judge Chinengo fully agreed with these views and went on to say

“It is also my view that the range of duties or rights to communicate defamatory matter is wide
and must be widened even further for the greater good of social transparency. The range spans
the legal, moral ans social duties or rights or interests in respect of which the list cannot be fixed.
…the law must develop and in that process the widening of the interests, rights and duties
involved becomes inevitable.”

In the South African case of Borgin v De Villiers & Anor 1980 (3) SA 556 (A) at 577D-G the
court stated that the test for qualified privilege was the objective test. The question that needed to
be asked was whther in the eyes of the reasonable person the circumstances created a duty or
interest which entitled the party being sued to speak in way in which he or she did. In answering
this question, the court would be guided by the criterion as to whether public policy justified the
publication and required that it be found to be a lawful one.

Published statement turns out to be untrue

The law recognises certain situations where a person has a right to make a statement even
though the statement turns out to be untrue. In Musakwa v Ruzario 1997 (2) ZLR 533 (H) the
court held that where the defence of qualified privilege is raised it is not necessary to establish
that the defamatory statement is true. The degree of truth in the defamatory statement is only
relevant to the issue of whether the bounds of privilege have been exceeded or the statement was
motivated by malice. In the Musakwa case D sent an affidavit to the Secretary for Justice and the
Commissioner of Police alleging that a magistrate had solicited a bribe. The behaviour of the
magistrate had led D to believe that he had tried to solicit a bribe, even though it was not
subsequently proven that he had done so. Nonetheless, the court held that D was entitled to send
the affidavit to the two parties who had a duty or interest in receiving this information so that the
matter could be investigated.

Thus if D genuinely and on reasonable grounds believes that P is committing a crime such as
child sexual abuse, he has a qualified privilege to report his belief to the police so that the police
can investigate. D would be protected against defamation on the basis of qualified privilege even
it turns out that P is not in fact committing the crime.

But this does not apply to a statement published in the media. Here the media may believe it is
acting out of a duty to inform the public generally about, for instance, alleged corruption on the
part of a government official, but if the published allegations are not true, the media institution
will be liable for defamation. As pointed out previously, it has not been accepted in Zimbabwe
that the media has a defence that it published the information in the public interest believing on
reasonable grounds that the information it is publishing is accurate, having taken all reasonable
steps to check the accuracy of the facts – in other words the defence of reasonable mistake by the
media which has been accepted in South Africa has not been accepted in Zimbabwe.

However, the question arises of whether the media can claim a qualified privilege in this sort of
situation. In the case of Garwe v Zimind Publishers (Pvt) Ltd & Ors 2007 (2) ZLR 207 (H) a
newspaper has published articlesalleging that a High Court judge had acted improperly in the
handling of a treason trial. Dealing with the newspaper’s defence of qualified privilege, the court
found that the newspaper had regarded it as its duty to publish this story. But it also found that
the newspaper had not genuinely believed the truth of the allegations as it had found out the true
facts and had nonetheless published the false information. This meant that the newspaper must
have had an improper motive in publishing the story and the defence of qualified privilege was
thus defeated because of this improper motive. From this judgement the question arises as to
what would have been the position if the court had found that the newspaper had published the

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erroneous story in the public interest genuinely believing the story to be true? Would then the
defence of qualified privilege be applicable?

When qualified privilege does not apply

Where the law recognises that a privilege attaches in the sort of situation, the defence will still
not apply if
 D makes defamatory statements which are not relevant to the assertion of that sort of
privilege; and
 D publishes the statement to persons other than those who have a legitimate
interest in receiving the information in terms of the privilege.

One example of where qualified privilege would exist is where, P, an ex-employee of D, is

applying for a job with X and X approaches D to provide a reference about P. If D supplies a
candid, condemnatory reference, D can rely upon the defence of qualified privilege unless D was
actuated by malice.

Abuse of privilege
If the maker of the statement knows in advance of making it that it is completely untrue and
nonetheless goes ahead and makes it, this will frequently mean that the maker was acting out of
malice towards P and, if so, the defence will not then apply as this defence is forfeited if the
statement was made maliciously. The onus is on P to establish malice.
See Faber v Barrow (2) 1962 R & N 657; Parsons v Cooney 1970 (2) RLR 75 (A);Tuch &
Others NNO v Myerson & Ors NNO 2010 (2) SA 462 (SCA).

In Nyandoro v Kamchira 1997 (1) ZLR 522 (H) D and P, who worked together in the same
Ministry, had a poor working relationship. D sent a report to the Ministry's head office in which
she made four complaints against P, three of which the court found to be of a defamatory nature.
One of the three complaints was found to be substantially true, that relating to P's poor leadership
qualities, but the other two, namely, allegations that (a) the plaintiff had sexually harassed D and
(b) he had caused someone to lie in order to be able to try to obtain occupation of a Ministry
house, were not proved to be true.The court held that although the report was made to the head
office in circumstances that were privileged, D had abused the privilege by setting out
deliberately to injure P. The defence of qualified privilege therefore failed.

In Masuku v Goko & Anor 2006 (2) ZLR 341 (H) the court said newspapers have a right to keep
their readers informed about matters of public interest involving public figures. Even if the eleme
nts of privilege are established, the defence is vitiated if P shows thatD was actuated by malice or
that he abused or exceeded the bounds of privilege. In this case the court decided that P’s conduc
t was a matter of public interest and D’s newspaper had a duty to report on his activities as a publ
ic figure. However, the contents of the article were published recklessly and exceeded the bounds
of privilege, in that;
  the article was unbalanced and selective;
 D acted contrary to the clear advice offered by P to withhold publication until they had inv
estigated further; and
 the article’s reference to earlier press reports of alleged corruption on the part of P was uns
ubstantiated.
It could thus not be said that the contents of the article were even partially true, let alone complet
ely or substantially true.

In Garwe v Zimind Publishers Ltd & Ors 2007 (2) ZLR 207 (H) the defence of qualified
privilege failed because the newspaper had failed to check the facts and seemed to have had an
improper motive.

In Mugwadi v Nhari & Anor 2001 (1) ZLR 36 (H) P, the Chief Immigration Officer, sued his
former deputy (D1) and a weekly newspaper (D2) for defamation. P and D1 did not get on well.
P considered R1 to be insubordinate, incompetent and possibly corrupt, while D1 thought that P
was corrupt, practised nepotism and mismanaged the department’s affairs. D1 wrote a letter to
the responsible Minister and Permanent Secretary, making certain accusations about P.
Subsequently, a board of inquiry recommended that R1 be charged with misconduct. The charges
were heard by a provincial magistrate. R1 was found guilty of most of the charges and his
employment was terminated. He applied unsuccessfully to the High Court for a review of the
proceedings. The judge nevertheless recommended that an investigation be carried out into the
allegations of corruption in the Immigration Department. D1 appealed to the Supreme Court,
which set aside the magistrate’s decision on the grounds that his constitutional right to a fair
hearing had been violated. The merits of the case were not considered. D2 published an article
about the whole matter, entitled “Immigration Chiefs in Corruption Scandal”. In the article,
statements were made which were admittedly defamatory of P. D2’s defence was that the
statements were made on a privileged occasion. D1 stated that in communicating defamatory
matter to the Minister and Permanent Secretary he had the duty to do so, and they had the duty,
right and interest to do so. D2’s argument was that it faithfully reported the proceedings before
the magistrate and relied entirely on the documents before the judicial inquiry, that it had a duty
to publish the proceedings, and that the public had the right to know what was going on. The
court held that the defence of qualified privilege does not depend on the truth of the statement
made. The degree of truth only becomes relevant when P alleges that D has exceeded the bounds
of privilege or has been motivated by malice. Once D shows that he had a duty or interest in
publishing the statement and that the persons to whom he published it had a duty to receive it,
the onus shifts to P to prove animus injuriandi. He can do this by showing that D acted mala fide,
not only by proving actual malice, but by showing that D was actuated by any indirect or
improper motive or that he stated what he did not know to be true, reckless as to whether it was
true or false. The evidence must be affirmative and cogent. The communication in the present
case was made in circumstances of privilege. Both the Minister and the Permanent Secretary had
a duty and interest in respect of the Department. P should have established not only that the

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statements made against him were false but that there was a motive or other indirect purpose for
making them. This he failed to do. Generally speaking the public has a right to know and an
interest in knowing what is happening in a department funded from public coffers. D2 could not
have more faithfully reported on what was taking place between the two top officials in the
Immigration Department. When a newspaper reports faithfully about the counter-accusations
made by senior officials in a government department, and does so merely by reporting what was
said in judicial or quasi-judicial proceedings, it cannot but be protected by law.

In Herselman NO v Botha 1994 (1) SA 28 (A) a town councillor (D) alleged, during a council
meeting held to discuss the continued employment of a municipal employee convicted of
possessing pornographic material, that another councillor (P) had in corrupt manner been
undercharged for services rendered to him on behalf of municipality by the employee.It was held
that the issue of P's dishonesty was not germaneto the issue of the employee's dismissal. The
defence of privilege failed.

In Broom v Stirling 1952 (4) SA 798 (SR) D had no reasonable grounds for believing in the truth
of statements uttered but the court said the protection of privilege is not necessarily lost, as the
court may nevertheless find that D entertained an honest and genuine belief in their truth.

In Baird v Pretorius 1996 (2) SA 819 (O) the court held that D must prove that words
complained of were published on privileged occasion and, if so, that publication thereof was
within limits of privileged occasion or relevant.

In Faydene Shirt and Clothing Manufacturers (Pty) Ltd & Orsv Levy 1966 (1) SA 26 (D) the
relevance of statement was in issue.

Statements made by defendants having a legal, moral or social duty to communicate certain
information to persons having a legitimate interest or duty to receive such information.

Providing references
One example of this sort of situation would be where an ex-employee of D is seeking a job with
X and X approaches D to provide a reference about the ex-employee. If D supplies a candid,
condemnatory reference he will be covered by a qualified privilege unless he was actuated by
malice.

In Couldridge v Eskom & Anor 1994 (1) SA 91 (SE) P’s former supervisor, D, provided a
character reference for P to P’s prospective employer. This reference contained false statements
regarding P's character which D knew to be false. The defence of privilege did not apply as D
had abused the privilegedoccasion with subjective intention to hurt P.

Reporting suspicion that crime has been committed

Another example is where D has received certain information that suggests that P has committed
a crime. If, acting out of duty, he supplies this information to the police; he will be covered by
qualified privilege. This will apply even where he thinks that the information is possibly
incorrect but nonetheless feels obliged to hand it over to the police so that they can investigate it
to see if it is true or false. In Musakwa v Ruzario 1997 (2) ZLR 533 (H), in an affidavit to the
Secretary of Justice and the Commissioner of Police D alleged that P, a magistrate, had solicited
a bribe. In an action for defamation, D raised the defence of qualified privilege. In the present
case the statement had been published on a privileged occasion. D had a duty to publish the
statement, or a legitimate interest in doing so, and the recipients had a similar duty or interest to
receive the information. Where D has established that the statement was made on a privileged
occasion, the onus is then on P to prove that the defence of privilege does not apply because the
statement was motivated by malice or the bounds of the privilege have been exceeded. In the
present case P had failed to establish that D had abused the privilege and had acted from malice.
D had acted on the basis of a genuine suspicion and had communicated his suspicion to the
appropriate authorities.

Judges, magistrates, legal counsel, litigants and witnesses in connection with legal proceedings

These persons have a qualified privilege for statements made during judicial proceedings and in
affidavits connected with legal proceedings.

In Udwin v May1978 (4) SA 967 (C) a magistrate defamed an attorney in a written judgment.
The magistrate established that the defamatory remarks in his reasons for judgment were
germane to the matter to be dealt with but failed to establish any facts known to him from which
he could reasonably have concluded that his allegations against the attorney were well founded.
The magistrate was not protected by qualified privilege.

As regards statements made by legal representatives in cross-examination, see Moolman v Slovo

1964 (1) SA 760 (W).

In Joubert & Ors v Venter1985 (1) SA 654 (A)the court ruled that qualified privilege attaches to
affidavits drawn up by counsel in respect of court proceedings if the statements are relevant to
the issue in the proceedings. Qualified privilege also attached to statements by litigants or
witnesses in legal proceedings or in affidavits for legal proceedings.See also Tuch &Ors NNO v
Myerson & Others NNO 2010 (2) SA 462 (SCA). In Van der Berg v Coopers & Lybrand Trust
(Pty) Ltd & Ors 2001 (2) SA 242 (SCA) the court pointed out that, in assessing whether an issue
is relevant or not, it is important to bear the reason for privilege in mind, i.e. that litigants not be
constrained in presenting evidence to court.

The case of Pogrund v Yutar 1967 (2) SA 564 (A)dealt with when a claim by an advocate is
privileged.
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In Blumenthal v Shore 1947 (3) SA 475 (W) a statement reflecting on a creditor made to a
magistrate in court by an opposing debtor was privileged; in Allardice v Dowdle 1965 (1) SA 433
(D) a creditor disclosedat a creditors’ meeting information revealing advantage obtained by a
creditor; in Zwiegelaar v Botha 1989 (3) SA 351 (C) D made a defamatory statement whilst
testifying under oath at an inquiry in terms of a provision in the South African Companies Act.

Other situations
Strydom v Fenner-Solomon 1953 (1) SA 519 (E) A letter by the chairman of the school
committee to the Secretary of Education complained of the conduct of a teacher and requestedthe
teacher’s dismissal; Retief v Van der Westhuizen 1959 (2) SA 166 (C) words uttered before police
officers investigating a collision; Jordan v Van Biljon 1962 (1) SA 286 (A) petition drawn up by
parents of pupils stating that a teacher was unsuited for his calling; Borgin v De Villiers & Anor
1980 (3) SA 556 (A) letter concerning a professor’s conduct at his previous university after the
professor gave a false version of the conduct. Professor's conduct at university leading to his
enforced resignation risk; Kennel Union of Southern Africa & Ors v Park 1981 (1) SA 714 (C)
voluntary association publishing in its journal a report of its decision to suspend a member;
McPhee v Hazelhurst & Ors 1989 (4) SA 551 (N) report by committee to head office; Yazbek v
Seymour 2001 (3) SA 695 (E) client unhappy with manner in which conveyancer performing
duties and writing letter of complaint to Law Society and bank financing the property
transaction; NEHAWU v Tsatsi 2006 (6) SA 327 (SCA) statements made by branch secretary of
trade union and published in report distributed to union members at union meeting. Secretary
having right to make allegations and to impart information to trade union members, and latter
having reciprocal right to receive statements; Byrne v Masters Squash Promotions CC & Anor
2010 (1) SA 124 (GSJ) letter of dismissal sent by employer to employee explaining reasons for
his dismissal.

As regards the application of the defence of qualified privilege to reporting by the press of:
 proceedings of Parliament and other public bodies such as city councils;
 court cases;
 statements made by government Ministers at public meetings;
see later in the special section on newspaper reporting contained at the end of this section on
defamation.

Compensation
It may be a good defence to show D had replied in equal measure to a defamatory statement
about him made by P.
Jest
In Zimbabwe, D is only protected where he made the statement complained of in jest if,
objectively, given the character of the statement and the circumstances in which the statement
was made, it could not reasonably have been understood in a defamatory sense.
Makova v Modus Publications (Pvt) Ltd 1996 (2) ZLR 326 (H) P was employed at the head of
the army’s public relations section. A newspaper owned by D published a satirical article about
him poking fun at his obesity. The claim was rejected on the basis that the article was made in
jest =.

Rixa
D may not be liable if he uttered the defamatory words without premeditation, in sudden anger
on provocation by P and did not subsequently persist in them. In other words, this is tantamount
to a defence of provocation. Presumably, the provocation has to be of a serious character before
this defence will avail in Zimbabwe.

See Mahomed v Kassin 1972 (2) RLR 517 (A); Moyo v Abraham HH-467-84.

In Jasat & Anor v Paruk 1983 (4) SA 728 (N) the court pointed out that this defence can only
succeed where D establishes that the defamatory statement was uttered without premeditation
and in great and sudden anger. Here, an attorney acting for P in a civil trial tried to persuade D to
settle an action at a pre-trial conference. D uttered defamatory words to P and his attorney. The
court held that the provocation was not such as to provoke D to great and sudden anger. D's
reaction was immoderate in the circumstances and the defence of rixa failed.

See also Jeftha v Williams 1981 (3) SA 678 (C).

Consent
It is a good defence for D in an action for defamation to show that P consented to the injury to
his reputation. However, a challenge or a dare to repeat a defamatory statement should not be a
defence if the implication is that P will proceed against D should he or she repeat the statement.
Thus, if the statement is originally made in Parliament and is originally protected by absolute
privilege, if the statement is repeated outside Parliament after P has challenged the maker to do
so, the defence of consent will not apply.

See Fortune v African International Publishing 1976 (2) RLR 223 (G). For criticism of this
decision, see 1985 ZL Rev 110.

Possibility of development of further defences

In Hardaker v Phillips 2005 (4) SA 515 (SCA) the court suggested that the established defences
were not a closed list and whether a comment was lawful depended on balancing constitutionally
entrenched rights to dignity and freedom of speech.

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Damages
Purpose of damages award
The award of damages for defamation may be regarded as consolatory. This is the approach
because once the defamatory statement has been published, it is very difficult to rehabilitate
completely a reputation even if it is proved in court that the statement was misguided and a full
apology is extracted. In Makova v Masvingo Mirror (Pvt) Ltd & Ors 2012 (1) ZLR 503 (H) the
court stated that the award of damages for defamation is more as a solace for injured feelings,
rather than as a way of repairing all the damage that has been done. The fact that P is a politician
and a public figure, whose life is necessarily in the public domain and open to criticism, does not
divest him of protection against harm to his dignity and reputation. He is entitled to protection.

The case of Thomas v Murimba 2000 (1) ZLR 209 (H) at 217F the court said that defamation
damages are to compensate P and not to punish the defamer for his or her conduct. Where
aggravating factors exist, the award of damages must be increased but the damages remain
compensatory in nature.

Impermissible to claim extravagant amounts

In Mnangagwa v Alpha Media Hldgs (Pvt) Ltd & Anor 2013 (2) ZLR 116 (H) HH-225-13 the
court held that the damages being claimed were outrageous. Quite often in recent years litigants
in this country come up with these outlandish claims for damages, even for the slightest of
infractions, which are completely divorced from the economic realities of this country and are
detached from existing precedence and legal realities of our jurisdiction. It is the kind of habit
which legal practitioners must take responsibility for encouraging, as ultimately it is they who
advise litigants and draft the processes filed in court. Legal practitioners engaged by litigants to
represent them and to draft court processes on their behalf should take care in drafting such court
papers and claims and should apply their minds to the task reposed upon them. After all, they are
paid to provide such service and it is the height of irresponsibility to come up with outrageous
claims which not only fail to ventilate the relief the litigant seeks but also fail to conform with
existing precedents on the subject.

In Mohadi v The Standard & Ors 2013 (1) ZLR 31 (H) the court pointed out that it is not
uncommon now for large sums of money which bear no relation to the awards being made in this
jurisdiction or other jurisdictions to be claimed as damages for defamation. The legal profession
should be reminded that lawyers owe it to their clients to render proper legal advice on quantum
of damages claimed, and should avoid creating false expectations in the minds of their clients
regarding the amounts which they can claim.

Factors to be taken into account in assessing damages

The following criteria are taken into account in assessing damages for defamation:
 (a) the nature and gravity of the defamation, its probable consequences and the intended
effect of the words used;
(b)the plaintiff’s reputation, character and standing in society. (Did P have a good or bad
reputation prior to the defamation?);
(c)the extent of the publication. (Was the defamatory statement contained in a newspaper
with wide circulation or published on the internet or was the defamatory statement only
published to a single person or a small number of persons?);
(e)whether the defamatory statement was made recklessly without taking proper steps to
check the accuracy of the facts upon which it was based;
(f) whether there has been an attempt to rectify the situation by making a retraction and
apology or there has been a refusal to retract and apologise;
(g)comparable awards in other cases; and
(h)the declining value of money.

An apology will only mitigate damages if:

 it is a full, unconditional and unreserved withdrawal of all imputations together with
an expression of regret;
 it is done as soon as reasonably possible after the original publication; and
 the apology is given the same or greater prominence than the original defamatory
statement.
In Mineworkers Investment Co (Pty) Ltd v Modibane 2002 (6) SA 512 (W) the alternative
remedy claimed by the plaintiff was in the form of an apology, or the amende honorable.
This remedy had fallen into disuse but it remained part of South African law. Even if
the amende honorable was no longer part of South African law, there were compelling
reasons why a remedy analogous thereto should be available. If the only remedy available in
a defamation action was damages, the risk of financial ruin could operate to restrict
information being published which would in fact be in the public interest, thereby imposing
indirect restrictions on the right to freedom of expression. Furthermore, a damages award
often did not afford an adequate protection to reputation. The harm done by a defamatory
statement was damage to the victim's reputation and a public apology could 'set the record
straight', restore the victim's reputation and provide the victim with the necessary satisfaction
without serious financial harm being caused to the culprit. Even if the amende honorable had
never existed, the legal imperatives of the present constitutional framework would have
required its invention. The remedy was entirely consonant with the spirit, purport and objects
of the Bill of Rights referred to in s 39(2) of the Constitution of the Republic of South Africa
Act 108 of 1996. In the circumstances of the instant matter it would be just and equitable if
the defendant were given a choice between making a public apology and paying damages.
This approach could usefully by followed in Zimbabwe.

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On these criteria see Masuku v Goko & Anor 2006 (2) ZLR 341 (H); Garwe v Zimind Publishers
Ltd & Ors 2007 (2) ZLR 207 (H) and Makova v Masvingo Mirror (Pvt) Ltd & Ors 2012 (1) ZLR
503 (H) and Mugwadi v Dube & Ors 2014 (1) ZLR 753 (H).

In the Masuku case the court said that in applying these factors, it must be borne in mind that da
mages are intended as a solatium and should not as a rule be punitive. In this case the court found
that D’s conduct was aggravated by their failure to investigate further the allegations before publi
cation; by failing to verify the authenticity of the document on which they were based; by failing
to publish any retraction or apology; and by persisting with their denial of liability even after the
action was instituted.

In Nkala v Sebata & Anor 2009 (2) ZLR 203 (H) the chief of the area in which P lived presided
over a meeting of his subjects. This was a public meeting open to all villagers; most of them
were in attendance. D1, who was a senior kraalhead, was present, as was D2 a senior villager. D1
addressed the meeting and made utterances to the effect that P was a stock thief who had stolen
cattle from fellow villagers and had recruited other villagers to participate in this nefarious
practice. He stated that P’s herd boy and young brother had stolen cattle and sold them to P. D2
made utterances that supported what D1 said. He further said the other villagers in attendance
were afraid to unmask P as a stock thief because they thought he would steal their cattle in
revenge. P claimed that these utterances were false and actuated by malice, in that D’s principal
intention was to persuade the chief to order P’s eviction from his homestead. Ds were in default
and P applied for summary judgment. The only issue was the quantum of damages. As a result of
such utterances and at such a meeting P’s dignity, self-esteem and reputation were maligned and
lowered in the eyes of the villagers present.

The court held that the assessment of damages in a case such as this is not easy because it is
difficult to recompense P for the insult perpetrated against him and the pain which he suffered as
a result of the false allegations levelled against him. The quantum ultimately determined by the
court represents what is designed to be a fair and appropriate sum which, in contemporary
thinking, will help to assuage P’s injured feelings, and will compensate him reasonably for the
injury. It is not always a simple matter to decide what is proportionate or adequate. Here, in a
rural setting, Ds participated in an extremely grave attack upon the applicant. They wanted to
cause the applicant to lose his homestead. They wanted to maliciously influence the chief to
remove the applicant from the village. Bearing in mind these factors and the true value of the
awards in previous cases in this country, an award of US$2000 would be appropriate.

In Manyange v Mpofu & Ors 2011 (2) ZLR 87 (H) the court said that in assessing the quantum of
damages, a variety of factors had to be considered, including the content and nature of the
defamatory publication; P’s standing in society; the extent of the publication; the probable
consequences of the defamation; the conduct of D; the recklessness of the publication;
comparable awards of damages in other defamation suits; and the declining value of money.
Damages for defamation are intended to compensate the plaintiff for sentimental loss and should
not as a rule be punitive.

In Mugwadi v Dube & Ors 2014 (1) ZLR 753 (H) highly defamatory statements were made
about a females musician. The court found that there were numerous aggravating factors
including the absence of an apology and the widespread publication of the defamatory article in
the newspaper, the social media and the internet and the reckless and unethical conduct on the
part of the journalists.

In Mahomed v Kassim 1972 (2) RLR 517 (A) nominal damages were awarded.

Punitive damages
In Garwe v Zimind Publishers Ltd & Ors 2007 (2) ZLR 207 (H) and Masuku v Goko & Anor
2006 (2) ZLR 341 (H) at 237, the court pointed out that punitive or exemplary damages are
awarded where, for example, D acted with a malicious motive, was aware of the falsity of his
remarks and where the defamation is of an exceptionally serious nature. Aggravating features
may serve to increase the amount of damages awarded to P.In the Garwe case the defamation
was particularly serious as it was about a senior judge about whom it was alleged that in a
treason trial he had attempted improperly to depart from established procedure by excluding the
assessors in the formulation and handing down of judgment in a treason case. This was highly
damaging to his professional integrity.

See also Khan v Khan 1971 (1) RLR 134 (A) circumstances under which exemplary damages
would be awarded; Tekere v Zimpapers & Anor HH-286-86 exemplary damages.

Interest on defamation damages

In Zimbabwe Newsapers (1980) Ltd & Anor v Bloch 1997 (1) ZLR 473 (S) the court ruled that
interest on defamation damages runs from the date on which the cause of action arose.

Class character of damages

It can be argued that damages for defamation have a distinctly class character and that our
approach to damages in this area strongly reflects capitalist values as to status and human worth.
Thus a person’s worth depends upon his class or status. This approach comes under fire from the
author of an article entitled “Defamation in Tanzania and its Reflection on Socialism” Vol. 9 No.
3 Eastern Africa Law Rev 99. The author refers to Eyakuze’s case where it is suggested that
damages should not vary in accordance with class. An ordinary worker’s contribution to the
social good is as valuable as, say, a managing director’s. Both should receive the same amount of
damages for the same sort of defamatory statement, all other things being equal, such as, extent

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of publication of the statement. Underlying assumptions about human worth based upon class
should be challenged, the author maintains.

Customary law defamation

In customary law, defamation consists of a false accusation that P behaved in a certain way or
spoken words by D which could cause P suffering or disturb the peace. The lowering of the
status or reputation of P in the community is not an essential ingredient. It is enough that the
statement will cause personal suffering or anger. The most serious false accusation that can be
made is to accuse a person of being a witch or wizard. See Goldin and Gelfand.

Newspapers and defamation

This special section concentrates on the difficulties which newspapers, magazines and journals
face in trying to avoid liability for defamation. As written defamation is the most frequent type of
defamation, this section is intended to provide a guide to the main practical aspects that are
relevant to this type of defamation.

Test applied
When it comes to newspaper reports which are allegedly defamatory the courts apply the test of
whether readers with normal understanding and average intelligence would interpret the item in
question in a defamatory sense. As Stuart points out in his book The Newspaperman’s Guide to
the Law 3 Ed, the courts accept for this purpose that the ordinary reader of a newspaper is not
supercritical and does not read every item with meticulous care. Rather than engaging in a
process of careful intellectual analysis, because of the mass of material he is likely only to form
an overall impression of the material. Because this reality is recognised by the courts, Stuart
advises that sub-editors should read the various reports and then put them aside and consider
what overall impression they would create in the minds of ordinary readers who might not read
all the items in the paper right through. If a particular item could create an impression in the
minds of readers that could adversely affect reputation, then the paper’s lawyers should be
consulted.

In Mugwadi v Dube & Ors 2014 (1) ZLR 753 (H) the court said that in determining how an
ordinary reader of a newspaper would understand words, it is necessary to strike a balance
between subtle analysis and hasty misconception, between cool reserve and excitability. One is
entitled to assume of the ordinary reasonable readers that he or she gets a general impression and
one cannot expect him or her to look again before coming to a conclusion. The ordinary
reasonable reader is not super-intelligent, highly educated or sophisticated. He or she will form a
general impression of the contents of the article in question.
The test of the response of ordinary readers is varied in respect of specialist journals or papers
which require special expertise to understand the contents thereof. With, say, a technical,
scientific or economics journal, the test applied is how ordinary readers with specialist
knowledge that would allow them to comprehend the contents would understand the contents.

Defences
A newspaper that publishes defamatory material can be sued for damages and so can the
publisher of the newspaper. The journalist who wrote the story could also be sued. There are,
however, a number of defences which a newspaper can raise to actions for defamation. These
defences apply even though reputation may have been damaged by the report in question. The
main defences that are recognised are justification, fair comment and qualified privilege.
Justification obviously would cover such things as reporting true allegations of corruption by
public officials. As indicated above, in South Africa courts have ruled that it is now a defence for
the press to publish information in the public interest when it reasonably believes the information
to be correct even if the information turns not to be correct.

Fair comment would be applicable where, for instance, a damning criticism of a book or a play is
published in the newspaper. Perhaps the most important defence for newspapers is that of
qualified privilege. This defence may succeed even though the defamatory report turns out to be
untrue. Here the law lays down that in certain circumstances newspapers should be afforded
protection against defamation actions where they were reporting events in the public interest.
This defence has application in relation to the reporting of Parliamentary proceedings, reporting
of court cases and the reporting of certain public meetings.

Disclosure of sources
The previous position was that a journalist must disclose his or her source of information when
ordered by a judge to do so during a trial. See Serfontein & Anor v Irvine 1979 RLR 510 (A);
Shamuyarira v Zimbabwe Newspapers (1980) Ltd 1994 (1) ZLR 445 (H).

However, s 61(2) of the Constitution now provides:

61(2) Every person is entitled to freedom of the media, which freedom includes protection of the
confidentiality of journalists’ sources of information. (emphasis added)

Reporting Parliamentary proceedings

First, taking Parliamentary proceedings, if a newspaper reports fairly and accurately and in a
balanced fashion what has been said during Parliamentary debates a qualified privilege will
attach to these reports. The newspaper is not obliged to check the veracity of a statement made
by a Parliamentarian in Parliament. Even if the statement from the Parliamentarian which it
publishes turns out to be false, the newspaper would still be protected unless it knows the
statement was totally false and, nonetheless, it went ahead and published the statement with the

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sole purpose of harming someone’s reputation. The requirement that the report be balanced
means that if, for instance, on one day in Parliament a defamatory allegation is made which the
paper publishes, but on a subsequent day the allegation is refuted or disputed, the debate on this
subsequent day must be properly reported and equal or greater prominence must be given to this
second report.
See Benson v Robinson & Co (Pty) Ltd & Anor1967 (1) SA 420 (A).

Reporting court proceedings

The reporting of court proceedings is also covered by a qualified privilege.

In Mugwadi v Nhari & Anor 2001 (1) ZLR 36 (H) the court said where a newspaper reports
judicial or quasi-judicial proceedings; it is protected by qualified privilege. See also Mushunje v
Zimbabwe Newspapers HH-47-17.

However, the law lays down that a privilege will attach only if the report of court proceedings is
fair, accurate and balanced. Court reporting is a difficult operation and is fraught with dangers as
far as the newspaper is concerned. Newspapers are entitled in the public interest to report not
only the court proceedings themselves (i.e. evidence led in open court) but also the preliminary
proceedings before the case comes to court. In criminal matters, they are allowed to report the
arrest of a person by the police on suspicion of committing an offence and the remand of a
person in or out of custody pending trial. It should be carefully noted, however, that it is not
permissible to publish documents relating to a pending case. Indeed, some documents or
evidence may never be produced when the case is tried as, for instance, when the prosecutor
decides not to call a particular witness to give evidence.

Thus, the newspaper can only report on the evidence that is elicited in the actual court case and
it risks a prosecution for contempt of court if it publishes evidence which may or may not be
produced at the actual trial in open court. It should also be noted that a newspaper is not
permitted to publish information about a case held in camera (i.e. a case from which the public
have been excluded). Cases involving juveniles are usually held in camera. The court is also
empowered to order that certain information, such as the name of a State witness, should not be
published. The newspaper is obviously bound by this restriction.

The report of a court case must be fair and balanced. Both sides of the case must be reported
impartially. This does not require exactly equal detail and prominence to the cases of the two
sides, but there must not be undue emphasis upon the one side or omission of important facts
highly favourable to one side. Thus, the law requires that if certain evidence is reported, there
should be equal coverage of evidence in rebuttal. Qualified privilege would not attach, for
instance, where the newspaper has concentrated exclusively on the prosecution case and has
ignored the defence case. So too, in a criminal case if the charge is withdrawn or the accused is
acquitted or is found guilty of a lesser charge, if the newspaper has reported the original charge,
it is obliged to report the subsequent developments relating to that charge. There are logistical
difficulties in keeping proper track of what has happened in a large number of court cases. But if
a newspaper has started to report a case, it must report what has happened at subsequent stages in
that case and court reporters must design an efficient system of monitoring cases. Wherever
possible, they should be in court to report verbatim what has transpired and they should be very
cautious about relying upon what they have been told will happen or has happened in the
courtroom by prosecution or defence counsel or officials such as clerks of court because, if this
information is erroneous and the newspaper publishes it, the paper may be sued. A particular
problem arises with lengthy trials where there may be variable or diminishing public interest in
the matter as it proceeds. Still, nonetheless, the paper is obliged to report the case in a balanced
fashion.

A report of a court case must be reasonably contemporaneous with the proceedings and should
not be long after the trial. This is because the public has an interest in receiving information
about cases, as they take place, but the newspaper is not usually permitted to rake up court cases
that took place years ago, especially if they were of a trivial nature. Where evidence is led in
court, however, of an accused person’s previous convictions, the newspaper can report this
evidence. However, the newspaper should not publish gratuitous defamatory remarks made by
legal counsel or witnesses about persons other than those on trial as these will often fall outside
the scope of qualified privilege.

There is the pervasive difficulty of ensuring accuracy in reports of court cases. The newspaper
will want to condense reports of most court cases, but condensation can lead to a report
becoming distorted, garbled and misleading. It may in the process fall foul of the requirements
that the report must be balanced and accurate. The court reporter himself must exercise
meticulous care in gathering and checking his information. He must ensure that no vital facts are
left out of his or her report and that he has not distorted the facts or, even worse, invented any
facts. A particular point to note is that where a witness has given evidence through an interpreter,
the report must report only the interpreter’s translation, as this is what will be noted in the court
record. He must not make his own translation of the testimony where he believes the court
interpreter’s translation is not accurate and include his own translation in his report of
proceedings. The court reporter must be especially on his guard to avoid errors such as
erroneously reporting that a person has been charged with a more serious charge than he has (e.g.
murder instead of culpable homicide) or that he has been convicted of a more serious charge than
he has (e.g. attempted murder instead of culpable homicide or five counts of fraud and two of
theft instead of just one count of theft).

In Mushunje v Zimbabwe Newspapers HH-47-17 the events leading up to an action for

defamation by P against the newspaper were as follows: A social media site published a
damaging article alleging that P HIV positive and injected her HIV tainted blood into the son
of her boyfriend. Further the same site alleged that P made the child drink her urine and that
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she physically abused the child. As a result of this publication the mother of the child filed a
complaint against P with the police and the social media site published another article
alleging that P had been arrested. P was then tried for child abuse but she was acquitted on all
charges after medical tests on both the child and P showed that neither was HIV positive, nor
did the child exhibit any signs of abuse.

Zimpapers published a series of articles which were also put on its website and this resulted
in a number of international online publishing the same story. The newspaper articles dealt
with the court case and the acquittal. P alleged that the newspaper articles were unfair,
unbalanced and inaccurate and did not categorically state that there merely allegations
against the P. The court held that although the articles were defamatory, the newspaper had
the defence of qualified privilege and there was no proof of malice such as to defeat this
defence.

In Murdock & Anor v Simpson & Ors 1956 (1) SA 528 (N) the omission of certain details of
legal proceedings and inaccuracies in the report did not make the report unfair or substantially
inaccurate.

Reporting proceedings of other public bodies

As regards reporting of the proceedings of public bodies, such as city councils, a qualified
privilege is extended to newspaper reporting of such proceedings as it is obviously in the public
interest that the public is kept properly informed about the deliberations and activities of such
bodies. Again, however, the privilege would only apply to reports of such proceedings that are
fair, accurate and balanced.

See Benson v Robinson & Co (Pty) Ltd & Anor 1967 (1) SA 420 (A).

Reporting public meetings

What about reporting of things such as statements by prominent politicians at public meetings
and rallies? What happens if the newspaper accurately reports what a Cabinet Minister has said
about a person when addressing the public but after publishing the statement, which is highly
defamatory, it turns out to be completely untrue? In England, this situation is covered by
legislation. Under this legislation, the newspaper is protected if the report related to something of
public interest said at a public meeting from which reporters were not excluded. In the absence
of similar legislation in Zimbabwe, the position would be governed by common law and it would
seem that under common law it is arguable that a qualified privilege would attach to such reports.
This privilege would, however, not exist if the paper published the statement knowing it to be
completely without foundation. The legal position, however, is unfortunately not clear and, as a
safeguard, the paper should try to check the facts if it is intended to publish such a highly
defamatory statement. (But see Minister of Justice v SA Associated Newspapers 1979 (3) SA 466
at 467 and Zillie v Johnson & Anor 1984 (2) SA 186 (W). See below for suggestions for reform
of our law in this regard.)

Investigative reporting
Newspapers often believe that they are protected by qualified privilege if they publish reports
seeking to expose corruption or misconduct on the part of public officials such as politicians
which reports turn out to be false. If the paper’s information is without substance, the defamed
official can sue for damages and the newspaper would not be protected by qualified privilege in
this instance. In Zimbabwe, it would seem that mistaken belief in the accuracy of the facts of this
nature is no defence. However, in the case of Thomasv Murimba (2000), the judge stated that the
range of duties and rights to communicate defamatory matter is wide and should be widened
further in the interests of social transparency.

Accuracy
Newspapers must obviously do their best to eliminate inaccuracy and errors in their reporting
because errors can lead to people being defamed. The need for accuracy in order to avoid
defamation suits is illustrated by two cases. The first, an English case, illustrates how even a
small mistake in a headline can lead to a newspaper having to pay damages. The headline in
question read: “Car thief to pay wife £2 000”. The headline should have read: “Car chief” but the
letter “t” was substituted for the letter “c”, due to a compositor’s error. P was the chairman of a
well-known firm of car dealers and he was able to sue successfully for defamation because of
this headline. In a South African case a newspaper meant to publish a photograph of a dangerous
criminal who was being tried on a criminal charge. Unfortunately, by mistake, they published P’s
photograph in connection with the story about this criminal case. P was able to sue successfully
for defamation as his reputation had been adversely affected by the publication of his photograph
as the criminal on trial.

However, in the case of Mushunje v Zimbabwe Newspaper HH-47-17 the court said that “it
tended to agree with the defendant that a reasonable reader does not go by the headline, but
accepts it as an invitation to buy the paper and read the story. If defamation was to be
predicated merely on newspaper headlines, then there would be an onerous plethora of
litigation. In my view a headline is akin to the heading on any legal document, which does
not create any substantive rights for the parties concerned but merely indicates what the legal
document is all about. In the same way that one cannot sue for breach of a heading on a legal
document, one ought not to be able to claim infringement or damage to reputation merely
from a newspaper headline which is not supported by the substance of the article.”

Suggested changes to law

It is argued in an article entitled “Does our defamation law muzzle the press?” contained in 1989
Vol. 1 No. 3 Legal Forum 39 that the present law on reporting of public meetings and on
investigative reporting is unsatisfactory and should be changed.

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On reporting of public meetings at p 44, the following suggestions are made:

It is arguable that the press should be protected under a qualified privilege in reporting upon
public meetings. Because the legal position is still unclear in Zimbabwean law on this point, the
best course would be to pass legislation along the lines of the English Defamation Act of 1952.
In s 7 of this Act, read with Part II of the Schedule the press is given a qualified privilege when
reporting lawful meetings from which the press has not been excluded. To be covered by this
privilege, the report must be fair and accurate and the subject matter reported must be of public
concern. This applies to all lawful public meetings, whether admission is general or restricted.
However, this protection will fall away if:
 the report was made maliciously, with the primary intention of harming P’s reputation
rather than informing the public; or
 the paper or broadcasting station concerned has refused a request to publish a reasonable
statement from P by way of contradiction or explanation or has published such statement
in a manner not adequate or reasonable in all the circumstances.

The obligation on the part of the press to publish a reasonable contradiction or explanation from
P should be incorporated into Zimbabwean law. It is right that D should be made to forfeit the
qualified privilege if there is a refusal to publish such a reasonable statement from P.

As regards investigative reporting, these proposals are made at pp 42-43:

... it is submitted that we should substitute negligence for strict liability as the basis of
liability for defamation in all such cases. To base liability on negligence seems to draw a
fair balance between freedom of speech and protection of reputation and would bring our
defamation law into conformity with our freedom of expression constitutional safeguard.

Under the suggested approach, the press would be protected against liability for defamation if it
publishes stories about either public or private persons on a matter pertaining to them of
legitimate public interest, unless there was a negligent failure to discover the falsity of the facts.
(Of course, if there was knowledge of falsity or recklessness, liability would also ensue.) As the
precautions taken are singularly within the knowledge of D, it should be specified that the onus
rests squarely on D to prove absence of negligence. Moreover, as with reporting of statements
made at public meetings, the press should be under a duty to publish any reasonable statement by
way of contradiction from P. Any refusal to do so should lead to the forfeiture of this defence.

Additionally, as soon as D discovers the falsity of the facts, he or she is under an obligation to
take corrective action. The penalty for failure to do this within a reasonable period of time should
be the forfeiture of this defence. This will provide an incentive promptly to retract a false
statement and to apologise for making it. Such prompt remedial action is beneficial. As
Burchell points out at p 318:

“The plaintiff’s reputation will be vindicated by a prompt, unreserved acknowledgement

of the falsity of the imputation if the retraction receives prominence equal to the original
imputation (and) the reputation of the publication for journalistic integrity and honest
reporting may well be enhanced by effecting a retraction and apology.”

Actio injuriarum(excluding defamation)

This delict is committed when a person, without justification, intentionally affronts another’s
dignity or invades that other’s privacy.

Insulting, humiliating and degrading treatment

If D verbally insults D or treats D in a manner that insults or humiliates P, D may be liable to pay
damages to P for injuria.

In Chituku v Minister of Home Affairs & Ors 2004 (1) ZLR 36 (H) the court held that the right to
dignity is recognised as an independent right that can be protected by the actio injuriarum, the
actio injuriarum being wide enough to encompass any action that violates the corpus or dignitas
of the plaintiff. Inhuman and degrading treatment affronts the dignity or self-respect of an
individual and could found a claim.

In Ndebele v Ncube 1998 (1) ZLR 377 (S) the court warned that people frequently exchange
insults, arising out of grievances real or imagined, large or small. It said it would be intolerable if
every insult were to be followed by a law suit, so a court should be very careful about awarding
damages for abuse such as occurred in the present case.

In Mehta v City of Salisbury 1961 R&N 911 (SR) P had been barred from entering a swimming
pool on the basis of his race. He was awarded damages for the affront to his dignity.

In Zimunya v Zimbabwe Newspapers (1980) Ltd 1994 (1) ZLR 35 (H) a photograph published in
a newspaper misleadingly suggested that P was urinating or exposing himself outside some
offices. He was awarded damages for injuria.

In Nkosi NO v Moyo HB-43-91 a fifteen-year-old was raped. She was a virgin and suffered
physical pain and emotional trauma. She was awarded damages.

In Ndebele v Ncube 1998 (1) ZLR 377 (S) D called P, an employee of a District Council, a dog
and a mad person. The court awarded P a small amount as damages for injuria.

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In Snyman v Snyman 1984 (4) SA 262 (W) a wife was awarded damages for injuria against her
husband who had committed bigamy. The court said that damages are awardable to a wife who
had been induced to enter a void marriage with a man, who unbeknown to her was party to an
existing valid marriage.

In De Lange v Costa 1989 (2) SA 857 (A) D sent P a letter criticising P. The court held that fair
criticism is not wrongful and does not constitute an injuria.

In Arendse v Roode 1989 (1) SA 763 (C) there was a claim by a woman lies against a bigamist
who induced her to enter into marriage which he knew, but which she did not know, to be null
and void because he was already married. Damages awarded in the circumstances.

In Matiwane v Cecil Nathan, Beattie & Co 1972 (1) SA 222 (N) D sent a letter which was
insulting and contemptuous of P. D was held liable for injuria.

In Minister of Police v Mbilini 1983 (3) SA 705 (A) the court pointed out that for verbal remarks
to constitute injuria, the words used must constitute offensive and degrading treatment as distinct
from mere meaningless abuse.

In Fayd'herbe v Zammit 1977 (3) SA 711 (D) D wrote an objectionable and insulting letter to P.
The reprehensible conduct by D did not allow D subject P to indignity. The truth of words used
to degrade injured person may be relevant to assessment of damages but do not provide a
defence on the merits.

In Ryan v Petrus 2010 (1) SA 169 (ECG) a widow was conducting an adulterous affair with a
man and the son of the man verbally insulted her. Even though widow was committing adultery
with his father, the son had no right to insult her and treat her with indignity.

Invasion of privacy
Anyone who without reasonable justification invades the privacy of another is entitled to claim
delictual damages. Each person has right to decide what aspects of his or her life he or she
wishes to keep private from unauthorized disclosure.

In National Media Ltd & Anor v Jooste 1996 (3) SA 262 (A) the court examined the nature of
infringement of the right to privacy. It ruled that the right includes the right to determine the
destiny of private facts and to dictate their ambit, purpose and method of disclosure. It also
includes the right to decide when and under what conditions private facts may be made public.

Section 57 of the Constitution of Zimbabwe guarantees the right to privacy. It provides:

Every person has the right to privacy, which includes the right not to have:
 (a) their home, premises or property entered without their permission;
(b) their person, home, premises or property searched;
(c) their possessions seized;
(d) the privacy of their communications infringed; or
(e) their health condition disclosed.

Section 61 (5) of the Constitution further provides that the rights of freedom of expression and
freedom of the media exclude malicious or unwarranted breach of a person’s right to privacy.

The right to privacy may also be limited in terms of section 86 of the Constitution, but only in
terms of a law of general application and to the extent that the limitation is fair, reasonable,
necessary and justifiable in a democratic society based on openness, justice, human dignity,
equality and freedom, taking into account all relevant factors including:
(a) the nature of the right or freedom concerned;
(b) the purpose of the limitation, in particular whether it is necessary in the interests of
defence, public safety, public order, public morality, public health, regional or town
planning or the general public interest;
(c) the nature and extent of the limitation;
(d) the need to ensure that the enjoyment of rights and freedoms by any person does not
prejudice the rights and freedoms of others;
(e) the relationship between the limitation and its purpose, in particular whether it imposes
greater restrictions on the right or freedom concerned than are necessary to achieve its
purpose; and
(f) whether there are any less restrictive means of achieving the purpose of the limitation.

Disclosure of confidential medical information

Patients need to disclose all medical information about themselves for doctors to be able to give
them proper medical treatment. Patients must be able to trust doctors to keep their medical
information confidential. If patients believe their medical information will not be kept
confidential they will be reluctant to confide in their doctors, especially about embarrassing
medical details. This will hinder the doctor in making a correct diagnosis and thereafter to
provide the best possible medical care.

In Jansen van Vuuren & Anor NNO v Kruger 1993 (4) SA 842 (A) P’s general medical
practitioner disclosed that P had AIDS to another general practitioner and dentist from same
town that P, who was known to the latter two persons. P specifically requested D not to disclose
that he had AIDS and D having agreed not to do so. D had no duty to disclose such information
and other general practitioner and dentist having had no right to receive it D's disclosure
unreasonable and therefore unjustified and wrongful.

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In NM & Ors v Smith & Ors (Freedom of Expression Institute as Amicus Curiae) 2007 (5) SA
250 (CC) the court held that the publication in a book of applicants’ HIV status without requisite
consent from them constituted wrongful publication of a private fact, in breach of applicants'
rights to privacy and dignity. The court awarded damages.

Section 23 of the Medical Practitioners (Professional Conduct) Regulations 41 of 2004 provides

that no medical practitioner may divulge confidential patient information which ought not to be
divulged but it provides for exceptions such as where the disclosure is required by law.

Medical procedure without consent

In C v Minister of Correctional Services 1996 (4) SA 292 (T) a blood sample for an HIV virus
test was drawn from a prisoner serving sentence. The policy of requiring informed consent was
not complied with. P was entitled to claim damages for injuria.

Protection of rights of children

In Rhodesia Printing & Publishing Co Ltd v Duggan & Anor 1975 (2) RLR 281; 1975 (1) SA
590 (RA) a newspaper intended to publish an article alleging that Ps had come into the country
with their children in violation of the access rights. Ps sought an order restraining the paper from
publishing the story. The court granted the order, finding that if the story was published it would
interfere with the rights of the children to privacy, tranquility and peace of mind of the children.

Interception of communications

In Reid-Daly v Hickman & Ors (2) 1980 ZLR 540 (A); 1981 (2) SA 315 P, a high-ranking army
officer, had been placed under surveillance and his phone had been tapped and his letters had
been opened. This constituted a serious impairment of his dignity.

In S v Nsoro HH-190-16 the court pointed out that in terms of s 57 (d) of the Constitution every
person has the right to privacy of their communications. There is no law which provides that a
husband or wife has a right to infringe on the privacy of the other’s communications. The
accused’s insistence that the deceased should divulge a communication made to him on his
phone was in itself an infringement upon the right of the deceased to privacy of communication.

Publication of photographs of private property

In Mandaza v Daily News & Anor 2002 (2) ZLR 296 (H) a newspaper published photographs of
residential properties owned by a person who was a public figure. The photos had not been
obtained as a result of unlawful intrusion into the properties. The public figure sought an
interdict to prevent the publication of details of his property holdings and any further intrusion
into his private life. The court refused to grant the interdict, finding that the right to privacy only
extends to unlawful intrusion into privacy. The applicant has not suffered any injuria by the
publication of photographs of his property.

Unauthorised publication of photographs

In O'Keeffe v Argus Printing & Publishing Co Ltd & Anor 1954 (3) SA 244 (C) the unauthorised
publication of a person’s photograph and name for advertising purposes can found an action for
injuria.

In Mhlongo v Bailey & Anor 1958 (1) SA 370 (W) there was unauthorised publication of
photographs about the personal love life of a celebrity. The court decided that if a celebrity courts
publicity about her private life, then publication of details about her private life will not be
actionable.

In Jooste v National Media Ltd en 'n Ander 1994 (2) SA 634 (C) D published magazine articles
intimidate details concerning famous rugby player's alleged love life. He had consented to the
publication but had then withdrawn his consent. He was therefore entitled to damages.

Corporate information

In Financial Mail (Pty) Ltd & Ors v Sage Holdings Ltd & Anor 1993 (2) SA 451 (A) the court
held that where the publication of information is obtained by means of unlawful intrusion upon
privacy, generally, publication of any such information is unlawful. But there is a possible
exception to general rule where the nature of information is such that there are overriding
grounds in favour of the public being informed thereof. The court would then conclude that
publication is permitted despite the source of the information or the manner in which obtained.
However, the public interest in favour of publication required must be very cogent indeed.

In Janit & Anor v Motor Industry Fund Administrators (Pty) Ltd & Anor 1995 (4) SA 293 (A)
the third party had no right to invade the company’s privacy by publishing stolen tape recordings
of board meetings containing confidential information.

Justifiable invasion of privacy

There are various situations where invasion of privacy or disclosure of privacy information is
legally justifiable and thus not actionable.

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The police can intrude in a person’s house and conduct a search where authorized by a valid
search warrant or where a search without warrant is legally justified in terms of the relevant
legislation.

A person’s communications can be lawfully intercepted where this is legally permitted in terms
of the Interception of Communications Act [Chapter 11:20].

In S v Israel & Anor 1975 (2) RLR 191 (A) a private detective and a woman seeking to find
evidence of adultery by a husband for a divorce action had invaded the privacy of a man had
peeked through his window and had seen the husband in bed with another woman. The court
found that they were justified in doing this because they did so solely with the bona fide motive
of obtaining evidence of adultery. They were not, however, justified in forcing entry into the
bedroom. However, the decision regarding the peeking through the window has been criticized
on the basis that there was enough circumstantial evidence to the adultery without resorting to
invading the privacy of the husand in this manner. See Burchell 1976 SALJ 268. Now that the
divorce law is no longer based on fault, any such invasion of the privacy of the spouse would
obviously no longer be justified.

Section 23 of the Medical Practitioners (Professional Conduct) Regulations 41 of 2004 provides

that no medical practitioner may divulge confidential patient information which ought not to be
divulged but it provides for exceptions such as where the disclosure is required by law.

A doctor is obliged by section 19 of the Public Health [Chapter 15:09] to notify the local
authority that his or her patient has certain infectious diseases.He may also be legally justified in
disclosing medical information about his patient where this is required to protect a third party of
third parties from being harmed by his patient. Thus a psychiatrist may be obliged to disclose
that that his mentally unstable psychiatric patient is seriously threatening to kill a person or that a
bus driver whom the doctor has diagnosed as being an epileptic is refusing to stop driving buses.
A doctor is also justified in disclosing medical information about a child to the authorities where
the medical condition of the child suggests that the child is being sexually abused. A doctor may
disclose medical information about a child to the parents where the child does not have the
capacity to make decisions about his or her medial welfare. Similarly a doctor may disclose
medical information to a mentally incompetent person to his or her guardian or relatives.

The doctor will also be obliged to disclose medical information relating to a patient when he or
she has been ordered by a court of law to disclose the information, for example, where the the
patient is being prosecuted for a criminal offence. In Davis v Additional Magistrate.
Johannesburg & Ors 1989 (4) SA 299 (W) where serious allegations had been published of
assaults perpetrated on detainees whilst in detention, the confidential relationship between a
doctor and his patient had to yield to wider considerations of public interest. The doctor was
ordered to disclose medical information relating to this matter.

A doctor is also justified in disclosing medical information about a child to the authorities where
the medical condition of the child suggests that the child is being sexually abused.

In Financial Mail (Pty) Ltd & Ors v Sage Holdings Ltd & Anor 1993 (2) SA 451 (A) the court
held that corporations have a right to protect the confidentialiy of sensitive business information.
It further pointed out that Where the information sought to be published was obtained by means
of an unlawful intrusion upon privacy then, generally, any publication of such information would
be unlawful. But there could be exceptions to the aforesaid general proposition: if in the case of
information obtained by means of an unlawful intrusion the nature of the information is such that
there are overriding grounds in favour of the public being informed thereof, the Court would
conclude that publication of that information should be permitted, despite its source or the
manner in which it was obtained.

Wrongful court proceedings

In Moaki v Reckitt & Colman (Africa) Ltd & Anor1968 (1) SA 702 (W) a writ was issued and
executed in respect of an amount already paid. Delictual damages were claimed.

In Barclays National Bank Ltd v Traub; Barclays National Bank Ltd v Kalk 1981 (4) SA 291 (W)
a default judgment had been taken against a debtor when an attorney's clerk was aware that
summons had not been served on a debtor. The attorney's client was held liable for damages.

Actions for injuria involving police misbehaviour

In Granger v Minister of State (Security) 1985 (1) ZLR 153 (H) P, an elderly legal practitioner,
had been assaulted by CIO officers. P was awarded $1 200 damages for injuria.

In Karimazondo & Anor v Minister of Home Affairs 2001 (2) 363 (H) P1 and P2 were both
arrested on allegations of murder. The charges were subsequently dropped. P2 was a serving
police officer. P1, his wife, was tortured while in custody and suffered long-lasting physical and
psychological effects, full details of which were disclosed in medical reports. The court held that
the circumstances of the case were exceedingly grave and warranted a substantial award of
damages. The actions of the police were in flagrant and reckless disregard of the rights of the Ps.
The fact of the detention in itself created a hardship. The brutality and callousness with which the
assaults were perpetrated on P1 instilled in any right thinking person a sense of horror and shock.
The unlawful and inhumane treatment to which P1 was subjected to was totally unnecessary,

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vindictive and malicious. The court would make an award which in money terms expressed its
disapproval of the seriousness, brutality and humiliating effect of such treatment.

In Chituku v Minister of Home Affairs & Ors 2004 (1) ZLR 36 (H) the court stated that treatment
of an arrested, detained or convicted person that affronts the dignity of that person or exceeds the
limits of civilised standards of decency and involves the unnecessary infliction of suffering or
pain is inhuman and degrading.

In Tendere v Harare City Council 2004 (1) ZLR 495 (S) the court dealt with a situation of
wrongful attachment of P’s property and the circumstances in which a judgment creditor could
be liable for injuria in relation to P.

In Coltart v Minister of Home Affairs & Ors 2006 (1) ZLR 543 (H) the court dealt with an
allegation that an injuria had been committed against P because the police had searched his
premises illegally.The claim was dismissed because under the Police Act, the police were
protected against liability as they had acted in good faith.

In Ramsay v Minister of Police & Ors 1981 (4) SA 802 (A) the court held that the conduct of
police officers infringed the rights of personality of P who was an attorney. No crime had been
committed and the police were acting merely on suspicion. The actions of the police were
unreasonable and therefore unlawful.

In the case of Mazibuko v Sithole & Or s2009 (1) ZLR 33 (H) the court awarded exemplary
damages to a legal practitioner for injuria. P had been denied access to his clients and had been
assaulted and sworn at by the police. The court held that the fact that P was a legal practitioner
and that the delict was directed against him in his professional capacity was grave, warranting
heavy damages.This was a proper case for the award of exemplary damages.

Defences to action for injuria

In Strydom v Fenner-Solomon 1953 (1) SA 519 (E) a letter sent by P to D contained the more
insulting remark. D’s letter was in reply to P. D was entitled to reply both on application of
defence of compensation and on retorsion.

In Bester v Calitz 1982 (3) SA 864 (O) the claim for damages arose from an insulting remark
made in anger elicited by a provocative insult of a similar nature. The provocation acted as a
defence because the elicited response was not unlawful.
 CHAPTER 4 - DELICTS ARISING OUT OF
ARREST, IMPRISONMENT AND LEGAL
PROCEEDINGS
Unlawful arrest and imprisonment (false imprisonment)
In terms of section 49(1) of the Constitution of Zimbabwe every person has the right to personal
liberty which includes the right not to be deprived of liberty arbitrarily or without just cause.

This delict is committed when D, without lawful justification, restrains the liberty of P by
arresting or imprisoning him or her.

In OK Zimbabwe Ltd v Msundire 2015 (1) ZLR 741 (S) the court pointed out that whilst an
action for unlawful arrest and detention is usually brought against the police or other uniformed
forces, a private individual can also commit this delict. The position is also settled that in our
law, unlike South Africa, once unlawful arrest or imprisonment are proved, animus injuriandi is
presumed and intention is not a requirement for this delict.

Obviously, if the arrest or detention is legal, such as arrest and detention under the Criminal
Procedure and Evidence Act [Chapter 9:07] then this action cannot be brought. But even where a
police officer has reasonable suspicion that a First Schedule crime has been committed, the
police officer is not obliged to arrest and detain the suspect. The power of arrest, which is a
discretionary power, has to be exercised reasonably. Where a person is arrested when it is not
reasonable to so arrest him, the arrest will still be unlawful. The courts have decided that there is
no reason to hold the suspect in custody if there is no reason to believe that if the person is not
detained he or she:
 would try to escape;
 would commit further crimes;
 would interfere with police inquiries or with witnesses.

See Botha v Zvada & Anor 1997 (1) ZLR 415 (H) and Muzonda v Ministry of Home Affairs 1993
(1) ZLR 92 (S).

Force is not a pre-requisite for this delict and neither is pecuniary loss. Malice is not required but
in assessing damages malice can be taken into account.

Damages can be awarded for affront or humiliation stemming from the arrest and imprisonment
of P. Damages can also be awarded for any patrimonial loss stemming from unlawful arrest and
detention.

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This action is usually brought against the Ministry of Home Affairs arising out of illegal arrests
and detention by the police but it can also be brought against both the police officers involved
and the Ministry.

A private individual can also commit this delict against another private individual. See
Mapuranga v Mungate 1997 (1) ZLR 64 (H); Muyambo v Ngomaikarira & Ors 2011 (2) ZLR 51
(H). In Macheka v Metcalfe & Anor HH-62-07 P was unjustifiably arrested and detained on an
allegation of theft at the institigation of the employer of the workers. The court found that P was
entitled to damages for unlawful arrest.

In Mapuranga v Mungate 1997 (1) ZLR 64 (H) the court pointed out that once an act of
imprisonment or complete deprivation of liberty has been established, there is a presumption that
the imprisonment was wrongful. It is not necessary for P to establish malice or the absence of a
reasonable cause for the imprisonment, or even that he was at all times aware of the
imprisonment.

In Muyambo v Ngomaikarira & Ors 2011 (2) ZLR 51 (H) the court stated that P need only prove
that the arrest or imprisonment was illegal. P does not have to prove that D had intention to act
illegally or to cause harm. In our law, unlike South African law, animus injuriandi is presumed
and, therefore, intention is not a requirement for this delict. The view of McKerron at p 160 that
inevitable mistake is no defence would seem to be correct in our law.

The court also stated that in order to establish the lawfulness of an arrest without a warrant, the
onus lies upon D to show probable cause or reasonable suspicion. In exercising the power of
arrest, he must act as an ordinary honest man would act, on suspicions which have a reasonable
basis, and not merely on wild suspicion. In other words, the arrestor must act on such
circumstances as would ordinarily lead a reasonable man to form the suspicion that the arrestee
has committed an offence. It is not the function of the police to arrest at large and to use the
interrogatory process in order to determine whom to charge.

In Masendeke v Chalimba & Ors 2014 (2) ZLR 63 (H) the court pointed out that in an action for
wrongful arrest it is not necessary to plead malice or animus injuriandi.

In Mavhiza & Anor v Muwambwi & Anor 2014 (1) ZLR 605 (H) Ps, officers of the Zimbabwe
National Water Authority, went to the Zimbabwe Republic Police camp at Chirundu to
disconnect water supplies owing to unpaid water charges. They discovered the following day that
the water had been reconnected. Having advised their superiors in Harare about the unauthorised
reconnections, Ps were instructed to remove the water meters and plug the pipes so that the water
supplies would be disconnected. They did that. A day later they were taken to Chirundu police
station where they were kept forseveral hours.They were released after they had reinstated the
meter and restored the water supply to the police station. While at the police station, they were
ordered to sit on a bench behind thecounter in the charge office. They were ordered to remove
their shoes and to switch off their mobile phones.They had to seek leave to be allowed to ask
someone to bring food for them, which they only ate late in the afternoon. They brought an
action for damages for unlawful arrest and detention against D1 and D2, the responsible officers,
and against the responsible Ministers.

The court held that on the facts, the delict of unlawful arrest and detention had been established.
An action for unlawful arrest and detention is one that falls under the actio injuriarum, and so
proof of actual damage is not necessary to support such an action. Even if no pecuniary damage
has been suffered, the court will not award a contemptuous figure for the infringement of the
right to liberty. Damages for unlawful arrest and detention should be exemplary and punitive in
order to deter would-be offenders. The factors to be considered include: the circumstances under
which the deprivation of liberty took place; the presence or absence of improper motive or
“malice” on the part of D; the harsh conduct of D; the duration and nature (e.g. solitary
confinement) of the deprivation of liberty; the status, standing, age, and health of P; the extent of
the publicity given to the deprivation of liberty; the presence or absence of an apology or
satisfactory explanation of the events by D; awards in previous comparable cases; the fact that, in
addition to physical freedom, other personality interests such as honour and good name have
been infringed; the high value of the right to physical liberty; the effects of inflation and the fact
that the actio injuriarum also has a punitive function. Here, the plaintiffs were not handcuffed,
and were allowed to sit on a bench at the police station. They spent eight hours but that was
during the day. However, they were deprived of their liberty in circumstances where they had
removed the meter in question in the honest performance of their work. There was an abuse by
Ds of their positions to obtain a reconnection of water by arresting and detaining Ps. An
improper motive or malice was clearly established. The fact that Ps were ordered to remove their
shoes amounted to inhuman and degrading treatment. Ps were ordered to switch off their mobile
phones and were denied food at the appropriate time. Damages of US$5 000 for the deprivation
of liberty and $1 000 for contumelia for each of Ps would be appropriate.

In Zuvarimwe & Anor v Naran & Anor HH-161-14 the court stated that the delict of wrongful
arrest involves the wrongful deprivation of a person’s liberty; it consists of arresting and holding
a person without legal justification. Where an arrest is effected by the police, D is only liable if it
can be established that the police acted on his directions, orders or command. Liability for
wrongful arrest is strict: a party is not required to show that the person causing the arrest was at
fault or that he was aware that the arrest was wrongful. To succeed in an action based on
wrongful arrest, P must show that D himself, or someone acting as his agent or employee
deprived him of his liberty. Where D merely furnishes the police with information on the
strength of which the latter decides to arrest P, D does not effect the arrest. D1 admits that he
furnished the police with information leading to P’s arrest. If the arrest was not unlawful, D

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cannot be liable for wrongful arrest and deprivation of liberty, as the discretion lay with the
police whether to arrest Ps.

In determining whether D had a reasonable suspicion that the offence complained of was
committed by P, the court must consider whether D acted as an honest man would act; not merely
on wild suspicion, but on suspicion which had a reasonable basis. The suspicion need not be a
matter of certainty, or even probability, it must not, at the other extreme, be vague, remote or
tenuous. It is, perhaps, a question of a feasible possibility, a matter of likelihood.

For further commentary on this delict, see 1987 Vol 5 Zimbabwe Law Review 26 at 30-38.

Damages
In Minister of Home Affairs & Anor v Bangajena 2000 (1) ZLR 306 (S)the Supreme Court stated
that the deprivation of personal liberty is an odious interference and has always been regarded as
a serious injury. The courts have properly taken the stance that deprivation of liberty through
unlawful arrest and imprisonment is a very serious infraction of fundamental rights. Damages for
this delict should therefore be exemplary and punitive to deter would-be offenders.

In Mandirwhe v Minister of State 1981 (1) SA 759 (ZS) at the request of the Mozambican
Government, P had been arrested and handed over to that Government. These actions had been
illegal as no proper extradition process had been followed. P was entitled to considerable
damages.

In Minister of Home Affairs v Allan 1986 (1) ZLR 263 (S) P had photographed some buildings.
Thinking wrongly that he had photographed the nearby police station, the police arrested him.
The arrest was illegal as there was no reasonable suspicion of the commission of a crime.

In Makomberedze v Minister of State (Security) 1986 (4) SA 26 (ZH), P was unlawfully arrested
and detained for 20 months. He was given no reason for his detention and was refused access to
a lawyer. He was handed over to the Mozambican authorities without following proper
extradition procedures. He was awarded $50 000 damages.

In Botha v Zvada & Anor 1997 (1) ZLR 415 (H) a 71 year old man was arrested by the police on
suspicion that he had committed murder. He was held in custody for six days in a crowded cell.
He sued for unlawful arrest and detention. The court held that for an arrest to be lawful the
arresting officer had first to establish that he had reasonable grounds for suspecting that the man
had committed the murder and, in any event, his detention was not reasonably necessary. The
arrest and detention were therefore unlawful and the man was entitled to damages for the
interference with his liberty. Interference with liberty is a serious matter and in the circumstances
an amount of $20 000 would be an appropriate award.
In Muzonda v Ministry of Home Affairs 1993 (1) ZLR 92 (S) the court held that the police officer
had not exercised reasonably his discretion to arrest and detain an elderly woman on charges of
assaulting her daughter in law during a dispute and theft of a watch. The exercise of the
discretion was so outrageous in its defiance of logic or of accepted moral standards that no
sensible person who had applied his mind to the question could have arrived at it. The woman
was awarded damages.

In Mapuranga v Mungate 1997 (1) ZLR 64 (H) the court awarded damages to P for unlawful
imprisonment. He had been detained by private persons at their house and subjected to ill
treatment. Detaining a man and denying him freedom of movement is a serious infringement of
his liberty, far beyond the estimate of mere money damages. The motive for the imprisonment
was dishonourable and malice was present.

In Minister of Home Affairs & Anor v Bangajena 2000 (1) ZLR 306 (S)the owner of a car was
wrongly arrested by a police officer on an allegation that he was stealing the car. During the
arrest, the arresting officer shot at the owner and his friend. The arresting officer, who had been
drinking, knew the person arrested. A number of police officers at two police stations refused to
detain the person, saying that they knew the person to be the owner of car. Eventually, the person
was detained overnight after the police officer took personal responsibility for his detention. The
next morning the police officer came to the station and on seeing the respondent he expressed
surprise that he had arrested a person he knew and said he would not have arrested him if he had
realised this. The court held that deprivation of personal liberty is an odious interference and has
always been regarded as a serious injury. Even if no pecuniary damage has been suffered, the
court will not award a contemptuous figure for the infringement of the right to personal liberty.
Our courts have properly taken the stance that deprivation of liberty is a very serious infraction
of fundamental rights. Damages should be exemplary and punitive in order to deter would-be
offenders.

In Nyatanga v Mlambo & Ors HH-85-03 the Master of the High Court was arrested without
warrant on a charge of fraud and detained in the cells over a weekend. The alleged fraud
concerned a judicial sale of immovable property that had taken place eight years previously. The
decision to arrest and detain had in the circumstances been so outrageous in its defiance of logic
or of accepted moral standards that no sensible person who had applied his mind to the question
could have arrived at it.

In Muyambo v Ngomaikarira & Ors 2011 (2) ZLR 51 (H) the court stated that wrongful
imprisonment, the deprivation of personal liberty is an odious interference and constitutes a
serious infraction of fundamental rights, attracting an exemplary assessment of reparation. The
longer and more oppressive the period of detention, the higher should be the quantum of
damages.

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In Lawson v Minister of Home Affairs & Anor 1996 (2) ZLR 35 (H) a young man was arrested
and held in the detention cells at the court for over two hours where he was abused by fellow
prisoners and prison officers. He was denied access to her parents and his legal advisor. The
court found that there was no lawful basis for arresting and detaining the man. He was awarded
$4000 damages.

See also Granger v Minister of State(Security) 1985 (1) ZLR 153 (H) P had made no claim for
illegal detention; Masukusa v National Foods Ltd & Anor HH-95-89; Guriranai v Kwenda &
Ors HH-194-91; Mwete v Chimanzi & Ors HB-5-93; Muchenje v Chinyanganya HH-95-94;
Ellison v Rusike & Anor HB-40-95 Officers of National Parks unlawfully arrested P and some
visitors he was showing around; Coltart v Minister of Home Affairs & Ors 2006 (1) ZLR 543
(H).

Makhanya v Minister of Justice 1965 (2) SA 488 (N); Thompson & Anor v Minister of Police &
Anor 1971 (1) SA 371 (E); Ramakulukusha v Commander, Venda National Force 1989 (2) SA
813 (VSC).

Abuse of legal proceedings (Malicious legal proceedings)

The nature of the action

This delict is committed 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.
In Bande v Muchinguri 1999 1 ZLR 476 (H) the judge 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. In this case a
magistrate brought a baseless charge of contempt of court against P.

Thus, it constitutes a delict if D, actuated by malice and with no reasonable and probable grounds
for doing so, does any of the following:
 procures the arrest or detention of P by the proper authorities (malicious arrest or
detention); or
 institutes against P unsuccessful civil or criminal proceedings resulting in injury to
reputation or pecuniary loss (malicious prosecution); or
 issues execution against P’s property, which writ has been set aside (malicious
execution).
As indicated above, the cause of action is applicable to malicious institution of civil proceedings,
and is not confined to malicious institution of criminal proceedings. See Munukwi v Tsanga 2014
(1) ZLR 271 (H). In that case the judge pointed out that the malicious institution of legal
proceedings, as a cause of action, differs from unlawful arrest and detention.The requirements
and elements are different, and it is not necessary, for purposes of a cause of action founded on
malicious institution of legal proceedings, that either the police, or the parent Ministry of Home
Affairs, be cited as parties to the proceedings. The cause of action is applicable to malicious
institution of civil proceedings, and is not confined to malicious institution of criminal
proceedings.

Whereas with unlawful arrest or imprisonment it is normally the police that is sued for the
wrongful actions of their employees (servants), with abuse of legal proceedings D is a private
citizen who has used the agency of the police or the courts to cause harm to P. In Zuvarimwe &
Anor v Naran & Anor 2014 (1) ZLR 449 (H) it was pointed out that the delict of wrongful arrest
involves the wrongful deprivation of a person’s liberty; it consists of arresting and holding a
person without legal justification.

Requirements for action

P must show–
(a) that D set the law in motion (instigated or instituted the prosecution) against P;
(b) that at the time D instigated or instituted the legal proceedings D had no reasonable and
probable cause to do so;
(c) that D was actuated by express or implied malice (any indirect and improper motive) to set
the law in motion against P;
(d) that the prosecution terminated in Ps favour; and
(e) that P suffered damages as a result of the prosecution.

In Abu-Busutu v Moyo 2013 (2) ZLR 716 (H) D and P were co-directors of a company registered
in South Africa. A bank account was opened in the company’s name. D, who was working for
another business, fraudulently transferred money from his employers to the company’s account.
He then proceeded to withdraw all the ill-gotten funds from the account for his personal use
without the P’s knowledge. He then fled South Africa and went to Zimbabwe, where he spent the
funds. P was arrested by the South African police and detained for 98 days before the charges of
fraud brought against him were withdrawn. He brought an action against D for malicious
prosecution, basing the damages on a fixed amount per day. By utilizing the bank account of the
company for his illicit dealings, D acted maliciously and set the law in motion against P without
reasonable and probable cause. When he fled South Africa he was well aware that he was
exposing P to the risk of arrest and detention. D was well aware of the consequence of his
actions. As co-directors,D owed a special duty of care to P not to utilise the company account in
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a manner that would endanger P in any manner whatsoever. D not only broke the trust between
himself and P but also breached the duty of care to operate the company’s bank account for
lawful means. P’s arrest and detention was a direct consequence of D’s nefarious activities and P
is entitled to compensation for the unwarranted deprivation of his liberty. P’s life was needlessly
disrupted by the incarceration. He was prevented from carrying out his normal duties and his
daily activities. His loss of income for the 98 days he was in detention is not capable of easy
ascertainment.
In Econet Wireless (Pvt) Ltd & Ors v Sanangura 2013 (1) ZLR 401 (S) the court pointed out that
every citizen has a right to use legal proceedings legitimately for the purpose of upholding and
protecting his or her rights, but does not 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 another because he or she has malice towards that person. The term “malice” does not
her mean spite or ill-will or a spirit of vengeance; it has a wider connotation. It includes 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. To succeed in an
action for malicious prosecution four requirements must be proven: the prosecution was
instigated by D; it was concluded in favour of P; there was no reasonable and probable cause for
the prosecution; and the prosecution was actuated by malice. Placing information and facts
before the police does not in itself amount to instigating a prosecution; D must also proceed to
lay a charge or prevail on the police to institute proceedings which they would not otherwise
have instituted. D must have been actively instrumental in setting the law in motion. Simply
giving a candid account, however incriminating, to the police is not the equivalent of launching a
prosecution.
D will not be liable for this delict if he or she held a genuine belief in P’s guilt founded on
reasonable grounds as was the case on the facts of this case. (The decision in Sanangura v
Econet Wireless (Pvt) Ltd & Ors 2012 (2) ZLR 304 (H) was reversed)

In Munukwi v Tsanga 2014 (1) ZLR 271 (H) the court pointed out that P must allege and prove
that D instituted or instigated the proceedings. The mere placing of information or facts before
the police, as a result of which proceedings are instituted, is insufficient. The test is whether D
did more than tell the police the facts and leave them to act on their own judgment. Inherent in
the concept of “setting the law in motion” or “instigating or instituting the proceedings”, is the
causing of a certain result, i.e. a prosecution, which involves the vexed question of causality.
This is especially a problem where, as in most instances, the necessary formal steps to set the law
in motion have been taken by the police and it is sought to hold someone else responsible for the
prosecution. The principle is that where D acts in such a way that a reasonable person would
conclude that he is acting clearly with a specific view to a prosecution of P and such prosecution
is the direct consequence of that action, D is responsible for the prosecution. Similarly, an
informer who makes a statement to the police which is wilfully false in a material respect
instigates a prosecution and may be personally liable. P must allege and prove that D instituted
the proceedings without reasonable or probable cause, which means an honest belief, founded on
reasonable grounds, that the institution of proceedings is justified. The concept involves an
objective and a subjective element.This cause of action cannot be used to prejudge the
reasonableness of the proceedings that form the subject of the complaint, so P must allege and
prove that the proceedings were terminated in his favour.

In Zuvarimwe & Anor v Naran & Anor 2014 (1) ZLR 449 (H) Where an arrest is effected by the
police, D is only liable if it can be established that the police acted on his directions, orders or
command. Liability for wrongful arrest is strict: a party is not required to show that the person
causing the arrest was at fault or that he was aware that the arrest was wrongful. To succeed in an
action based on wrongful arrest, P must show that D himself, or someone acting as his agent or
employee deprived him of his liberty. Where D merely furnishes the police with information on
the strength of which the latter decides to arrest P, D does not effect the arrest. D1 admits that he
furnished the police with information leading to D’s arrest. If the arrest was not unlawful, D
cannot be liable for wrongful arrest and deprivation of liberty, as the discretion lay with the
police whether to arrest Ps. In determining whether D had a reasonable suspicion that the offence
complained of was committed by P, the court must consider whether the defendant acted as an
honest man would act; not merely on wild suspicion, but on suspicion which had a reasonable
basis. The suspicion need not be a matter of certainty, or even probability, it must not, at the
other extreme, be vague, remote or tenuous. It is, perhaps, a question of a feasible possibility, a
matter of likelihood.

In Nherera v Shah HH-845-15 the court pointed out that the onus is on P to prove on a balance of
probabilities that the defendant caused him to be arrested, detained or prosecuted and that he
acted without reasonable and probable cause and was actuated by malice. In respect of
instigation, it must be shown that D acted with the purpose of having P prosecuted and that a
prosecution resulted from D’s actions. The well-known formulations of instigation are: was D
then instrumental in making or prosecuting the charge? The test is whether D did more than tell
the police officer the facts and leave him to act on his own judgment. The mere fact that D
placed information before the police during interrogation and that the State activated the criminal
justice system against P on the basis of that information is not enough to establish the
requirement of instigation. P is required to show more than the disclosure of information to the
State. The involvement of the current Attorney-General in that process had tainted the outcome
of the appeal to the extent that the requirement that the prosecution must have failed could not be
said to have been satisfied. Absolution was, therefore, granted.

In Manjoro v Minister of Home Affairs & Ors 2015 (1) ZLR 872 (H) P claimed for unlawful
arrest and imprisonment and for malicious prosecution following on the arrest and imprisonment.
The P was acquitted of the charge. The court found the proceedings from the arrest to acquittal
were continuous and therefore the cause of action only arose when the criminal proceedings were

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terminated in favour of P. Therefore P’s claim against the police had not prescribed under the
Police Act as he had brought his claim within 8 months of the cause of action arising.

For further commentary on this delict, see 1987 Vol. 5 Zimbabwe Law Rev 26 at 38-40.

See also Lovemore v Rhoguard Ltd GS-154-72 false charge laid; Nyakabambo v Minister of
Justice 1989 (1) ZLR 96 (H) P was arrested on a charge of murder. After she was acquitted she
claimed damages for malicious prosecution. She was unsuccessful; Bande v Muchinguri 1999 (1)
ZLR 476 (H). A prison officer successfully sued a magistrate who had, without reasonable and
probable cause, caused the police to bring a case against the prison officer for contempt of court;
Ramakulukusha v Commander, Venda National Force 1989 (2) SA 813 (VSC) malicious
prosecution; Beckenstrater v Rottcher & Theunissen 1955 (1) SA 129 (A).

Damages

In Abu-Busutu v Moyo 2013 (2) ZLR 716 (H) did not set out the basis upon which he arrived at
the daily rate claimed, for which there was no rational basis. The correct approach to the
quantum of damages would be to award a global figure based on a fair reflection of an award that
would adequately compensate P. There was a need in all the circumstances of the case to award
exemplary damages, regard being had to the following factors:-

(a) the award must be fair and reasonable.

(b) the award must provide adequate compensation to the injured party.
(c) the award must penalise D for his malicious and reckless conduct.
(d) the award must be exemplary, in that D had benefited financially whilst placing P at serious
risk.
 CHAPTER 5 -ASSAULT
This delict is committed when a person unlawfully and intentionally applies force to the person
of another or has threatened to do so in a manner that inspires a reasonable fear of immediate
danger in the mind of the person threatened.

Damages are awarded under this action both for patrimonial loss (e.g. hospital expenses) and for
injury to feelings (e.g. humiliation and degradation).

As regards assaults and torture perpetrated upon persons in police custody, in Nyandoro v
Minister of Home Affairs & Anor HH-196-10 P claimed damages for an assault by members of
the police force. He had been involved in a peaceful demonstration organised by a non-
government organization. The police had broken up the demonstration. P was caught and
assaulted by about 10 to 12 policemen. P was further assaulted at the police station. The injuries
he received resulted in hospitalization and surgery. The court held that the assaults upon P’s
physical integrity were unlawful in that they were perpetrated without lawful authority. They
were also patently wrongful as being demonstrably incompatible with boni mores and the legal
convictions of the community concerning the exercise of police powers. It is necessary to take
into account the public and private embarrassment suffered by P as a result of the wrongful
conduct. P was initially assaulted in a public place in full view of his colleagues and passers-by.
The photograph of the assault was also published for all of the newspaper’s readers to see. The
assault was aggravated by the fact that it was committed by members of the police who are State
servants paid from public funds. P was consequently humiliated and embarrassed and must
therefore be entitled to appreciable damages for contumelia.

In Vellah v Moyo & Anor HB-101-10 an elderly pastor was assaulted by being severely beaten on
his buttocks after being accused by members of a political party of belonging to the MDC party.
He was awarded substantial damages.

Manuel v Holland 1972 (2) RLR 18 (GB) D struck P with such force that he fell to the ground
and broke his leg. D was liable as causation had been established.

Mapuranga v Mungate 1997 (1) ZLR 64 (H) The court awarded damages to P for unlawful
imprisonment. There had been an incident at D’s house, where D accused P of having committed
adultery with D’s wife. When P denied the allegation, he was assaulted by D & Ors, including

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D’s brother, then prevented from leaving D’s house before being forced into D’s car and taken
against his will to a traditional healer, where he was forced to drink a herbal concoction which
caused him to lose consciousness. The court held that it is an actionable wrong to administer a
deleterious herbal concoction to an unwilling victim, but P does not have to show that the
substance was poisonous. It need not be poisonous; forcing someone to drink any substance
could constitute an assault. Procuring another person to administer a concoction renders the
procurer as liable as the person who administered it.

In Robinson v Fitzgerald 1980 ZLR 508(GS) there had been a vicious unprovoked assault on a
man in the presence of his wife and employer. He was awarded damages for assault including
damages for humiliation.

In Ndeweni v Cloete HB-71-13 the court said that when a party starts a fight with another and
risks injury to himself. Therefore the court cannot determine liability by comparing injuries and
awarding damages to one who suffered worse injury than the other.

Joseph v Dennison GS-137-75 damages.

M v N 1981 (1) SA 136 (Tk) damages for rape.

Defences to action for assault

The main defences that can be raised to this action are:

 The harm was inflicted when D was acting under some lawful authority e.g. a
policeman effecting a lawful arrest or a parent moderately chastising his child for
disciplinary purposes;
 Defence of person or property;
 Consent (such as where a doctor obtains the consent of the patient to operate for
therapeutic purposes);
 Provocation. (In Zimbabwe, there is case law which lays down that provocation may
sometimes justify an assault, whereas in South Africa the cases maintain that
provocation never justifies an assault, but may sometimes deprive P of his right of
recovery.)
 CHAPTER 6 - HARM CAUSED BY ANIMALS

When harm has been caused by an animal belonging to or under the control of someone, the
owner or possessor may be held delictually liable under the following actions:
 Aquilian action;
 Pauperien action;
 Quasi pauperien action;
 Edict concerning wild animals (Edictum de feris);
 Harm caused by grazing animals (Actio de pastu); and
 Nuisance

Aquilian action
If the owner or controller of an animal has intentionally used his animal to cause harm (e.g. he
sets his ferocious dog on a person) or has negligently allowed his animal to cause harm (e.g. he
negligently fails to control his ferocious dog and it bites someone on a public street), D will be
liable for patrimonial loss caused in this way.

This action applies to all types of animals (i.e. domesticated and wild) and the usual basis of the
action is a negligent omission properly to control an animal when it was reasonably foreseeable
that such failure to control that particular animal would result in harm to P or his property.

In Wallman v Leathes 1969 (2) RLR 80 (G) dogs chased a motor cyclist and the cyclist was
knocked off his cycle and sustained serious injuries. He was awarded damages based on the
negligence of the owner of the dogs.

In Portwood v Svamvur 1970 (1) RLR 225 (A); 1970 (4) SA 9 (RA) a dog was caught in a fence.
P tried to rescue the animal and was bitten. The court awarded damages against the owner of the
dog under the Aquilian action. It found that the dog was a savage dog and the owner ought to
have foreseen that it might bite an innocent person.The court held that the fact of the dog getting
caught in the fence could not here be regarded as a novus actus interveniens breaking the chain
of causation: it was an immaterial event in the chain of causation, i.e. simply one of an infinite
variety of situations which might cause a dog with a savage nature to bite an innocent person.
The plaintiff's action in trying to release the dog could not be regarded as wholly unreasonable in
the circumstances, that the defendant had not proved that the plaintiff had been guilty of
contributory negligence. (The court did not decide on the alterative claim by the plaintiff under
the pauperien action.)

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In Bristow v Lycett 1971 (2) RLR 206 (A) at a game park an elderly woman was knocked down
and injured by a baby elephant which was seeking sweets. An employee had been negligent in
assuring the woman that it was safe to alight from her vehicle. He was also negligent in leaving
the baby elephant unattended and going to rest under a tree. The owners of the game park were
liable to pay damages to the injured woman.

In Rocky Lodge Ltd v Livie 1977 (1) RLR 218 (A) P drove into a cow that had strayed onto the
road. D had taken precautions to prevent this from happening such as fencing his property and
stationing an employee along the fence. It had not been proven that D had been negligent.

In Wynne v Jones GS-202-79 a bull had attacked some persons. The question was whether there
had been negligence on the part of the owner of the bull.

Pauperien action (domesticated animals)

The action
This action lies only against the person who was the owner of the animal at the time the injury
was inflicted. It does not lie against a possessor or controller who is not the owner.

For this action to succeed, P must prove:

 D was the owner of the animal when the harm was inflicted;
 The animal that inflicted the harm was a domestic animal;
 P was lawfully present at the location where the harm was inflicted;
 The animal acted contrary to the nature of its species.

The major advantage of this action is that it is astrict liability action in the sense that it does not
require that the owner of the animal was at fault. P does not have to prove that the owner
intentionally or negligently caused the harm. All that has to be proved is that the animal was a
domesticated animal that had acted contrary to the nature of its species (contra naturam sui
generis). By this is meant that it must be established that the animal acted contrary to the species
of domesticated animals generally (rather than contrary to the nature of that particular animal or
class of animals). Domesticated animals are assumed to be under the control of man and
therefore it is contrary to the nature of their species of domesticated animals for such animals to
inflict harm upon man. If, without any provocation, a dog bites a person or an ox gores a person
or a horse kicks a person, it is assumed that it is acting from some inner wildness or viciousness
and contra naturam sui generis. On the other hand, it is in accordance with the nature of the
species for cattle to graze grass or a horse which has been caused pain to kick out.

The justification for making the owner of the animal strictly liable for harm caused by the animal
seems to be that by keeping the animal the owner creates the risk that the animal may cause harm
and it is appropriate that the owner compensates the injured person when his or her animal
causes such harm.

Defences
Under this action, liability is not absolute. Apart from the defence that the animal in question was
not acting contrary to the nature of its species, the following defences can be raised:
 the harm resulted from a vis major or casus fortuitus, e.g. a horse has kicked another
horse and the second horse has kicked out in pain causing injuries to a person;
 the injured party was to blame for his own injuries, e.g. P provoked the animal into
attacking him;
 a third party was to blame for P’s injuries, e.g. a third party provoked the animal into
attacking P;
 the injured party was unlawfully present at the place where he sustained the injury, e.g.
P was a trespasser.

In Odendaal v Inn on the Ruparara 2006 (1) ZLR 1 (H) P was severely injured when a horse she
had hired from the hotel to go riding bolted and P was injured when she hit her head on a tree as
the horse was bolting. The horse, which was a docile, well-behavedanimal, had bolted after being
frightened, possibly by a wild animal or the scent of a wild animal. There was no liability as the
animal was not acting from inward excitement or vice but on the basis of an external stimulus. It
was therefore not acting contrary to the nature of its species. An action based on negligence was
also not viable as there had been no fault on the part of the owner of the animal. (The court also
found that the defence of voluntary assumption of risk was available as guests who wanted to
ride were warned that they rode at their own risk and they agreed to assume the risk.)

In Joyce v Venter 1979 RLR 478 (GD) a fierce watchdog trained to attack intruders had bitten P.
The pauperien action did not apply to injury caused by a dog which had been trained to behave
fiercely as a guard dog. The pauperien action had as its premise that domestic animals have been
under the influence of mankind for a long time and therefore a minimum standard of good
behaviour is expected of them. This cannot apply to a dog that has been trained to behave
fiercely. P was aware that the dog was fierce. He had been warned to stay in the car but had got
out of the car believing that the dog had been locked up. The question arose as to whether there
was liability of the owner of the dog based on the Aquilian action.

In Da Silva v Otto 1986 (3) SA 538 (T) a dog had run out of some premises and had attacked P’s
dog. P had whipped the dog in order to protect his own dog. The dog had then attacked him and
bitten him. P was entitled to recover damages.

See also Wallman v Leathes 1969 (2) RLR 80 (G.)

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In Purdy v Lever 1991 (3) SA 431 (T) D1 was out of the country. D2 was left in occupation of
D’s residence and had control over D1’s dog whilst D1 was away. D2 asked P to come to the
house to adjust the TV and video. He told P about the dog but promised to lock up the dog before
P arrived. P came at the agreed time. The dog had not been locked up and when P approached the
gate he was attacked by the dog and was severely injured. P sued DI as owner of the animal
under the pauperien action and D2 under the Aquilian action for negligent failure to control the
animal. P reached a settlement with D2 but proceeded with his pauperien action against D1. The
court decided that the negligence of the D2 did not provide a defence to D1. However, it might
have been possible for D1 to argue that D2 was a concurrent wrongdoer and that D1 could claim
a contribution from D2 based upon his contributory negligence in the causing of the damage to P.

See also O’Callaghan NO v Chaplin 1927 AD 310; SA Railways and Harbours v Edwards 1930
AD 3.

Quasi-pauperien action (wild animals)

This action can be brought when a wild animal kept in captivity causes harm. It can be brought
only against the owner of the animal at the time the harm was inflicted.

Unlike the Pauperien action, this action can be brought when the animal was actingin
accordance with the nature of its species because a wild animal cannot be acting contrary to the
species of wild animals if it inflicts harm on man. This action will apply even if the wild animal
has been reduced to a state of semi-domesticity and even if the animal was not acting with
ferocious intent.

The defences which can be raised to this action, being as it is, a sub-species of the Pauperien
action, are the same as those maintainable to a Pauperien action except that it is no defence that
the animal was acting in accordance with the nature of its species.

The following are defences to this delict: Vis major or casus fortuitus, or P or the third party was
to blame for the incident or P was unlawfully at place).

Edict concerning wild animals (Edictum de feris)

This is a Roman law action still recognised in the modern law that makes any person who keeps
a wild animal in the vicinity of a public place strictly liable if the animal causes injury.

It would seem that the defences that can be raised to a Pauperien action are also maintainable in
respect of this action.
Harm caused by grazing animals (Actio de Pastu)
This is a strict liability action which can be brought when damage is caused by D’s animals
(usually cattle, sheep or goats) straying onto Ps land and causing damage by grazing. The
damage for which compensation can be sought under this action includes not only damage to
pasture-land caused by grazing the grass, but also damage caused by the trampling by the
animals of standing crops and other plants and shrubs.

In the case of Bwanya v Matanda 2000 (1) 546 (H)the court held that the actio de pastu remains
part of our law and has not fallen into disuse. If one person’s animals stray onto another person’s
land and cause damage by grazing or trampling crops, the actio de pastu is available to the owner
of land against the owner of the animals for the damage caused by them.

In Monteiro v Brown HH-291-83 D’s cattle had broken through a fence surrounding a stack of
maize and had caused damage to the maize. The claim in this case could have been based on the
actio de pastu.

See also Stegman Bros Ltd v Nassan Ranch (Pvt) Ltd GS-32-79; Potgieter v Smit 1982 (2) SA
690 (D).

The defences that can be raised to this action are dealt with in the Bwanyacase. Where there was
fault on the part of the injured party there would be a complete or partial defence, as where the
injured party had failed to maintain a fence or had let the animals in. It is also a defence that the
straying was brought about by a deliberate act on the part of a third party as, for instance, where
the third party deliberately cuts the fence thereby allowing the animals to stray onto someone
else’s land. Vis major would be a defence only in limited circumstances, as where the animal is
directly motivated by the vis major and did not act of its own volition. Vis major would not be a
defence where, for instance, lightning struck a fence knocking it down and the animal discovered
the gap in the fence and, of its own volition, moved onto the adjoining property and caused harm.
In such a case, the owner of the animal would remain liable. See van Zyl v van Biljon 1987 (2)
SA 372 (O).

The legislative machinery dealing with the impounding (pending the payment of compensation
for damage) of straying animals is contained in s 9 of the Animal Health Act [Chapter 19:01].

Nuisance
Under the common law, an action can be brought against another who allows his animals to
cause a nuisance. If patrimonial loss has been caused then damages can be claimed; if no
patrimonial loss has resulted then the remedy for a continuing nuisance, such as barking dogs
causing disturbances, is that of an interdict.
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In addition to the common law, there are a variety of regulatory offences in terms of which
penalties can be imposed for causing a nuisance by, for instance, allowing dogs to bark
continuously thereby causing a nuisance.

Cattle and other animals on rural roads

A problem that has come up repeatedly in the cases is that which arises when cattle or other
livestock wander on the roads and persons driving on the roads are in collision with them. The
duties of the driver to guard against hitting these animals and the duties of the owners of the
livestock or persons in control of them (such as herders) are set out in the cases listed below.

See White Line Trucks v Cilliers A-175-72; E B Ranchers v Bus Service A-18-76; Rocky Lodge
(Pvt) Ltd v Livie 1977 (1) RLR 218 (A); Ure v Jordan GS-144-78; Beattie v United Refineries
(Pvt) Ltd A-130-80; Viriri v Wellesley Estates 1982 (1) ZLR 200 (S);1982 (4) SA 308 (ZS); P
Hall & Co (Pvt) Ltd v Kennedy HB-79-84; Pachirera v Whartley HH-32-89.

Table showing different actions that can be brought in respect of harm caused by animals:

Action Type of animal Type of harm Person against Whether

covered whom action negligence
brought required
Aquilian Any type Patrimonial loss - Ownerof animal or Yes
physical injury or person in control of
property damage animal
Pauperien Domesticated animals Patrimonial loss Owner of animal at No
acting contra time harm caused
naturam sui generis
Quasi-pauperien Wild animals acting Patrimonial loss Owner of animal at No
in accordance with time harm caused
their nature
Edictum de feris Wild animals kept in Patrimonial loss Owner of animal at No
vicinity of public time harm caused
place
Actio de pastu Grazing animals e.g. Damage to property Owner of animal at No
cattle, goats e.g. to grass, shrubs, time harm caused
trees
Nuisance Any type Annoyance & Person in control of No (applies to
irritation caused by animal’ whether or both interdict &
e.g. barking dogs not owner damages)
 CHAPTER 7 - NUISANCE
The law on nuisance seeks to adjust the conflicting interests of neighbouring occupiers of land
and premises. Whilst a person should be at liberty to use and enjoy his land, he should not be
permitted to use his land in such a way that he interferes with his neighbours’ rights in an
unreasonable fashion (i.e. the neighbour has a right to enjoy his land free of such interference).
The law thus seeks to balance these conflicting rights in an equitable fashion and provides the
injured neighbour remedies in the event of an unjustified nuisance being caused to him.

Nuisances have been sub-divided into two categories, namely, private nuisances andpublic
nuisances. A private nuisance is one which interferes with only one neighbour or only a limited
number of neighbours, whereas a public nuisance is one which affects the public at large or some
considerable section of the public.

Private nuisance
The requirements for an action for private nuisance are–
 the interference with P’s rights must be a continuing one as opposed to a single,
isolated event; and
 there must be an unreasonable use of land by D which causes an unreasonable and
unjustifiable degree of interference with P’s rights to the use and enjoyment of his
land.

In considering whether there has been an unreasonable user that has caused an unreasonable
degree of interference the following factors will be salient–
 the nature of the locality (i.e. is it rural, semi-rural, urban or industrial);
 whether the user is a common and ordinary one given the nature of the locality. (However,
if D engages in what normally would be a common and ordinary use in that locality with
the sole purpose of adversely affecting his neighbour rather than enjoying his own land
by putting it to that use, D will be liable because he was actuated by malice. This is the
so-called spite fence situation);
 whether the user substantially impinged upon P’s rights or the degree of interference was
only of a trivial character; and
 if D causes a nuisance in the course of taking steps to protect his property, whether there
were other alternative less drastic steps which he could have taken.

In considering whether any unreasonable extent or interference has resulted, only normal
sensitivities of ordinary citizens will be considered. Thus, there will be no action if D was
abnormally sensitive to say, noise or smells.

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The nuisance may result in physical damage to property or physical harm to a person or it may
cause merely irritation and upset (e.g. noise or smell nuisance). Damages can only be claimed in
our law for nuisance if there has beenpatrimonial loss. Where there has been no patrimonial loss
but only irritation, then the sole remedy is an interdict.

Where an interdict is being sought no intention or negligence on the part of D has to be proved
(i.e. all that has to be shown is that there has been an unreasonable use which causes an
unreasonable degree of interference in P’s rights). Where damages are being claimed there has
been a dispute in South Africa as to whether this action falls under the Aquilian action and
whether at least negligence has to be established (i.e. that the interference was reasonably
foreseeable and the reasonable person would have guarded against this.) In English law at one
time it appeared that negligence was not an essential requirement but more recently it seems that
negligence is now required. In Zimbabwe, it is somewhat unclear. Although in the local case of
Cosmosv Phillipson 1968 (2) ZLR 128 (G) the judge ruled that negligence did not have to be
proved before damages could be recovered, this case was influenced by case law in South Africa
and Britain. This ruling needs re-examination in the light of contemporary developments in these
two countries.

In respect of private nuisance, there are a variety of offences contained in legislation prohibiting
nuisances on pain of penalties being imposed. Most of these are contained in local government
by-laws. See, for instance, s 4 the Harare (Noise) By-Laws, SI 1195 of 1973. There are various
other provisions contained in primary legislation. For example, s 46 read with the Third Schedule
of the Criminal Law Code makes it an offence for an owner, lessee or occupier to fail to take
such steps as may be necessary to prevent the creation on the property of a nuisance to
neighbours by offensive smells or otherwise.

See Savoy House Ltd v City of Salisbury 1959 (1) R & N 145 (H); Francis v Roberts 1972 (2)
RLR 238 (G); Wright v Pomona Stone Quarries 1988 (2) ZLR 144 (S) nuisance existing before P
took occupation; Malherbe v Ceres Municipality 1951 (4) SA 510 (A); Gien v Gien 1979 (2) SA
1113 (T); de Charmoy v Day Star Hatchery 1967 (4) SA 188 (D); Regal v African Superslate
1963 (1) SA 102 (A) created by predecessor in title.

Public nuisance
This is largely the subject matter of controls contained in legislation. The most important pieces
of legislation in this regard, controlling such matters as pollution which is affecting public health
and so on, are the Public Health Act [Chapter 15:09], the Regional Town and Country Planning
Act [Chapter 29:12], the Factories and Works Act [Chapter 14:08], the Atmospheric Pollution
Prevention Act [Chapter 20:03] and the Environmental Management Act [Chapter 20:27].
 CHAPTER 8 - SPECIAL DELICTS RELATING TO
THINGS FALLING FROM BUILDINGS
Actio de effusis vel dejectis
This delict is a strict liability action which can be brought against the occupier of premises from
whose premises something has fallen or been thrown or poured thereby causing injuries to P. No
negligence on the part of the occupier has to be proven before damages can be recovered.

Actio de positu vel suspensi

Where a thing has been dangerously placed or suspended on a building or over a public way
creating a risk of injury an action for an interdict can be brought to stop the continuation of the
hazard.

CHAPTER 9 - DELICTS RELATING TO SEXUAL

INTERCOURSE AND TO MARRIAGE
Seduction
General law
This delict is committed where a man induces a woman who is a virgin and who is not his wife
to have sexual intercourse with him.

The woman may recover damages:

 as compensation for the loss of her virginity and consequent impairment of her
marriage prospects; and
 if a child is born as a result of such seduction, lying-in expenses, maintenance for
herself before, at the time of, and after, the confinement, and maintenance for the
child. If maintenance is being claimed, paternity will have to be established.

If D denies seduction P’s evidence has to be corroborated. If D admits to sexual intercourse, but
denies paternity, the onus is on D to prove that he cannot be the father.

It has been argued that the claim for loss of virginity is an anachronistic action and that all that
should be retained in the modern context is the claim for maintenance.

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For further commentary on this delict, see Ncube Family Law in Zimbabwe pp 27-34.

See Bull v Taylor 1965 (4) SA 29 (A); Gomwe v Chimbwa 1983 (2) ZLR 121; Katekwe v
Muchabaiwa 1984 (2) ZLR 112 (H); Mudehwe v Mukondomi 1991 (2) ZLR 222 (S). The effect
of the Legal Age of Majority Act; Wolfenden v Jackson S-122-85.

Customary law
At customary law the delict of seduction is committed when a man induces a woman (whether or
not she is a virgin) who is not his wife to have sexual intercourse with him. The action for
damages is at the instance of the father or guardian of the woman who is entitled to claim
damages for impairment of the bridewealth (roora) value of the woman. It was laid down in the
case of Katekwev Muchabaiwa (1984) that, where the woman in question is 18 or over, under the
Legal Age of Majority Act she becomes a major and thus only she can sue for seduction and her
action is under common law in this instance. In other words, the guardian’s right to sue for
seduction under customary law falls away when the girl attains the age of 18.

See Gomwe v Chimbwa 1983 (2) ZLR 121 (S); Ketero v Mukarati S-20-84; Katekwe v
Muchabaiwa 1984 (2) ZLR 112 (H); Lopez v Nxumalo S-115-85; Mwashita v Simango S-116-87;
Chidembo v Machingambi S-50-87.

Breach of promise to marry

See Guggenheim v Rosenbaum 1961 (4) SA 21 (W).
Adultery
In South Africa the Constitutional Court abolished the action for damages for adultery against
person committing adultery with a person’s spouse DE v RH (CCT 182/14) [2015] ZACC 18;
2015 (5) SA 83 (CC). However, in Njodzi v Matione HH-37-16 the High Court in Zimbabwe, the
court decided that the claim for adultery damages is not unconstitutional. However, this case has
been taken on appeal to the Constitutional Court and judgment is awaited on this matter. In the
Njodzi case P claimed delictual damages from D for the latter’s adultery with Ps husband. The
adultery resulted in a child. P claimed damages for contumelia and loss of consortium. At the
trial D made an application challenging the constitutionality of P’s claim. It was argued that it
was improper to sue D to the exclusion of P’s spouse, although he was the main architect of the
relationship. This was discriminatory and therefore contrary to the constitutional provisions of
equality before the law. It was further argued that the claim amounted to infringement into
privacy of D’s sexual life, thus violating not only the right to privacy, but also the right to
freedom of association. She argued that the claim by O was archaic and unconstitutional. P
argued that the institution of marriage was recognised by the Constitution and adultery was a
threat to the existence of a marriage.
The court held that adultery is an injury occasioned to the innocent spouse because of the
adulterous relationship. The spouse can recover damages for loss of a spouse’s consortium as
well as any patrimonial loss suffered and also personal injury or contumelia suffered by the
innocent spouse, inclusive of loss of comfort, society and services. Contumelia is the injury, hurt,
insult and indignity that occurs to an innocent spouse where the other commits adultery. Once
there is evidence of such injury, hurt, insult and indignity having been occasioned by the
adulterous relationship, then the innocent spouse is entitled to damages for contumelia. Once
contumelia is established, then the next issue would be whether or not there is loss of
consortium, that is, loss of comfort and society. Adultery damages, whether classified as falling
under contumelia or consortium, are delictual damages arising from a delictual wrong
occasioned to an innocent married party. To this extent, the distinction is fallacious.
Marriage is a contract sui generis entered into by two willing parties. The sanctity of this contract
is what an adultery damages claim seeks to protect. The claim should not be viewed in isolation
but from the view point of its purpose, being to protect the sanctity of marriage. In suing the third
party, the claimant will be seeking a personal remedy for hurt, injury, iniquity of company and
comfort occasioned by the third party’s association with the claimant’s spouse.
While the courts in South Africa, following rulings in other jurisdictions, have held that an award
of damages for loss of consortium is no longer justified, the issue was whether such reasoning
was applicable in Zimbabwe in the light of the Constitution’s normative framework and our
social context. In our case law, adultery damages are underpinned on the preservation of the
sanctity of marriage. Adultery may, in terms of the Matrimonial Causes Act [Chapter 5:13], be
evidence of the irretrievable breakdown of a marriage. Similarly, it may, in terms of s 10 of the
Maintenance Act [Chapter 5:09], affect whether maintenance should be granted or continued.
Adultery claims are very much consistent with the present day social and legal reality in
Zimbabwe. Public policy is now infused with constitutional values and norms. It is apparent that
public policy often represents the legal convictions of the community. It reflects those values that
are held dearly by a society. To that extent, therefore, in deciding whether a delictual claim of
adultery damages is constitutional or otherwise, while appreciating and respecting foreign
jurisdictions’ decisions, the decision should be contextualised to reflect the legal convictions and
societal values of this country. Section 3 of the Constitution outlines the values and principles on
which the Constitution is founded, and shows that the Constitution recognizes and accepts that
the Zimbabwean moral fabric is engraved in the country’s culture, religion and traditional values.
Any development of the common law therefore ought to be underpinned on the interests of
justice, and of course, in conformity with the Constitution. The institution of marriage is
entrenched deeply in the country’s culture, tradition and religion, and its protection has been in
unambiguous language propagated by the courts. Adultery is still regarded as a threat to
marriage. Marriage is recognised and protected by s 78 of the Constitution.
The purpose of adultery damages is protection of the marriage institution and to compensate the
innocent party for the loss of consortium and contumelia. This does not preclude the innocent
party from either suing for divorce or condoning the wrong and continuing with the marriage.
Marriage and family are social institutions of vital importance. They have more than personal
174
significance: the Constitution would not seek to protect the institution of marriage if the
sustenance of the institution was wholly for the parties, at least in the Zimbabwean context,
given the importance placed by society on the institution.
The argument that the delict brings about indignity on the third party and that it infringes on the
rights of the third party cannot be sustained when from the perspective of its invasion of the
marriage institution. The invasion of a marriage by a third party in the Zimbabwean context is an
attack on the dignity of the innocent party. The dignity of the adulterer ought not to be more
important than that of an innocent party to a marriage. Rights have to be exercised reasonably
and with due regard for the rights and freedoms of other persons. The defendant’s rights in this
matter are the same as the plaintiff’s; the potential infringement of her dignity and privacy should
not be viewed in disregard of the rights of the innocent spouse in a marriage. While other
jurisdictions have in part or fully done away with the delict or tort of adultery, the protection of
the family and marriage institutions is encapsulated in the Constitution. Society, which was
involved in the constitution-making process, still views adultery negatively. A third party who,
with knowledge, intrudes into the marriage institution, ought to compensate the innocent spouse
for the injury occasioned. Adultery is almost always debilitating for the innocent spouse who
suffers indignity and hurt because of the adultery.

Similarly in Tanyanyiwa v Huchu 2014 (2) ZLR 758 (H) the court decided that the action for
adultery against the third party committing adultery with P’s spouse remains part of the law of
Zimbabwe and there is no reason to follow the jurisdictions which have abandoned this remedy.

The delict of adultery is committed by D when he or she has sexual intercourse with a person
whom he or she knows to be P’s spouse. P can claim damages for humiliation and loss of the
companionship and society of the guilty spouse.

The defences to this action are:

 that D was unaware that the adulterous spouse was married; or
 P connived at the adultery; or
 D was raped.

In Jhamba v Mugwisi 2010 (1) ZLR 124 (H) the court pointed out that damages for adultery are
claimable on two entirely separate and distinct grounds: first, on the ground of the injury or
contumelia inflicted upon P; and, second, on the ground of the loss of comfort, society and
services of the other spouse (consortium). It is wrong for P to lump her claims in one, mixing
both contumelia (injury) and loss of consortium. Loss of consortium is the main element in the
estimation of damages for adultery.

The cases of Nyakudya v Washaya 2000 (1) ZLR 653 (H) and Nyandoro v Tizirai 2006 (1) ZLR
121 (H) set out the factors to be taken into account in assessing damages for adultery. These are:
 the character of the woman or the man involved;
  the social and economic status of P and D;
 whether the D has shown contrition and has apologized;
 the need for deterrent measures against the adulterer to protect the innocent spouse
against contracting HIV from the errant spouse;
 the level of awards in similar cases;
 the decrease in the value of money;
 whether P has suffered lack of consortium as well as contumelia.

In Jhamba v Mugwisi 2010 (1) ZLR 124 (HB)the court said that the quantum of damages should
reflect all the circumstances surrounding the occurrence of the adultery, including P’s own
conduct in the matter. Where D had been having an illicit relationship with the P’s husband for
over 20 years, resulting in four offspring, P could not say she was not aware of his sexual
escapades. She chose to ignore the situation and thereby condoned the adultery. She did not sue
for divorce. Consequently, damages for loss of consortium could not be high.

In Nyandoro v Tizirai 2006 (1) ZLR 121 (H) the court held that where the marriage still subsisted
in spite of the adultery, damages could only be awarded for contumelia and not for loss of
consortium.

In Gwatidzo v Masukusa 2000 (2) ZLR 410 (H) the court held a woman married in a customary
law marriage did not have the right to claim damages for adultery.

See also Landry v Landry 1970 RLR 134 (GD). Contumelia; Johnson v Joubert 1975 (2) RLR
176 (G) Contumelia; Nyaumba v Murapa 1975 (2) RLR 138 (A) measure of damages; Maria &
Anor v Murimbika 1976 (1) RLR 385 (A) ignorance that the woman was married is defence;
Cottham v Cottham & Anor GB-5-76; Hickey v Hickey & Anor GS-28-79 basis for awarding
damages; Meakin v Meakin HH-384-83 wife against woman persistently committing adultery
with her husband; Shongwe v Shongwe & Anor HH-414-86 knowledge that the woman is
married is the essential element; Dzemwa v Makarati HH-85-87 adultery by man with wife who
had been living apart from husband.

For further commentary on this delict see Ncube Family Law in Zimbabwe pp 154-155.

Abduction, enticement, harbouring of another’s spouse

This delict is committed if D, knowing that a person is married, detains that married person
against his or her will or entices or persuades that person to leave or stay away from his or her
spouse. P can claim damages for loss of the companionship and society of his or her spouse who
has been so detained or so enticed away.

The defences to this action are:

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  that the spouse was justified in leaving P or D believed that the spouse was justified in
leaving; or
 D did not coax or persuade the spouse to leave.

The case of Van Nuil v King HH-90-83 deals with what P must prove for enticement and
alienation of affections.

For further commentary on this delict see Ncube Family Law in Zimbabwe pp 153-154.

Bigamy
In Sibanda v Sibanda & Anor 2002 (1) ZLR 622 (H) the court held that an action for damages
lies under the actio injuriarum against D who, when already married to a woman, purports to
enter into a second marriage with P who was not aware that he had been married already. But the
damages for injuria would not be high without evidence that she was a sensitive woman who
suffered anguish and humiliation when she discovered the bigamy.

CHAPTER 10 - BREACH OF STATUTORY DUTY

The primary question is whether the statute was intended to create a civil right of action.

The breach of statutory duty allows a person affected thereby to sue if:
 he has suffered damage as a result of such breach;
 he is one of the persons for whose benefit the duty was imposed;
 the harm caused was within the mischief contemplated by the statute;
 the statute has not expressly or impliedly excluded the ordinary civil remedy; and
 the breach of the statute was the proximate cause of the loss.

In the case of Patz v Greene 1907 TS 427 the court established the rule that where the
Legislature intends to protect the interests of a particular group of persons, then if P is part of that
group, he or she does not have to prove that he or she has suffered damage as it will be presumed
that he or she has suffered damage. If, on the other hand, the Legislature simply wants to protect
the general public interest, P must prove that he or she suffered damage.

In the case of Local Authorities Pension Fund v Nyakwawa & Ors 2015 (1) ZLR 103 (H) the
court held that although P had referred to a breach of statutory obligations, it did not specify
what these statutory provisions were. There were two possible statutes, but even if the plaintiff
meant to plead that D breached some of the provisions of those Acts and would therefore be
liable to suffer criminal sanction, that breach would still not transform into civil liability to P. As
with negligence in the air, this would be “criminality in the air” in relation to P.
See also Salisbury Bottling Ltd & Ors v Central African Bottling Ltd 1958 R & N 17; Tobacco
Finance Ltd v Zimnat Insurance 1982 (1) ZLR 47 (H); van Buuren v Minister of Transport 2000
(1) ZLR 292 (H); Da Silva v Coutinho 1971 (3) SA 123 (A); and Knop v Johannesburg City
Council 1995 (2) SA 1 (A).

Burchell in Principles of Delict at p 46 has this helpful comment:

A statute may specifically provide for a civil remedy for damages, specifically provide for a
criminal penalty but remain silent on the availability of a civil remedy, remain silent on any
means of enforcement or provide for a ‘special’ remedy. Obviously if a statute includes a
civil remedy for the enforcement the ordinary principles of liability apply. Where the statute
specifically provides for a criminal sanction this does not necessarily exclude the availability
of a civil remedy and the intention of the legislature on this matter must be determined.
Where the statute remains silent on the means of enforcement it may be presumed that the
legislature intended it to be enforceable by ordinary private right of action. Where the statute
provides for a ‘special’ remedy there is a strong indication that the legislature intended the
special remedy to be the only one.

CHAPTER 11 - NEGLIGENT PERFORMANCE OF

STATUTORY DUTY
Where D is a public authority carrying out a function authorised by statute it will not be liable for
harm caused by carrying out this function provided that it actswithout negligence. There may,
however, be immunities contained in the empowering legislation for harm negligently inflicted.

In Van Buuren v Minister of Transport 2000 (1) ZLR 292 (H) P’s aeroplane had been badly
damaged when it fell into a hole when taxiing across a grass patch at an aerodrome. In a claim
for damages for negligence, P argued that the Ministry had been negligent in failing to comply
with its statutory duty to maintain the aerodrome in a safe condition. The court held that the
Ministry had permissive discretionary powers under the statutory provisions in question. Where
the Ministry is not positively enjoined to do something and is merely given permissive powers to
do something, not duty to act positively can be implied. A litigant who contends that the
legislature intended to impose an obligation bears the onus of showing that a duty can be implied
from the wording of the statute. The power given to the Minister was discretionary. The Minister
could not be directed to exercise these powers. The statute thus did not create a duty giving rise
to delictual liability. The Minister’s liability could only arise if the exercise of his statutory power
caused injury to another and the power had been exercised negligently.

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Seealso Knop v Johannesburg City Council 1995 (2) SA 1 (A).

CHAPTER 12 - STRICT LIABILITY UNDER

STATUTE
Earlier we have seen how under the common law the law of delict has adopted strict liability for
various delicts.These include actions such as the Pauperien, the Quasi-Pauperien, the Edictum de
feris, the action de pastu, the actio de effusis vel dejectis and the actio de positu vel suspense. It
will be seen later that the principle of vicarious liability is a form of strict liability in which the
employer is strictly liable for the delicts of his or her employees committed in the course if their
employment.

Strict liability has also been adopted in various statutory provisions in Zimbabwe. These include
strict liability for certain types of harm caused by civil aviation aircraft and harm caused by
public passenger transport operators.

Section 70(2) of Civil Aviation Act [Chapter 13:11] provides for the recovery of damages from
the owner of an aircraft without proof of negligence where material loss or damages is caused to
any person or property on land or water:
(a) by an aircraft while in flight, taking off or landing; or
(b) by a person in or an article or person falling from an aircraft while in flight, taking off
or landing.

Unless the person suffering the loss or damage has caused or contributed to the loss or damage
by his or her negligence, damages are recoverable without proof of intention or negligence or
other cause of action, as if the loss or damage has been caused by the wilful act, neglect or
default of the owner of the aircraft.

However, the owner of the aircraft is entitled to be indemnified against a claim for damages by
another person if:

(a) damages are recoverable in respect of the loss or damage by virtue only of this
subsection; and
(b) a legal liability is created in some person other than the owner to pay damages in
respect of the said loss ordamage.
Section 38B of the Road Traffic Act [Chapter 13:11] provides for compulsory no-fault liability
insurance to cover death or injuries to passengers in public service vehicles. The provision reads
as follows:

(1) Subject to this Part, no person shall drive a passenger public service vehicle carrying
passengers on any road unless there is in force a policy of insurance, issued by a person
who is approved by the Minister as an insurer for the purposes of this Part, which provides
a benefit in accordance with a scale approved by the Minister, irrespective of fault on the
part of the owner or any of his employees or agents, to every person who suffers loss or
injury, up to an amount of:
(a) two thousand dollars (USD 2 000), in respect of the death of or permanent disability
suffered by any such passenger; and
(b) three hundred and fifty dollars (USD 350), in respect of medical or funeral expenses
incurred by or in respect of any such passenger who suffers bodily injury or dies;
where such death, permanent disability or bodily injury is caused by or arises out of the
use of the passenger public service vehicle on any road.
(2) Any person who contravenes subsection (1) shall be guilty of an offence and liable to a
fine not exceeding level six or to imprisonment for a period not exceeding one year or to
both such fine and such imprisonment.

A public service vehicle is defined in section 2:

“public service vehicle” means a motor vehicle in respect of whose operation an operator’s
licence is requiredin terms of the Road Motor Transportation Act [Chapter 13:15];

CHAPTER 13 - VICARIOUS LIABILITY

Doctrine
The doctrine of vicarious liability lays down that an employer is vicariously liable for all delicts
committed by his or her employees (who are not independent contractors) when they are acting
in the course and within the scope of their employment at the time the delicts were committed.

It does not have to be proved that the employer has been at fault,for instance,by negligently
employing an incompetent employee or by negligently failing to give proper instructions to the
employee. The employer is vicariously liable even though the employee committed the delict in
circumstances in which the employer neither knew nor should reasonably have known that the
delict would be committed by his or her employee.

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The employee can also be liable for his or her own delict but in practice the employee is not
often sued because he or she will frequently lack the financial resources to be able to pay
compensation.

Does vicarious liability have to be specifically pleaded?

In 2Masiya & Anor v Sadomba & Anor HH-28-12 the court held the employer vicariously liable
for the conduct of the employee. Even though P had not pleaded vicarious liability in the
pleadings, at no stage of the proceedings did the employer put the issue of vicarious liability into
question.

Rationale for doctrine

Why does the law hold the employer liable for the delicts of his or her employees? The social
policy that has led to the doctrine revolves around a number of policy considerations. The
doctrine is usually justified on the basis that:
 The employer who employs others to advance his own economic interest should in
fairness be placed under a corresponding liability for losses incurred in the course of the
enterprise;
 By instructing employees to engage in activities, the employer creates the risk that the
employees may cause harm to others and the employer also has the capacity to control his
or her workers’ activities;
 The employer is usually in a far better financial position to compensate the injured party
than the employee who will often not have the financial resources to pay compensation
and, as between the employer and the employee, it is therefore, unfair to expect the
employee to pay compensation for a delict arising out of performing work on behalf of
the employer;
 The employer, which is often a sizeable enterprise rather than a single individual, can far
better absorb losses of this description by taking out insurance and by way of distribution
of costs to customers by increasing the price of products or services (i.e. the employer
can afford insurance whereas the employee often cannot).
See Mungofa v Muderede & Ors HH-129-03.

In Gwatiringa v Jaravaza & Anor 2001 (1) ZLR 383 (H) the court said that there is a compelling
social policy behind the concept of vicarious liability. Corporations or large employers carry out
extensive operations which they conductthrough employees. Thus the employer must, in an
appropriate case, answer for the faults of his or her employees, as long as they are committed in
the course of and within the scope of their employment and constitute mismanagement of the
work of the employer.There is, however, a limit. Policy considerations notwithstanding, an
employer cannot be held liable for the delicts of an employee who acts in pursuit of his or her
personal interests. An act done by an employee solely for his or her own interests and purposes,
unconnected with the work of the employer and outside his authority, is not done in the course of
his employment.

In Mungofa v Muderede & Ors HH-129-03 the court held that the doctrine of vicarious liability
of employers for the delicts of employees is based on social policy. The most important
considerations are the belief that a person who employs others to advance his own economic
interest should in fairness be placed under a corresponding liability for losses incurred in the
course of the enterprise; that the employer is a more promising source of recompense than his or
her employee, who is apt to be a man of straw; and that the rule promotes wide distribution of
delictual losses, the employer being a most suitable channel for passing them on through liability
insurance and higher prices.

In NSSA v Dobropoulos & Sons (Pvt) Ltd 2002 (2) ZLR 617 (S) the Supreme Court stated that
the rationale behind holding employers vicariously liable for the acts of their employees, even
where they have deviated from the strict course of their duty, is that it is right and proper, where
one of two innocent parties has suffered a loss arising from the misconduct of a third party, that
the loss should fall on the one of the two who could most easily have prevented the happening or
the recurrence of the mischief. This approach does not depend upon a “creation of risk” theory,
but uses the customary test for determining the existence of vicarious liability which serves the
interests of society by maintaining a balance between imputing liability without fault, which runs
counter to general legal principle, and the need to make amends to an injured person who might
otherwise not be recompensed.

Requirements
The requirements for vicarious liability are–
 the employee is a “servant” and not an independent contractor; and
 the employee is acting in the course of his employment.

Employee who is not independent contractor

There is no vicarious liability for the delicts of independent contractors. An independent
contractor is a person employed to do work who is not subject to the control and direction of the
employer as to the manner he does the work. A person who is employed as a “servant” is subject
to the employer’s control and direction both as to what work he does and the manner in which he
carries out the work.

What is important is whether there is a right to exercise control over the manner of performance
of the work and not whether this right is actually being exercised for the time being by the
employer. If there is such a right of control the employee cannot be an independent contractor.
The easiest example of this distinction is that if D employs a person as a taxi driver that person is
normally an independent contractor as he decides upon the manner in which he carries out the

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work, whereas if D employs a person as a chauffeur, he is usually an employee as D has the right
to control the actual manner of his driving. Persons with special expertise such as architects and
lawyers are usually employed as independent contractors.

For discussion on the test to decide whether a person is an employee or an independent

contractor see Banda v Gamegone (Pvt) Ltd & Anor HH-133-03. See also Langley Fox Building
Partnership Pty Ltd v De Valence 1991 (1) SA 1 (A) and Dukes v Marthinusen 1937 AD 12.

Course of employment
It is not sufficient that the employee committed the delict during his or her ordinary work hours.
If the employee does something which is entirely for his or her own benefit and which does not
form part of his or her duties as an employee in that business, the employer will not be held
liable. For example, if D employs a person as a worker on a car assembly line and during work
hours he steals from another employee or assaults him, the employer will not be vicariously
liable. The same applies even if the employee has been permitted by the employer to use the
employer’s property for his (the employee’s) own purposes, e.g. I permit my employee during
work hours to borrow my bicycle to visit a sick friend and the employee rides carelessly and
knocks down someone whilst riding to or from his friend’s house. Here again, the employee was
not in the course of his employment when the delict was committed. Even if the employee is
doing the thing with the intention of benefiting his or her employer and not himself, the
employer will still not be liable if the employee is doing something which is neither part of his or
her employment duties nor reasonably incidental thereto. Thus, in one case a person employed as
a baker had an accident whilst driving the van of the employer in order to deliver some
confectionery. As it was not part of the employee’s duties to drive the delivery truck, the
employer was not held liable, even though the employee was attempting to benefit the
employer’s business.

The employer may still be liable if, although the thing done by his or her employee is not directly
part of his duties, it is reasonably incidental thereto. Thus, in one case it was held that the
cooking of food on the roadside was reasonably incidental to the duties of the employees as they
were long-distance wagon drivers and it was to be expected that they would stop and cook their
own food along the way.

In Romansrivier Koöperatiewe Wynkelder Bpk v Chemserve Manufacturing (Pty) Ltd 1993 (2)
SA 358 (C) a truck guard who was employed to off-load goods, in the absence of the driver,
released the brakes of the truck to allow it to run backwards to the off-loading bay to allow for
the off-loading of the goods. The truck collided with P’s plant causing severe damage. The
guard’s employer was held liable.
In Loureiro & Ors v iMvula Quality Protection (Pty) Ltd CCT-40-13 Mr Loureiro entered
into an oral agreement with iMvula Quality Protection (Pty) Ltd (iMvula) for a 24-hour
armed security guard service at his home. He instructed iMvula not to allow anyone onto the
premises without his prior authorisation. Robbers masquerading as police officers
approached the home and demanded entry. When iMvula’s security guard on duty was not
able to communicate over the intercom with the men seeking entry, he opened the pedestrian
gate without first checking their identity or business. The robbers then accosted the
Loureiros and their household staff, and stole items worth millions of Rands. The Loureiro
family was successful in the High Court, which held iMvula contractually and delictually
liable. On appeal, a majority of the Supreme Court of Appeal overturned the High Court’s
decision, while a minority would have upheld it. The Constitutional Court found in favour of
the Loureiro family and ruled that the amount of the claim is to be determined by the High
Court in separate proceedings. The Court held that iMvula is liable for breach of contract. By
allowing access to the imposters, a strict term of the contract was contravened. The Court
also found iMvula vicariously liable in delict. The Court held that, in its conclusion on
wrongfulness, the majority in the Supreme Court of Appeal failed to have regard to weighty
normative and constitutional considerations. Wrongfulness was established because iMvula’s
employee opened the gate for the robbers. There is a great public interest in ensuring that
private security companies and their guards, in taking on the remunerated role of crime
prevention, succeed in thwarting avoidable harm. iMvula’s employee furthermore acted
negligently by failing to foresee the possibility that an unauthorised person might try to gain
access by purporting to be someone he is not; and by failing to take the fairly simple
precautions a reasonable person in his position would have taken to guard against the harm.
iMvula is vicariously liable in delict because its employee acted wrongfully by opening a
gate to robbers and negligently by failing to foresee the reasonable possibility of harm and to
take the steps a reasonable person in his position would have taken to guard against it.

Deviation from course of employment

As regards the concept of “course of employment”, it has been ruled in a series of cases that the
fact that the employee deviates from the course of employment will not necessarily mean that
there is no longer vicarious liability. Considerations of social justice have led the court to adopt
the approach that the degree of deviation from the course of employment has to be of a major
extent before it will hold that the employee is no longer in the course of his or her employment.
If the employee, whilst about his or her employer’s business, temporarily diverts from that
business to do something for his own purposes, the court will ask the question: was the deviation
of such a degree in terms of time and distance that it cannot reasonably be said that he or she was
still exercising the functions for which he or she was employed? A typical case where this issue
arises is where D instructs his delivery driver to deliver certain items and then to return the
delivery van to his premises. If, having done his delivery rounds the driver drives to his own

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home to pick up some of his personal possessions before returning the van to D and he drives
negligently and has an accident either on the way to his home or on his way from his home to
D’s premises, the question is whether D will be vicariously liable for the harm caused. This will
depend upon the extent of the deviation.

Cases where D still in course of employment despite deviation

In Nott v ZANU (PF) 1983 (2) RLR 208 (S) a driver had collided with P’s vehicle. At the time of
the accident the driver had deviated from his assigned task to do his own personal business. The
court held that the employer was nonetheless vicariously liable to P because in terms of time and
space the deviation was not major and had not seriously interfered with the exercise of the
driver’s duties. The deviation was not such as to lead to the conclusion that the driver had
abandoned his functions.

In Biti v Minister of State Security 1999 (1) ZLR 165 (S) the driver of a government vehicle was
instructed to take government officers home after work and then keep the vehicle safely
overnight. In the morning the driver was to pick up the same officers and drive them to their
work place. He was on call while not actively on duty. About two and a half hours after he
should have finished dropping the officers, he rammed into a stationary taxi owned by P, badly
damaging the taxi and severely injuring P. The accident occurred at a place which was about a 5
km deviation from the routes he would have had to have taken to drop off the government
officers. There was some evidence that the driver was heavily intoxicated and that he had his
girlfriend in the car.

The trial court had held that the Ministry which employed the driver was not vicariously liable.
On appeal the court held that the standard test for vicarious liability requires the court to decide
whether the wrongdoer was engaged in the affairs or business of the employer when he
committed the delict. In the present case, the business of the government driver included not only
the transporting of passengers to their homes, but also keeping the vehicle in safe overnight
custody. Although the driver had deviated from his from his authorised route, the deviation, in
terms of time and space, was not such as to convert it into “a frolic of his own.” The improper
mode of exercising his duty of keeping the vehicle safely overnight was still done within the
course of his employment and the Ministry which employed him was vicariously liable.

In NSSA v Dobropoulos & Sons (Pvt) Ltd 2002 (2) ZLR 617 (S) the court found that the
employee had recommenced the assigned task after a deviation and the employer was vicariously
liable. The court approved the tests relating deviation from employment set out in the South
African case of Feldman Pty Ltd v Mall 1945 AD 733. (In the Feldman case the distance of the
deviation was about three-and-a-half miles (i.e. five kilometres), and this journey took three to
four hours.)
In Cold Chain (Pvt) Ltd v Makoni S-9-12 a company based in Chitungwisa dispatched its truck
driver in the morning to Nyanga to deliver some fish and return the truck same day to
Chitunwisa. At 8 pm the same day the truck driver was involved in a collision 12 km from
Rusape, The collision was due to the negligence of the truck driver. The court held that if there
had been a deviation it was minor in terms of distance and time and the company was therefore
still vicariously liable.

Cases where employer not liable because employer had abandoned the work
In Witham v Minister of Home Affairs 1987 (2) ZLR 143 (H) a policeman with a known history
of alcohol-related psychiatric problems, had been detailed to guard the residence of a
Government minister. He had been issued with a rifle and ammunition. He had deserted his post
during the night and gone on a shooting spree not far away. The policeman fired at a couple,
severely injuring P and killing his wife. The policeman was himself later shot and killed by other
police details. The court held that the Minister was not vicariously liable because the policeman’s
digression from his appointed duty was so great in respect of space and time that it could not be
reasonably said that he still exercised the functions to which he was appointed. His digression
was a complete relinquishment or abandonment of his master’s business in favour of some
activity of his own. However, the Ministry was directly liable as it had created a danger by
putting the policeman, with his mental history, in charge of a weapon and the serious injury to a
member of the public was foreseeable. The police also owed a duty of care to the public to
protect them against either a gunman in general terms who is loose in the area, but more
specifically against a fellow member of the police who was in uniform and using a police
weapon.

In Standard Chartered Finance Ltd v Georgias & Anor 1998 (2) ZLR 547 (H) the court said that
an act done by an employee solely for his own interests and purposes, and outside his authority is
not done in the course of employment, even though it may have been done during his
employment. But provided the servant is doing his master’s work or pursuing his master’s ends,
he is acting within the scope of his employment, even if he disobeys his master’s instructions as
to the manner of doing the work or as to the means by which the end is to be attained. In the
present case, an employee of a finance company had told another company that the P’s company
was in financial difficulties. This had led the other company cancelling its contract with P’s
company resulting in financial loss to Pcompany. There was no evidence as to what the
employee’s duties were at the finance house and the employee may simply have been pursuing a
personal vendetta. The cancellation of the contract would have been contrary to the interests of
finance company. It could not therefore be said that the employee was acting in the course of his
employment.

In Gwatiringa v Jaravaza & Anor 2001 (1) ZLR 383 (H) D1 was employed by D2, a security
company, as a roving dog handler. He had been assigned to guard a municipal workshop in an

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industrial area. When on duty, he was supposed to wear a uniform. One night, he took off his
uniform, tethered his dog, and drove off in a municipal vehicle. He was not a licensed driver.
Some distance away he crashed the vehicle causing damage to P’s property. The court held D1
had completely abandoned the task to which he was appointed. The damaging of P’s property
could not be said to be an improper or negligent mode of performance of his duties as a guard.
His conduct bore no relation to the scope of his employment. No policy reasons would justify
imposing liability on the employer, who did not sanction the driving in the first place.

In Maxalanga v Mpela & Anor 1998 (3) SA 987 (Tk) an employee was involved in a collision
while approximately one kilometre outside the area of operation of the employer and was in the
process of driving further away, transporting passengers who had nothing to do with business of
employer. The court held that the conveyance of the passengers was not for the benefit or in the
interests of the employer but was for the sole purpose and pleasure of the employee and his
passengers. The employee was entirely on the activity of his own affairs unconnected with those
of employer. The employee had thus abandoned the employer’s work and the employer wasnot
liable for the delict of the employee.

See also South British Insurance v Du Toit 1952 SR 239; Reid-Daly v Hickman (2) 1980 ZLR
540 (A); Ziyeresa v Fleming HH-92-84; Workers Compensation Commissioner v Minister of
Construction HH-403-86; Murenge vMinister of Local Government HH-434-88; Boka
Enterprises v Manatse & Anor 1989 (2) ZLR 117 (H) (the State was held liable for a defamatory
statement by a public official during the course of his duties); Nyakabambo v Minister of Justice
& Ors 1989 (1) ZLR 96 (H) (The State was not vicariously liable for the actions of the Attorney-
General as he was an independent officer); Hokonya & Anor v Chinyanyi & Ors HH-17-95;
Minister of Safety and Security v Jordaan t/a Andre Jordaan Transport 2000 (4) SA 21 (SCA)
Test in deviation cases; Absa Bank Ltd v Bond Equipment (Pretoria) (Pty) Ltd 2001 (1) SA 372
(SCA).

Disobeying instructions
When instructions have been given to an employee and he or she disobeys these instructions, the
vital question is whether the instructions limited and defined the actual sphere of employment
or whether they merely sought to regulate the conduct of the employee within his sphere of
employment. If it is the former, disobedience to instructions will mean that there is no vicarious
liability, whereas if the latter, vicarious liability may still be imposed. See Gorah v Mahona 1984
(2) ZLR 102 (S).

Cases where instructions merely regulated conduct within sphere

In Mungofa v Muderede & Ors HH-129-03 the instruction only regulated the conduct within the
sphere. P was injured in a bus accident caused by the negligence of D1, the driver of the bus. The
driver was a part-time employee of D2. D2’s employees, the bus crew, permitted D1 to drive the
bus with fare paying passengers. The bus crew member who allowed D1 to drive was obviously
permitting him to drive the omnibus “doing his master’s work in pursuing his master’s ends”.

The court held that the fact that the bus crew member may have acted contrary to D2’s
instructions did not necessarily take the conduct out of the scope of his employment. The
question is whether the instructions given to the employee limit the scope of his employment or
merely relate to conduct within that sphere. It may be that the employee is carrying out his
assignment in a manner which was contrary to his instructions, but he is nevertheless carrying
out that assignment and none other. The court held that there was no express prohibition; at most
there was an implied prohibition. The use of D1 was wholly in pursuance of D2’s interests, so D2
was liable for the delict perpetrated by D1 on P.

In Francis Freres and Mason (Pty) Ltd v Public Utility Transport Corporation Ltd 1964 (3) SA
23 (D) the D company bus negligently collided with two vehicles belonging to P company. D’s
bus had been driven by a regular driver, L, up to the end of his shift. At that stage it was the duty
of L to drive the bus to the D's workshop five miles away, though he had authority to delegate
this duty to another regular driver. Instead he had delegated his authority to a mechanic who had
a heavy duty licence but, to the knowledge of L, was neither competent nor licensed nor
authorised to drive a public utility vehicle.

The court held that L had been negligent in handing over the bus to the mechanic, because he
ought to have foreseen the risk of his doing damage, and that such negligence was a cause of the
collision. It held further that, although L had acted contrary to instructions in delegating the
driving of the bus to the mechanic, that he had done so in the course and scope of his
employment: it was his function to see to the bus reaching the workshop and he had adopted an
improper method or mode of attending to that. It therefore held that D company was vicariously
liable.

In Gwande v Matonhodze & Anor HH-123-12 the court stated that an employer is liable for the
delicts of his employee committed in the course of his duty or service, unless the employee, in
committing the delict, was pursuing his own interests. Provided the employee is doing his
employer’s work or pursuing his employer’s ends, he is acting within the scope of his
employment even if he disobeys his employer’s instructions as to the manner of doing the work
or as to the means by which the end is to be attained.

In this case after being involved in a minor accident, P was instructed by the police to bring his
car to a named police station, as the police wanted to impound it “for further investigations”. He
duly delivered the car. Four days later, D1, a constable at the police station, took P’s car on a
patrol. Other policemen travelled in the vehicle. Very soon after setting out, the constable crashed
the car, which was damaged beyond economic repair. P sued the constable personally, as well as
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the responsible minister for the replacement cost of the vehicle. He averred that when the
constable drove the vehicle, he was acting within the course and scope of his employment by D2
and as such D2 was vicariously liable for the actions of his employee. As D1 wrongfully,
unlawfully and negligently drove the vehicle, both defendants were jointly and severally liable
for the loss that P sustained. The Ministry claimed that D1 was engaged in a frolic of his own.

The court held that the constable acted unlawfully, wrongfully and indeed negligently when he
drove P’s motor vehicle. P did not authorize him to drive his vehicle and there is no way a police
officer can lawfully drive a motor vehicle held at a police station, either as an exhibit or pending
further investigations, while on patrol duties. Such vehicle is not a patrol vehicle and should be
kept in custody only for the purpose for which it was impounded. P had established all the
requirements for the Aquilian action. D1’s conduct was unbelievably unreasonable, irresponsible,
childish and reprehensible in the extreme.

As regards vicarious liability, the court held D1 was doing D2’s work when he received the
station property, which included the keys and the motor vehicle belonging to P. He was still
about his employer’s business when he went on patrol that night. He clearly did not have any
authority from his employer to use P’s motor vehicle when going on patrol. He disobeyed his
master’s instructions as to how he was to perform his duties. He was still acting within the scope
of his employment even though the manner in which he went about his work was perverted. This
was a classic example of the situation where an employee used the wrong means to attain his
employer’s ends, leaving him firmly within the scope of his employment.

In Viljoen v Smith 1997 (1) SA 309 (A) an employee climbed through a fence and relieved
himself in bushes on a neighbouring farm contrary to a prohibition of the employer. Whilst on
the neighbouring farm he attempted to light a cigarette but the match caused a fire on the farm.
The court held that the employee was still acting within course and scope of his employment and
the employer was held vicariously liable.

In Ngubetole v Administrator, Cape & Anor 1975 (3) SA 1 (A) A, employed by the first
respondent at a hospital as a temporary driver, sued for damages for personal injuries received
when a hospital car belonging to the first respondent had collided with a motor vehicle belonging
to the second respondent. A, who had been on night duty, had been sent, at about 4.30 a.m., to
fetch one M, employed as a labourer but used as a relief driver, from his home in order to go on
duty at 5 a.m. At his home M had got into the driver's seat and A, who was sleepy, had allowed
him to drive on the return journey, during which a collision occurred, in which M was killed. It
was strictly against instructions for A to have left the keys in the car or allowed another to drive
once embarked on a journey. During thetrial first respondent finally conceded that the collision
had been due entirely to M's negligence.
The court held the instruction which A disobeyed related to conduct within his sphere of
employment and did not limit it: by allowing M to drive he was carrying out his assignment in a
manner which was contrary to his instructions but he was nevertheless carrying out that
assignment and none other. Therefore A’s act in permitting M to drive had not amounted to a
breaking off of his employment: at the time of the collision appellant was, inter alia, still
carrying out his obligation to return to the hospital and still responsible for and in overall charge
of the vehicle.Accordingly, A was being conveyed in the course of his employment.
Cases where instructions limited the sphere of employment
In Wentworth-Wear v Zvipundu 2000 (1) ZLR 281 (S) the instruction limited the actual sphere of
employment.P was injured in a motor accident caused solely by the negligence of the driver of a
commuter bus. She sued the employer of the bus driver. The employer maintained that the driver
was not in his employment at the time, having been discharged for non-payment of traffic fines
incurred while in previous employment. The driver had nonetheless driven the vehicle involved
in accident, directly contrary to instructions that he was not to drive. The instruction in the
present case limited the actual sphere of employment and the employer was no longer vicariously
liable after the employer had disobeyed such an instruction.

In Khosa v Cargo Carriers 2006 (2) ZLR 109 (H) P sustained serious injuries due to the
negligence of the driver of D’s lorry. The driver had, in spite of specific instructions that
passengers were not to be carried in the lorry, given P a lift and charged him a fee for the lift. The
court held there was no deviation from the route the driver was to use while carrying his
employer’s cargo. His only digression was to carry P against his employer’s instructions. He
carried P in disobedience of his employer’s instruction. It cannot therefore be said that in so
doing he was acting within the sphere of his employment. The employer was not liable to the
injured passenger.

In Gorah v Mahona & Anor 1984 (2) ZLR 102 (S) a lorry driver had been forbidden by his
employer to give lifts to people. He had nonetheless given a lift to a youth. The lorry driver had
driven negligently and had overturned the lorry, injuring the youth. The court decided that the
employer was not vicariously liable.

In Bezuidenhout NO v Eskom 2003 (3) SA 83 (SCA) an employee transported a passenger in the

employer's vehicle contrary to express instructions not to transport passengers. The claim for
compensation from the employer by the injured passenger was unsuccessful. The court held that
the employee’s conduct in transporting passenger was not performed in the course and scope of
his employment as the employer had forbidden the employee from carrying unauthorised
passengers.

See also Karoi Tractor Services (Pvt) Ltd v Doro & Co (Pvt) Ltd HH-188-87.

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Crimes committed by employees
Even if the delict committed by the employee also constitutes a crime, the employer can
sometimes still be held liable provided the crime was committed in the course of the employee’s
employment.

In Local Authorities Pension Fund v Nyakwawa & Ors 2015 (1) ZLR 103 (H) the court stated
that theftuous conduct of an employee can render the employer liable for the loss suffered by the
victim of the theft. The test is whether the goods stolen had been entrusted to the employee’s care
by his employer. If they had not, the theft is outside the scope of his employment and the
employer is not vicariously liable.In this case, employees of the pension fund had stolen pension
funds and had stored these funds in a fraudulent account set up by employees of the defendant
bank. The funds were then withdrawn from the account and shared between the employees of the
fund and the bank.

The court found that the defendant bank was not vicariously liable. It decide that the theft by the
pension fund employees had been completed by the time the loot was transferred and stored in
the bank. The bank pair neither stole monies entrusted to them nor stole from the plaintiff at all.
All they did was to provide storage facilities for the funds stolen by the plaintiff’s own
employees.

Where employer still liable

In Rose NO v Fawcett Security Ops (Pvt) Ltd 1998 (2) ZLR 114 (H) a security company
contracted to collect money every week from P and take it to be banked. On the day that a
collection was due to take place, a phone call was received by the security company which
purported to come from P’s office. The caller informed the security company that no collection
was required that day by P so the security company proceeded to cancel the security run on that
day. Two men who turned out to be employees of the security company went on that day to P’s
premises dressed in their normal security clothes and collected money from P. They appeared to
have written authority from the security company to collect the money and they issued a receipt
for the money. The money was then stolen by these men and was never recovered. P claimed the
money from the security company arguing that it was vicariously liable for the dishonest acts of
its employees.

The court held that the employees were acting contrary to instructions and against and in breach
of the general purposes of their employment and the wishes and interests of their employer.
However, if the goods had been entrusted to the employees’ care by the employer, the employer
would be liable. For this to apply the employer did not have to physically hand the goods to the
employees; he had merely to entrust the employees with the receipt and care of the goods on his
behalf. The authority of the employees to receive and care for the goods includes an ostensible
authority. Such authority covers acts to which the ostensible performance of the employer’s work
gives occasion or which are committed under the cover of the authority which the employees are
held out as possessing or the position in which they are placed as representatives of the
employer. By appointing persons as security guards, a security company creates the risk that the
guards could prove to be untrustworthy and abuse or misuse their powers. On this basis, the
security company was held liable to P for the acts of its employees.

In Mberi v Fawcett Security Operations (Pvt) Ltd HH-24-03 a Fawcett security guard was
assigned to guard P’s premises. The guard broke into the locked house and stole property. The
security company was held vicariously liable. The court held that it is essential in this type of
case that the employer has entrusted the care of the property stolen to the employee. In the
present case by posting the guard the employer had entrusted the care of P’s property to its
employee, even though the house was locked and the guard did not have access to it as part of his
duties.

In Phillips Central Cellars (Pvt) Ltd v Director of Customs and Excise 2000 (1) ZLR 353 (H) it
was decided that even where an employee commits a wrong in pursuit of his, rather than the
employer’s, interests, the employer may still be vicariously liable, provided that the wrong is
nonetheless sufficiently proximate to his duties and authority and to the employer’s interests as
reasonably to justify the conclusion that in committing the wrongdoing the employee was still
engaged upon functions to which he was appointed. The key issue is the degree of departure
from the employer’s business. Since the question is a matter of degree, the further removed the
misconduct is from the employer’s own interest and business, the more important becomes the
questions of the employee’s ostensible authority, general powers and specific duties. For the
employer to be held vicariously liable it is not enough that the employee merely takes advantage
of an opportunity for dishonesty presented by his employment.

In this case, P paid a clearing agent to clear goods through customs. P handed over the correct
amounts of customs duty to the agent to pay the duty but the agent, acting in collusion with a
corrupt customs officer, converted most of the payments to his own use. The court held that the
employer was vicariously liable for what the customs officer had done. The customs official was
behaving in a way that was forbidden and was pursuing his own interests. However, in doing so
he was using an authority vested in him to assess duty; to receive payment of duty; to enter data
into a computer system; to produce and issue bills of entry; and to pass payment of duty on to his
employer. In doing these authorised acts, he deviated from his appointed course by falsifying
computer entries; producing, issuing and filing false documents; converting part of the duties
received; and accounting to his employer for only part of those duties. This was more than
merely taking advantage of an opportunity for fraud afforded by his employment. It was an abuse
of a power and a misuse of authority so clearly connected with his duties that the false bills of
entry were on file as official records. The duties not stolen, and balancing the false bills of entry
on file, had become receipts in the hands of the employer. On the other hand, P was not liable for
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the fraud of its agent as a principal. It would only be liable for the agent’s delicts which were
specifically authorised or committed in obtaining the authorised results, neither of which applied
in the present case.

Munengami v Minister of Defence 2006 (1) ZLR 409 (H) it was stated that the fact that the
servant uses equipment or material provided by his master in carrying out a wrongful action does
not make the master liable. The critical question is whether the servant was exercising the
functions for which he has been appointed and whether there was a close link between his
conduct and his duties.

In Hirsch Appliance Specialists v Shield Security Natal (Pty) Ltd 1992 (3) SA 643 P's property
was stolen by D’s servants, who were employed to guard the goods. D was held vicariously
liable.

In South African Revenue Service & Anor v TFN Diamond Cutting Works (Pty) Ltd 2005 (5) SA
113 (SCA) an employee of the State, whose duty it was to keep goods safe, had stolen the goods.
The State was held vicariously liable for theftuous conduct of its employee.

In K v Minister of Safety and Security 2005 (6) SA 419 (CC) the applicant, who was brutally
raped by three uniformed policemen who had given her a lift, applied for leave to appeal against
a judgment of the Supreme Court of Appeal that held that the respondent was not vicariously
liable for policemen's conduct. One of the grounds of appeal was that the SCA had erred in its
application of the common law test for vicarious liability; that if it had not, the test had to be
developed as intended in s 39(2) of the South African Constitution. Leave to appeal was granted.

The court held that the overall purpose of s 39(2) was to ensure that the common law was infused
with constitutional values. This normative influence had to extend throughout the common law,
not only to instances in which the existing rules were clearly inconsistent with the Constitution.
Thus the obligation s 39(2) imposed on courts was extensive and required them to be alert to the
normative framework of the Constitution not only when some startling new development of the
common law was in issue, but in all cases in which the incremental development of the rule was
in issue. It held that the protection of the applicant's fundamental rights (to security of the
person, dignity, privacy and substantive equality) were of profound constitutional importance. It
was part of the duties of every police officer to ensure the safety and security of the public and to
prevent crime. These were constitutional obligations affirmed by the provisions of the Police Act.
The court held the principles of vicarious liability and their application had to be developed to
accord more fully with the spirit, purport and objects of the Constitution. What this meant was
that the existing principles of common law vicarious liability had to be understood and applied
within the normative framework of the Constitution, and the social and economic purposes
which they sought to pursue. Although in committing the rape, the police officers had deviated
from their duties and were acting for their own purposes and not those of the employer, they
were simultaneously omitting to perform their duties as policemen. There were several important
facts pointing to the closeness of the connection between the conduct of the policemen and the
business of their employer. First, the policemen all bore a statutory and constitutional duty to
prevent crime and protect the members of the public. That duty also rested on their employer,
and the policemen had been employed to perform that obligation. Secondly, the policemen had
offered to assist the applicant and she had accepted their offer. She thus placing her trust in them.
In determining whether the Minister was vicariously liable, the court had to take into account the
importance of the constitutional role entrusted to the police and of nurturing confidence and
public trust in the police in order to ensure that their role was successfully performed. It had been
objectively reasonable for the applicant to place her trust in the policemen. From a constitutional
perspective the connection between the conduct of the policemen and their employment was
sufficiently close to render the Ministry liable. Accordingly, that the Ministry was vicariously
liable to the applicant for the wrongful conduct of the policemen.

Where employer not liable

In Fawcett Security Operations (Pvt) Ltd v Omar Enterprises (Pvt) Ltd 1991 (2) ZLR 291 (S)a
security guard employed at a supermarket to detect and prevent shoplifting and other thefts stole
goods from the supermarket.The court decided that the guard was not abusing authority with
which his employer, a security company, had clothed him, but had simply taken advantage of
opportunity, which his employment afforded him, to steal. This was not a risk created by the
security company and it was therefore not liable. There was no call for enlisting the aid of public
policy in order to render the security company liable in such circumstances. The decision in this
case seems to be inconsistent with later decisions on these types of situation. See criticism of this
case by Madhuku “Vicarious Liability of an Employer for the Delictual Acts of his Servant under
Zimbabwean Law” 1998 Vol 38 No 2 Journal of African Law pp 181-188.

In Costa da Oura Restaurant (Pty) Ltd t/a Umdloti Bush Tavern v Reddy 2003 (4) SA 34 (SCA)
an employer was not vicariously liable for assault by an employee on a restaurant patron as the
assault had occurred outside the establishment, after the employee had abandoned his duties. The
personal act of aggression was done neither in furtherance of employer's interests, nor under his
express or implied authority, nor as incident to or in consequence of anything the employee was
employed to do.

In Ess Kay Electronics Pte Ltd & Anorv First National Bank of Southern Africa Ltd 2001 (1) SA
1214 (SCA) an employee of abank committed a fraud causing Ps loss. The act was done solely
for employee's own interests and purposes and outside his employee’s authority.It was not done
in the course of employment, even if it done during such employment. The employee had acted
outside the scope of his actual authority and outside course of his employment. D was held not
liable.

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In Energy Measurements (Pty) Ltd v First National Bank of SA Ltd 2001 (3) SA 132 (W)
Cheques were stolen by a bank’s employee. The theft of the cheques did not constitute a mode of
carrying out the functions nor did it constitute performance of his functions, albeit in
mismanaged manner, of the work the employee was employed to perform on behalf of P. In
stealing the cheques the employee had abandoned and completely disengaged from his duties
under his contract of employment. D was not vicariously liable for the criminal act of his
employee.

In Ndlovu v Debshan (Pty) Ltd & Anor HH-28-2013 D2 who was employed by D1 as a farm
guard, shot the plaintiff at a nearby farm using the first defendant’s firearm. The court held that
the employer was not liable for the harm to P as the shooting had occurred outside his farm and
the employee had not been assigned to perform duties at the neighbouring farm.

See also Nel & Anor v Minister of Defence 1978 RLR 455 Thefts by State servants; Lloyd v
Grace, Smith & Co [1912] AC 716 (HL) liability for fraud committed by employeeand Morris v
C W Martin & Sons Ltd [1966] 1 QB 716 thefts.

Other cases on vicarious liability

For other South African cases on vicarious liability, see also R H Johnson Crane Hire (Pty) Ltd v
Grotto Steel Construction (Pty) Ltd 1992 (3) SA 907 (C); Tshabalala v Lekoa City Council 1992
(3) SA 21 (A); Macala v Maokeng Town Council 1993 (1) SA 434 (A); Squire v Sasol Mynbou
(Edms) Bpk en Andere 1993 (3) SA 298 (T); Harnischfeger Corporation & Anorv Appleton &
Anor 1993 (4) SA 479 (W); Greater Johannesburg Transitional Metropolitan Council v Absa
Bank Ltd t/a Volkskas Bank 1997 (2) SA 591 (W); Smit v Minister van Polisie 1997 (4) SA 893
(T); Midway Two Engineering & Construction Services v Transnet Bpk 1998 (3) SA 17 (SCA);
Masuku & Anor v Mdlalose & Ors1998 (1) SA 1 (SCA); Rofdo (Pty) Ltd t/a Castle Crane Hire v
B & E Quarries (Pty) Ltd 1999 (3) SA 941 (SE);Bond Equipment (Pretoria) (Pty) Ltd v Absa
Bank Ltd 1999 (2) SA 63 (W); Dowling v Diocesan College & Ors 1999 (3) SA 847 (C);
Messina Associated Carriers v Kleinhaus 2001 (3) SA 868 (SCA); Van der Berg v Coopers &
Lybrand Trust (Pty) Ltd & Ors 2001 (2) SA 242 (SCA);Grobler v Naspers Bpk en 'n Ander 2004
(4) SA 220 (C).

Claim by employer against employee

In Quest Motor Corporation (Pvt) Ltdv Nyamakura 2000 (2) ZLR 84 (H) the judge stated that
there is no reason in principle why an employer who has suffered loss as a result of the negligent
performance by an employee of his or her duties should not be able to claim damages from the
employee. It is an implied term of a contract of employment that an employee will exercise skill
and care in the performance of his or her duties. This must be combined with the employer’s
duty to provide all necessary assistance. However, if the employee does not hold himself or
herself out as possessing any special ability or skill, it may be that the employee undertakes no
responsibility, and the employer would be held to have incurred all risks.

The employee in the present case did not hold himself out as possessing any special skills or
attributes. P had decided that he was suitable for the position, but did not put in place any
supervisory procedures to ensure that he carried out his duties. The employee’s failure was due to
incompetence rather than negligence. The employer was the author of its’ own misfortunes.

Liability of employer based on negligence

Even though the employer may not be vicariously liable, the employer may sometimes still be
liable on the basis of the negligence on the part of the employer. Thus in Witham v Minister of
Home Affairs 1987 (2) ZLR 143 (H) even though the police were not vicariously liable for the
shooting of civilians by a mentally deranged police officer because the police officer was not
acting in the course of his employment when he shot the civilians, the police were directly liable
under the Aquilian action as the police had created a dangerous situation by putting on duty this
officer when they knew that he was suffering from mental instability.

Similarly, a security company could be held be liable for theft by an employee on the basis of its
own negligence if it negligently employs a security guard that it knows or should have known is
dishonest or where it negligently fails to properly supervise its security guards. See Fawcett
Security (Pvt) Ltd v Omar Enterprises (Pvt) Ltd 1991 (2) ZLR 291 (S).

Delicts committed by independent contractors

There is no vicarious liability for delicts committed by independent contractors.

In Banda v Gamegone (Pvt) Ltd & Anor HH-133-03 the court said that the vicarious liability of
employers for the delicts of employees does not extend to independent contractors. The test as to
whether a person is an employee or an independent contractor is the existence of a right of
control over the person in respect of the manner in which his work is to be done. A servant is an
agent who works under the supervision and direction of his employer; an independent contractor
is one who is his own master. A servant is a person engaged to obey his employer's orders from
time to time; an independent contractor is a person engaged to do certain work, but to exercise
his own discretion as to the mode and time of doing it. The usual test is the “supervision and
control” test. Control includes the power of deciding the thing to be done, the way in which it
shall be done, the means to be employed in doing it, the time when, and the place where it shall
be done. All these aspects of control must be considered in deciding whether the right exists in a
sufficient degree to make one party the master and the other his servant. The right need not be
unrestricted. However, while the questions of control and supervision are important factors in
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determining the issue, they are not the sole criteria; all the circumstances surrounding the
contract must be considered in order to determine the issue, and no single factor could be treated
as the sole basis of determining the issue.

However, if the person employing an independent contractor to do a job of work is himself or

herself negligent, he or she may be held liable for that negligence. This could arise if D hires an
independent contractor whom he knowsis not competent to perform the task. For example, D
employs someone to repair his car. He knows the person employed has no mechanical
qualifications and no expertise to carry out the work. The result is that the repairs are not done
properly and when D takes the car out on the road D has an accident in which a third party is
injured. D may be liable to the third party because of his own negligence.

Another situation of potential negligence could arise where, in order to carry out the work safely,
it is necessary for the employer to appraise the person engaged of certain facts known to the
employer or to give him certain instructions, then again the employer may be liable for his own
negligence in failing to supply the necessary information or the instructions.

An exception to the rule that an employer of an independent contractor is not vicariously liable
for the delicts of the independent contractor is where the employer employs an independent
contractor to do work which is inherently dangerous. Here, it has been ruled in a number of cases
that if the work is of a dangerous character the employer is bound to ensure that the proper
precautions are taken by the independent contractor and if he fails to do so he will be liable if
harm results to a third party from the work being done. What is meant by “inherently dangerous”
work in this context has not been exhaustively spelt out, but the demolition of a building close to
a public road and the use of explosives have been held to fall into this category. On the other
hand, the felling of a tree has been said not to be an inherently dangerous operation. It would
seem therefore that the danger must be extraordinary or of a high magnitude before the rule that
the employer himself is obliged to ensure that due precautions are taken comes into operation.

In Masango & Ors v Kenneth & Anor S-41-15 the court pointed out that the difference between
an agent and an independent contractor is that an agent is bound to act in the matter of the
agency subject to the directions and control of the principal, whereas an independent contractor
merely undertakes to perform certain specified work, or produce a certain specified result, the
manner and means of performance of production being left to his discretion, except as far as they
are specified by the contract. This distinction cannot be ignored, because the contract between
master and servant is one of letting and hiring of services (locatio conductio operarum), whereas
the contract between the principal and a contractor is the letting and hiring of some definite piece
of work (locatio conductio operis). In the former case the relation between the two contracting
parties is much more intimate than in the latter, the servant becoming subordinate to the master,
whereas in the latter case the contractor remains on a footing of equality with the employer. The
crucial difference between these two cases lies in the fact that where a master engages a servant
to work for him the master is entitled under the contract to supervise and control the work of the
servant. He is entitled at any time to order the servant to desist, and if the matter is sufficiently
serious may even dismiss him for disobedience.
“Control” in this context includes the right of an employer to decide what work is to be done by
the employee, the manner in which it is to be done by him, the means to be employed by him in
doing it, the time when and the place where it is to be done by him. Supervision implies the right
of the employer to inspect and direct the work being done by the employee.
An independent contractor is his own master, free of his employer’s control and representing no
one else, when performing the obligations he is called to perform under the contract which he
has entered into with his employer, such obligations not being those of contracting legal relations
with third parties on behalf of his employees.
A principal is liable for the delict of his agent where such agent is a servant, but not where he is a
contractor or sub-contractor or their servant. Similarly, an agent has authority to bind his
principal in contract whereas the independent contractor has no such power.
Remuneration by commission, although not by itself decisive, is a strong indication against a
relationship of master and servant.
The fact that the principal provides a motor vehicle is not in itself proof that the agent is a
servant.

In Langley Fox Building Partnership (Pty) Ltd v De Valence 1991 (1) SA 1 (A) a D is only liable
for the actions of an independent contractor if he was personally at fault. The fact that the work is
per se dangerous is one of the factors to be taken into account in deciding whether D was
personally negligent. The majority of the court found that the main contractor was liable for the
delict perpetrated by a subcontractor who was an independent contractor because the main
contractor had been negligent.

In Dukes v Marthinusen 1937 AD 12 the court found that demolition of a building next to a road
was an inherently dangerous operation. See also Rhodes Fruit Farms v Cape Town City Council
1968 (3) SA 514 (C).

Client engaging lawyer not vicariously liable for delict of lawyer

In Ritenote Printers (Pvt) Ltd & Anor v A Adam & Co (Pvt) Ltd S-26-16 the Supreme Court
decided that a client is not vicariously liable for a delict committed by his or her lawyer when
representing the client. The justification for vicarious liability in an employer-employee
situation do not apply with equal force in cases where persons obtain professional services.
One usually engages a professional because one wishes to avoid doing things incorrectly.
One relies upon the skilled person to avert loss to another. To hold the client liable for the
conduct of the professional is contrary to one’s sense of fair play. It is neither equitable nor
reasonable to distribute the loss. A client is not liable for the delict committed by his legal

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practitioner, unless he makes common cause with such lawyer or otherwise instructs him to
proceed notwithstanding an obvious irregularity in the papers. In the latter instance the client
would be directly liable. But a plaintiff who was claiming delictual damages under the lex
Aquilia must not only allege but prove, inter alia, culpa. In alleging such culpa, the party
must give sufficient particulars of the mental status of the offending party so that the latter
knows what case he has to meet. Failure to allege culpa or to provide particulars of such
culpa is fatal, as the claim would not disclose the plaintiff’s cause of action. Here, no
particulars of such wrongfulness or intention were provided. It was incumbent on the
appellant to allege how, in the circumstances of this case, the respondent’s conduct had both
been wrongful and intentional. The declaration did not indicate how, having left all its affairs
in the hands of its legal practitioner and, not having interfered with the legal practitioner’s
use of discretion in any way, the respondent’s conduct would have been considered wrongful.
Nor was there any indication in the papers as to how, in these circumstances, the respondent’s
conduct could be said to have been intentional or even negligent. In the absence of an
averment and evidence that the respondent had done more than just brief its legal
practitioner, neither wrongfulness nor culpa were alleged or proved and the appellants had no
cause of action.

Liability for person not employed by defendant

In Mushonga v Zinhumwe 2015 (1) ZLR 846 (H) D had parked her car at a hotel where a driver
was employed. The driver had driven the car with D’s permission presumably to park it. Whilst
driving the car he had collided with P’s car. P claimed damages from D. The court dismissed the
claim, deciding that person who had driven D’s car was not an employee or agent acting in the
scope and course of employment in furtherance of her business. To find D liable P would have
have been shown to have authorised the use of her car and to have been capable of controlling
the actions of the driver.

Vicarious liability of State

Under the State Liabilities Act [Chapter 8:14], the State can be sued in delict for harm caused by
State employees acting in the course of their employment or, as the Act puts it in s 2, the State is
liable for “any wrong committed by any servant of the State acting in his capacity and within the
scope of his authority as such servant”.

Section 3A of the Act provides that the President, Vice President or the Minister or Deputy
Minister of the relevant department may be cited as the nominal defendant, but he shall be cited
by his official title and not by name. Under s 5, notice in writing of the intention to bring the
claim has to be served on the State at least 60 days before the institution of the proceedings.
Where the claim is against or in respect of an act or omission of any officer or employee of the
State, it must specify the name and official post, rank or number and place of employment or
station of the officer or employee, if known.

It should be noted that certain statutes contain immunities against delictual liability, or lay down
special procedures for suing the State. Before commencing action against the State the relevant
statute should be carefully examined to ascertain whether there are such immunities or specified
procedures.

For instance there is no liability for loss of or misdirection of or loss caused by delays in the
delivery of postal items. s 58 Postal and Telecommunications Act. In Nyakabambo v Minister of
Justice, Legal and Parliamentary Affairs & Ors 1989 (1) ZLR 96 (H) there was an action against
the Attorney-General for unlawful detention and malicious prosecution. The AttorneyGenera;l
claimed that he was immune from liability for a civil suit. The Court held the Attorney-General’s
immunity in the proviso to s 13(5) of the previous Constitution is a qualified one; he is immune
only if he acts reasonably and without malice and without culpable ignorance or negligence.
Persons with independent authority in terms of Constitution

Baxter in Administrative Law argues the private law model of vicarious liability in field of public
law causes problems and acts as hindrance to development of a proper approach to public
liability. There is no difficulty where the person committing the delict is an employee in the
normal sense and is subject to the direct control over work, e.g. a City Council road worker.

But many State officials, especially high ranking officials, exercise personal powers under statute
and some are given independent status e.g. the Attorney-General - these persons are not acting
as employees of the executive, but rather are acting on behalf of executive and the normally
understood employer-employee relationship is absent. In practice there are no great difficulties
providing courts continue to use the approach that plays down need for control in any direct
sense and simply require that the State employee committed the delict in connection with his
official duties and within the scope of authority as an employee of the State.

In a case involving the Prosecutor-General had declined to prosecute a rape case but the litigant
wished to institute a private prosecution against the accused. In order to initiate such a
prosecution he was required to obtain a certificate from the Prosecutor-General that he has
declined to prosecute the person. The Prosecutor-General refused to issue this certificate. Under
section 260 of the Constitution it is provided that subject to this Constitution, the Prosecutor-
General is independent and is not subject to the direction or control of anyone. The Prosecutor-
General argued that argued that the court could not compel him to issue such certificate as this
would be an unconstitutional interference in his independence. The Constitutional Court decided
otherwise. It ruled he was not above the law and it ordered him to issue the certificate. When he

200
failed to do so, it held him in contempt and imposed a prison sentence suspended on condition he
complied with the order. This upheld the rule of law.

Enforcement of judgment
Section 5 of the State Liabilities Act provides that where a person successfully sues the State and
obtains a judgment, the court cannot order execution or attachment against State property but the
nominal defendant (that is usually the Minister of State) may cause the judgment debt to be paid
out of State funds.

As regards the use of contempt proceedings to enforce a judgment, see Mhora & Anor v Minister
of Home Affairs & Anor 1990 (2) ZLR 236 (H). See also 1987 Vol. 5 Zimbabwe Law Review 26
at 50 and Chairman, PSC & Ors v ZIMTA & Ors 1996 (1) ZLR 637 (S)

In South Africa the provision disallowing attachment of State property has been struck down on
constitutional ground in the case of Nyathi v MEC for Health, Gauteng and Another 2008 (5) SA
94 (CC). In this case Mr Nyathi, whilst undergoing treatment for severe burns at a government
hospital, suffered a stroke as a result of an incorrect surgical procedure. As a result of the stroke
he was rendered severely disabled. Alleging negligence, Mr Nyathi sued the Provincial Health
authority for damages. The State conceded negligence. After obtaining the High Court judgment
he ultimately tried to enforce the judgment by way of attachment of State property. He
challenged the constitutionality of provision barring attachment of State property. The court
issued an order declaring constitutionally invalid the section in the State Liability which
prohibits parties to whom debts are owed by the State from executing against or attaching state
assets for the satisfaction of judgment debts. Madala J, (for the majority), found the provision
unjustifiably limited the right to equal protection of the law contained in section 9(1) of
Constitution and was inconsistent with the constitutional protection of dignity and the right of
access to the courts. The Court held too, that s 3 also violated the principles of judicial authority,
and the principle that the public administration be accountable. Section 3 effectively placed the
State above the law because the section, as it stood, did not positively oblige the State to comply
with court orders. The Court therefore upheld the declaration of constitutional invalidity, but
suspended the order for 12 months in order to allow parliament to pass legislation that provides
for an effective means of enforcement of money judgments against the state.

In Zimbabwe in the case of Mangwiro v Minister, Justice & Legal Affairs (N.O.) & Ors HH-172-
17 the provision in the State Liabilities Act barring attachment of State property was ruled to be
unconstitutional but the judgment was referred to the Constitutional Court for confirmation. In
that case a Minister of State had refused to obey court orders ordering the payment of money to
the litigant. The judge said the respondents are positively refusing to obey court orders and in the
process wilfully and deliberately obstructing the court processes. This came after the then
Minister had been sentenced to 90-day prison term for contempt of court based on his failure to
comply with the court order, demanding him to release the money. The judge said:
 “If Section 5 (2) is being used to frustrate justice as is clearly the case in the present
matter, then Section 5 (2) is not justifiable in a democratic society based upon
openness, justice, fairness, human dignity, equality and freedom,” she said, adding that
the respondents’ actions were unconstitutional. She further said that the duty of the
court can never be felt if court orders are ignored as though they are ‘meaningless
pieces of paper’ “.
See also Mangwiro v Chombo NO HH-710-16

Prescription
Section 70 of the Police Act [Chapter 11:10] provides that any civil proceedings to be instituted
against the State or a member of the police force must be commenced within eight months after
the cause of action has arisen, and 60 days notice in terms of the State Liabilities Act must be
given.

Section 196 of the Customs and Excise Act [Chapter 23:02] similarly provides that no civil
proceedings may be instituted against the State, the Commissioner or an officer for anything
done or omitted to be done by the Commissioner or an officer under this Act or any other law
relating to customs and excise until 60 days after notice has been given in terms of the State
Liabilities Act and such proceedings must be brought within eight months of the cause of action
arising

In Nyika & Anor v Minister of Home Affairs & Ors HH-181-16 the court decided that there was
no reason why the general the year prescription period for ordinary debts as contained in s 15 (d)
of our Prescription Act should not govern claims against the police. It found that the provision
providing for the shorter period of prescription for actions against the police violated s 69(2) of
the Constitution (on the right to a fair hearing) and s 56 (1) (on the right to equality before the
law and equal protection of the law). It referred the matter to the Constitutional Court in terms of
s 175 (1) of the Constitution for its confirmation or otherwise of this constitutional ruling.

It is strongly arguable that the ruling in the Nyika case the shortened period of prescription in
respect of actions against the police should also apply in respect of actions against customs
officers. In other words this shortened period of prescription is also unconstitutional.

Faircape Property Developers (Pty) Ltd v Premier, Western Cape 2002 (6) SA 180 (C) Liability
of Premier of provincial government for negligent acts of Cabinet Minister.

Parents
Under general law, parents are not vicariously liable for the delicts of their minor children. A
parent is only liable if he or she was personally negligent. For instance, if he or she fails to take

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reasonable steps to prevent a child from having access to a dangerous object, such as a firearm,
then there may be liability under the Aquilian action if the child uses that object in such a way as
to cause harm to a third party.Flowers v Towers 1962 R&N 221 (FS) and Godfrey & Orsv
Campbell 1997 (1) SA 570 (C).

Spouses
A spouse is not liable for the delicts of the other spouse.

Labuschagne v Cloete 1987 (3) SA 638 (T) on a husband and wife situation.

On the other hand, under customary law a father is held liable for the delicts of children under
his control. See Goldin & Gelfand African Law and Custom in Rhodesia p 238.

A spouse is not vicariously liable for the delicts committed by his or her spouse.

Vicarious liability for wrongful property attachment by Sheriff & Messenger

of Court
In Tendere v Harare City Council 2004 (1) ZLR 495 (S) the respondent had obtained judgment
against a debtor and issued a warrant of execution. The Messenger of Court went to the address
given as the address for service and seized property found there. The property belonged to the
appellant, who now resided there, the debtor having moved elsewhere. The appellant sued the
respondent for the loss and expenses caused, claiming that the respondent had been negligent. He
did not sue the Messenger of Court. Negligence was not established on the part of either the
respondent or the Messenger. The court held that the Messenger of Court is appointed by the
Minister of Justice in terms of the Magistrates Court Act [Chapter 7:10]. He is the executing arm
of the court and performs the functions given to him under the Act. He is thus the Messenger of
the Court and not the messenger of the judgment creditor. Apart from the statutory provision, the
proposition that a Messenger of Court is not an agent for the judgment creditor is well settled.
Even if the messenger of court is strictly liable in delict for wrongful attachment, the judgment
creditor is not vicariously liable for the actions of the Messenger of Court. It is only where the
judgment creditor or his attorney plays an active role in the unlawful attachment of the property
by the Messenger of Court and makes the Messenger’s actions his own that he or his attorney can
be held liable on the same basis as the Messenger of Court.
 CHAPTER 14 - DEFENCES
Authority
This takes two forms. The authority can derive from common law or, more usually, from statute.

Under common law, just about the only recognised situation where harm may be inflicted
without delictual consequences is where parents or guardians inflict moderate corporal
punishment upon their children for disciplinary purposes. The law recognises that parents are
legally entitled to inflict such punishment. As regards corporal punishment in schools, this is
subject to legislative control and, for instance, no corporal punishment may be inflicted upon
female pupils. Doubt was cast on the legality of corporal punishment in schools as a result of the
judgment by Dumbutshena CJ in the constitutional case on juvenile whipping S v A Juvenile
1989 (2) ZLR 61 (S). However, the Constitution was amended and it now provides in s 15 that
the infliction of moderate corporal punishment will not be held to violate the right to protection
against inhuman or degrading punishment or treatment:
 in appropriate circumstances upon a person under the age of eighteen years by his
parent or guardian or by someone in loco parentis or in whom are vested any of the
powers of his parent or guardian; or
 in execution of the judgment or order of a court, upon a male person under the age of
eighteen years as a penalty for breach of any law.

Parents, guardians and schoolteachers are legally authorised to inflict moderate corporal
chastisement upon children in their care. In terms of the Education (Disciplinary Powers)
Regulations, SI 298 of 1990, which relate to both Government and private schools, only
headmasters and deputy headmasters are permitted to inflict corporal punishment and this
punishment may only be inflicted on schoolboys; schoolgirls may not be so punished.

In Mahomed v Silanda & Anor HH-281-91 a teacher severely assaulted a young pupil with a
stick. The assault was unlawful and the regulations relating to the administration of corporal
punishment were not complied with. In S v Mangwarira S-194-88 a student teacher, was
convicted of assault after she had caned a pupil. She admitted during her trial that she knew that
only the headmaster was allowed to administer strokes.

Husbands have no legally recognised right to chastise their wives. Such chastisement constitutes
an assault.

Regarding statutory authority, a distinction must be made between where the statute is directory
and where it is merely permissive. If an authority is directed to do a certain thing, the authority
cannot be held delictually liable if it does the very thing it was directed to do in the manner

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authorised. Where the authority is only permissive the courts have to decide what was intended
by the Legislature and to what extent interference with rights was intended. In more general
terms, if a body or individual was authorised by legislation to do a certain thing it will not be
delictually liable, provided that the act fell within the power given and provided that the act was
done without negligence. Immunities may also be contained in legislation whereby no
compensation is payable for negligent infliction of harm.

Necessity
The requirements for this defence are:
 A legal interest must have been endangered;
 The threat to that legal interest must have commenced or be imminent;
 The threat must not have been caused by D’s own fault;
 The action must be necessary to avert the threat; and
 The means used to avert the threat must be reasonable.

The defence covers situations other than those encompassed by private defence (i.e. it does not
cover cases of defence of person and property against an assailant). In situations of necessity, D
inflicts harm upon the person or property of an innocent third party to avoid greater harm to the
person or property of himself or another. As harm is caused in these sorts of cases to an innocent
third party the defence is only allowed to succeed very sparingly. An example of where the
defence would be likely to succeed is where, for instance, D, in order to avoid a collision with a
young child who has suddenly stepped onto the road, mounts the pavement and damages
property such as a shop window or a stall on the pavement.

See S v Ndlovu HB-31-84.

Where D kills an animal belonging to P to prevent the animal from injuring him or damaging his
property, the defence of necessity would have to be raised as private defence only applies to
attacks by human persons.

Private defence
The requirements for this defence are:
 There must be an unlawful attack;
 The attack must be on D, a third party or the D’s property;
 The attack must have commenced or be imminent;
 D’s defensive action must have been necessary to avert the attack; and
 The means used to avert the attack must be reasonable.
In Kgaleng v Minister of Safety and Security & Anor 2001 (4) SA 854 (W) D pleaded the defence
of self-defence. As objectively D was not in danger the defence failed. However, D was
nevertheless able to escape liability on the basis thathe had a bona fide, though erroneous, belief
that his conduct was justified. This excluded consciousness of wrongfulness and thus excluded
fault in form of dolus and provided that a reasonable person would not have reacted differently in
D’s circumstances this would also have excluded fault in form ofculpa.

As regards the defence of self-defence see Mabaso v Felix 1981 (3) SA 865 (A).

Provocation
Provocation may sometimes justify the action taken.

The provocation must be of such a nature that it can be considered as a reasonable response.
The action taken must immediately be in response to the provocation and action taken must be
reasonable in proportion to the provocation offered.

In Dzvairo v Mudoti 1973 RLR 166; 1973 (3) SA 287 (RA) there was an unprovoked attack upon
D by P punching him. D retaliated by striking a single blow upon P. Provocation acted as a full
defence.

See also Mordt v Smith 1968 (2) RLR 330; 1968 (4) SA 750 (RA) provocation had not been
established in this case; Powell v Jonker 1959 (4) SA 443 (T) and Wessels v Pretorius, NO en 'n
Ander1974 (3) SA 299 (NC).

Voluntary assumption of risk

General
In our law it is recognised that in certain circumstances the defence of voluntary assumption or
risk (volenti non fit injuria - he who voluntarily exercises his will suffers no injury) will operate
as a total defence to an action brought by P thereby precluding him from recovering any
damages. The theory underlying this defence is basically that if a person, knowing of the full
nature and extent of the risks involved in an enterprise, voluntarily goes into that enterprise,
thereby freely assuming or undertaking the risk of injury to himself, he should not be able to sue
for his injuries. Thus, even if D was negligent, under this defence P would be debarred from
recovering damages from D as he is held to have voluntarily assumed the risk of such injury.

In Lampert v Hefer NO 1955 (2) SA 507 (A) a passenger was aware that the motor cyclist with
whom he was riding was under the influence of alcohol. The defence of volenti succeeded as a
full defence.
206
It was pointed out in the case of Maartens v Pope 1992 (4) SA 883 (N) that for the defence of
voluntary assumption of risk to apply, the risk must not be a mere fanciful or abstract risk but
must be a real one inherent in situation and the P assumed that risk.

The tendency in many countries has been to confine this defence within extremely narrow limits.
Indeed, in some countries the defence has been totally abolished in favour of dealing with these
situations under the law relating to contributory or comparative negligence.

In Zimbabwe, there is no leading case authority that lays down definitively the scope of this
defence. In South Africa, the courts have rejected the narrow so-called “bargain” or bilateral
agreement approach to this defence in favour of the more extensive voluntary assumption of risk
approach. The basic difference between these two approaches is as follows: With the “bargain”
approach, nothing less than an advance communication leading to an express or implied
agreement between the parties is required whereunder P agreed to waive or give up his legal
right to claim in respect of that type of harm. (This pre-supposes that P had full knowledge and
appreciation of the nature and extent of the risk involved.) On the other hand, the voluntary
assumption of risk approach does not require that P must have agreed in advance of the
enterprise to surrender his right to sue in the event of his being injured; all that is required is that
P, having full knowledge and appreciation of the nature and extent of the risk involved in an
enterprise, nonetheless voluntarily goes into the enterprise thereby assuming the risk of injury.
For example, if P, knowing that D was very badly drunk and incapable of driving his car
properly, accepts a lift in D’s car and is injured in an accident caused by D’s drunken condition, P
would be debarred from recovering under the voluntary assumption of risk approach. (But not
under the “bargain” approach, as there had been no agreement whereunder P agrees to waive his
legal rights to claim against D in the event of an accident occurring.)

Even though South Africa has adopted the wider voluntary assumption of risk approach, the
defence is still a difficult defence to raise successfully because of its requirements. It only applies
where P, having full knowledge and appreciation of the nature and extent of the risks involved in
an enterprise, nonetheless enters the enterprise thereby indicating that he is prepared to undergo
those risks. In the leading South African case of Santam Insurance Co v Vorster 1973 (4) SA 764
(A), it was laid down if P had subjectively foreseen the risk of injury to himself, this would
“ordinarily” suffice as consent thereby debarring P from recovering damages. It went on to refer
to the practical difficulties of establishing subjective foresight, given the fact that direct evidence
of this was infrequently available and P would be likely to deny subjective foresight.

In order to overcome these difficulties, the court said that a two-stage approach should be
adopted. First, the question should be asked as to what objectively were the inherent risks of the
hazardous activity in question. Second, having determined what objectively were the inherent
risks, the subjective test was then to be applied and the court had to make a factual finding as to
where P, despite protestations to the contrary, must have foreseen the particular risk which
caused his injuries (that being an objectively inherent risk) and thus whether he will be held to
have consented to undergo that risk.

Under the voluntary assumption of risk approach towards this defence, there are certain further
limiting features arising out of the requirement that the assumption of risk must be voluntary. In
two situations P will be acting under an obligation or constraint such that it cannot be said that
his conduct was voluntary. The first situation is the rescue situation. An example of this is where
D negligently leaves a horse unattended and unrestrained and it bolts. If P is injured in the
process of trying to stop the horse trampling a child directly in its path, it cannot be said that P
was acting freely as he was under a moral obligation to prevent injury to the child. The second
situation is where an employee (who is not employed to do inherently dangerous work such as a
steeplejack or a fireman) has to undergo a certain danger negligently created by the employer or
his foreman. The general approach adopted here is that even if the employee is fully aware of the
danger and continues work or continues under protest, the defence of voluntary assumption of
risk will not apply against him. This is because it will be accepted by the courts that the
employee was under economic constraint, namely, that if he did not obey the order to do the
work or did not assume the risk he might be sacked and therefore in undergoing the work he was
not acting freely.

See Mutandiro v Mbulawa HH-354-84 (passenger was aware that the driver he got a lift with
was under influence of alcohol); Santam Insurance v Vorster 1973 (4) SA 764 (A) (A race
between two cars on an ordinary road resulted in one of the cars overturning. P who was a
passenger in the vehicle that overturned sustained very serious injuries); Mathee & Anor vHarz
1983 (2) SA 595 (W) (P knowing that D was not licenced to drive volenti did not apply); Boshoff
v Boshoff 1987 (2) SA 694 (O) (Harm arising out of playing of sport); Labuschagne v Cloete
1987 (3) SA 638 (T) (Liability of owner of car for negligence of driver); Dann v Hamilton
[1939] 1 All ER 59 (KB) (Drunk driver); AshtonvTurner & Anor [1980] 3 All ER 870 (QB)
(Drunk driver in course of a criminal enterprise). See also Withers v Perry Chain Co [1961] 3 All
ER 676 (CA) and Birch v Thomas [1972] 1 All ER 905 (CA).

With medical procedures that result in harm being caused to patients, consent can be a defence
but only if the nature of the procedure and its risks has been properly explained to the patient
before obtaining the consent of the patient. See Stoffberg v Elliott 1923 CPD 148; Esterhuizen v
Administrator, Transvaal 1957 (3) SA 710 (T); and Chatterton v Gerson [1981] 1 All ER 257
(QB).

In S v Chipinge Rural Council 1988 (2) ZLR 275 (S) the court decided that young children do
not have the capacity to assume risks so as to be covered by volenti.

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For a case of perils encountered by persons trying to rescue persons in danger see Haynes v
Harwood [1935] 1 KB 146; 152 LT 121.
Which test should Zimbabwe adopt?
In due course, the Zimbabwean courts will have to work out the principles that will apply in
respect of the defence of volenti non fit injuria generally. The policy considerations will have to
be fully considered before decisions are made. Three options present themselves, namely:
 to adopt the “voluntary assumption of risk” approach; or
 to adopt the narrower “bargain” approach; or
 to abolish the defence entirely and deal with all such cases by apportioning liability by
using our legislation on contributory negligence.

It can be strongly argued that because the “all or nothing” approach which applies whenthis
defence is allowed to debar a claim is inequitable, the defence should be severely limited and
that most cases should be dealt with under the more equitable principles of apportionment. This
could be achieved by the adoption of the “bargain” basis liability. We could go even further and
entirely abolish this defence and deal with all cases under the apportionment legislation.

Intentional infliction of harm

So far, only cases where D has negligently inflicted harm have been dealt with. Situations where
D intentionally inflicts harm will now be examined. The type of case with which we are
concerned here is where a medical practitioner intentionally inflicts harm (e.g. by surgery) for
therapeutic purposes. (Non-therapeutic medical experimentation will not be dealt with.) The
starting point in this regard is the rule that any medical procedure is prima facie an assault (in
criminal law and delict), unless the patient has freely consented to having that procedure carried
out upon himself by the medical practitioner. Except in emergencies and in cases where the
patient is incapable of consenting and substitutionary consent from someone else is allowed by
the law (e.g. parents of a young child, the curator of an insane person, etc.), the medical
practitioner is obliged to recognise that the patient is a free agent who has a right to choose
whether or not to receive the treatment. Consequently, the medical practitioner is obliged to
disclose the nature and extent of risks inherent in a procedure so that the patient is able, on an
informed basis, to make up his mind as to whether he wishes to undergo those risks. At the same
time the law has attempted to take into account the practical difficulties that medical practitioners
may face in dealing with unduly timid patients who may be scared away from receiving
desperately needed treatment if the doctor discloses in gory detail the nature of the procedure and
all conceivable attendant risks.

For further details on this aspect of consent, see Feltoe & Nyapadi Law and Medicine in
Zimbabwe Chapter 2.
Dependant’s action
If X enters into an agreement which exempts D from liability from injury caused to D, this
agreement will prevent a dependant from suing in the event of X dying. In Jameson’s Minors v
CSAR 1908 TS 575the breadwinner was killed in a train accident caused by the negligence of the
railway company. The breadwinner was a passenger who had “a free pass” which excluded
liability of the railway company in these specific circumstances. The court decided that the
agreement by the breadwinner was no defence against the dependant’s action.

It would seem that the defence of volenti should not be able to be successfully raised by Din
respect of an action by a dependant for loss of support due to the death of a breadwinner, as the
duty of support of the breadwinner is independent of the duty of care owed to the deceased. See
Jameson’s Minors v CSAR 1908 TS 575.

(The position appears to be different in English law. See Salmond & Heuston The Law of Torts
19 Ed p 650.)

The dependant’s action would, however, fail if the deceased’s negligence was the proximate
cause of his own death.

If the deceased has in his lifetime, in the interval between the accident and his death, accepted
full compensation from D, the dependants will no longer be able to sue after his death.

CHAPTER 15 - EXEMPTION CLAUSES

EXCLUDING DELICTUAL LIABILITY
An exemption clause is a contractual term inserted by one contracting party to exclude or limit
his or her delictual liability to the other contracting party.
Consumer protection legislation
A number of countries have passed legislation to offer protection to consumers against insertion
in contracts of unfair exemption or limitation clauses. In 1994, Zimbabwe decided to follow suit
and adopt legislation to give protection to consumers against such unfair clauses. In terms of the
Consumer Contracts Act [Chapter 8:03], the courts have the power to cancel or ameliorate unfair
provisions in consumer contracts. As regards actions in delict, the important provisions in this
legislation are those dealing with exemption or limitation of liability for negligence.

Consumer contracts are contracts for the sale or supply of goods or services or both, in which the
sellers or suppliers are dealing in the course of business and the purchasers or users are not (s 1).

210
This means that the Act will apply to most sales and leases of consumer goods and to
manufacturing contracts, but it will not apply to contracts between dealers and between non-
trading individuals. The Act also does not apply to contracts for the sale, letting or hire of
immovable property or contracts of employment (s 1).

Where a contract contains any of the provisions set out in the schedule, a court can grant relief
against that provision unless it is satisfied that the contract is nonetheless fair despite the fact that
it contains the scheduled provision (s 4(3)(b)).

One of the scheduled provisions relates to any provision “whereby the seller or supplier of goods
or services excludes or limits the liability which he would otherwise incur under any law for loss
or damage caused by negligence”. If the consumer contract has in it such a clause, the consumer
can apply for relief before or during civil proceedings or the court can raise this issue at its own
initiative during civil proceedings (s 4(2)). The relief that a court can grant in respect of an unfair
contract containing an unfair provision includes cancellation of that provision.

In deciding whether a contract is unfair, there are criteria that the court can take into account.
The ones relevant in relation to a provision excluding liability for negligence are as follows:
 the contract as a whole results in an unreasonably unequal exchange of values or benefits;
 the contract is unreasonably oppressive in all the circumstances;
 the contract excludes or limits the obligations and liabilities of a party to an extent that is
not reasonably necessary to protect his interests.

In Cabri (Pvt) Ltd v Terrier Services (Pvt) Ltd 2004 (1) ZLR 267 (H) D had negligently
performed a contract to move P’s heavy equipment. This contract was carried out negligently by
D leading to property damage to P. Using the Consumer Protection Act the court cancelled a
clause in the contract which purported to exempt D from liability for loss caused by negligence.
Exemptions that are not allowed
It is well established that a defendant cannot by contract exempt himself or herself against
delictual liability for fraud, dishonesty or intentional wrongdoing.
Thus in OK Zimbabwe Ltd v Msundire S-23-15 the judge stated: “A party cannot exempt himself
from liability for wilful misconduct, or criminal or dishonest activity of himself, his servants or
agents or from damage resulting from gross negligence on his part or that of his servants.” See
also Tubb (Pvt) Ltd v Mwamuka 1996 (2) ZLR 27 (S) at 32G.

In Zeeta v Manufacturers v Zimbabwe United Freight Company 1990 (1) ZLR 337 337 (H) the
court did not rule that it was contrary to public policy to include an exemption against liability
for gross negligence. However, it ruled that the exemption clause in question exempted only
against ordinary negligence and not against gross negligence.
See also RT Chibwe v Fawcett Operations HH-79-06 and Wells v South African Aluminite 1927
AD 69-72

It also seems that D cannot exempt himself or herself against liability for gross negligence.
In OK Zimbabwe Ltd v Msundire S-23-15 the court pointed out that where the existence of an
exemption excluding liability for negligence is not in dispute, the burden of establishing any
other possible ground for liability such as gross negligence or dolus, rests upon the claimant.

It also seems that it is not permissible to contract out of liability for negligent causing of death
and that a dependant’s action will not be affected by an exemption clause agreed to by the
deceased.
See:
Jameson’s Minors v CSAR 1908 (1) TS 575, 589
Johannesburg Country Club v Stott & Anor 2004 (5) SA 511 (SCA) and
Naidoo v Birchwood Hotel 2012 (6) SA 170 (GSJ)

In the Stott case the court queries whether effective exclusion of liability for damages for
negligently causing death of another is contrary to high value accorded at common law and in the
South African Constitution to sanctity of life.
Requirements for exemption clauses to apply
The Cabri case sets out the requirements for validity and applicability of purported exemptions
from liability. These are:

The exemption must be brought to the attention of the party against whom it will be applied or
must otherwise be within the knowledge of the other party at the time the contract is entered into.
Knowledge may be inferable from past dealings between the parties.

The wording of the exemption clause must be sufficiently clear and must specifically cover the
situation for which it is claimed it applies. Any ambiguity as to the meaning or scope of the
exemption clause must be resolved against the person seeking to rely on the exemption clause.

See also Shambura Ranch v Shield of Zimbabwe 1988 (2) ZLR 306 (S)
Radar Holdings Ltd & Anor v Eagle Insurance Ltd 1998 (1) ZLR 477 (H)
Jiawu Manufactureres v Mitchell Cotts Freight Zimbabwe (Pvt) Ltd 2003 (2) ZLR 369 (H)
RT Chibwe t/a Ross Motors HH-79-2006
Rix Upholsterers PL v Biddulphs PL HH-204-07
Tachiona v National Railways of Zimbabwe 2010 (2) ZLR 140 (H)
Old Mutual Property v Metro International HH-15-13
Weinberg v Olivier 1943 AD 181

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In general terms, the question with an exemption clause purporting to exempt from liability will
be whether the exemption clause covers the specific harm that has been suffered in those
circumstances. A few cases on exemption clauses are set out below.

In Bristow v Lycett 1971 (2) RLR 206 (A) there was a large notice at the entrance to a game park
stating “All persons entering these premises do so at their own risk. We ask you NOT to tease
animals.” P was injured by a baby elephant that was trying to get sweets from P. The attendant
had assured P that it was safe to get out of the car because the elephant was kind. The court
found that the attendant had been negligent in leaving the elephant unattended. This negligence
was not within the scope of the warning notice and the exemption did not apply thus the game
park was held liable.

In Lawrence v Kondotel Inns (Pty) Ltd 1989 (1) SA 44 (D) P hired horses from the hotel to go
riding. The riding instructress employed by hotel chose a horse for P’s daughter, aged seven
years and four months. The riding instructress assured P that she would be able to supervise the
horse. The horse bolted and the girl fell off and sustained injuries. The parents sued for damages.
There was a notice placed prominently for prospective riders to read to govern the terms of
hiring of horses. The exemption stated: “all riders ride at their own risk: ifany accident should
occur Kondotel or the management of this hotel will not be held responsible.” The court held that
the risk envisaged would be normal occurrences such as horse stumbling or shying or being
startled. The exemption was not intended to cover misconduct on part of the animal or
negligence of the hotel’s riding instructress in providing an unsuitable mount and failing to
exercise proper supervision. The court held that the defence of volentialso did not apply as
neither P nor her daughter had a proper appreciation of risk that the horse would bolt nor did they
consent to take that risk.

In Walker v Redhouse 2007 (3) SA 514 (SCA) the indemnity notice required persons who wanted
to go riding using the horses of the stable to confirm that there would be no liability for any
injury whilst riding horses and to acknowledge that theywere aware of the risks involved in horse
riding and accepted the risks. P was an adult novice rider. Whilst riding, it was probable that the
horse lost its footing. P was then startled and cried out, stood up, lost hold of the reins, and this
frightened the horse into bolding. P fell but her foot was caught in the stirrups and she was
dragged along and injured. She was unsuccessful in her claim for damages as the court held the
indemnity clause covered the situation in question.

Inevitable accident
If the harm resulted from an event in nature or some other outside force over which D had no
control, D will not be delictually liable. This sort of event, such as a flood or damage caused
by wind, is variously referred to as an act of God, an act of nature, vis major or casus fortuitus.
Public policy
Where P has suffered damage as a result of his participation in an illegal enterprise, the court
may hold that it is contrary to public policy to allow him to recover damages from a fellow
criminal who caused him loss.

In Murphy v Tengende 1983 (2) ZLR 292 (H) P was defrauded of money whilst attempting to
purchase foreign currency illegally. The court held that it was contrary to public policy to allow P
to recover damages.

See also Ashton v Turner & Anor [1980] 3 All ER 870 (QB) in which injuries were inflicted by a
car accident caused by thieves trying to get away from the police.

Trivialities
This defence has a very limited scope. It will apply only where the damage caused was so slight
that it does not warrant the attention of the courts. (It is referred to by the Latin tag de minimis
non curat lex - the law does not concern itself with trivialities).

Negligence of third party

It is a complete defence if D establishes that the negligence of a third party was the sole and
proximate cause of the damage.

Contributory negligence
Under the Law Reform (Contributory Negligence) Act contributory negligence is not a full
defence but instead the courts will apportion blame between the two parties and reduce the
amount of damages that a claimant can recover by the extent of his fault.

Obviously, if D’s negligence was the sole and proximate cause of the harm, then apportionment
will not apply and D will be liable to pay all P’s damages.

CHAPTER 16- REPRESENTATIVE AND CLASS

ACTIONS
Representative actions
There is a provision in the High Court Rules (1971) which does not seem to be well known. This
is Rule 89 in Order 13. This provision provides the framework for bringing what is known as
public interest or social action litigation. It is of particular importance when a number of persons
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have all been affected by certain conduct, but the individuals in this group cannot afford to
litigate individually. Together, however, they can raise enough money to employ a lawyer to
argue the case on behalf of the group. A representative or representatives can then be nominated
and the lawyer can bring the action in the name of the representatives on behalf of all the persons
in the group. The provision is designed to avoid the laborious and unnecessary process of each
person in the group having to sue separately when all have the same basis for suing. The sort of
situation where this action would be highly appropriate is in a “Bhopal” type disaster affecting
the health of various persons.

Rule 89(1) reads:

Where numerous persons have thesame interest in any proceedings, the proceedings may
be begun, and, unless the court otherwise orders, continued, by or againstany one or more
of them as representing all or as representing all except one or more of them. (my
emphasis).

Rule 89(2) allows P to apply to the court for the appointment by the court of one or of some of a
number of defendants to represent the defendants in the proceedings.

From the standpoint of the claimants, this provision is very useful insofar as it makes the
proceedings far less cumbersome and costly.

Under Rule 89(3), the judgment (or order) at the end of such proceedings is binding on all the
plaintiffs and the defendants who were being represented. (It can only be enforced against
persons not parties to the proceedings with the leave of the court).

Under Rule 89(5), however, a person against whom the judgment or order is binding may dispute
his liability “on the ground that by reason of facts and matters particular to his case he is entitled
to be exempted from such liability.”

How these provisions would be applied can be illustrated by a few concrete examples.

The escape of noxious fumes from a fertilizer manufacturing plant causes harm to the health of
fifty people in the vicinity who inhale these fumes. One of the fifty claimants can be nominated
as representative for the other forty-nine. A legal practitioner can then sue the owners and
operators of the factory under the Aquilian action, citing the person nominated as the
representative plaintiff. The legal practitioner would then seek to prove that the defendants
wrongfully and negligently allowed the escape of the noxious fumes and that it was these fumes
which caused the injuries to the plaintiffs. If then the requirements for the Aquilian action are
established, the defendants would be made liable to pay damages. The damages suffered by each
plaintiff would, however, have to be individually quantified as these would vary from person to
person.

A municipality is empowered under legislation in certain specified circumstances to expropriate

land for development purposes after following set procedures and subject to payment of fair
compensation. It purports to expropriate a certain block of land on which thirty people have
individual smallholdings. The thirty persons affected seek to challenge the expropriation and
have it set aside on the basis that the action by the municipality was ultra vires its powers and
that the mandatory procedures for the exercise of these powers were not complied with.
Alternatively, they are alleging that if the municipality had acted intra vires its powers, it had
failed to pay fair compensation for the properties. The thirty can nominate a representative and
the action on behalf of the entire group can be brought in his or her name.

One hundred persons have brought shares in a company. They are all alleging that they were
induced to do this as a result of certain fraudulent misrepresentations made by the owner of the
company. Soon after they invested in the company it went insolvent and they lost all their money.
The owner of the company, however, owns several other lucrative enterprises. The investors wish
to sue for damages for fraudulent misrepresentation. They nominate one person to sue on behalf
of himself or herself and the other ninety-nine plaintiffs.

Class actions
There are various restrictions on the use of the representative action procedure under the High
Court Rules that make it narrow in scope. It can only be employed where the persons on behalf
of whom the action is brought all have the same interest in the proceedings. This effectively
disqualifies public interest non-governmental organisations, such as the Legal Resources
Foundation and the Consumer Council, or concerned individuals from bringing a class action on
behalf of other people. There are other limitations such as that all the parties must be asking for
the identical relief; damages cannot be claimed in a group action; and it is doubtful whether a
court can make a globular award to be distributed against the persons in the group.

The Law Development Commission recommended that the
facilitate group actions so as to provide an expeditious
numbers of persons to exercise and enforce their legal
governmental organisations should be allowed to bring
Proposed Class Action (1996).
law on group actions be changed to
and inexpensive method for large
rights. It recommended that non-
such actions. See Report No. 50

Acting on this recommendation in 1999 the Government passed the Class Actions Act [Chapter
8:17]. The important features of this legislation are as follows.

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A class action is now available for a far wider range of circumstances than previously. For
example, it could be brought even though there are different issues of fact or law relating to the
claims or the relief sought which may require individual determination.

A person or organisation wishing to bring a class action on behalf of others will be required to
obtain the leave of the court to mount such action. The court will grant leave if it considers that a
class action is the appropriate way of proceeding. The court will exercise a supervisory role over
the ongoing action to ensure that this procedure is used genuinely for the purpose for which it
was designed, namely, to facilitate access to justice for those who would often, because of
poverty, ignorance or lack of motivation to try to manoeuvre through complex legal procedures,
end up not receiving justice (s 8). The court can also appoint a commissioner to perform such
duties as determining particular issues or assessing individual monetary claims of individuals in
the class (s 9).

To make the proceedings benefit as many potential beneficiaries as possible, the judgment in a
class action is binding on all members of the class concerned other than those who, after notice
has been given of the action, have advised that they wish to be excluded from the class action
concerned (s 11). In a class action the court can, where appropriate, award judgment in the form
of an aggregate amount to be distributed amongst the members of the class concerned (s 12).

In order to assist representatives embarking upon such actions on behalf of others, there will be a
Class Action Fund (s 14). This fund will be constituted of monies made available by Parliament,
donations and re-imbursements of costs made by members of the class in a successful class
action.

Usually in Zimbabwe, legal practitioners are not permitted to take on actions on a contingent fee
basis. However, in respect of class actions, subject to certain limitations, it is proposed here that
a legal practitioner will be permitted to make an arrangement with any person who is to be a
representative in a class action for the payment of fees and disbursements in respect of the class
action dependent on the success of the class action.

In Lytton Invstms (Pvt) Ltd v Standard Chartered Bank (Zimbabwe) Ltd HH-35-17 the court
held that an applicant for leave to institute a class action needed to provide the court
information to cover the multiplicity of requirements specified in s 3 of the Act, such as the
potential number of claimants, their level of education and financial standing. The fact that
the applicant had already issued summons against the respondent for damages precluded the
class action application succeeding and amounted to seeking joinder via the back door. The
applicant’s action, if successful, would provide a precedent for others in a similar position.
 CHAPTER 17 - PRESCRIPTION
The periods of prescription for delictual actions are laid down in the Prescription Act No. 31 of
1975. In s 2 “debt” is defined so as to include a delict and then in s 14 the prescription periods
for debts are set out.Three years is the usual period for prescription for a delict but s 14 sets out
longer periods of prescription for certain types of debt, such as six years for a debt owed to the
State.

Under s 6 of the State Liabilities Act [Chapter 8:14], 60 days’ notice must be given of an
intention to claim money from the State. The notice must set out the grounds of the claim and,
where appropriate and possible, give details of officials involved and have copies of documents
relating to the claim attached to it. The courts will have the power to condone failure to give the
required notice where there has been substantial compliance with the section or where there has
been no undue prejudice to the State or to the officer being sued.

There are special provisions in the Police Act [Chapter 11:10] dealing with the period of
prescription for claims arising out of delicts committed by policemen. Section 70 reads as
follows:

Any civil action instituted against the State or a member in respect of anything done or
omitted to be done under this Act shall be commenced within eight months after the cause
of action has arisen, and notice in writing of any civil action and the grounds thereof shall
be given in terms of the State Liabilities Act [Chapter 8:14] before the commencement of
such action.

In Nyika & Anor v Minister of Home Affairs & Ors HH-181-16 the court decided that there was
no reason why the general the year prescription period for ordinary debts as contained in s 15 (d)
of our prescription should not govern claims against the police. It found that the provision
providing for the shorter period of prescription for actions against the police violated s 69(2) (on
the right to a fair hearing) and s 56 (1) (on the right to equality before the law and equal
protection of the law) It referred the matter to the Constitutional Court in terms of s 175 (1) of
the Constitution for its confirmation or otherwise of this constitutional ruling.

Sections 176 and 178 of the Customs and Excise Act [Chapter 23:02] should also be noted.
Under these as well, actions against customs officers in terms of this Act must be instituted
within 8 months and 60 days’ notice of intention to institute proceedings has to be given. See
Badenhorst v Minister of Home Affairs 1984 (1) ZLR 221 (S).

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It is strongly arguable that the ruling in the Nyika & Anor v Minister of Home Affairs & Ors HH-
181-16 that the shortened period of prescription in respect of actions against the police would
also apply in respect of actions against customs officers. In other words this shortened period of
prescription is also unconstitutional.

Careful note should also be taken of s 25(1)(ii) of the Road Traffic Act [Chapter 13:11]. In
relation to statutory third party insurance claims this provides that:

…the right of recovery directly from the insurer should become prescribed upon the
expiry of a period of two years from the date on which such claim arose.

(The claim against the negligent motorist, however, only prescribes after three years from the
date on which such claim arose.)

CHAPTER 18 - LEGISLATIVE COMPENSATION

SYSTEMS
Workers compensation
In addition to the remedies for delicts provided by the common law, there are a number of other
sources of compensation for injury and property loss contained in various statutory provisions.
The most outstanding of these is the scheme that provides compensation to workers injured in
the workplace. This scheme is now part of the National Social Security system and the detailed
provisions relating to this scheme are contained in the National Social Security Authority
(Accident Prevention and Workers’ Compensation Scheme) SI 68 of 1990. This scheme is
funded by payments by employers into a central fund. These payments are assessed on the basis
of the particular class of business and calculated against the wages earned by employees. The
compensation fund is then used to compensate workers (or their dependants if they die or are
unable to work anymore) who are injured in accidents that occur whilst they are in the course of
their employment or who contract certain specified work-related diseases. This system of
compensation is a no-fault compensation scheme in that the injured worker does not have to
prove any negligence on the part of the employer before he is entitled to compensation. All he
has to establish is that the injury occurred at the work place when he was in the course of his
employment. Section 8 provides that the worker or his or her dependant cannot sue the employer
under the common law.
If, however, the worker wishes to claim additional compensation on top of that paid to him out of
the Workers’ Compensation Fund, in terms of section 9 he or she has to sue the employer on the
basis of the negligence:
 of the employer in causing him that injury; or
 of a person who is managing or in charge of the employer’s business; or
 of a person who engages or disengages workers on behalf of his or her employer.
See Ncube v Wankie Colliery Co & Anor 2007 (1) ZLR 95 (H).

Section 10 further provides that where the accident was caused in circumstances creating legal
liability on the part of some person other than the employer (a third party) to the worker, the
worker may, in addition to claiming under the compensation scheme, institute legal proceedings
against the third party to recover damages. Before instituting such action or withdrawing such
action, the worker must notify the general manager of NSSA in writing.

Public servants injured at work are covered by the State Service (Disability Benefits) Act
[Chapter 16:05]. See also State Service (Pensions) Act [Chapter 16:06].

War victims
There are various other compensation systems for persons who are injured or who sustain
property loss which are contained in legislation. See the War Victims Compensation Act
[Chapter 11:06].

Persons suffering loss due to activities of dishonest lawyers

There are various other pieces of legislation which permit recovery of compensation in specific
circumstances. One example is s 70 of the Legal Practitioners Act [Chapter 27:07] which
provides for compensation to be paid to a person who has suffered loss due to the dishonesty of
his legal practitioner.

Persons injured by uninsured or hit and run drivers

This is a voluntary scheme established by motor accident insurers under which the Motor
Insurers’Bureau will pay compensation up to certain specified limits to victims of negligence on
the roads, in situations where the wrongdoers are not insured or where the wrongdoers are hit
and run drivers who cannot be traced. Under this scheme, claims are made to the Motor Insurers’
Bureau.

This agreement covers:

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  accidents resulting in death or personal injury where the person responsible for the
accident is uninsured or his policy is held to be ineffective because a condition of the
policy was breached or it was obtained by improper methods such as a false
declaration. In this situation, the injured party must first obtain judgment against D but
before commencing action he must notify the Motor Insurance Bureau. There is a
shorter period of prescription governing this type of claim in that it is laid down that
that the injured party must also issue summons against D within two years.
 where a person has been run down and has sustained serious and permanent
disablement or has died as a result of injury; and the driver has failed to stop after the
accident and cannot be traced. However, if he had been traced and it is reasonably
certain that he would have been delictually liable, the Motor Insurance Bureau will
make an ex gratia payment.

Victims of crime
A person who suffers physical injury or damage to property due to criminal activity would be
able to bring a delictual claim for damages against the criminal who caused him the harm. Thus
for instance a victim of assault, rape or arson could seek to sue the person who committed such a
crime for damages. In practice, however, after criminals have been dealt with by the criminal
courts relatively few injured people bring civil actions against the wrongdoers. There are a
number of reasons for this lack of civil claims. Potential claimants may be ignorant of the rights
to sue, or they may lack the financial resources to be able to mount a civil claim, or it may be
pointless to sue the wrongdoer as he is in prison and has no property or money outside that could
be used to satisfy a judgment debt.

In order to alleviate this situation a criminal court is now empowered under the Criminal
Procedure and Evidence Act to award compensation to injured parties at the conclusion of the
criminal case. This applies in cases of personal injury and property damage or loss. However, a
criminal court may not award such compensation if the harm resulted from a motor vehicle
accident or if:
 the compensation amount is not readily quantifiable;
 the full extent of liability is not readily ascertainable;
 the convicted person could be prejudiced if the matter is dealt with under this scheme.

Evidence during the trial can be used for this purpose and the court may call further evidence.
Money found in the convicted person’s possession or in his savings account, etc. may be used for
the purposes of providing compensation to the injured person.

Under this scheme the victim of a crime will only receive compensation if the criminal
wrongdoer has some money or property that can be used to compensate the victim.
We presently have no State scheme whereunder the State will pay compensation out of a central
fund to crime victims if the wrongdoer has no means that can be used for compensation
purposes.

CHAPTER 19- INSURANCE

In the modern society, an extremely important source of compensation for loss is that which is
provided by insurance coverage.

Liability assurance (i.e. insurance cover in respect of liability to pay compensation to others)
serves well the primary purpose of the law of delict which is to ensure that compensation is paid
to injured persons, insofar as insurance cover assures the victim ofactual compensation instead
of merely obtaining an empty verdict against D who might well not have the financial means to
pay damages.

As regards motor accidents, it should be noted that in terms of Part IV of the Road Traffic Act
[Chapter 13:11], it is compulsory for users of motor vehicles to be insured against third party
risks. “Act only” or “minimum third party insurance” covers only physical injuries to third
parties.Passengers being carried for reward in the D’s vehicle are covered up to a specified
financial limit.

If the required Road Traffic Act insurance coverage has not been taken out, the Motor Insurers’
Bureau, in terms of an agreement with the Minister of Roads and Road Traffic entered into in
1962, may still pay compensation to the injured party from a fund established for this purpose. A
number of formalities have to be complied with before such compensation will be payable.

CHAPTER 20 - ASSESSMENT OF DELICTUAL

DAMAGES
General aspects
Broadly, the Aquilian action provides a remedy for patrimonial loss and the actio injuriarum
affords compensation for sentimental loss. However, under the influence of Germanic custom,
Roman-Dutch law accepted that there could be recovery for certain forms of non-patrimonial
damage under the actio legis Aquiliae. In this latter regard, it is possible, under the modern
Aquilian action, to recover damages for such things as pain and suffering, disfigurement, loss of
amenities of life and loss of expectation of life.

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Under the Aquilian action, “the basic principle under-lying an award of damages [under this
action] is that compensation must be assessed so as to place P, as far as possible, in the position
he would have occupied had the wrongful act causing the injury not been committed”. (Corbett,
Buchanan & Gauntlett The Quantum of Damages in Bodily and Fatal Injury Cases.) In
computing the level of damages, the court must therefore compare P’s position before and after
the commission of the delict. Account must be taken not only of the positive loss suffered by
him, but also of negative losses in the form of gains which P was prevented from making in
consequence of the wrongful act. Thus, P who has been injured can claim not only for things
such as medical and hospital expenses, but also for loss of earnings during the period of his
disablement. Additionally, it is possible to claim for non-patrimonial damage, such as
disfigurement and pain and suffering. These latter types of harm cannot be assessed with any
mathematical precision, and the amount “awarded as compensation can only be determined by
the broadest general considerations and the figure arrived at must necessarily be uncertain,
depending upon the judge’s view of what is fair in all the circumstances of the case.”

In calculating damages for bodily injury, especially for non-patrimonial harm, the courts pay
heed to the levels of awards in previous cases of a comparable nature. The courts seek to ensure
that major discrepancies in the levels of awards do not arise as between comparable cases. This is
merely a rough guide to calculation, however, and such comparison can only be undertaken
where the circumstances of the cases are clearly shown to be broadly similar in all material
aspects. When making comparisons with previous cases the courts take into account the decrease
in the value of money which has occurred over the years, but Corbett, Buchanan & Gauntlett
observe that the allowance made for such decrease is necessarily a rough one and should
probably incline towards conservatism. In dealing with quantum of damages the court does not
take into account the cultural or economic circumstances of the injured plaintiff. Thus, the court
does not downgrade the level of damages because P is a very poor man, to whom money will
mean a lot. By the same token, the very rich man is not entitled to more damages than the poor
man in identical situations, because money means less to the rich man. The court simply assesses
the nature and extent of the injuries and the amount of loss, immaterial of the social or economic
circumstances of the injured person.

In searching for comparable past cases the book by Corbett, Buchanan & Gauntlett is very
useful. It contains some of the Zimbabwean cases as well as all the important South African
decisions. See also Potgieter, Quantum of Damages Quick Guide Juta 2014, Visser and
Potgieter,The Law of Damages Juta 3rd Edition 2012 and Koch Damages for Lost Income. See
also the summary of the important Zimbabwean cases on damages for personal injury at the end
of the section on damages.
Single action
As a matter of general principle, a person may only bring one action against the same defendant
upona single cause of action. Once he or she has brought that action his or her remedies at law
are exhausted and he or she is precluded by the principle of res judicata from bringing a further
action. P must therefore claim damages for all the harm flowing from the delict, because if he
fails to do so, he or she will thereafter be precluded from claiming damages in a subsequent
action. P thus must claim in a single action compensation both for the loss already suffered by
him and the prospective loss which he or she reasonably expects to suffer in the future. If he fails
to include the claim for prospective loss he or she will forfeit his right to such damages. This
applies even if it only transpires later that the damage suffered was more severe than it appeared
to be at the trial, or even though P did not know of such further damage at the date of the trial.
So, too, if a delict causes both bodily injury and property damages, both claims must be
combined in the same action.

In determining the quantum of damages for prospective loss, the court must consider all the
contingencies and decide whether or not there is a reasonable probability of pecuniary loss
occurring in the future. Although, strictly speaking, damages should be assessed at the date of the
wrong, when considering claims for prospective damage the court is bound to inform itself of
subsequently occurring facts, which are known at the date of the trial and which throw light upon
the claim. In this way the difficulty of assessing prospective damages and the amount of
speculation involved in such assessment are reduced.

There is some debate as to whether it is possible to claim solely prospective damages in an action
where there has been no actual damage. Some dicta in the case law suggest that this is not
possible, as prospective damages may be awarded only as ancillary to accrued damages. Corbett,
Buchanan & Gauntlett, however, contend that such an action should be possible where the
prospective damage can be established as a matter of reasonable probability.

The once and for all rule has been the subject of considerable criticism. The basic object of the
rule is to save D from a multiplicity of actions based on a single cause of action and to bring
finality in claims for damages. But the rule causes major difficulties as regards prospective loss
such as the extent of future disability. The prognosis as to what is likely to happen in the future
may be highly speculative and may lead either to under-compensation if P’s condition
unexpectedly deteriorates or over-compensation if his condition unexpectedly improves. In
various countries they have modified the rule to allow interim awards, provisional awards or
periodical payments. In Zimbabwe, the Law Development Commission has recommended the
introduction of a system of provisional awards. See Report No. 43. A summary of this report is
given below.

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This report points out the harshness that this rule can cause to P and sometimes even to D. In a
motor accident case where P is injured due to D’s negligence, P must claim in one action before
prescription expires not only for compensation for the loss already suffered as a result of his
injuries, but also for future losses that will stem from the injuries such as further medical
treatment and further loss of earnings. This involves crystal ball gazing into the future to try to
gauge what the future will bring: this entails asking such questions as will P’s medical condition
deteriorate, and if so how badly, and what will be the cost of such treatment; will P’s condition
improve over time and what earning capacity will P then have? Such estimates are exceedingly
difficult to make and if they are too low they are unfair to plaintiffs and if they are too high, they
are unfair to defendants.

The report points out, however, that there are also legitimate reasons for desiring finality in
litigation in civil matters. Insurance companies object that if they have to keep their files open
indefinitely this would clash with their policy of assessing appropriate premiums for potential
claims on a turn-over basis which is related to a fairly limited period. This is made all the more
necessary today by continuous inflation. There would be also considerable extra administrative
costs involved if the once and for all rule were to be abandoned.

Taking into account these competing interests, the Law Development Commission has
recommended the alteration of the hard and fast once and for all rule by allowing the courts to
make interim and provisional awards in certain circumstances. These awards will only be able to
be made against the State, parastatals and against insured persons or their insurers as these
agencies have the administrative and financial capacity to be able to absorb the extra burden
involved in this system.

Interim awards should also be able to be made where D admits he or she is liable to pay
compensation but there is a dispute as the amount of damages. It is unsatisfactory that P has to
wait until completion of litigation before he or she receives any compensation. Once the court
arrives at the final judgment, any interim award already made will be taken into account.

In a personal injury claim where the courts are satisfied that there is a reasonable possibility that
the injured party may in the future develop a serious disease or suffer serious deterioration in his
condition, the court should have the power to issue a provisional award, leaving it open to P to
come back to court if the serious disease develops or serious deterioration occurs. The Rules of
Court can then provide for placing a time limit on when any application for further damages may
be made. Where a provisional award is made it will be based on the injured party’s present
condition. The possibility of future injury should not be taken into account when assessing the
present damages.

The recommendations contained in this report have not yet been adopted and implemented by
Government.
Special and general damages
When damages are claimed in personal injury cases they are claimed in two broad categories,
namely general and special damages. Special damages are those damages that have already
occurred and can be precisely calculated at the date of the trial. “It is an elementary proposition
of law that a claim for special damages must not only be specially alleged and claimed, but also
be strictly proved.” Mdlongwa v Ngwenya HB-54-13. These losses must be specifically claimed
and proved with full details. They include such things as loss of wages, property damage,
medical and other expenses incurred as a result of the injury up to the date of the trial.

General damages are those damages naturally flowing from the wrong that are of a non-
pecuniary nature, such as, pain and suffering, loss of limbs and so on. The harm which has
occurred in the past (e.g. pain suffered) or which he will suffer in the future (e.g. loss of
amenities of life) does not have a precise value, but the court will decide upon an appropriate
award with reference to comparable previous cases.

Items for which claims can be made in personal accident cases:

 Medical and hospital expenses (Past)
 Future medical expenses (Prospective)
 Other expenses occurring as a direct result of the accident (Past)
 Loss of earnings (Past)
 Loss of earning capacity (Prospective)
 Pain and suffering (Past and Prospective)
 Disfigurement (Prospective)
 Loss of amenities of life (Prospective)
 Shortened expectation of life (Prospective)

Medical and hospital expenses

P is entitled to recover damages for medical and hospital expenses reasonably incurred by him
and which are fairly attributable to the bodily injuries sustained in the accident. He or she can
also claim incidental expenses such as the cost of travelling to his or her medical adviser or to
and from hospital. If the medical treatment is still taking place at the date of the trial, P can claim
anticipated future medical and hospital expenses. P must establish that, as a matter of probability,
these expenses will need to be incurred. He can also claim for anticipated ancillary losses, such
as loss of earnings, while undergoing future medical treatment.

In the case of Simbanegavi v Jachi HC-4187-12 the court held that a total of six bullets were
fired into the plaintiff’s legs. As a result, he sustained numerous injuries from which he;
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 a) endured and still experiences excruciating pain,

b) had to have four steel plates surgically inserted in his right leg,

c) had to have an above the knee amputation of his left leg,

d) suffered contumelia as he was subjected to cruel, inhuman and degrading

treatment.

The plaintiff incurred medical expenses in relation to the knee amputation, insertion of steel
plates to reinforce the injured leg, analgesics and other medical procedures. Due to the nature of
the injuries and associated complications, the disability percentage was assessed at 63%.

General damages
In NyandorovMinister of Home Affairs & Anor 2010 (2) ZLR 332 (H) the broad purpose of an
award for non-patrimonial loss is to enable the claimant to overcome the effects of his injuries
and to provide psychological satisfaction for the injustice done to him. Since pain and suffering
cannot be accurately measured, the quantum of compensation to be awarded can only be
measured by the broadest general considerations. The compensation awarded should be assessed
so as to place the injured party, as far as is possible, in the position he would have been in if the
wrongful act causing him injury had not been committed.
In Mungate v City of Harare & Ors HH-328-16 the court said that legal practitioners should
know that general damages are not a penalty, but compensation. They are meant to compensate
the victim and not to punish the wrong doer. Awards that are granted by the courts, apart from
compensating the victim, should also reflect the state of economic development and the current
economic conditions of the country. In making claims for general damages, litigants should
claim reasonable and realistic amounts and they should be guided by previous decided cases. If
litigants and their lawyers adopt this approach, the chances of such matters being resolved and
settled at the pre-trial conference stage will be increased. The major reason why such cases fail
to settle without proceeding to trial is because of the ridiculous and unrealistic figures that are
claimed by the plaintiffs.

General damages do not constitute a penalty but are designed to compensate the victim and not
to punish the wrongdoer. The court is entitled and has a duty to heed the effect its decision may
have upon the course of awards in the future. Moreover, awards generally must reflect the state
of economic development and current economic conditions of the country. Consequently, they
should tend towards conservatism lest some injustice be done to the defendant. No regard is to be
had to the subjective value of money to the injured party and, therefore, the award cannot vary
according to whether he or she is a millionaire or a pauper. Thus, the courts are not concerned
with the probably erroneous value that a person would put on his or her own life and limbs, but
with the dispassionate and neutral value which society at large would deem appropriate on the
basis of the prevailing value of money in that society. In assessing pain and suffering, regard may
be given to the age of the claimant because an older person has less resistance to pain than a
younger person.

In Mdlongwa v Ngwenya HH-74-12the plaintiff was assaulted by defendant and as a result

instituted a delictual action. The court enunciated that general damages for personal injuries are
not meant to penalise the defendant but to achieve some form of compensation for the plaintiff.
The court must ensure therefore that the damages awarded are reasonable fair and just. In
Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 at p 199 it was said: “… it must be
recognised that though the law attempts to repair the wrong done to a sufferer who has received
personal injuries in an accident by compensating him in money, yet there are no scales by which
pain and suffering can be measured, and there is no relationship between pain and money which
makes it possible to express the one in terms of the other with any approach to certainty. The
amount to be awarded as compensation can only be determined by the broadest general
considerations and the figure arrived at must certainly be uncertain, depending upon the judge’s
view of what is fair in all the circumstances of the case.”

In Mbundire v Buttress 2011 (1) ZLR 501 (S) the appellant was involved in a road accident with
the respondent, as a result of which the appellant sustained serious injuries. The appellant
claimed for general damages, future expenses and replacement value for his motor vehicle. The
court held that if it is certain that pecuniary damage has been suffered, the court is bound to
award damages. Where the best evidence available has been produced, though it is not entirely of
a conclusive character and does not permit of a mathematical calculation of the damages
suffered, the court must use it and arrive at a conclusion based upon it. Where damages can be
assessed with exact mathematical precision, a plaintiff is expected to adduce sufficient evidence
to meet this requirement. Where this cannot be done, the plaintiff must lead such evidence as is
available to it (but of adequate sufficiency) so as to enable the court to quantify his or her
damage to make an appropriate award in his or her favour. If there is evidence upon which an
estimate not unfair to the defendant can be made, the court should not refuse to make an award
merely on account of the deficiencies in the case presented upon the plaintiff’s behalf. Those
deficiencies would normally operate to the disadvantage of the plaintiff in that the court would
normally tend towards conservatism in computing the damages. In the present case the court said
it certainly would have helped had the appellant undergone further examination so that the exact
degree of his injuries could have been ascertained. This notwithstanding, the evidence placed
before the court was sufficient to enable the court to make an award.

The court also said the basic principle underlying an award of damages in the Aquilian action is
that the compensation must be assessed so as to place the plaintiff, as far as possible, in the
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position he would have occupied had the wrongful act causing him injury not been committed.
The fall in the value of money is to be taken into account in considering comparable awards, but
the allowance for inflation is a rough one and should incline towards conservation.
Pain and suffering

P can claim for all pain, suffering and discomfort suffered, or to be suffered, by him as a result of
D’s wrongful act. Account must be taken not only of the pain and suffering occurring as a direct
consequence of the infliction of the injuries, but also of pain and suffering associated with
surgical operations and other curative treatment reasonably undergone by P in respect of such
injuries. The quantum of damages in this regard is extremely difficult to assess and here
particular regard should be had to comparable past cases as a guide to assessment. In making an
assessment, the prime considerations are theduration andintensity of the pain. These factors will
turn upon the nature of the injuries, the medical evidence and the general circumstances of the
case. The test is a subjective one. The thin skull rule would apply here. If P is abnormally
sensitive to pain he or she is entitled to greater damages than the normal person. Conversely, if P
is abnormally insensitive to pain, he or she cannot enhance his claim by advancing evidence that
the normal person would have suffered extreme pain.

In Chinembiri & Ors v Ncube HH-74-12 the court highlighted eight broad principles that should
guide a court in assessing such damages. These include that:

1. General damages are not a penalty but compensation. The award is designed to
compensate the victim and not punish the wrong doer.

2. Compensation must be so assessed as to place the injured party as far as possible

in the position he would have occupied if the wrongful act causing him the injury
had not been committed. See Union Govt v Warreck 1911 AD 651 p665.

3. Since no scales exist by which pain and suffering can be measured the quantum
of compensation to be awarded can only be determined by the broadest general
considerations. See Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 at p
199.

4. The court is entitled and it has the duty to heed the effect its decision may have
upon the course of awards in the future. See Sigairnay v Gillbanks 1960 (2) SA
552 at p 555H.

5. The fall in the value of money is a factor which should be taken into account in
terms of purchasing power, “but not with such an adherence to mathematics as
may lead to an unreasonable result: per Shreiner JA in Sigournay’s case supra at
556C see also Southern Insurance Association Ltd v Bailey NO 1984 SA 98 at
116 B-D, Ngwenya v Mafuka S-18-89 at p8 of the cyclostyled copy.
 6. No regard is to be had to the subjective value of the money to the injured person,
for the award of damages for pain and suffering cannot depend upon or vary
according to whether he be a millionaire or a pauper: See Radebe v Haugh 1949
(1) SA 380 at 386.

7. Awards must reflect the state of economic development and current economic
conditions of the country.Sadomba v Unity Insurance Co Ltd and Anor 1978
RLR 262 G at 270K, Min of Home Affairs v Allan 1986, ZLR 263 (S) at 272.
They should tend towards conservatism lest some injustice be done to the
defendant see Bay Passenger Transport Ltd v Franzer 1975 SA 269 at 274 H.

8. For that reason reference to awards made by the English and South African
courts may be an inappropriate guide since conditions in the jurisdictions both
political and economic are so different

Sometimes P has no recollection of the pain and suffering he or she has undergone. A distinction
is drawn between pain of which the mind of the injured person was not aware at the time and
which, for that reason, is not subsequently recalled, and pain of which the mind of the injured
person was contemporaneously aware, but which, for some reason, he or she was unable
subsequently to recall. The injured person is entitled to recover compensation in respect of the
latter, but not in respect of the former.

In Mugadzaweta v Co-Ministers of Home Affairs 2012 (2) ZLR 423 (H) pointed out that shock is
closely associated to pain and suffering.

Gwiriri v Starafrica Corporation (Private) Limited t/a Highfield Bag (Private) Limited

Disfigurement

Strictly speaking, damages for disfigurement should be merged into damages awarded for loss of
amenities. Disfigurement includes bodily disfigurement such as scars, loss of limbs, facial and
bodily distortion, etc. in the case of Muchabaiwa v Chinhamo HH-179-2003 the plaintiff who
was standing at the side of the road opposite some shops when she was hit by a commuter
minibus that was being driven by the first defendant. The court held that, the level of disability of
the plaintiff was very high. She was in almost continual pain and she is virtually bed-ridden. Her
life expectancy has been reduced. She was unable to take part in any recreational activities. She
was likely to need medication such as pain killers, tranquilizers and anti-depressants for the rest
of her life. Her disfigurement and disability were much greater than is the case in the other cases
cited and it appears that her pain and suffering still continues. As regards future medical
expenses, the cost of medication at present is very high. The rate of inflation is expected to
increase dramatically over the next six months and so medication is likely to be unaffordable for
ordinary members of the public.

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Mugadzaweta v Co-Ministers of Home Affairs 2012 (2) ZLR 423 (H)
Disability

A disability may be temporary or permanent. Where the disability has disappeared by the time of
the trial, the claim would normally be merged with the claims for pain and suffering and loss of
earnings. Where the disability ispermanent or is likely to extend beyond the date of the trial, P
will claim additionally for diminution in earning capacity and impairment or loss of amenities of
life. Where P is alleging permanent disability he or she must show that he or she has no
reasonable prospect of recovering. If he or she is alleging temporary disability he or she must
show that there is no reasonable prospect of recovering prior to the date upon which he or she
alleges the disability will cease. Sometimes P will seek to prove that a disability is likely to
supervene, although at the date of the trial, it has not yet come about. The disability may be a
physical or a mental one.

In Chirinda v Minister of Home Affairs HH 150-2003 P was shot by the riot police and fell down
only to be rescued by a by-passer. The court held that in determining the question of damages in
a case of this nature the court must consider whether:

 P suffered excruciating pain both at the time and subsequently.

 P gave a graphic description of that pain.
 P has lost amenities of life, is now disabled and suffers permanent discomfort.
 P entitled to an award under this separate head. 2
See also Biti v Minister of State Security 1999 (1) ZLR 165 (S) and Minister of Defence v
Jackson 1990 (2) ZLR 7-8.

With regard to disabilities, P has a duty to mitigate his loss and this means that he or she must
submit to any operation or other medical treatment that it is reasonable for him or her to submit
to and which is reasonably likely to improve the condition and thereby mitigate the loss.

Loss of amenities of life

Limitations of amenities of life caused by permanent or temporary disabilities include
impairment or loss of ability or desire to engage in sport, recreation, social commitments or other
normal activities. Loss of, or impairment of, amenities would include such things as sexual
impotence, sterility, loss of marriage opportunities, loss of general health, change of personality,
nervous insomnia and the general handicap of a disability and shortened expectation of life.

The fact that P is unaware of the loss of amenities due to brain damage or prolonged
unconsciousness does not affect the claim. It is the actuality of the deprivation of the ordinary
experiences and amenities of life caused by the injuries with which the law concerns itself.
2
Mugadzaweta v Co-Ministers of Home Affairs 2012 (2) ZLR 423 (H)
Loss of earnings and of earning capacity
If P’s injuries prevent him from working, he or she is entitled to damages for the income or
wages he or she would have earned during the period of his incapacity.

If he or she has been permanently incapacitated, or his or her incapacity occupies a period
extending beyond the date of the trial, he or she will be entitled to claim for loss of future
earnings or loss of earning capacity. Where, as a result of his or her injuries, his or her
expectations of life has been shortened, his or her claim for loss of future earnings must be
computed with reference to his or her reduced lifespan. Basically, the mode of computation of
loss of future earnings, where there is a permanent impairment of earning capacity, is as follows:
first, the court will calculate the present value of the future income which P would have earned
but for his or her injuries and consequent disability; second, it will calculate thepresent value of
the estimated future income, if any, having regard to the disability; finally, it will subtract the
second figure from the first and make any adjustments to the figure arrived at which are relevant.

To calculate the present value of future income without the disability, the courts have to
determine the period over which P would normally have continued to work and earn his or her
living, but for the accident. The determination of P’s expectation of life will be based either on
medical evidence or, if his or her expectation was normal, actuarial evidence. His or her
retirement age prior to the accident would have depended upon various factors such as his or her
previous general state of health, the nature of his or her work, the terms of his employment and
terms relating to retirement. The starting point is his or her earnings at the time of the accident,
but allowance is made for possible future fluctuations. The sum claimed must not be outrageous
having regard to the present value of money, the prevailing economic conditions and inflation.

Principle of nominalism

For any award for loss of earnings or support, current inflationary trends must be considered to
make sure money is still worth the same amount as at the end of the period for which the award
was made. This is widely known as the principle of nominalism. This was elaborated upon in
Muzeya v Marais & Anor HH 80-2004. Here the court referred to PJ Visser and JM Potgieter in
The Law of Damages Through the Cases, 2nd ed. at page 321where it was stated that “The
essence of nominalism of currency, in the field of obligations, was that a debt sounding in money
had to be paid in terms of its nominal value irrespective of any fluctuations in the purchasing
power of currency.”

The principle of nominalism is to be applied in cases where the respondent suffered a loss of
income, expressed in dollars, prior to the trial. That loss must be made good by paying to the

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plaintiff the number of dollars which he has lost irrespective of whether the purchasing power of
the dollar has varied in the interim.

This principle does not apply to loss of future earnings or future support or where a comparison
has to be made of previous awards in quantifying non-patrimonial loss. Its application has been
criticized in the sense that “it would represent a revolutionary transformation of our legal system
if Courts were to be called upon to determine the true economic value ‘in terms of purchasing
power’ of all obligations sounding in money” : Muzeya v Marais & Anor HH 80-2004

At this point it must be noted that there are two main approaches to assessing damages for loss of
future earning capacity. The one is to make a globular award in respect of general damages
inclusive of loss of future earning capacity. The other is to assess the damages under separate
headings – damages for pain and suffering and loss of amenities of life separately from damages
for pain and suffering and loss of amenities of life separately from damages for loss of future
earning capacity. The latter approach depends on the evidence placed before the court including
actuarial evidence. In Southern Insurance Association v Bailey NO 1984 (1) SA 98 (A) the court
expressed a preference for the second approach pointing out that damages for pain and suffering,
etc. are concerned with a loss which cannot be measured in money whereas the loss of future
earning capacity is concerned with patrimonial loss and a logical approach based on some
calculation can be done in respect of the latter. This approach has generally been adopted in
Zimbabwe. See Muzeya v Marais & Anor HH 80-2004

In the case of Rusike v Tenda Transport (Pvt) Ltd & Anor 1997 (1) ZLR 495 (H), P had suffered
serious injuries in a motor accident that had been entirely the fault of the other driver. The
injuries were such that he would be unable to continue to work as a motor mechanic (he had been
an apprentice motor mechanic) but that he would be able to move into some other type of
employment provided that it was of a sedentary nature. As regards P’s claim for loss of future
earning capacity the court decided that wherever possible the loss of future earning capacity
should be assessed on the basis of an arithmetical, actuarial basis and not on the basis of a “gut
feeling”. However, whilst the court should be guided by actuarial calculations it is not
completely bound by them and must arrive at an award that is fair and just in the particular
circumstances of the case. It decided further that in the present case although the court had
evidence before it of what P would have earned in the future as a motor mechanic, it had
absolutely no evidence as to what he might earn in an alternative career. In a case where there
has been pecuniary loss but the court has no evidence on the basis of which an actuarial
assessment can be made, the court must nonetheless still make an award of an amount that seems
to the court to be fair and reasonable even though this award is little more than an informed
guess. The court went on to say that to make the exercise of making such an award somewhat
less arbitrary in the circumstances of the present case, the court decided to use the approach of
applying actuarial formulae to establish what P would have earned as a qualified journeyman
over a limited number of years from the trial date, to make a deduction for contingencies, and to
award that amount. The rationale behind this approach is to give P a lump sum that, together with
the lump sum for past loss of earnings, he could use either to retrain himself and establish an
alternative income earning capacity or to provide himself with the capital to set out a business
venture. This approach also recognises a definite limit to D’s liability and requires P to develop
an alternative earning capacity within a reasonable period of time. Another approach would have
been to have taken the full figure claimed by P and to then have imposed a contingency factor
sufficiently large to take account of the fact that his future alternative earning capacity could be
close to or even exceeding the income earned as a journeyman. If this second approach had been
applied the figure that would have been arrived at would not have been significantly different
from that arrived at using the first approach.

In Biti v Minister of State Security 1999 (1) ZLR 165 (S) the court said that as regards the claim
by P for loss of earnings, the claim for such damages should not be dismissed because he was
earning that income by operating unregistered taxis or taxis that did not have certificates of
roadworthiness. However, only the figure conceded by the defendant for such loss should be
awarded because the courts cannot regard it as consistent with public policy to encourage the use
of unregistered and/or unroadworthy vehicles as taxis.

In Gwiriri v Starafrica Corp (Pvt) Ltd 2010 (1) ZLR 160 (H) P claimed damages for pain and
suffering, loss of amenities and loss of future earnings after he had effectively lost the use of his
right hand during an accident at work. The accident was caused by the negligence of his
employer.The court held that the concept of the loss of amenities of life has been tersely but aptly
defined as a diminution in the full pleasure of living. The amenities of life may further be
described as those satisfactions in one’s everyday existence which flow from the blessings of an
unclouded mind, a healthy body, and sound limbs. The amenities of life derive from such simple
but vital functions and faculties as the ability to walk and run; the ability to sit or stand unaided;
the ability to read and write unaided; the ability to bath, dress and feed oneself unaided; and the
ability to exercise control over one’s bladder and bowels. Factors that may influence the amount
to be awarded include the age and sex of the injured person, as well as the disfigurement and its
influence on the plaintiff’s personal and professional life: for instance how many of the activities
he or she was able to do or participate in and is he or she still able to or has he been incapacitated
and what did those activities mean in his or her life?The assessment of an appropriate award for
loss of earnings is not as easy as just multiplying figures based on the plaintiff’s previous
earnings. There are several contingencies that must be taken into account. As a starting point it is
important, wherever possible, to deal with the matter on an arithmetical, actuarial basis as
opposed to a “gut feeling” basis. While the court will generally have a regard to arithmetical
calculation and to actuarial evidence of probabilities to assist it in its assessment, ultimately it
must decide whether the results of such calculations and evidence accord with what is a fair and
just award in each particular case. It is a fact of life that it is not in every case that one reaches
retirement age. The probabilities or possibilities of early retirement or retirement due to ill health

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from natural causes, retrenchment and discharge by employer on other grounds have to be
considered.

In Nyandoro v Minister of Home Affairs & Anor 2010 (1) ZLR 332 (H) the court stated thatin
determining prospective loss, all the contingencies must be considered, including facts known at
the date of the trial, in deciding whether or not there is a reasonable probability of pecuniary loss
occurring in the future.

See also Jacksonv Minister of Defence HB-60-88 and Herschell v Bredenkamp GS-349-81
capitalisation of loss of earnings.

Loss of support
The basis of liability to compensate for loss of support is therefore to compensate a dependant
such as a widow or a child for the value of the support lost as a result of the death of the
breadwinner, spouse or parent.

The basic ingredientsof the plaintiff’s cause of action would be

a) a wrongful act by the defendant causing the death of the deceased,

b) concomitant culpa (or dolus) on the part of the defendant,
c) a legal right to be supported by the deceased, vested in the plaintiff prior to the death of the
deceased, and
d) damnum, in the sense of a real deprivation of anticipated support

In order for an action to be brought under this head, it must be proved that the deceased owed a
legal duty of support to the claimant during the deceased’s lifetime. The action is usually raised
by the dependants whose breadwinners have died as a result of road traffic accidents

It would seem that a contract by the deceased to accept all risk of injury cannot be set up against
the deceased’s dependents (i.e. the defendant is not able to raise volenti non fit injuria as a
defence to the dependent’s action - see under the defence of volenti). However, apportionment
applies to P’s action (i.e. the amount of damages payable to the dependant for loss of support will
be reduced by the extent to which the deceased was at fault).

The computation of damages for loss of support may only take into account the actual material
loss caused to the dependants. Their mental suffering and distress cannot influence the quantum
of damages, unless a recognised mental ailment is caused by the shock of witnessing the death in
circumstances where the law would accept that the causing of the mental condition was
reasonably foreseeable.The measures of damages for loss of support is, usually, the difference
between the position of the defendant as a result of the loss of support and the position he or she
could reasonably have expected to be had the deceased not died3 The particular equities of the
case must also be taken into account and an adjustment made if appropriate. The trial Judge has a
discretion to award what under the circumstances he thinks right. Thus any addition to a
dependent’s income, arising from the death of the deceased, must be deducted from the total
amount of the loss.

In assessing the value of the benefit-and indeed the loss-the court may be guided but is certainly
not tied down by inexorable actuarial calculations. Where property is inherited by a dependent,
in determining the extent of his or her loss the court should take into account not the value of the
property but that of the accelerated accrual.Joubert (ed) The Law of South Africa (1st re-issue)
Vol 7 para 89, citing Jameson's Minors v Central South African Railways 1908 TS 575 at 603;
Hulley v Cox 1923 AD 234; and Legal Insurance Co Ltd v Botes 1963 (1) SA 608 (A).

This entails assessing the probabilities of the dependent having inherited the property should the
deceased not have been killed through the wrongdoing of the defendant, but dying from a
different cause at a later stage.

In Mabaire v Jailosi & Anor HH-228-10 the court stated that damages for loss of support
constitute general damages, and as such, are calculated as at the date of judgment. In most cases,
the plaintiff relies either on medical or actuarial evidence; or on the general evidence of the
deceased’s earning capacity prior to his or her death; or on both. Where there is proof of loss of
support, even in the face of inadequate evidence, the court is enjoined “to pluck a figure from the
air”. Judgment will, however, be denied to a plaintiff who through lack of diligence fails to
produce evidence that would have been available to him or her. The total amount of loss of
support that is arrived at may be subjected to two discounts. The first of these discounts caters
for the capitalization rate of the award. This is often equivalent to the rate of interest that the
plaintiff would earn on investing the award. The second discount caters for contingencies, such
as errors in calculations, taxation and other unforeseen events. While the level of maintenance
that the deceased used to provide to his family is important, the court cannot use the expenses
incurred by the plaintiff to calculate the loss of support without reference to the deceased’s
earning capacity. It is a basic fact of life that expenses may often be much higher than a
breadwinner’s earning capacity, so to use the expenses to calculate the estimated loss of support
may distort the award for loss of support to the prejudice of the defendant and would amount to
an improper exercise of the court’s discretion.

In MacDonald & Ors v Road Accident Fund (453/2011) [2012] ZASCA 69; [2012] 4 All SA 15
(SCA) a motor vehicle collision occurred on a highway. The collision tragically claimed the lives
of two young parents.The proceedings which eventually led to this appeal commenced when a
curator ad litem for the three appellants, who were still minors at the time, instituted an action

3
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against the respondent for the loss of support that they had suffered due to the death of their
parents. The court said that the first amongst these relevant principles is that loss of support is
confined to actual pecuniary loss. In the first place that means that the dependants cannot claim
compensation in the form of a solatium for the grief, the stress and the hurt brought about by the
death of a loved one because these are not capable of being calculated in money. It also means
that the dependants are not allowed to profit from the wrongdoing of the defendant. Accordingly,
the actual pecuniary loss to which the dependants are entitled, can only be ascertained by a
balance of losses and gains that is by having regard not only to the losses suffered, but also to the
pecuniary advantage which may come to the dependants by reason of the breadwinner’s death.
This requires one to take into account any income available to the dependants by way of an
inheritance from the erstwhile breadwinner. And it matters not whether the income thus available
would come to the dependants directly from the deceased breadwinner’s estate or indirectly
through the mechanism of a trust. If the net assets in the estate of a deceased parent, together
with the income derived from those assets are therefore sufficient to support the dependants in
full, no claim for loss of support as a result of the breadwinner’s death can be sustained. See
Lambrakis v Santam Ltd 2002 (3) SA 710 (SCA) paras 19 and 20.

It should be noted that in terms of s 25(5) of the Road Traffic Act [Chapter 13:11] only one
dependant is required to take legal action against an insurer in respect of all the deceased’s
dependants.

The fact that income accrues from other sources which compensate for the loss is not a ground
for reducing the amount payable by the wrongdoers unless such income is a direct consequence
of the death of the deceased. In Zimbabwe section 9 of Damages (Apportionment and
Assessment) Act [Chapter 8:06] provides for certain benefits to be excluded in assessment of
damages in a claim for loss of support. It reads as follows:
9 (1) In this section—
“benefit” means any payment by a friendly society or trade union for the relief or maintenance of
a dependant of a member;
“insurance money” includes a refund of premiums and any payments of interest on such
premiums;
“pension” includes a refund of contributions and any payment of interest on such contributions
and also any payment of a gratuity or other lump sum by a person or provident fund or by an
employer in respect of the employment of any person.
(2) In assessing damages for loss of support as a result of the death of a person, no insurance
money, pension or benefit which has been or will or may be paid as a result of the death shall be
taken into account.

In South Africa this legal principle is also derived from statute, more particularly from theThis is
a claim for loss of support in terms of the Road Accident Fund in Act 56 of 1996 and the
Assessment of Damages Act 9 of 1969. The latter Act is a model of brevity. Its operative
provisions are all contained in section 1, which provides: ‘When in an action, the cause of which
arose after the commencement of this Act, damages are assessed for loss of support as a result of
a person’s death, no insurance money, pension or benefit which has been or will or may be paid
as a result of the death shall be taken into account.’

In Mfomadi & Anor v Road Accident Fund (34221/06) [2012] ZAGPPHC 152 the court noted
that the general principle applied by the South African Court is that a dependent plaintiff when
entitled to damages for loss of support, should be awarded damages only for the "material loss
caused by his death.

See also Jameson’s Minors v CSAR 1908 (1) TS 575, 589; Munarin v Peri-Urban Health Board
1965 (1) SA 545 (W); Evins v Shield Insurance Ltd 1980 (2) SA 814 (A) at 837; Victor NO v
Constantia Insurance 1985 (1) SA 118 (C) 122G; Tsara v Mutongawafa S-17-82; Dlikilili v
Federated Insurance 1983 (2) SA 275 (C); Hulley v Cox 1923 AD 234; Boberg’s Law of Persons
and the Family 2 ed (by Belinda van Heerden, Alfred Cockrell and Raylene Keightley) at 298 et
seq; Joubert (ed) The Law of South Africa 2 ed Vol 7 para 88). Indrani v African Guarantee and
Indemnity Co Ltd 1968 (4) SA 606 (D) at 607F-H).

Parties who may sue in cases of bodily injuries and death

Primarily, the person entitled to sue for damages for bodily injury is the injured party himself or
herself. In cases where that person is a minor, or for some reason he or she does not havelegal
standing to litigate his or her natural guardian or legal representative must bring the action, but
this action nevertheless represents a claim by the injured party himself or herself. However, in
certain circumstances, other people may sue.

Where death has occurred, patrimonial loss includes medical expenses prior to death and funeral
expenses.

Father
A father may sue to recover damages in respect of medical expenses and loss of services where
his minor child has sustained bodily injury. This rule is founded upon the ancient concept that a
child was in dominio patris and injury to him constitutes a loss of the father’s property. Under
present day conditions, the rule would be justified on other grounds. Medical expenses may be
claimed on the ground that the father, as a parent, is obliged to furnish these as part of his
obligation of support. Loss of services may be claimed for where the child is obliged to give his
or services on the ground that the father, through being deprived of the right to demand such
services, has suffered patrimonial loss. However, a father may not sue, in his own right, for
damages in respect of disfigurement, pain and suffering, disability, etc. to the minor.

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Husband
A husband can sue in respect of his wife’s death if the wife had a legal duty to support him or to
contribute towards his support.

A husband may claim damages against someone who has caused bodily injury to his wife and
thereby deprived the husband of his wife’s services. The husband must be able to show that the
loss of his wife’s services has actually caused him patrimonial loss. Marriage in or out of
community of property makes no difference to his right once established, but it is an important
factor in determining whether or not such duty exists.

The patrimonial loss in this cause would, for instance, be the cost of replacing her in providing
for the care and upbringing of children and the running of the household. It would also include
the value of the wife’s services as assisting the husband in the business. Patrimonial loss would
cover out-of-pocket expenses, such as hospitalisation, medical expenses, etc. paid in respect of
the wife’s treatment.

In McKelvey v Cowan NO 1980 ZLR 235 (G) the husband claimed that the wife had a legal duty
to assist him in carrying on his business and this assistance was essential for maintaining joint
household.

A husband has no claim, unlike English law, for damages for being deprived of his wife’s
comfort and society as a consequence of death or bodily injury.
Wife and children
The right of a wife or child to claim loss of support for a husband’s or father’s injuries only arises
when those injuries result in death. This is because, if as a result of injuries sustained, a husband
and father have diminished earning capacity, then he is the person who is entitled to claim.
However, it should be noted that a wife married out of community of property, who, by reason of
her husband’s indigence, is under a legal duty to maintain and support him, would be entitled to
claim damages for medical and other out-of-pocket expenses paid by her. The same would apply
to a child.

Thus, a wife can bring such a claim in respect of the death of her husband, and she will usually
have no difficulty in proving a right of support, the only exception being where the husband was
too indigent to provide any support. (It is interesting to note that under s 3(1) of the British Fatal
Accidents Act of 1976 even a “common law wife”, that is, a person who has been living with the
deceased outside wedlock, is entitled to claim for loss of support if she had been living with the
deceased for a period of at least two years prior to his death.) In the case of Zimnat Insurancev
Chawanda 1990 (2) ZLR 143 (S), the Zimbabwean Supreme Court ruled that a woman married
to a man in an unregistered customary law marriage can claim for loss of support arising out of
the death of her husband.
Exemption from liability
If X enters into an agreement which exempts D from liability from injury caused to X, this
agreement will prevent a dependant from suing in the event of X dying.
Jameson’s Minors v CSAR 1908 TS 575

The breadwinner was killed in a train accident caused by the negligence of the railway company.
The breadwinner was a passenger who had “a free pass” which excluded liability of the railway
company in the specific circumstances.

The court decided that this exemption provision was no defence against the action by the
dependant.

Voluntary assumption of risk by breadwinner

Loubser et al The Law of Delict in South Africa p 164
Consent to the risk of death by a breadwinner, for example, when taking part in a hazardous
activity that may result in injury or even death, is not a defence against a claim by dependants for
loss of support, if the death was caused by another’s person’s negligence.
Burchell Principles of Delict p 73 volenti may exclude unlawfulness re deceased but claim by
dependant independent and volenti does not exclude unlawfulness in respect of dependant. See
dicta in
Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 837
Victor NO v Constantia Insurance 1985 (1) SA 118 (C) at 122
Children
A child (even an illegitimate child) can sue for loss of support caused by the death of either
parent. Even a child who has attained majority can sue if he can prove a continued duty of
support after majority.
Parent
A parent can sue for loss of support caused by the death of a child if he or she can prove that he
or she could not support himself and he or she was dependent upon the support provided
previously by the deceased child.
Sibling
Even an indigent brother can claim in respect of the death of a brother who was supporting him,
if he can prove that the parents could not provide support. However, the duty of support cannot
usually be taken to extend to more distant relatives.
Relatives under customary law
As regards the customary law position as to whether relatives can claim for negligent causing of
death, see Tsarav Mutongawafa S-17-82 and Dlikililiv Federated Insurance 1983 (2) SA 275 (C).

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Employer
The court held in the South African case of Union Government v Ocean Accident and Guarantee
Corporation Ltd 1956 (1) SA 577 (A), that an employer has no right of action for loss of his or
her servant’s services, although the old Roman-Dutch authority did allow recovery in respect of
loss of a domestic servant’s services. It would seem unlikely that in the modern context a
distinction would be made between domestic workers and other employees in this regard.
Heirs
Heirs cannot, claim damages for disappointed expectations based upon arguments that if the
deceased had lived longer they would have inherited more.

Property damage
Where property has been destroyed or damaged, P is entitled to be put in as good a position that
he would have been in had the wrong not been committed. The amount of damages to which P
will be entitled if his property has been damaged will be the difference between the market value
of the thing before and after the damage assessed at the time of the delict. The courts will take
the reasonable cost of repairing the damage as the measure. But P must prove the reasonableness
of the repairs. In Halfpenny v Mujeyi & Anor HH-96-88, P whose vehicle had been damaged had
not proved the reasonableness of repairs simply by producing a quote and invoice from the
company carrying out the repairs. On the other hand, in the case of Mutendi v Maramba 1994 (2)
ZLR 41 (H) P had gone to two panel beaters to obtain quotes and had accepted the lower quote.

In GDC Hauliers (Pvt) Ltd v Chirundu Valley Motel 1988 (Pvt) Ltd 1998 (2) ZLR 449 (S) a
vehicle belonging to D collided with an electricity pole at P’s hotel, causing an electrical
blackout and resultant damage to some electric motors. The driver of the vehicle was admittedly
negligent. Repairs were carried out on the motors. P sought to rely on the account from the
repairer to establish the quantum of damages. The court held that where a person claims damages
arising out of repairs following damage caused by another’s negligence, he must show that the
repairs were necessary and that the cost of the repairs was fair and reasonable. The repairs must
also be shown to be necessary to bring the article back to its pre-accident condition. It is not
enough for P merely to produce an account from the repairer. Without such evidence, the
damages cannot be proved.

In Ebrahim v Pittman NO 1995 (1) ZLR 176 (H) P claimed damages resulting from an accident
in which P’s vehicle, a mechanical horse towing two trailers loaded with grain, was involved in a
collision with a car. P claimed the cost of repairs to the mechanical horse; the cost of replacing
the tri-axle and independent trailers; recovery expenses; and loss of profits caused by the
inability of the plaintiff to carry on part of his business due to the unavailability of the vehicle.
On the question of damages, P had the vehicle and trailers repaired at his own workshops, though
he had obtained quotes from two panel beaters. No job cards or other documentary evidence
were produced and P’s oral evidence was vague as to the cost to him of carrying out the repairs.
Although P claimed that the trailers were no longer able to carry the weights they could before,
certificates of fitness had subsequently been obtained. D called an insurance assessor, who gave
his opinion as to the diminution in value of P’s vehicle and trailers as a result of the accident. On
the question of loss of profit, the parties reached a compromise agreement. The court held that
where damages to property are claimed, P must lead adequate evidence to enable the court to
quantify his damages. Where the damages can be assessed exactly, P is expected to lead enough
evidence. Where he cannot produce such evidence, there must be at least enough evidence for the
court, even with difficulty, to make a fair approximation of the P’s mathematically unquantifiable
loss. If such evidence is not produced, D is entitled to absolution. The P’s evidence in this case
was vague and unsubstantiated by documentary evidence. The evidence of the insurance assessor
called by the defendant accordingly would be accepted.

Interest on damages
In terms of s 6 of the Prescribed Rates of Interest Act [Chapter 8:10] there are provisions relating
to unliquidated claims e.g. for pain and suffering and for disfigurement. It is provided that once
the amounts of such claims have been fixed by the court, interest is payable at the prescribed rate
from the date the cause of action arose (e.g. the date of the motor accident that caused the injury)
but the court has a discretion to order that interest is payable over a more limited period.

In the case of Mutendi v Muramba & Anor 1994 (2) ZLR 41 (H), the court ordered that interest
on damages for pain and suffering and disfigurement should be payable from the date of the
accident, but that interest on the cost of repairs to the car should only be payable from the time
the repairs were actually paid for.

In Biti v Minister of State Security 1999 (1) ZLR 165 (S) the court decided that it would not be
fair to make interest on general damages to run from the date of the accident, since general
damages were calculated as at the date of judgment. Interest was ordered to run from the date of
service of summons.

In Kondoni v Eagle Insurance Co Ltd & Anor 2000 (1) ZLR 286 (H) the court held that in a
motor accident situation interest on special damages in the form of medical expenses runs from
the date on which the expenses were incurred whereas general damages for pain and suffering
are assessed at the date of the judgment and therefore interest on such damages should run from
the date of the judgment.

See also Mutendi v Muramba & Anor HH-89-94.

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Duty to mitigate loss
P is bound to mitigate or minimise his loss. This duty arises as soon as P realises that he or she
has suffered loss by reason of the wrongful act of D. P’s duty is not an absolute one: it is simply
a duty to take all reasonable steps to minimise the loss that has already occurred or to avert harm
in the future. Where P has failed to take such reasonable steps, P is debarred from recovering the
loss that results from this failure. In other words, P will not be compensated for such portion of
his or her loss as could have been avoided by taking reasonable steps. P has the further duty to
avoid aggravating his damages by his own wanton or careless conduct. The onus is on D to prove
that P did not take reasonable steps to mitigate or was guilty of aggravating his damages.

In Cargo Carriers (Pvt) Ltd & Anor v Nettlefold & Anor 1991 (2) ZLR 139 (S) the amount
payable for repairs to a vehicle had been increased due to the delay on the part of P. D was not
liable for the extra amount attributable to the delay.

In Magoge v Zimnat Lion Insurance Ltd 2003 (2) ZLR 382 (H) the court P is under no duty to
mitigate loss but if he or she fails to do so he may have his or her damages reduced. The onus of
proving that he or she did not take such reasonable steps is on D.

In Fokoseni v Lobels Bakery 2004 (1) ZLR 406 (S) the court ruled that a person wrongfully
dismissed from employment must mitigate his or her loss without delay. He or she must look for
alternative employment. In the circumstances the court found that P could not have done more to
mitigate his loss.

Collateral source rule (res inter alios actae)

The basic principle of compensation in delictual actions is to place the plaintiff in the position
she would have been in had the delict not occurred. However, the collateral source rule provides
that something that happens between the parties should not concern anyone else.The rule lays
down that certain payments made to P from third parties must be disregarded when P claims
damages from D. This rule has been applied to two main situations. However, in all jurisdictions
where the rule is recognised, it has been fraught with difficulty and has been diversely applied.

Gratuitous payments
When a third party intervenes and make payments to the plaintiff out of generosity or
benevolence or charity, the collateral source rule comes into play. Here there is reluctance on the
part of the law to allow the “wrongdoer” to benefit from the acts of kindness of another unrelated
party.
 Indemnity and non-indemnity insurance
Here it is seen as being inequitable to allow D to benefit from the fact that P has been prudent
enough to insure himself or herself and thus insurance payments to P should be disregarded when
.

This postulates that insurance payments paid to P do not prevent him or her claiming damages
from D. This is justified primarily on the basis that D should not be able to benefit from the
foresight of P in taking out insurance. But this creates the problem of double compensation.

The problem does not arise if the Insurance firm has fully compensated the policy holder and
under subrogation the insurance company sues D to recover its loss from paying out to D.

But what if P has been paid out by the insurer for his or her entire loss and he or she still sues D
for damages? If the court awards P the damages then he or she gets doubly compensated and the
insurance company is no longer able to recover its losses through subrogation.

This issue was addressed in the case Tsodzai v Magezi & Anor HH-193-2011. After arguments by
opposing counsel on this point, the court seems to have rejected the collateral source rule but
without making any reference to this rule. Referring to the precedent of the early South African
case of Ackerman v Loubser 1918 OPD 31 the court decided that where the insured takes the
initiative to institute delictual action against D, the pleadings must make it clear that the insured
is taking this action for the benefit of his insurer. If he does not do so the inevitable conclusion
would be that he intends to have a double benefit over the same loss. The court must not be left
to speculate as to whether P may or may not hand over the benefits of his litigation to the insurer.
In the Ackerman case P had been paid out by his insurance company. A term of the insurance
policy was that he was compelled to bring action against D if so requested by the insurance
company. The insurance company had made this request and P’s pleadings made it clear that he
was bringing the action on behalf of the insurance company.

In the Tsodzai case P did not disclose that he had been paid out by the insurance company and
that he was bringing the action on behalf of the insurance company. He only inadvertently
revealed this during the course of the hearing. Even after this P did not in his evidence advise the
court that he intended to hold the damages that he would recover on behalf of the insurance
company.To further compound his position, P’s declaration and his summary of evidence
deliberately withheld this vital information about his indemnification. I am unable to
countenance such level of dishonesty. In my view all this was calculated to ensure that P would
quietly enjoy a double benefit over a single loss knowing fully well that his insurer had
adequately indemnified him. The court said that there is nothing on paper or in his evidence that
his actions were meant to benefit his insurer. If anything, there is overwhelming evidence that he
intended to line up his pockets, thus running foul to the very basic principle of subrogation. I am

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unable to positively reward P’s non-disclosure.The court then decided that consequently, it was
satisfied that P has no locus standi in judicio to bring this action against Ds.

Collateral source rule in South Africa

The collateral source rule forms part of South African law. Professor Boberg states at page 479 of
The Law of Delict that although the existence of the collateral source rule cannot be doubted; to
what benefits it applies must be determined casuistically; where the rule itself is without logical
foundation, it cannot be expected of logic to circumscribe its ambit. Boberg suggests that the rule
must also be seen in the context of being partially corrective of our “once and for all” rule which
of course carries the danger of under compensation.

It also has a bearing in the argument pertaining to whether in delictual actions we compensate for
loss of earning capacity or for loss of earnings. Loss of earning capacity allows for a more
flexible approach in that it extends compensation to those who at the time of injury were not
utilising their earning capacity e.g. the woman who is a qualified accountant but chooses to take
time off of her career in order to raise children, or the doctor who is working in missionaries in
Africa for charitable purposes. Boberg argues that if the true rationale of compensation is loss of
earning capacity, the receipt of collateral benefits is rightly disregarded, for they do nothing to
restore that which is lost.

Under the common law, the fact that the injured party or a dependant of the deceased receives
compensation or benefits from a collateral source, wholly independent of the wrongdoer or the
wrongdoer’s insurer, does not operate to reduce damages recoverable by the claimant. The rule is
based on considerations of equity, fairness and the interests of society.The rule accordingly
excludes such compensation from the assessment of the injured party's damages unless 'equity,
fairness and the interests of society', which in this context are aspects of public or legal policy,
require that such collateral compensation should indeed be brought into account as reducing the
damages for which the defendant is liable.See Concor Holdings (Pty) Ltd v Minister of Water
Affairs and Forestry & Anor (Judgment on Exception) (16947/2001) [2006] ZAGPHC 138

The rule, however, is subject to exceptions. In South Africa the position is basically as follows:

Benefits not deducted from damages claim

 Benefits received in terms insurance contracts (thisapplies both to indemnity insurance
such as accident insurance and non-indemnity insurance such as life insurance);
 Benefits received under medical aid, where the medical aid has a discretion as to whether
to pay the benefit;
 Paid sick leave, where P’s employer has a discretion as to whether to grant sick leave;
 Donations and ex gratia payments;
 An award that has been received as a solace.
 Benefits deducted from the damages claim

 Medical aid payments received pursuant to a contractual or statutory right;

 Sick leave granted pursuant to an employment contract or statutory right;
 Pension paid out pursuant to a a contractual or statutory right;
 The benefit of free medical care;
 Savings on income tax as a result of lost income.

It has been decided in South Africa that where the collateral benefit derives from the same
contract of employment that P has relied upon to prove his loss of earning capacity, the benefit
will be taken into account. See Dippenaarv Shield Insurance 1979 (2) SA 904 (A) where a
statutory pension was taken into account; Serymelav SA Eagle Insurance 1981 (1) SA 391 (T)
where a contractual right to “sick pay” was taken into account. See also Krugellv Shield 1982 (4)
SA 95 (T) and Gekhring v Union National 1983 (2) SA 266 (C). Dippenaar’s case lays down that
compulsory payments into an in-house fund within his employment must be deducted, whereas if
the payments were voluntary and not compulsory these would not be taken into account.

In Bosch v Parity Insurance Co Ltd1964 (2) SA 449 (W): P claimed damages for personal
injuries sustained in a motor vehicle accident. During his recovery period he was off work for a
period of some 68 days, for which he was remunerated by his employer in terms of sick leave
benefits stipulated in his contract of employment. The plaintiff therefore had received full wages
and his real loss had been using up his accumulated sick leave. The court held that the fact that
the plaintiff had received his wages during the period of incapacitation was to be disregarded in
assessing his damages by virtue of the collateral source rule. It was held that it mattered not the
benefits flowed from his contract of employment as this right was deemed to have been
purchased much the same way as an insurance.

In May v Parity Insurance Co Ltd 1967 (1) SA 644 (D) the plaintiff claimed loss of earning for a
period during which he was off work. The plaintiff was entitled to receive payment from his
employer for the time off work as of right and received sick pay. The defendant argued that this
amounted to double compensation. The court (Milne JP) held that the plaintiff was entitled to
receive compensation from the defendant irrespective of what he had independently bargained
for with his employer.

In Santam Versekeringsmaatskappy Bpk v Byleveldt 1973 (2) SA 146 (A) the plaintiff had
sustained a severe head injury in a motor vehicle accident. Despite being “feeble minded” and
virtually unfit for work, his former employer, a garage proprietor, continued to employ him and
remunerate him commensurately as a mechanic. In the twenty months before trial he earned R4
123.00 in wages. The question before the court was whether this amount was recoverable from

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the defendant for loss of earnings. The Appellate Division held by a majority of 4 to 1, that it was
recoverable.

In Swanepoel v Mutual and Federal Insurance Company Limited 1987 (3) SA 399(W): In this
case the issue was whether a pension or a pensionable allowance to which the plaintiff was
entitled in terms of the Military Pensions Act, was to be taken into account in the assessment of
damages. The plaintiff made no contributions to the fund and did not rely on a contract of service
with the defence force when computing his damages. The court said:

“When damages for personal injury are to be assessed a person’s patrimony includes, inter alia,
the capacity to earn money through his effort. This capacity to earn money ‘is considered to be
part of a person’s estate and a loss or impairment of that capacity constitutes a loss if such
diminishes his estate.’”

On the basis that the loss of capacity is sought to be compensated, the reason for excluding
charitable payments and benefits derived from a contract of insurance becomes obvious. The
charitable benefit is a donation and the benefit in terms of an insurance is purchased. Neither
benefit is in fact earned. The reasoning of the court in this case was that the military pension bore
no relationship to the plaintiff’s earning capacity and therefore could not be deducted.

In Zysset & Ors v Santam Limited 1996 (1) SA 273(C): In this matter Swiss nationals received
substantial benefits in terms of compulsory Swiss social insurance schemes. The plaintiffs had
been injured in South Africa. The issue to be decided by the court was whether the benefits paid
in essence by the Swiss insurance schemes were to be deducted. The court held that the enquiry
must inevitably involve to some extent considerations of public policy, reasonableness and
justice. The considerations include weighing up the factor of double compensation versus the
factor that the guilty party ought not to be relieved of liability on account of a fortuitous event
such as the generosity of a third party. The court decided that in light of an agreement between
the parties and the Swiss insurance scheme requiring the plaintiffs to repay the amounts
disbursed, the amounts were not deducted from the plaintiffs’ awards.

In Standard General Insurance Company Limited v Dugmore NO[ 1996] ZASCA 89; 1997 (1)
SA 33 (A): The issue was whether the plaintiff was entitled to the capitalised value of his salary
and pension as he would have received but for the injury, less the capitalised value of the
disability pension. The court said that it is generally accepted that there is no single test to
determine which benefits are collateral and which are deductible. Both in our country and in
England it is acknowledged that policy considerations of fairness ultimately play a determinative
role. The court found that the disability pension which flowed from the terms of the contract of
employment was to be deducted. A further payment for disability at the behest and discretion of
the employer was not deducted.
What emerges clearly from the above extracts of law is that no hard and fast rules are applicable
in the determination and application of collateral benefits; policy considerations of what is just
and fair come into play. What is clear, however, is that where the plaintiff receives a benefit of
whatever nature through a third party, and irrelevant of the motive of that third party, this gratuity
cannot be taken into account when assessing the losses of the plaintiff. On the basis of the
aforesaid authorities, I am of the view that justice and fairness demands on the facts of this case
that the benefits provided by Mr. Welsh (the “provider”) in assisting the plaintiff to retain her
current salary and position despite her inability to fully render the commensurate services,
constitute a gratuity which should not be deducted from her loss

This distinction has been criticised and it has been argued that such payments should be
disregarded both when they are compulsory and when they are voluntary. (See Boberg p 491.)
No such deductions are allowed in England. See Parryv Cleaver 1970 AC 1 (HL).

Where the collateral source has paid out to P, Fleming, in An Introduction to the Law of Torts
(2nd Ed) at p 130, suggests that the best solution in this situation would be to compel D to
reimburse the collateral source. This would compel the defendant to pay in full without
conferring a windfall (in the form of double compensation) upon P. This could be done by
subrogation whereby the insurer, having paid the insured, can assert the latter’s rights against the
tortfeasor or by conferring an independent right to reimbursement upon the agency paying
compensation to the injured party.

Subrogation in motor accident delictual cases

Subrogation is the process whereunder an insurance company that has paid out to an insured
party on a claim can step into the shoes of the insured party and seek reimbursement from the
party responsible for causing the harm or the harm causer’s insurance company.

Cases where D is at fault for accident

D is entirely or partially responsible for the harm caused to P i.e. D negligently caused the motor
accident and P was not at fault or was only partially at fault.
If P’s insurance company pays out on P’s claim, the insurance company can then seek
reimbursement from D or D’s insurance company party for what it has had to pay out to the
insured party. In other words, the insurance company can seek to recover damages from the
guilty party or his insurance company.

The damages claimed can include not only the amount paid out by the insurance company, but
also shortfalls in the amounts paid by P such as where there are limits under the insurance policy
on what the insurance will pay to P. (Reinbursement)

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Cases where insured party is at fault
The subrogation process may also be used if an insured party (D) is at fault in causing damage to
P. Here P and/or its insurance company would make a claim against D, usually directly to D’s
insurance company.

D’s company will then review the case to determine if D is legally responsible for the damages
of P. D’s insurance company may then make payment to D’s company if D holds liability
insurance with D’s company.

Often liability is not clear cut. In some cases, both parties may be partially responsible. For
example, one party may be 40% responsible, and the other party may be 60% responsible. This
could mean that both insurance companies make subrogation claims against each other, and each
company pays their respective portion of the other party’s claim.

A knock-for-knock agreement is an agreement between two insurance companies whereby, when

both companies' policy-holders incur losses in the same insured event (usually a motor accident),
each insurer pays the losses sustained by its own policy-holder regardless of who was
responsible.

The rationale is economic and administrative efficiency: While an insurer may be able to pursue
a recovery from the party responsible for an accident or from its policy-holder, this is a costly
administrative procedure. The knock-for-knock agreement simplifies recovery claims among
insurers and, over time, attributes costs fairly among insurers.

Statutory provision applying in Zimbabwe

Loss of support damages generally

Careful note should be taken of section 9(2) of the Damages (Apportionment and Assessment of
Damages Act [Chapter 8:06] which provides as follows:

9(2) In assessing damages for loss of support as a result of the death of a person, no
insurance money, pension or benefit which has been or will or may be paid as a result of
the death shall be taken into account.

Section 9(1) provides that in this section—

“benefit” means any payment by a friendly society or trade union for the relief or
maintenance of a dependant of a member;
“insurance money” includes a refund of premiums and any payments of interest on such
premiums;
 “pension” includes a refund of contributions and any payment of interest on such
contributions and also any payment of a gratuity or other lump sum by a person or
provident fund or by an employer in respect of the employment of any person.

Compensation of workers

Section 31 of the Accident Prevention & Workers' Compensation Scheme (Prescribed Matters)
Notice, 1990 (SI 69 of 1990) provides as follows:
31. Save as is provided under this Scheme, there shall be no abatement of the amount
of compensation which the general manager or the employer individually liable has to
pay under this Scheme by reason of the fact that, in consequence of the accident
causing disablement or death, money has become due to the worker or his dependants
under an accident or life insurance policy effected by himself or by any other person.

Inflation (fall in value of money)

In Biti v Minister of State Security 1999 (1) ZLR 165 (S) the court said that as regards general
damages it is not safe to obtain guidance from other countries, given that our economies have
changed so greatly and so differently. When referring to a comparable earlier Zimbabwean case,
the fall in the value of money must be taken into account. The consumer price index should be
used to calculate the equivalent figure in the present case of the damages awarded in the earlier
case.

In Muzeya NOvMarais & Anor HH-80-04the court said that where making a claim for a debt
sounding in money, the principle of nominalism requires that any award must be paid in terms of
its nominal value irrespective of any fluctuations in the purchasing power of currency. This
principle does not apply to loss of future earnings or future support or where a comparison has to
be made of previous awards in quantifying non-patrimonial loss.

In Muchabaiwa v Chinhamo & Anor HH-179-03 the court said that in cases where damages are
sought for pain, suffering, disablement, disfigurement and shortened life expectancy, comparable
cases, when available, should be used to afford some guidance to assist the court in arriving at an
award which is not substantially out of accord with previous awards in broadly similar cases,
regard being had to all factors which are considered to be relevant in the assessment of general
damages.

See also HuibertsvCohen GS-172-81; Herschell v Bredenkamp GS-349-81.

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Selected cases on damages for personal injury
Robinson v Fitzgerald 1980 ZLR 508 (GS) D mounted a prolonged assault on P in P’s house.
There was contumelia and pain and suffering. The court awarded $1 800 in general damages.

Orne-GliemanvGeneral Accident Insurance 1980 ZLR 454 (G) a vigorous elderly man was
rendered a virtual cripple as a result of a motor accident. He was awarded $8 000 general
damages.

Santam Insurance v Paget (1) 1981 ZLR 73 (G) the court discussed how it should proceed when
it has insufficient information to assess accurately a claim for loss of future earning capacity.

Mendelsohn v Santam Insurance GB-50-81 a 14-year-old girl lost 3 teeth and suffered
lacerations to her face in a motor accident. The court had to decide upon how much to award for
future medical expenses.

Alwanger v Eagle Insurance GS-326-81 death of working wife and mother. The calculation of
loss suffered by family.

Herschell v Bredenkamp GS-349-81 a 17-year-old girl suffered head injuries resulting in brain
damage, personality change and some disfigurement and also a wrist injury which would be
likely to result in arthritis in the wrist. The court awarded $31 800 in general damages. It
discussed the process of calculating loss of future earnings.
Tena v UANC HS-367-81 Motor accident. A young child suffered a leg fracture and this resulted
in a slight shortening of the leg . He was awarded general damages of $2 400.

Chibobo v Chidangi GS-341-81 D shot P in the leg. P suffered severe initial pain and permanent
inability to participate in sport. He was awarded $1 250 in general damages.

Mabatapasi v John HH-265-82 P lost an eye and was unable to participate in most ball games.
He was awarded $6 000 in general damages.

Gorah v Nhika HH-40-83 motor accident. P suffered major injury and consequent disability. He
was awarded $12 000 in general damages.

Moyo v Abraham HH-467-84 a woman poked a pregnant woman on the forehead with her finger
and challenged her to fight. P was awarded $100 damages.

Mayisva v Commercial Union 1984 (2) ZLR 181 (H) P suffered severe injuries to the arm
necessitating prolonged treatment. P was unable to engage in previous sports and hobbies. He
was awarded general damages of $6 000.
Ziyeresa v Fleming HH-92-84 P was shot by D. This resulted in P losing his leg below the knee.
He was awarded general damages of $3 500.

Mutandiro v Mbubawa HH-354-84 motor accident. A builder suffered a fractured arm and leg
and this incapacitated him from active building work. He was also left with a permanent limp
and arthritis. He was awarded general damages of $10 000.

Nyangani v Maziweyi Bus Service HH-160-84 bus accident. P was unconscious for 4 days and
sustained an injury to the neck. He suffered pain. He was awarded general damages of $4 000.

Hunt v Ndangama HH-138-84 There was an assault in which P’s ear lobe was bitten off and
other minor injuries were caused. General damages of $1 000 were awarded.

Shepherd v Zimnat Insurance HH-467-84.

Mathe v Maseko HB-77-85.

Katsiru v National Railways HH-238-85 motor accident. A 57-year-old farmer in the communal
lands had to have his right foot amputated and suffered extreme pain. Awarded $7 500 general
damages (the effects of inflation were taken into account), $6 000 for artificial limb.

Mabvoro & AnorvMuza HH-199-85 P 1: motor accident left a woman with both legs fractured,
permanent pain, reduced ability to walk and perform household chores, inability to continue
peasant farming. General damages $20 000 (pain, loss of amenities and disfigurement). (P 2:
broken wrist and leg resulted in chronic pain, limp and scarring, reduced ability to work. General
damages $15 000.
Webster v Chivhiya HH-209-85 61-year-old man involved in a motor accident, resulting in
backache, limping, and inability to continue farming. $10 000 general damages (pain,
disfigurement and loss of amenities).

Manyika v Nyarume HH-97-85 a motor accident led to P suffering injuries resulting in a slight
limp and discomfort when he walked long distances. $8 500 general damages.

Chipinda v Zimbabwe Express Motorways HH-55-86 P, a self-employed carpenter, was run over
by bus. He suffered severe multiple injuries. He was awarded general damages of $25 000. The
court commented upon the process of calculation of future loss of earnings.

Chaza v Ramajan HH-459-88 an accidental discharge of a weapon resulted in 21-year-old being

paralysed from waist down. He also suffered some pain. He was awarded general damages of $5
000.
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Nyathi v Tshalibe HB-158-88 an assault resulted in the perforation of P’s eardrum. He suffered
persistent pain and permanent deafness in ear. He was awarded general damages of $2 200.

Chikanda v Mukumba HH-210-88 motor accident. A 28-year-old constable suffered a severe

compound fracture of the tibia and fibula. He had to spend 50 days in hospital and was in severe
and prolonged pain. His right leg was an inch shorter and he had arthritis in his ankle. He was no
longer able to participate in sport. He was confined to office duties. He was awarded $7 000 in
general damages.

Jackson v Minister of Defence HB-60-88 motor accident. A recently qualified young doctor
suffered severe head injuries and various fractures. He spent 22 days in the intensive care unit.
The injuries resulted in loss of his sense of smell, loss of memory, impaired speech, double
vision, a shortened left leg and emotional instability. He was only able to perform simple medical
tasks. He was awarded $35 000 in general damages.

Dube v Manimo HB-44-89 knife attack causing cuts and resulting in amputation of ring finger on
one hand, other hand already disabled from polio. $3 000 general damages.

Muchechetere v Boka HH-148-89 There was a motor accident. A young boy sustained a thigh
fracture and bruising. He was in severe pain for a long period. He had an 8% permanent
disability to his leg. The court awarded $6 000 in general damages.

Hokonya & Anor v Chinyanyi & Ors HH-17-95 a four-year-old child was so severely injured in a
car accident that the child was reduced to a permanent vegetative state. The court awarded
general damages in the amount of $65 000 for pain and suffering, loss of amenities,
disfigurement and loss of expectation of life.

Ndawana v Nasho & Ors 2000 (1) ZLR 23 (H) an elderly pedestrian was knocked down by a
motor vehicle that had veered off the road. He was seriously injured, suffering several factures to
his leg. He had experienced severe and prolonged pain. He was awarded special damages of $30
000. (In deciding this case, the judge referred to a number of South African and Zimbabwean
judgments for comparative purposes.)

Mungofa v Muderede & Ors HH-129-03 P, a 40-year old woman was seriously injured in a motor
accident. Her cheekbone and both her legs were fractured, he jaw was injured and she endured
over four weeks of hospitalization and six operations to treat and remould her broken bones. She
was bedridden for four or five months. In all, she suffered 45% disability. As a result of her
injuries she was confined to crutches or a wheelchair and lost her employment as a sales
manager.
She was awarded a total of $8 573 941 of which $300 000 were special damages. From the total
sum the court subtracted the amount P had been repaid from her medical aid.

Muchabaiwa v Chinhamo HH-179-2003 P was standing on the side of the road when a commuter
bus swerved off the road and hit her. She sustained some brain damage and disfiguring injuries,
was unable to walk without a stick and then only for short distances, spent a lot of time in bed
and suffered epileptic seizures and continuous severe pain.

She claimed $800 000 for pain and suffering and $100 000 for future medical expenses. The
court held that the amounts claimed were reasonable.

Chirinda v Minister of Home Affairs & Anor HH-150-2003 P was a bystander injured by s shot
fired by a policeman who was attempting to control a riot. The bullet severed P’s spine, resulting
in complete paralysis of his lower body and 100 per cent disability. He lost all bowel and bladder
control, was confined to a wheelchair, was unable to take up any employment, and developed
suicidal tendencies.

He was awarded $1,5 million for loss of amenities of life, in addition to special damages to cover
his medical expenses and loss of income.

Vellah v Moyo & Anor HB-101-2010 an elderly pastor was assaulted by being severely beaten in
his buttocks after being accused of being a member of a particular political party. He had
suffered a lot of pain.
He was awarded $50 000 general damages.

Gwiriri v Starafrica Corp (Pvt) Ltd HH-20-2010 P claimed damages for pain and suffering, loss
of amenities and loss of future earnings after he had effectively lost the use of his right hand
during an accident at work. The accident was caused by the negligence of his employer.The court
held that the concept of the loss of amenities of life has been defined as a diminution in the full
pleasure of living. The amenities of life may further be described as those satisfactions in one’s
everyday existence which flow from the blessings of an unclouded mind, a healthy body, and
sound limbs. The amenities of life derive from such simple but vital functions and faculties as
the ability to walk and run; the ability to sit or stand unaided; the ability to read and write
unaided; the ability to bath, dress and feed oneself unaided; and the ability to exercise control
over one’s bladder and bowels. Factors that may influence the amount to be awarded include the
age and sex of the injured person, as well as the disfigurement and its influence on the plaintiff’s
personal and professional life: for instance how many of the activities he was able to do or
participate in is he still able to or has he been incapacitated and what did those activities mean in
his life?

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The assessment of an appropriate award for loss of earnings is not as easy as just multiplying
figures based on P’s previous earnings. There are several contingencies that must be taken into
account. As a starting point it is important, wherever possible, to deal with the matter on an
arithmetical, actuarial basis as opposed to a “gut feeling” basis. While the court will generally
have a regard to arithmetical calculation and to actuarial evidence of probabilities to assist it in
its assessment, ultimately it must decide whether the results of such calculations and evidence
accord with what is a fair and just award in each particular case. It is a fact of life that it is not in
every case that one reaches retirement age. The probabilities or possibilities of early retirement
or retirement due to ill health from natural causes, retrenchment and discharge by employer on
other grounds have to be considered.

In this case P was not rendered helpless by the disability. What has been rendered of not much
use is the right hand. His other limbs, his mental faculties and other abilities were unaffected by
the injury. He should be in a position to learn how to effectively use the one remaining hand and
embark on another career, which he did not seem to have done. Damages of the nature sought
could not sustain him. He was not useless or hopeless. He had to mitigate his loss by engaging in
meaningful activities. Due to the fact that he would be using one arm, there would be limits to
the nature and extent of the employment or activities he can engage in. It is that deficiency or
limitation that must be compensated by an award for loss of earnings.

Mafemera v Chidavaenzi & Anor HH-116-2012 a police officer in the course of his duties shot a
civilian eight times causing him very severe injuries. He wrongly believed the person he shot to
be a criminal that he wanted to apprehend. Plaintiff had to undergo numerous operations and
would require further medical treatment in the future. He is no longer able to use his right wrist
and hand and was no longer able to work as an accountant. His degree of permanent disability
was estimated by the doctor at 50%.

He was awarded US$30 000 as general damages for pain and suffering, loss of amenities and
permanent disfigurement and loss of bodily functions. He was also awarded US$10 000 as
special damages and US$10 000 for future medical expenses.

REFORMING LAW OF DELICT

How does our system of delict operate in relation to the underprivileged sections of our
community? Is it possible for injured persons with limited financial resources to obtain quick and
adequate compensation for their injuries through the present delict system?
Most delictual actions are brought under Aquilian action and most Aquilian actions are based on
allegations of negligent, rather than of intentional wrongdoing. It is appropriate therefore to
explore how a system of civil liability based upon proof of negligence operates in Zimbabwe.

Social context
To put this debate into a social context there are two main approaches to accident compensation,
namely, the individual responsibility theory and the social responsibility theory.

Individual responsibility
Under a fault system of civil liability, what is stressed is the factor of individual responsibility. If
one person has been harmed by another, the person causing the harm is held liable to pay
compensation, provided that the author of the harm was negligent in its infliction. Under this
approach, it is considered as being both unfair and unjustified to impose delictual responsibility
unless there was fault. In this regard, much stress is laid upon the deterrent function of civil
liability. If harm, it is argued, is caused accidentally without fault, the loss should lie where it
falls as deterrence is in no way served by punishing a doer who has taken all reasonable care. On
the other hand, if D is careless he should be penalised by being made to pay damages, not only to
compensate the injured party, but also to encourage him and others to exercise due care in the
future. In capitalist societies, another often unstated reason for shying away from strict liability is
that such a liability system will serve to discourage private enterprise initiative by placing an
intolerable economic burden upon the entrepreneur. As Fleming points out in his book An
Introduction to the Law of Torts 2nd ed at pp 6-8, these justifications for the fault system have
been drastically affected by two important contemporary phenomena.

First, major inroads are made into the idea of individual responsibility by insurance. By the
device of insurance, it became possible to shelter the individual tortfeasor from the economic
consequences of an adverse claim by spreading the cost among the public in the form of
premium payers. Delictual liability thus became more or less painless for the individual
tortfeasor.

By approving insurance schemes, the law impliedly abandoned the principle of individual
responsibility. This is justified, however, on the basis that insurance achieved the dual benefits of
safeguarding D from the potentially ruinous consequences of an adverse judgment and assuring
his victims of actual compensation instead of merely achieving an empty verdict against a
defendant who might well be financially impoverished. According to Fleming, the law of delict
has thus lost its role as a champion of individual responsibility and of playing a major role in
accident deterrence.

Second, with enterprises causing delictual harm, these enterprises can frequently absorb as
overheads the costs of delictual damage liability in a similar fashion to other production expenses

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by passing on the cost of these to their customers (loss distribution). (Where there are stringent
price controls, however, loss distribution may not be possible.)

Fleming op cit., p 10 deals with the effects of these phenomena on the fault theory as follows:

As long as delictual liability was seen to involve just a shifting of loss from one individual
to another, the desire to compensate the victim was not enough to justify impoverishing
the injurer. But now the equation has shifted: if the victim can be assured of compensation
without involving a corresponding loss to the injurer, the focus of individual responsibility
and fault tends to blur. It becomes more economically allocated: in short, the philosophical
criterion is yielding to the economic; we are involving the utilitarian calculus of balancing
benefit and cost.

In other words, where losses are distributed by insurance from the negligent driver, owner or
employer to an insurance company, the fault criterion loses much of its value and the quest
should be to design a scheme whereby the maximum benefits can be obtained for the injured
party at the minimum possible costs.

Social responsibility
The social responsibility theory, on the other hand, lays the emphasis upon the responsibility of
society to look after victims, whether or not the injuries are caused by negligent action, and
rejects the idea that the entitlement to compensation should depend entirely upon whether P is
able to prove in a court of law that a defendant negligently caused him harm.

Finally, looking at these two approaches in the political context, Atiyah in his important book
Accidents, Compensation and the Law 3 ed at p 11 has this to say:

The distinction between an individualistic political philosophy and a more socialist

philosophy affects the choice of compensation systems over and over again. Those who
believe in “community care” recognise a moral obligation on society as a whole to care
for those unable to care adequately for themselves; to search out those in need of such
care; to offer them the help and care, partly at least in the form of help and welfare in
kind. On the other hand, the more rugged individualism of the nineteenth century which
still has its devotees today would insist more strongly on the personal responsibility of
those who cause accidents and less on society’s responsibility for catering for these
victims; it encourages the belief that those who need “help” can be left to obtain it
themselves, so long at least as the State supplies the coercive framework within which
those “responsible” for accidents can be made to answer for those misdeeds; and that this
help is best given in the form of cash payments which the recipient is entitled to spend as
he pleases.
Operational defects of fault system
In recent years, the fault system of compensation has come under increasing attack in developed
countries and a number of countries have introduced or are considering the introduction of a
variety of non-fault schemes, either State-run or operated through private insurance. The most
comprehensive of State-operated systems is that which was first introduced in New Zealand in
1974.

In developed countries, the major shortcomings of the fault system which have led to these
moves to replace it are:

The system is inordinately expensive to administer and in terms of the cost/benefit ratio it is
highly inefficient. Prosser and Keeton on Torts 5 Ed at pp 598-599 draw attention to the fact that:

As regards these costs one survey in England disclosed that with road accident
compensation which is based on proof of fault it cost 74p to distribute £1 whereas under
the industrial accident compensation system which is a no-fault system it only cost 15p to
distribute £1. So too the excessive distributional costs of a fault system were clearly
illustrated by the Pearson Commission in England where in their 1978 report estimated
that under the tort system the cost of operation was about 85% of the value of the
compensation paid (i.e. it cost about £171m to transfer £202m) whereas under the social
security system the cost of operation was only about 11% of the value of the compensation
paid (i.e. it cost about £46m to transfer £421m).

The system of liability based on fault has been referred to as a lottery because in many cases the
inherent vagueness of the negligence concept makes the outcome in delict cases unpredictable.
The concept of fault is especially nebulous, inaccurate and difficult to prove in motor collision
cases. In more general terms, Atiyah makes a quite devastating critique of the application of the
negligence criterion in his book Accidents, Compensation and the Law. Prosser and Keeton op
cit p 599 sum up the criticisms of the fault system as follows:

The whole picture is one of a fumbling and uncertain process of awarding a judgment
upon the basis of unreliable evidence, fraught with ruinous delay, which fails entirely
when proof of fault fails, leaves the entire remedy worthless against many defendants who
are not financially responsible and diverts a large share of the money to attorney fees even
when it can be collected.

The bringing of a negligence case to court is a laborious process and the proof of negligence in
court may be a protracted process. This means that there are often exceedingly long delays

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between an accident and the final securing of compensation and this can cause great hardship in
cases where compensation is immediately needed.

In one British survey, it was established that delays of over two years in motor accident cases
were not uncommon and that, of the 42% of accident victims who managed to obtain any
compensation at all (i.e. 58% of the victims were uncompensated), only 13% were paid out in
less than a year, 20% were paid out in the second year, 6% in the third year and 3% in the fourth.

It is clear that the defects in the fault system that have been identified as applying in developed
countries aresubstantially magnified in underdeveloped countries. This applies to Zimbabwe.

Particular shortcomings of fault system for underprivileged people

Our system of fault liability often results in gross injustice to financially underprivileged
plaintiffs and the only persons who can adequately exploit the fault system to their advantage are
the wealthy. Some of the particularly harsh effects for the financially impoverished claimant in
Zimbabwe can be identified.

First, there is the widespread incidence of what might be termed legal illiteracy. People are often
unaware that they are entitled to claim compensation or, if they do know, they will not know how
to pursue their claims and what they must establish before compensation will be paid.

Second, under a fault system poor claimants start from a decidedly weak bargaining position.
The practical effect of this weak economic position may often be that such claimants may either
receive no compensation or they may be substantially under-compensated for their injuries. If a
claimant lacks the financial resources to pursue his claim in court, he may effectively be left
remediless as, even in a clear cut case of fault, D can simply deny negligence knowing that P is
unable to take the matter to court. Civil legal aid in this country is extremely limited in its scope
and only a handful of potential claimants who are too poor to be able to go to court without
assistance are enabled to pursue claims under the in forma pauperis system. When the claimant
has barely adequate means to initiate a court case, he may frequently fear to commit those
meagre financial resources to the uncertain chance of succeeding in a delict claim. Not only does
the inherent vagueness of the negligence criterion make people reticent about going to court but
also if a wealthy D or an insurance company is opposing, P will be aware that the other side will
be able to mobilise far superior resources both to gather evidence favourable to its case and to
employ very skilful lawyers to argue its case.

The claimant’s inferior bargaining position often means that he will be forced to accept a totally
inadequate out of court settlement and thus the financially well endowed defendant may
artificially be able to minimise the level of compensation even in the most clear cut cases of
negligence. (Of course, in some cases insurance companies readily accept liability and pay
adequate settlements.)

Third, even where limited financial resources or legal aid assistance allowed the injured party to
pursue his claim to a successful conclusion, the time lapse between the injury being sustained
and compensation being paid will almost invariably have been extremely long and the
impoverished injured party will have to survive without desperately needed compensation over
this period. This naturally results in extreme hardship to the injured party and his family.

Need for reform

These major problems with the fault system strongly indicate that the time has come to find
alternatives or, at least, to effect major reforms to the present system in this country. Consistent
with a socialist direction, it would seem that the State should assume a greater obligation towards
the care and rehabilitation of all accident victims.

The Government did introduce free medical treatment for people earning less than the specified
amount and has periodically increased no-fault liability benefits under the Accident Prevention
and Workers’ Compensation Scheme in terms of the National Social Security Authority Act. That
Act also provides a framework for establishing a comprehensive social security scheme that
includes pensions and unemployment benefits.

Possible reform measures

Government no-fault scheme
In respect of accidents outside the workplace, consideration should be given to the setting up of a
no-fault liability system to cover these. A vital question would be whether sufficient financial
resources could be procured to allow the setting up of a Government run no-fault system
covering all accident victims not presently covered. Such a scheme would result in savings as, by
abolishing fault as a criterion for compensation, large-scale savings would be effected by not
having to run expensive civil courts dealing with delict claims. On the other hand, the structures
for administering a no-fault system would have to be established and this would involve
considerable expense.
Private no-fault scheme
On a less drastic basis, the Government feels that although it could not raise the necessary
finance to institute a State run no-fault scheme, a private no-fault liability scheme within the field
of motor accidents could be considered. This would necessitate the involvement of private
insurance companies which would administer the scheme. Given the relatively small motoring
population in this country, the question would be whether such a system would be economically
viable? To determine this, a proper costing exercise would have to be carried out. However, even
if such a system operated with a very low financial ceiling for compensation, this would be an

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improvement on the present position where a large proportion of accident victims remain totally
uncompensated. Drivers would be compelled to take out no-fault liability insurance.

Any no-fault scheme which extends beyond the field of motor accidents into accidents of other
types, such as accidents in the home and in fields of employment not covered by worker’s
compensation, could probably not be organised through private insurance, but would have to be
operated by the State. What has been apparent in other countries is that lawyers and insurance
companies make a good living out of the fault system and are very resistant towards proposals to
abolish it.
Strict liability
In regard to another large source of accident cases, namely, harm caused by defects in products,
careful consideration should be given to making enterprises strictly liable for the products which
they produce. There are cogent arguments in favour of adopting the approach that the profit-
making enterprise should be made to pay compensation to those who suffer injuries as a result of
defects in the products. After all, the enterprise is in a financial position to take out insurance
cover or to pass on losses to the general public.
Harm caused by criminals
In the field of injuries resulting from the commission of crimes, it has been argued that far too
much emphasis is presently placed upon punishment of the offender and far too little upon
compensation of the injured person. Instead of sending so many people to prison, part of the non-
custodial penalty should be to compensate their victims. See the present provisions contained in
Part XIX of the Criminal Procedure and Evidence Act [Chapter 9:07].
Establishment of a Road Accident Fund
This could be along the lines of the Road Accident Fund in South Africa. This creates a
compensation scheme for victims of motor accidents and their dependants. It provides a
social security safety net for persons injured in motor accidents. It provides compulsory
cover to all users of South African roads, citizens and foreigners, against injuries sustained or
death arising from accidents involving motor vehicles within the borders of South
Africa.This cover is in the form of indemnity insurance to persons who cause the accident, as
well as personal injury and death insurance to victims of motor vehicle accidents and their
families. It rehabilitates and compensates persons injured as result of negligent driving of
motor vehicles in timely and caring manner.

It only applies if bodily injury or death due to negligence or other wrongful act of driver, owner
or employee of owner acting in performance of duties as employee.

The primary source of income for the compensation scheme is a levy raised on fuel and diesel
sold.
 DELICTUAL ACTIONS IN CUSTOMARY LAW
General aspects
Customary law is basically the collection of traditionally accepted legal rights and duties of black
Zimbabweans who live a traditional way of life.

In general law there is a clear differentiation between crime and delict. In customary law, on the
other hand, there is almost no distinction between crime and delict. Most wrongs in customary
law are dealt with by extracting compensatory damages. The primary emphasis is upon the
correcting of the upset equilibrium and the restoration of social harmony. In customary law,
where the wrong is serious the damages may be partly penal and partly compensatory e.g. with
homicide there is a penalty payable to the Chief and damages to the guardian or family of the
person killed.

Whereas, in general law, liability is based upon fault, in customary law, liability is based upon
causation and not fault (although damages may be reduced where there was an absence of fault.)
In customary law, unlike in general law, a parent will be held vicariously liable for the delicts of
his children.

Specific customary law delicts

Unlawful killing
This is treated as a serious delict for which damages are payable to the dead person’s family, to
the Chief and to the court. As part of these damages, the D’s family would have to give the
family of the dead person a young girl as compensation to ward off the avenging spirit of the
dead (ngozi). The giving of a young girl as compensation is now illegal and, if it is done, the
authorities will take action to protect the girl. It is also illegal to extort payment of compensation
from the family of the person responsible for causing the death by dumping the body at the
homestead of that family and refusing to bury the body until compensation has been paid.
Rape
This is a serious delict. However, it is not the raped woman who will claim damages for the rape.
If she is married, her husband can claim damages for adultery against the person who raped her.
If the woman is unmarried, her guardian can claim damages for seduction.
Assault
This consists of causing of harm to another, either intentionally or accidentally. Traditionally the
amount of damages increases if the offender assaults a person to whom they owed special respect
such as their sekuru or father.

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Wife and child beating
Although, traditionally, a man was entitled to discipline both his wife and his child by beating
them, customary law did not allow him to beat his wife excessively. A wife, whose husband beats
her excessively and for no reason, can claim damages from her husband for assault. Under
general law, a husband has no right to beat his wife and, if he does so, he can be found guilty of
assault.
Unreasonable criticism of wife
Under customary law a wife can also claim damages from her husband if he criticises or nags her
unreasonably, or if he constantly causes quarrels between them.
Harm caused by animals
A person is held liable for harm caused by his animals. For instance, if cattle trample the maize
in the P’s field, P can claim damages from the owner of the cattle. If D’s bull kills a person, the
family of the deceased may be able to claim damages from the owner of the bull.
Defamation
This consists of damaging another’s good name and reputation in the community by saying
something untrue about a person in public, or writing something untrue about someone and
showing that written statement to others. The traditional courts would nearly always investigate
whether the defamation resulted in a disturbance of peace in the community. The most serious
form of defamation is to make a false accusation that a person is a witch. Under general law, it is
a criminal offence under the Witchcraft Suppression Act [Chapter 9:19] to make an accusation
that a person is a witch.
Speaking disrespectfully to another
Damages can be claimed from a person who speaks disrespectfully to P and this has resulted in a
breach of the peace. If P is a person to whom D owes special respect, the court will order D to
pay extra damages as, for example, where a man speaks rudely to his mother-in-law or father-in-
law.
Lying
A person who has lost money because of a lie that another person told has the right to claim
damages from the liar.
Quarrelling
A traditional court could order a person who is very quarrelsome to pay damages and to keep the
peace in the future.
Adultery
A husband can claim damages from a man who commits adultery with his wife. Only the male
spouse can bring an action for damages for adultery and only the male adulterer would be sued.
See Gwatidzo vv Masukusa (2000) at 415C.
Persuading wife to leave husband
P can claim damages from a person who has persuaded P’s wife to leave him.
Seduction
The guardian of a minor girl has the right to claim damages from the person who has seduced
her. If she is a major, however, then the seduced woman may herself claim damages for
seduction. The legal age of majority is 18.

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 APPENDIX

Apportionment of damages

Collision between vehicles

Bradshaw v Salisbury United Omnibus Co A-102-70
Orne-Glieman v General Accident Insurance & Anor 1980 ZLR 454 (G) Car and motor cycle -
car turning to right colliding with motor cyclist who was trying to overtake car.
Apportionment: Car driver 50% and motor cyclist 50%.

HomelavMunyama S-49-82 Two cars, driver endangering overtaking traffic by crossing to

incorrect side of road and driver of overtaking vehicle failing to react to danger.
Apportionment: Driver on wrong side of road 50% and overtaking car driver 50%.

Manuel v SA Eagle Insurance HH-270-83 Car and motor-cycle already dark and motor cycle had
no lights car going round corner on wrong side of road and hitting oncoming motor-cyclist
likely that car driver had drifted onto wrong side as thought there was no oncoming traffic and
that it was safe for him to do so.
Apportionment: Car driver 75% and motorcyclist 25%.

Automotive Diesel Ltd v Minister of State (Security) HH-291-85 Driver, faced with oncoming
traffic travelling on wrong side of road, trying to effect right-hand turn to avoid oncoming
vehicle.
Apportionment: Oncoming vehicle 75% and turning vehicle 25%.

Cargo Carriers & Anor v Nettlefold & Anor 1991 (2) ZLR 139 (S) P was travelling on a main
country road. She was dazzled by oncoming lights and slowed down to 50 km/h but saw D’s
large unmarked truck parked halfway across her lane when it was too late for her to stop. She
was held to be slightly negligent in not having slowed down more, since she had travelled for
some distance while she was blinded and could not rely on any knowledge that the road ahead
was clear; she was more negligent in not having picked out the shape of the truck earlier.
Apportionment: P 20% and D 80%.

Madzamba v Mutsonziwa HH-218-90 D turned his car left on to a main road from a side road
and collided with P’s vehicle, which was overtaking another vehicle on the main road while
approaching the T junction formed by the intersection of the main road and the side road. Traffic
entering the main road from the side road was controlled by a Give-way sign. Each party claimed
damages from the other. Both parties were found to have been negligent. P was negligent for
overtaking whilst approaching an intersection in contravention of s 7(d)(i) of the Roads and Road
Traffic (Rules of the Road) Regulations, 1974. D was negligent in that he should have given way
to all traffic on the main road, irrespective of whether that traffic was lawful or unlawful.
Apportionment: P 20% and D 80%.

Makwawa v Wozhele HH-39-91 After seeing traffic behind him, a driver indicated his intention
to turn right but did not check whether this traffic was responding to his signal to slow or distant
enough not to be endangered. A driver turning right has a duty to both oncoming and following
traffic. Parties held equally at fault.

Munorwei v Muza HH-804-15 Collision – D entering controlled intersection against traffic sign –
P travelling at excessive speed
Apportionment: P 25% and D 75%

Collision at robot controlled intersection

Haynes v Minister of Defence & Anor 1992 (2) 2) ZLR 262 (H) A party turning right across the
path of another vehicle when the robot is on amber must be even more careful than someone
turning when the light has already turned red. Although the army vehicle should have stopped
there was no indication that it was going to do so. P should therefore not have proceeded,
especially as her vehicle was rather slow-moving and as special caution needed in Zimbabwe in
respect of large army vehicles.
Apportionment: P 50% and D 50%. (This figure was based on a concession made by D -
if this concession had not been made the finding would have been more adverse to P.)

Mutendi v Maramba & Anor 1994 (2) ZLR 41 (H) P turned right at a robot controlled
intersection and was struck by an oncoming emergency taxi. The lights had turned red before the
taxi entered the intersection. The blameworthiness of the taxi driver was high. But P was also
foolish in proceeding when the taxi was approaching at speed.
Apportionment: P 20% and D 80%.

Collision at night with stationary vehicle on road

Nyamanhare v Minister of Defence S-49-94 P collided at night with an unlighted camouflaged
army vehicle parked partly on road. To leave unlit vehicle on main road carrying fast traffic is
prima facie evidence of negligence on the part of the driver, but on the other hand users of roads
must exercise caution to enable them to meet an emergency presented by the fact that someone
has left an unlighted vehicle on the road, perhaps for unavoidable reasons such as a break-down.
Moreover, drivers must drive within the limits of their vision, and it is for a driver to explain
how, if he was driving with due care and attention, the presence of an obstacle in front of him
eluded him. While much depends on the facts of each individual case, where collisions with unlit
objects at night occur the starting point is that it was negligent on the part of the driver who left
his vehicle so unlit on the road, thus creating a hazard for other drivers. The degree of negligence
of others who collide with the unlit object is unlikely to be the primary cause of the accident,

266
unless it can be proved that the obstacle was one which is capable of being seen in good time by
a driver keeping a proper look-out. On the facts, P’s headlights allowed him visibility of about 30
m, whereas the traffic regulations required headlights to give at least 50m visibility. If the army
vehicle had not been camouflaged, its driver would have been 75% to blame for the accident;
because it was camouflaged the court found its driver 80% to blame.
Apportionment: P 20% and D 80%

Johannes v South-West Transport 1994 (1) SA 200 (Nm HC) Where a vehicle runs into a
stationary unlighted vehicle on a road at night, the question whether either driver was negligent
has to be decided on the totality of the facts presented to the court. A great number of factors
enter into consideration: the visibility of the obstructing vehicle, its colour, the background
against which it stood, possible light from other sources, variations of light and shade and
weather conditions.

Collision with parked stationary vehicle obstructing traffic

Taunton Enterprise v Ministry of Defence S-73-85 Car driver travelling at night at 95 km/h
colliding with unlit army lorry stopped so as to obstruct half the carriageway.
Apportionment: Car driver 15% and army lorry driver 85%.

Vehicle turning right colliding with overtaking vehicle

James v Fletcher 1973 (1) SA 687 (RA) Car trying to overtake bus when bus turning to right -
bus driver clearly indicating intention to turn right. Overtaking driver failed to keep proper
lookout.
Apportionment: Bus driver 15% and car driver 85%.

Mayisva v Commercial Union Insurance HH-469-84 Driver driving at excessive speed and failed
to keep proper lookout - collided with a lorry which was indicating intention to turn right.
Apportionment: Car driver 75% and lorry driver 25%.

Grindlays Industrial & Ors v Tawengwa HH-441-87 Car trying to overtake bus when bus turning
to right. Bus driver failing to check that it was safe to turn but visibility was good and the car
driver should have been alerted by the movement of the bus and have taken avoiding action.
Apportionment: Car driver 50% and bus driver 50%.

Machakaire v Mavenge & Anor HH-19-88 D1 was travelling at excessive speed along a national
highway when he approached a slow-moving vehicle travelling in the same direction. He
attempted to overtake this vehicle, not noticing that its indicators were on, showing that its driver
intended to turn right into a side road. The driver of this vehicle started his right-hand turn, not
having noticed first D’s vehicle behind him, and the two vehicles collided.
D1 was entirely to blame since she had failed to keep the other vehicle under observation before
attempting to overtake it.
Newlands Farm (Pvt) Ltd v Matanda Bros S-100-91 Car driver trying to overtake bus when bus
was giving clear warning that it intended to turn to right - car driver failing to heed warning
signs.
Apportionment: Car driver 85% and bus driver 15%.

Collision with pedestrian

Crow v Royal Insurance 1973 (1) SA 579 (R) car colliding with pedestrial trying to cross
road.The driver saw P in time to stop when she was only a yard or two from the pavement but
thought that P had either seen him earlier and would give way before entering his line of travel or
that she would in any event look right after a few steps, observe the car and give way. For that
reason he did not immediately hoot or apply hisbrakes. A little later he realised she was not going
to stop and applied his brakes sharply, but it was then too late to avoid a collision.P had been
negligent in failing to keep a proper look-out in circumstances where the timing of her crossing
called for particular vigilance, and that this negligence continued right up to the moment of
impact.The driver had been negligent in failing to hoot or substantially to reduce his speed by
applying his brakes when he first observed the plaintiff walking into his line of travel.
Apportionment: Pedestrian 40% driver 60%.

Jackson v Motor Insurance Pool 1975 (2) RLR 155 car colliding with pedestrian. Pedestrian was
unreasonably trying to cross the road when the car too close; driver negligent in travelling too
fast and failing to keep a proper lookout. Driver was in more advantageous position to avoid
accident.
Apportionment: Pedestrian 25% driver 75%.

Silatsha v Santam Insurance 1982 (2) SA 387 (A) Pedestrian attempting to cross road in good
visibility, car colliding with him, pedestrian more to blame.
Apportionment: Pedestrian 60% and driver 40%.

Collision with cattle on road

Viriri v Wellesley Estate 1982 (1) ZLR 200 car colliding with cow on the road at night. Owner of
cow negligent in failing to take precautions to prevent cow that had propensity for escaping from
paddock and being on the road. Driver knew there were cattle on the adjoining land but drove at
excessive speed and did not keep a proper lookout.
Apportionment: P two thirds; D one third.

Kennedy v P Hall & Co S-46-87 collision between a lorry driven too fast at night and a herd of
31 cattle allowed by a rancher to stray onto the road through an unsecured gate.
Apportionment: Driver three fifths and rancher two fifths.

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Other cases
Limire v Rhodesia Railways 1981 ZLR 251 (G) Passenger attempting to board a train that was
already in motion.
Apportionment: P 80% and D 20%.
Financial dealings
Bank of Credit and Commerce Zimbabwe Ltd v UDC Ltd 1990 (2) ZLR 397 (S); 1991 (4) SA 82
(S) A finance house had negligently agreed to finance the sale of a non-existent farm and had
issued a cheque in the name of the alleged seller, Mixed Tums (Pvt) Ltd. No such company
existed. The person who received the cheque paid it into a bank account which he operated in the
name of his company, Mixed Tans (Pvt) Ltd, the bank having failed to notice the discrepancy in
the names even though the cheque was crossed and endorsed “not negotiable account payee
only”. The finance house then sued the bank for the amount of the cheque. The court held that
the finance house was negligent to a greater degree than the bank.
Apportionment: Finance house 80% and bank 20%.

Contributory negligence of children

Children under 7
Tena v UANC HS-387-81 A child under the age of 7 does not have the capacity to be negligent
and there can thus be no contributory negligence on his part leading to apportionment. A boy
aged 6 had been knocked down by a car.

Muchechetere v Boka HH-148-89

Children between 7 and 14

Weber v Santam Insurance 1983 (1) SA 381 (A) the first task is to decide whether the child has
capacity for negligence. Only if he does will apportionment apply. Even where the child is found
to have capacity, the negligence of motorist will always be adjudged to be greater than the
child’s.
S v Ferreira 1992 (1) ZLR 93 (S) A motorist must exercise special care and vigilance when he
knows that there are young children in the vicinity of the road because such children are known
to engage in impulsive behaviour such as dashing out onto the road.

Intentional wrongdoing
MabasovFelix 1981 (3) SA 865 (A) It is doubtful that apportionment applies where there is
intentional wrongdoing, such as when there is an assault.
Minister van Wet & Orde & Anor v Ntsane 1993 (1) SA 560 (A) Before there can be an
apportionment of damages between joint wrongdoers in terms of the South African equivalent of
s 4 (1) of our Act, the fault of the joint wrongdoer must be the same form of fault. Thus, where
the fault of one joint wrongdoer consists of negligence while the fault of the other amounts to
intentional wrongdoing, there can be no apportionment of damages between them.
Joint wrongdoers
Diesel Electric v S & T Import HH-330-80.

Dependant’s action
Knight v Rhodesia Railways & Anor 1975 (1) RLR 213 (R) collision between two cars. The
driver of one of the cars, P’s husband, had deviated from the reasonable person standard by 80%
and the other driver had deviated from the reasonable person standard by 60%. (Note this sort of
case would now be dealt with in terms of s 8 of the Damages (Apportionment and Assessment)
Act [Chapter 8:06].

Additional compensation under workers’ compensation system

Mpande v Forbes & Anor 1980 ZLR 302 (G) The employee’s claim for additional compensation
is defeated if there is negligence on his part in the causing of his injuries as apportionment does
not apply in this situation. The correctness of this case is open to doubt. Certainly if it is correct,
it will lead to inequitable results as even slight negligence on claimant’s part will lead to his
claim failing.

The worker’s claim for additional compensation is now governed by s 9 of the National Social
Security (Accident Prevention and Workers’ Compensation Scheme) Notice SI 68 of 1990.
Where the worker is claiming for his own injuries there seems to be no provision relating to the
effect of contributory negligence on his part. On the other hand, where a dependant is claiming
arising out of the death of her breadwinner, s 9(6) provides that it is no defence to such action
that there was contributory negligence on the part of the worker who was killed.

Costs where apportionment

Limire v Rhodesia Railways 1981 ZLR 251 (G) Where there is a claim for damages and no
counterclaim or tender by D, P will ordinarily recover all his costs, notwithstanding that the court
has reduced his damages on account of his contributory negligence.
Haynes v Minister of Defence & Anor 1992 (2) ZLR 262 (H) although there was apportionment,
the court declined to apportion the costs as in seeking to have P’s claim dismissed with costs, D
had forced P to come to court to obtain an award of damages and P had succeeded in his claim. If
D had wanted to safeguard its position in relation to costs, it should have made a payment into
court.

Failure or refusal by passenger to wear seat belt or crash helmet

Koen v Keates 1989 (3) ZLR 9 (H) A motor vehicle left the road and overturned due to the
negligence of the driver. A passenger in the vehicle was not wearing his seat belt despite being
asked to put it on by driver. As it was the passenger’s failure to take reasonable precautions for
his own safety by wearing a belt, his damages were subject to reduction on the basis of his
contributory negligence. Apportionment: Passenger 15% and driver 85%.

270
General Accident v Uijs NO 1993 (4) SA 228 (A) (Afrik) A passenger in a car had failed to put
on his seat-belt and was seriously injured in a collision whose sole cause was the gross
negligence of the driver. The trial court reduced his damages by a third. On appeal, it was held
that allowance had to be made for the fact that he had not contributed to the accident and that his
fault was of a different kind from that of the driver, but the trial court declined to vary its
apportionment of damages. Apportionment: P one third and D two thirds.
See also:
Vorster v AA Mutual 1982 (1) SA 145 (A)
Union Insurance v Vitoria 1982 (1) SA 444 (A)
Pasternack v Poulton [1973] 2 All ER 74 (QB)
Froom & Ors v Butcher [1975] 3 All ER 520 (CA)
Capps v Millner [1989] 2 All ER 322 (CA) Motor cyclist failing to fasten properly the
strap of his helmet which came off just before he hit his head on the road when an accident
occurred. This amounted to contributory negligence on the part of the motor cyclist.

Concurrent wrongdoers
Graham & Anor v General Accident Assurance & Anor 1972 (1) RLR 52 (GD)
Nu-life Batteries & Anor v Boddington & Anor 1974 (1) RLR 1; 1974 (2) SA 175 (R) Old
common law position.
Marais v Eagle Insurance & Anor HH-270-83 Position under present legislative provisions.

Joint wrongdoers
Diesel Electric v S&T Import HH-73-80
List of Zimbabwean legislation
Animal Health Act [Chapter 19:01] replacing the Pounds and Trespasses Act [Chapter 129]
Atmospheric Pollution Prevention Act [Chapter 20:03]
Bills of Exchange Act [Chapter 14:05]
Civil Aviation Act [Chapter 13:11]
Class Actions Act [Chapter 8:17]
Companies Act [Chapter 24:03]
Competition Act [Chapter 14:28]
Constitution of Zimbabwe, 2013
Consumer Contracts Act [Chapter 8:03]
Copyright and Neighbouring Rights Act [Chapter 26:05]
Criminal Procedure and Evidence Act [Chapter 9:07]
Customs and Excise Act [Chapter 23:02]
Damages (Apportionment and Assessment) Act [Chapter 8:06]
Environmental Management Act [Chapter 20:27]
Factories and Works Act [Chapter 14:08]
Industrial Designs Act [Chapter 26:02]
Legal Age of Majority Act
Legal Practitioners Act [Chapter 27:07]
Magistrates Court Act [Chapter 7:10]
Miscellaneous Offences Act [Chapter 9:15]
National Social Security Authority Act [Chapter 17:04]
Patents Act [Chapter 26:03]
Police Act [Chapter 11:10]
Prescribed Rates of Interest Act [Chapter 8:10]
Prescription Act [Chapter 8:11]
Privileges, Immunities and Powers of Parliament Act [Chapter 2:08]
Public Health Act [Chapter 15:09]
RegionalTown and Country Planning Act [Chapter 29:12]
Reserve Bank Act [Chapter 22:15]
Road Motor Transportation Act [Chapter 13:15];
Road Traffic Act [Chapter 13:11]
Small Claims Court Act [Chapter 7:12]
State Liabilities Act [Chapter 8:14]
State Service (Disability Benefits) Act [Chapter 16:05]
State Service (Pensions) Act [Chapter 16:06].
Termination of Pregnancy Act [Chapter 15:10]
Trade Marks Act [Chapter 26:04]
War Victims Compensation Act [Chapter 11:06]

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Water Act [Chapter 20:22]

List of Cases
Absa Bank Ltd v Bond Equipment (Pretoria) (Pty) Ltd 2001 (1) SA 372 (SCA)
A B Ventures Ltd v Siemens Ltd 2011 (1) SA 586 (GNP)
A Gibb & Son Ltd v Taylor & Mitchell Timber Supply Co 1975 (2) SA 457 (W)
Abu-Busutu v Moyo 2013 (2) ZLR 716 (H)
Adcock-Ingram Produces Ltd v Beecham SA (Pty) Ltd 1977 (4) SA 434 (W)
Administrator, Natal v Edouard 1990 (3) SA 581(A)
Al Saudi Banquev Clarke Pixley [1989] 3 All ER 361 (Ch D)
Alcockv Chief Constable of South Yorkshire [1991] AC 310 (HL); 1991 3 WLR 1057 (HL)
Allardice v Dowdle 1965 (1) SA 433 (D)
Alwanger v Eagle Insurance GS-326-81
Amalgamated Beveridge Industries Natal Pvt Ltd v Durban City Council 1992 (3) SA 562 (N)
Arendse v Roode 1989 (1) SA 763 (C)
Argus Printing and Publishing Co Ltd v Inkatha Freedom Party 1992 (3) SA 579 (A)
Arnold v Majome HH-431-86
Arthur v Bezuidenhout & Anor 1962 (2) SA 566 (A)
Ashcroft v Mersey Regional Health Authority [1983] 2 All ER 245 (QB)
Ashtonv Turner & Anor [1980] 3 All ER 870 (QB)
Associated Mine Workers Union & Anor v Gwekwerere & Ors GS-202-81
Association of Rhodesian Industries & Ors v Brookes & Anor 1972 (2) RLR 1 (GD)
Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn-Ghwano (Pty) Ltd & Ors 1981 (2) SA 173 (T)
Attiav British Gas [1987] 3 WLR 1101; [1987] 3 All ER 455
Automotive Diesel Ltd v Minister of State (Security) HH-291-85
Autorama (Pvt) Ltdv Farm Equipment Auctions 1984 (1) ZLR 162 (H); 1984 (3) SA 483 (ZH)
Axiam Holdings Ltd v Deloitte & Touche2006 (1) SA 237 (SCA)

Badenhorst v Minister of Home Affairs 1984 (1) ZLR 221 (S); 1984 (2) SA 13 (ZS)
Baird v Pretorius 1996 (2) SA 819 (O)
Banda v Gamegone (Pvt) Ltd & Anor HH-133-03
Bande v Muchinguri 1999 (1) ZLR 476 (H)
Bank of Credit and Commerce Zimbabwe Ltd v UDC Ltd 1990 (2) ZLR 397 (S); 1991 (4) SA 82
(S)
Barclays National Bank Ltd v Traub; Barclays National Bank Ltd v Kalk 1981 (4) SA 291 (W)
BAT Ltd v Fawcett Security Ltd GS-22-72
Bayers SA Ltd v Frost 1991 (4) SA 559 (A)
Beattie v United Refineries (Pvt) Ltd A-130-80
Beckenstrater v Rottcher & Theunissen 1955 (1) SA 129 (A)
Benson v Robinson & Co. (Pty) Ltd & Anor1967 (1) SA 420 (A)
Best v Wonder Motors (Pvt) Ltd 1975 (1) RLR 124 (G)
Bester v Calitz 1982 (3) SA 864 (O)
Bester v Commercial Union 1973 (1) SA 769 (A)
Bezuidenhout NO v Eskom 2003 (3) SA 83 (SCA)
Biddulphs Removals & Storage (1981) Pvt Ltd v Standard Chartered Bank Ltd & Anor 1996 (2)
ZLR 206 (H)
Bickle v Minister of Law and Order 1980 ZLR 36 (G)
Bikwa v Ndlovu HB-18-92
Birch v Thomas [1972] 1 All ER 905 (CA)
Birchall v Mararike HH-43-86
Biti v Minister of State Security 1999 (1) ZLR 165 (S)
Blore v Standard General Insurance 1972 (2) SA 89 (O)
Blue Bell Inc v Lennard Clothing Manufacturing (Pvt) Ltd HH-54-84
Blumenthal v Shore 1947 (3) SA 475 (W)
Blythv van der Merwe 1980 (1) SA 191 (A)
Boka Enterprises v Manatse & Anor 1989 (2) ZLR 117 (H); 1990 (3) SA 626 (ZH)
Border Timbers Ltd v Zimbabwe Revenue Authority 2009 (1) ZLR 131 (H)
Boltonv Stone 1951 AC 850
Bon Marche (Pvt) Ltd v Brazier & Anor 1984 (2) ZLR 50 (S)
Bond Equipment (Pretoria) (Pty) Ltd v Absa Bank Ltd 1999 (2) SA 63 (W)
Border Timbers Limited v ZIMRA 2009(1) ZLR 131(H)
Borgin v De Villiers & Anor1980 (3) SA 556 (W)
Borgin v De Villiers & Anor 1980 (3) SA 556 (A)
Boshoff v Boshoff 1987 (2) SA 694 (O)
Boswell v Minister of Police & Anor 1978 (3) SA 268 (EC)
Botes v van Deventer 1966 (3) SA 182 (A)
Bothav Zvada & Anor 1997 (1) ZLR 415 (S)
Broom v Stirling 1952 (4) SA 798 (SR)
Bress Designs (Pty) Ltd v C Y Lounge Suite Manufacturers (Pty) Ltd & Another 1991 (2) SA 455
(W)
Bristowv Lycett 1971 (2) RLR 206 (A); 1971 (4) SA 223 (RA)
Bulford v Bob White’s Service Station (Pvt) Ltd 1973 (1) SA 188 (RA)
Bull v Taylor 1965 (4) SA 29 (A)
Buls v Tsatsarolakis 1976 (2) SA 891
Burton v Cotton Research Board 1950 (4) SA 34
Bushu & Anor v Nare 1995 (2) ZLR 38 (H);HH-97-95
Buthelezi v Poorter & Ors 1974 (4) SA 831 (W)
Bwanya v Matanda 2000 (1) ZLR 546 (H)
Byrne v Masters Squash Promotions CC & Anor 2010 (1) SA 124 (GSJ)

274
C v Minister of Correctional Services 1996 (4) SA 292 (T)
Cabri (Pvt) Ltd v Terrier Services (Pvt) Ltd 2004 (1) ZLR 267 (H)
Caltex Oil (Australia) v The Dredge Willesmstadö [1976] 136 CLR 429; [1977] 51 ALJR 270
Caparo Industries v Dickman [1990] 1 All ER 568 (HL)
Cape Town Municipality v April 1982 (1) SA 259 (C)
Cape Town Municipality v Paine1923 AD 207
Capital Estate and General Agencies (Pty) Ltd & Ors Holiday Inn Inc & Ors 1977 (2) SA 916
(A)
Capps v Millner [1989] 2 All ER 322 (CA)
Capri (Pvt) Ltd v Terrier Services (Pvt) Ltd 2004 (1) ZLR 267 (H)
Cargo Carriers & Anor v Nettlefold & Anor 1991 (2) ZLR 139 (S)
Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC)
Carmichele v Minister of Safety and Security 2004 (3) SA 431 (SCA)
Castell v de Greef 1993 (3) SA 501 (C)
Cathkin Park Hotel & Ors v Makesch Architects & Ors1993 (2) SA 98 (W)
Caxton Ltd & Ors v Reeva Forman (Pty) Ltd & Anor1990 (3) SA 547 (A)
Chadwick v British Railways Board [1967] 1 WLR 912
Chaguma v Kondani 2001 (2) ZLR 216 (H)
Chatterton v Gerson [1981] 1 All ER 257 (QB)
Chaza v Ramajan HH-459-88
Chibobo v Chidangi GS-341-81
Chidembo v Machingambi S-50-87
Chibage v Ndawana 2009 (2) ZLR 387 (H)
Chikanda v Mukumba HH-210-88
Chikukwa v Marisa & Anor HH-3-92
Chituku v Minister of Home Affairs & Ors; 2004 (1) ZLR 36 (H)
Chimusoro & Anor v Minister of Health HH-254-89
Chinamasa v Jongwe Printing & Publishing Co (Pvt) Ltd 1994 (1) ZLR 133 (H)
Chinengundu v Modus Publications (Pvt) Ltd HH-135-92
Chipinda v Zimbabwe Express Motorways HH-55-86
Chirinda v Minister of Home Affairs & Anor HH-150-03
Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd en 'n Ander 2002 (2) SA 447 (SCA)
City of Salisbury v King 1970 (1) RLR 141; 1970 (2) SA 528 (RA)
Clarke v McLennan & Anor [1983] 1 All ER 416 (QB)
Clarkev Welsh 1976 (2) SA 484 (A)
Cold Chain (Pvt) Ltd v Makoni S-9-12
Colgate 1990 (2) SA 520
Colt Motorsv Kenny 1987 (4) SA 378 (T)
Coltart v Minister of Home Affairs & Ors 2006 (1) ZLR 543 (H)
Combrinck Kliniek v Datsun (Pty) Ltd 1972 (4) SA 185 (T)
Compass Motors v Callguard Security 1990 (2) SA 520 (W)
Coomer’s Motor Spares v Albanis 1979 ZLR 96 (GS)
Coronation Brick v Strachan Construction 1982 (4) SA 371 (D)
Correira v Berwind 1986 (1) ZLR 192 (H)
Cosmosv Phillipson 1968 (2) RLR 128 (G); 1968 (3) SA 121 (R)
Costa de Oura Restaurant (Pty) Ltd t/a Umdloti Bush Tavern v Reddy 2003 (3) SA 34 (SCA)
Cottham v Cottham & Anor GB-5-76
Cottle v Stockton Waterworks Co (1875) LR 10 QB 453
Cotton Marketing Board of Zimbabwe v National Railways of Zimbabwe 1988 (1) ZLR 304 (S)
Couldridge v Eskom & Anor 1994 (1) SA 91 (SE)
Crawfordv Albu 1917 AD 102
Crofter Hand Woven Harris Tweed v Veich [1942] AC 435 (HL)
Crowv Royal Insurance 1973 (1) SA 579 (R)
Cubed International (Pty) Ltd & Another v Singer & Ors NNO 2009 (4) SA 471 (SCA)

Da Silva v Coutinho 1971 (3) SA 123 (A)

Da Silva v Otto 1986 (3) SA 538 (T)
Dale v Hamilton 1924 WLD 184
Dann v Hamilton [1939] 1 All ER 59; [1939] 1 KB 509
Dantex Investments v Brenner & Ors 1989 (1) SA 390 (A)
Darangwa v Bushu HB-68-89
de Charmoy v Day Star Hatchery 1967 (4) SA 188 (D)
de Villiers v Godley & Anor 1975 (1) RLR 108 (G)
Dease v Minister of Justice 1962 (3) SA 215 (T)
DeLange v Costa 1989 (2) SA 857 (A)
Delphisure Group Insurance Brokers Cape (Pty) Ltd v Dippenaar & Ors 2010 (5) SA 499 (S)
Delta Beverages v Rusito 2013 (2) ZLR 298 (S)
Delta Operations (Pvt) Ltd v Maraura S-106-99
Delta Motor Corporation (Pvt) Ltd v Van der Merwe 2004 (6) SA 185 (SCA)
Deneys Reitz v South African Commercial, Catering and Allied Workers Union & Ors 1991 (2)
SA 685 (W)
Dhlomo NO v Natal Newspapers & Anor 1989 (1) SA 945 (A)
Diesel Electric v S & T Import HH-330-80
Dippenaar v Shield Insurance 1979 (2) SA 904 (A)
Dlikilili v Federated Insurance 1983 (2) SA 275 (C)
Doelcam (Pvt) Ltd v Pichanick & Ors 1999 (1) ZLR 390 (H)
Donoghue v Stevenson 1932 AC 562
Doornbutv Ciba Geigy (Discussed in 1980 SALJ 83)
Dorset Yacht Club v Home Office [1970] AC 1004 (HL)
Doughty v Turner Manufacturing Co (Ltd) [1964] 1 All ER 98
Dowling v Diocesan College & Ors1999 (3) SA 847 (C)
Du Plessisv De Klerk & Another 1996 (3) SA 850 (CC)
276
Dube v Manimo HB-44-89
Dube v Super Godlwayo(Pvt) Ltd HB-129-84
Dukes v Marthinusen 1937 AD 12
Du Preez & Others v Zwiegers 2008 (4) SA 627 (SCA)
Dun & Bradstreet (Pvt) Ltd v SA Merchants Combined Credit Bureau (Pty) Ltd 1968 (1) SA 209
(C)
Dunlopv West 1974 (1) RLR 89 (G); 1974 (2) SA 642 (R)
Duttonv Bognor Regis Building Co & Anor [1972] 1 All ER 462 (CA); [1972] 1 AB 373; [1972]
2 WLR 299
Dzemwa v Makarati HH-85-87
Dzvairo v Mudoti 1973 RLR 166; 1973 (3) SA 287 (RA)

E B Ranchers v Bus Service A-18-76

E G Electrical v Franklin 1979 (2) SA 702 (EC)
Ebrahim v Pittman NO 1995 (1) ZLR 176 (H)
Ebrahim v Twala & Ors 1951 (2) SA 490 (W)
Econet Wireless (Pvt) Ltd & Ors v Sanangura 2013 (1) ZLR 401 (S)
Edouard v Administrator, Natal 1989 (2) SA 368 (D)
DE v RH (CCT 182/14) [2015] ZACC 18; 2015 (5) SA 83 (CC)
Elida Gibbs (Pty) Ltd v Colgate Palmolive (Pty) Ltd (1) 1988 (2) SA 350 (W)
Ellison v Rusike & Anor HB-40-95
Energy Measurements (Pty) Ltd v First National Bank of SA Ltd 2001 (3) SA 132 (W)
Erasmus Ferreira & Ackermann & Ors v Francis 2010 (2) SA 228 (SCA)
Eskom Holdings Ltd v Hendricks 2005 (5) SA 503 (SCA)
Esterhuizen v Administrator, Transvaal 1957 (3) SA 710 (T)
Ess Kay Electronics Pte Ltd & Anor v First Merchant Bank of Southern Africa 2001 (1) SA 1214
(SCA)
Evinsv Shield Insurance Ltd 1980 (2) SA 814 (A)
Eyeluth Properties (Pvt) Ltd v Harvey HH-408-15

F W Woolworth & Co (Zim) (Pvt) Ltd v The Store & Anor 1998 (2) ZLR 402 (S)
Faberv Barrow (2) 1962 R & N 657; 1963 (1) SA 430 (SR)
Faircape Property Developers (Pty) Ltd v Premier, Western Cape 2002 (6) SA 180 (C)
Faydene Shirt and Clothing Manufacturers (Pty) Ltd & Orsv Levy 1966 (1) SA 26 (D) (
Fawcett Security Operations (Pvt) Ltd v Omar Enterprises (Pvt) Ltd 1991 (2) ZLR 291 (S)
Fayd’herbe v Zammit 1977 (3) SA711 (D)
Federation International De Football & Ors v Bartlett & Ors 1994 (4) SA 722 (T)
Feldman Pty Ltd v Mall 1945 AD 733
Ferreira en Andere v Suidwes Drukkery Bpk en ‘n Ander 1965 (3) SA 276 (SWA)
Financial Mail (Pty) Ltd & Ors v Sage Holdings Ltd & Anor1993 (2) SA 451 (A)
Flanders & Anor v Trans Zambezi Express (Pty) Ltd2009 (4) SA 192 (SCA)
Flowers v Towers 1962 R & N 221 (FS)
Fortune v African International Publishing 1976 (2) RLR 223 (G)
Fokoseni v Lobels Bakery 2004 (1) ZLR 406 (S)
Fourie NO v Hansen & Anor 2001 (2) SA 823 (W)
Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 (2) SA 150 (SCA)
Francis Freres and Mason (Pty) Ltd v Public Utility Transport Corporation Ltd 1964 (3) SA 23
(D)
Francis v Roberts 1972 (2) RLR 238(GD); 1973 (1) SA 507 (R)
Franschhoek Wines v SARH 1981 (3) SA 36 (C)
Franschoekse Wynkelder (Ko-operatief) Bpk v SAR& H 1981 (3) SA 36 (C)
Freelance Contractingv de Clerk 1982 (1) ZLR 193 (S); 1982 (4) SA 296 (ZS)
Friedman Glicksman 1996 (1) SA 1134 (W)
Froom & Orsv Butcher [1975] 3 All ER 520 (CA)

Gardner v Whitaker 1995 (2) SA 672 (E)

Garwe v Zimind Publishers Ltd & Ors 2007 (2) ZLR 207 (H)
GDC Hauliers (Pvt) Ltd v Chirundu Valley Motel 1988 (Pvt) Ltd 1998 (2) ZLR 449 (S)
Gekhring v Union National 1983 (2) SA 266 (C)
General Accident v Uijs NO 1993 (4) SA 228 (A)
Gent v Taylor 1972 (2) RLR 336 (RA); 1973 (1) SA 542 (RA)
Gien v Gien 1979 (2) SA 1113 (T)
Girdlestone v Saybrook (Pvt) Ltd & Anor HH-363-83
Godfrey & Orsv Campbell 1997 (1) SA 570 (C)
Gold Reef City Theme Park (Pty) Ltd v Electronic Media Network & Anor; Akani Egoli (Pty) Ltd
v Electronic Media Network Ltd & Anor 2011 (3) SA 208 (GSJ)
Gomwev Chimbwa 1983 (2) ZLR 121
Gorah v Mahona & Anor 1984 (2) ZLR 102 (S)
Gorah v Nhika HH-40-83
Gordonv Da Mata 1969 (3) SA 285 (A)
Graham & Anor v General Accident Assurance & Anor 1972 (1) RLR 52 (GD)
Graham v Ker (1982) 9 SC 185
Granger v Minister of State (Security) 1985 (1) ZLR 153 (H)
Grant v Australian Knitting Mills 1936 AC 85
Geater Johannesburg Transitional Metropolitan Council v Absa Bank Ltd t/a Volkskas Bank
1997 (2) SA 591 (W)
Greenfield Engineering v NKR Construction 1978 (4) SA 901 (N)
Grindlays Bank v Louw 1979 ZLR 189 (G)
Grindlays Industrial & Ors v Tawengwa HH-441-87
Grobler v Naspers Bpk en ‘n Ander 2004 (4) SA 220 (C)
Groenewald v Groenewald 1998 (2) SA 1106 (SCA)
Guggenheim v Rosenbaum 1961 (4) SA 21 (W)
278
Guriranai v Kwenda & Ors HH-194-91
Gwatiringa v Jaravaza & Anor 2001 (1) ZLR 383 (H)
Gwatidzo v Masukusa 2000 (2) ZLR 410 (H)
Gwande v Matonhodze & Anor HH-123-12
Gwiriri v Starafrica Corp (Pvt) Ltd 2010 (1) ZLR (HH)

H v W 2013 South Gauteng High Court Case Number 12/10142/2013

Haas v Greaterman Stores (Rhodesia) Ltd & Anor 1966 RLR 313 (G)
Haffejee v South African Railways and Haulage1981 (3) SA 1062 (W)
Halfpenny v Mujeyi & Anor HH-96-88
Halliwell v Johannesburg Municipal Council 1912 AD 659
Hamilton v Mackinnon 1935 AD 114
Hammar & Anor v Nunes 1976 (1) RLR 202 (A)
Harchris Heat Treatment Pty Ltd v Iscor 1983 (1) SA 548 (T)
Hardaker v Phillips 2005 (4) SA 515 (SCA)
Harnischfeger Corporation & Anorv Appleton & Anor 1993 (4) SA 479 (W)
Harvey Tiling Co (Pty) Ltd v Rodomac (Pty) Ltd1977 (1) SA 316 (T)
Hawker v Life Offices Association 1987 (3) SA 777 (C)
Haynesv Harwood [1935] 1 KB 146; 152 LT 121
Haynes v Minister of Defence & Anor 1992 (2) ZLR 262 (H)
Heard v Times Media Ltd & Anor1993 (2) SA 472 (C)
Herschell v Bredenkamp GS-349-81
Herselman NO v Botha 1994 (1) SA 28 (A)
Hickey v Hickey & Anor GS-28-79
Hirsch Appliance Specialists v Shield Security (Pvt) Ltd 1992 (3) SA 643 (D)
Hirschowitz Flionis v Bartlett & Anor 2006 (3) SA 575 (SCA)
Hix Networking Technologies v System Publishers (Pty) Ltd and Anor 1997 (1) SA 391 (A)
Hokonya & Anor v Chinyanyi & Ors HH-17-95
Holtzhausen v ABSA Bank Ltd 2008 (5) SA 630 (SCA)
Homela v Munyama S-49-82
Honey & Blanckenberg v Law Society 1966 (2) SA 43 (R)
Hucks v Cole[1968] 118 New LJ 469 ([1993] 4 Med LR 393]
Huiberts v Cohen GS-172-81
Hunt v Ndangama HH-138-84

Immelman v Loubser & Anor 1974 (3) SA 816 (A)

Industrial Equity v Walker 1996 (1) ZLR 269 (H)
International Shipping v Bentley 1990 (1) SA 680 (A)
International Tobacco v United Tobacco 1955 (2) SA 1 (W)
Ireland v Chihambakwe HB-65-85
J Paarv Fawcett Security 1986 (2) ZLR 255 (S); 1987 (2) SA 140 (ZS)
Jackson v Minister of Defence HB-60-88
Jackson v Motor Insurance Pool 1975 (2) RLR 155
Jadezweni v Santam Insurance Co (Ltd) & Anor 1980 (4) SA 310 (C)
James v Fletcher 1973 (1) SA 687 (RA)
Jameson’s Minors v CSAR 1908 (1) TS 575, 589
Janit & Anorv Motor Industry Fund Administrators (Pty) Ltd & Anor 1995 (4) SA 293 (A)
Jansen v Naylor 2006 (3) SA 546 (SCA)
Jansen van Vuuren & Anor v Kruger 1993 (4) SA 842 (A)
Jasat & Anorv Paruk 1983 (4) SA 728 (N)
Jeftha v Williams 1981 (3) SA 678 (C)
Jhamba v Mugwisi 2010 (1) ZLR 124 (H)
Johannes v South-West Transport 1994 (1) SA 200 (Nm HC)
Johnson v Beckett & Anor1992 (1) SA 762 (A)
Johnsonv Joubert 1975 (2) RLR 176 (G)
Jones v Maceys 1982 (1) ZLR 1 (H); 1982 (2) SA 139 (ZH)
Jordan v Van Biljon 1962 (1) SA 286 (A)
Jooste v National Media Ltd en ‘n Ander 1994 (2) SA 634 (C)
Joseph v Dennison GS-137-75
Joubert & Ors v Venter 1985 (1) SA 654 (A)
Joycev Venter 1979 RLR 478 (GD)
Junior Books Ltd v Veitchi Co Ltd [1982] 3 All ER 201 (HL)
Junior Books v Veitchi Co Ltd [1983] 1 AC 520
Kantey and Templer (Pty) Ltd & Anor v Van Zyl NO 2007 (1) SA 610 (C)
Karoi Tractor Services (Pvt) Ltd v Doro & Co (Pvt) Ltd HH-188-87
Karimazondo & Anor v Minister of Home Affairs 2001 (2) ZLR 363 (H)
Katekwe v Muchabaiwa 1984 (2) ZLR 112 (H)
Katsiru v National Railways HH-238-85
Kawonde v Dun & Bradstreet (Pvt) Ltd 2003 (2) ZLR 352 (H)
Kellogg v Cairns Food Ltd 1997 (2) ZLR 230 (S)
Kemp & Anor v Republican Press (Pty) Ltd 1994 (4) SA 261 (E)
Kennedy v P Hall & Co S-46-87
Kennel Union of Southern Africa & Ors v Park 1981 (1) SA 714 (C)
Keown v Ned-Equity Insurance Co Ltd 1982 (2) SA 391 (C)
Kerbels Flooring & Carpeting (Pty) Ltd v Shrosbree & Anor 1994 (1) SA 655 (SE)
Kerbels Flooring (Pty) Ltd v Shrosbree & Anor 1994 (1) SA 655 (A)
Kern Trust v Hurter (Edms) Bpk 1981 (3) SA 607 (C)
Ketero v Mukarati S-20-84
Kgaleng v Minister of Safety and Security & Anor 2001 (4) SA 854 (W)
Khan v Khan 1971 (1) RLR 134 (A)
Khan v Mzovuyo Investments 1991 (3) SA 47 (T)
280
Khosa v Cargo Carriers 2006 (2) ZLR 109 (H)
Khupa v SA Transport Services 1990 (2) SA 627 (W)
King v Dykes 1971 (2) RLR 151; 1971 (3) SA 540 (RA)
Kitchin v Royal Air Force [1958] 1 WLR 563
Kitson v SA Newspapers 1957 (3) SA 461
Knight v Rhodesia Railways &Anor 1975 (1) RLR 213 (R)
Knop v Johannesburg City Council 1995 (2) SA 1 (A)
Knox D’Arcy Ltd & Ors v Jamieson Ltd & Ors 1992 (3) SA 520 (W)
Koen v Keates 1989 (3) ZLR 9 (H)

Krugell v Shield 1982 (4) SA 95 (T)

Kruger v Coetzee 1966 (2) SA 428 (A) at 430
Kruger v van der Merwe 1966 (2) SA 266 (A)
Kyriacou v Minister of Safety and Security & Anor 1999 (3) SA 278 (O)

Labuschagne v Cloete 1987 (3) SA 638 (T)

Lampert v Hefer NO 1955 (2) SA 507 (A)
Lawson v Minister of Home Affairs & Anor 1996 (2) ZLR 35 (H)
Landry v Landry 1970 RLR 134 (GD)
Langley Fox Building Partnership (Pty) Ltd v De Valence 1991 (1) SA 1 (A)
Lawrence v Kondotel Inns (Pty) Ltd 1989 (1) SA 44 (D
Leon Bekaert SA (Pty) Ltd v Rauties Transport 1984 (1) SA 814 (W)
Levy v Modus Publications (Pvt) Ltd 1998 (1) ZLR 229 (S)
Levy v Modus Publications (Pvt) Ltd 2000 (1) ZLR 68 (H)
Levy NO v Rondalia Assurance 1971 (2) SA 598 (A)
Lillicrap, Wassenaare and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) 475 (A)
Limire v Rhodesia Railways 1981 ZLR 251 (G)
Lloyd v Grace, Smith & Co [1912] AC 716 (HL)
Local Authorities Pension Fund v Nyakwawa & Ors 2015 (1) ZLR 103 (H)
Lomagundi Sheetmetalv Basson 1973 (1) RLR 356 (A);1973 (4) SA 523 (RA)
Lopez v Nxumalo S-115-85
Lorimar Productions Inc & Ors v Sterling Clothing Manufacturers (Pty) Ltd 1981 (3) SA 1129
(T)
Lovemore v Rhoguard Ltd GS-154-72
Lutzkie v SARH & Anor 1974 (4) SA 396 (W)
Lytton Invstms (Pvt) Ltd v Standard Chartered Bank (Zimbabwe) Ltd HH-35-17

M v N 1981 (1) SA 136 (Tk)

Maartens v Pope 1992 (4) SA 883 (N)
Mabaso v Felix 1981 (3) SA 865 (A)
Mabatapasi v John HH-265-82
Mabvoro & Anor v Muza HH-199-85
Macala v Maokeng Town Council 1993 (1) SA 434 (A)
Machakaire v Mavenge & Anor HH-19-88
Macheka v Metcalfe & Anor HH-62-07
Madaka v McLean HB-86-91
Madzamba v Mutsonziwa HH-218-90
Mafusire v Greyling & Anor HH-173-10
Magoge v Zimnat Lion Insurance Ltd 2003 (2) 382 (H)
Magwarav Minister of Health NO 1981 ZLR 315; 1981 (4) SA 472 (ZH)
Mahomedv Kassim 1972 (2) RLR 517 (A); 1973 (2) SA 1
Mahomed v Silanda & Anor HH-281-91
Maketo v Medical Investments (Pvt) Ltd & Anor HH-324-88
Makhanya v Minister of Justice 1965 (2) SA 488 (N)
Makomberedze v Minister of State (Security) 1986 (4) SA 26 (ZH)
Makova v Modus Publications (Pvt) Ltd 1996 (2) ZLR 326 (H)
Makova v Masvingo Mirror (Pvt) Ltd & Ors 2012 (1) ZLR 503 (H)
Maksimovich v Dominguez & Mater Dei Hospital and Mater Dei Hospital v Domiguez &
Maksimovich HB-94-15
Makwawa v Wozhele HH-39-91
Malema v Rampedi & Ors 2011 (5) SA 631 (GSJ)
Malherbe v Ceres Municipality 1951 (4) SA 510 (A)
Manase v Minister of Safety and Security & Anor 2003 (1) SA 567 (C)
Mandaza v Daily News & Anor 2002 (2) ZLR 296 (H)
Mandirwhe v Minister of State 1981 (1) SA 759 (ZS)
Mangope v Asmal & Anor 1997 (4) SA 277 (T)
Mangwiro v Minister, Justice & Legal Affairs (N.O.) & Ors HH-172-17
Mangwiro v Chombo NO HH-710-16
Manjoro v Minister of Home Affairs & Ors 2015 (1) ZLR 872 (H)
Manuel v Holland 1972 (2) RLR 18 (GB)
Manuel v SA Eagle Insurance HH-270-83
Munukwi v Tsanga HH-113-14
Manyange v Mpofu & Ors 2011 (2) ZLR 87 (H)
Manyeka v Marine and Trade Insurance Co. Ltd 1979 (1) SA 844 (SE)
Manyika v Nyarume HH-97-85
Mapingure v Minister of Home Affairs, Minister of Health and Child Welfare and Minister of
Justice, Legal and Parliamentary Affairs 2014 (1) ZLR 369 (S)
Mapuranga v Mungate 1997 (1) ZLR 64 (H)
Marais Caledonian Insurance Co Ltd 1967 (4) SA 199 (E)
Marais v Eagle Insurance & Anor HH-270-83
Maria & Anor v Murimbika 1976 (1) RLR 385 (A)
Marongwe & Anor v Tsvaringe HH-5-91
282
Masama v Borehole Drillers 1993 (1) ZLR 116 (S)
Masendeke v Chalimba & Ors 2014 (2) ZLR 63 (H)
Mashamhanda v Mpofu & Ors 1999 (1) ZLR 1 (H)
Masiba v Constantia Insurance 1982 (4) SA 333 (C)
Masiya & Anor v Sadomba & Anor HH-28-12
Masuku v Goko & Anor 2006 (2) ZLR 341 (H)
Masuku & Anor v Mdlalose & Ors 1998 (1) SA 1 (SCA)
Masukusa v National Foods Ltd & Anor HH-95-89
Mathe v Maseko HB-77-85
Mathee & Anor v Harz 1983 (2) SA 595 (W)
Matiwane v Cecil Nathan, Beattie & Co. 1972 (1) SA 222 (W)
Mavhiza & Anor v Muwambwi & Anor 2014 (1) ZLR 605 (H)
Mavromatisv Douglas 1971 (1) RLR 119 (G); 1971 (2) SA 520 (R)
Maxalanga v Mpela & Anor 1998 (3) SA 987 (Tk)
Mayisva v Commercial Union Insurance 1984 (2) ZLR 181 (H)
Maylett v Du Toit 1989 (1) SA 90 (T)
Mazibuko v Sithole & Ors 2009 (1) ZLR 33 (H)
Mberi v Fawcett Security Operations (Pvt) Ltd HH-24-03
Mbulawa v Mutandiro 1989 (3) ZLR 83 (S)
Mbundire v Buttress 2011 (1) ZLR 501 (S)
McCarthy Ltd t/a Budget Rent A Car v Sunset Beach Trading 300 CC t/a Harvey World Travel &
Anor2012 (6) SA 551 (GNP)
mCubed International (Pty) Ltd & Anor v Singer & Ors NNO2009 (4) SA 471 (SCA
McCloughlin v O’Brian [1982] 2 All ER 289; [1982] 2 WLR (CA)
McCrone v Riding [1938] 1 All ER 581 (CA)
McCrone v Riding [1938] 1 All ER 157 (KB)
McKelvey v Cowan NO 1980 ZLR 235 (G)
McNally v M & G Media (Pty) Ltd and Ors1997 (4) SA 267 (W)
McPhee v Hazelhurst & Ors1989 (4) SA 551 (N)
Mdlongwa v Ngwenya HB-54-13
Meakin v Meakin HH-384-83
Mehta v City of Salisbury 1961 R & N 911 (SR)
Mendelsohn v Santam Insurance GB-50-81
Mercer & Stafford v Pearl 1952 SR 151
Messina Associated Carriers v Kleinhaus 2001 (3) SA 868 (SCA)
Mhlongo v Bailey & Anor1958 (1) SA 370 (W)
Midland Bank v Hett, Stubbs & Kemp [1979] CH 384
Midway Two Engineering & Construction Services v Transnet Bpk 1998 (3) SA 17 (SCA)
Mills v Farmery 1989 (2) ZLR 336 (H)
Minister of Finance & Ors v Gore NO 2007 (1) SA 111 (SCA)
Minister of Home Affairs v Allan 1986 (1) ZLR 263 (S)
Minister of Home Affairs & Anor v Bangajena 2000 (1) ZLR 306 (S)
Minister of Justice v SA Associated Newspapers 1979 (3) SA 466
Minister of Law and Order v Kadir 1995 (1) SA 303 (A)
Minister of Law and Order & Anor v Ntsane 1993 (1) SA 560 (A)
Minister of Police v Ewels 1975 (3) SA 590 (A)
Minister of Police v Mbilini 1983 (3) SA 705 (A)
Minister of Police v Skosana 1977 (1) SA 31 (A)
Minister of Police v Van Aswegen 1974 (2) SA 101 (A)
Minister of Safety and Security v De Lima 2005 (5) SA 575 (SCA)
Minister of Safety and Security v Hamilton 2004 (2) SA 216 (SCA)
Minister of Safety and Security & Ors v W H 2009 (4) SA 213 (E)
Minister of Safety and Security v Jordaan t/a Andre Jordaan Transport 2000 (4) SA 21 (SCA)
Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA
Minister van Wet & Orde & ‘n Ander v Ntsane 1993 (1) SA 560 (A)
Mineworkers Investment Co (Pty) Ltd v Modibane 2002 (6) SA 512 (W)
Mnangagwa v Alpha Media Hldgs (Pvt) Ltd & Anor 2013 (2) ZLR 116 (H)
Moaki v Reckitt & Colman (Africa) Ltd & Anor 1968 (1) SA 702 (W)
Moatshe v Commercial Union 1991 (4) SA 372 (W)
Modcraft Transport (Pvt) Ltd v Vultures Security (Pvt) Ltd HH-81-03
Mohadi v The Standard & Ors HH-16-13
Monderwa Farmv BJB Kirstein Ltd 1993 (2) ZLR 82 (S); 1994 (1) SA 430 (ZS)
Monteiro v Brown HH-291-83
Moolman v Slovo 1964 (1) SA 760 (W)
Mord tv Smith 1968 (2) RLR 330; 1968 (4) SA 750 (RA)
Morris v C W Martin & Sons Ltd [1966] 1 QB 716
Moses v Minister of Safety and Security 2000 (3) SA 106 (C)
Mouton v Mine Workers Union 1977 (1) SA 119 (A)
Moyov Abraham HH-467-84
Moyo v Chipanda 2004 (2) ZLR 67 (H)
MoyovMuleya & Ors 2001 (1) ZLR 251 (H)
Moyse & Orsv Mujuru 1998 (2) ZLR 353 (S)
Mpande v Forbes & Anor 1980 ZLR 302 (G)
Mtetwa v Minister of Health 1989 (3) SA 600 (D)
Mubaire v Jailosi & Anor HH-228-10
Muchabaiwa v Chinhamo HH-179-03
Muchechetere v Boka HH-148-89
Muchenje v Chinyanganya HH-95-94
Mudehwe v Mukondomi 1991 (2) ZLR 222 (S)
Mudukuti v Hove & Ors HH-152-94
Mugadzaweta v Co-Ministers of Home Affairs 2012 (2) ZLR 423 (H)
Mugwadi v Nhari & Anor 2001 (1) ZLR 36 (H)
284
Mugwadi v Dube & Ors 2014 (1) ZLR 753 (H)
Munarin v Peri-Urban Health Board 1965 (1) SA 545 (W)
Munengami v Minister of Defence 2006 (1) ZLR 409 (H)
Municipality of Kwekwe v Imprecon (Pvt) Ltd 1984 (1) SA 38 (ZS)
Mungate v City of Harare & Ors HH-328-16
Mungofa v Muderede & Ors HH-129-03
Munorwei v Muza HH-804-15
Munukwi v Tsanga HH-113-14
Mupita v Bayayi HB-31-89
MuyambovNgomaikarira & Ors HH-138-11
Murdoch v Bullough 1923 TPD 495
Murenge v Minister of Local Government HH-434-88
Murimba & Anor v Law Organization (Pvt) Ltd & Ors HH-265-10
Murdock & Anor v Simpson & Ors 1956 (1) SA 528 (N)
Murphyv Tengende 1983 (2) ZLR 292 (H)
Murray v Union & SWA Insurance Co Ltd & Anor 1979 (2) SA 825 (D)
Murray v Union Insurance 1979 (2) SA 825 (D)
Musadzikwa v Minister of Home Affairs & Anor 2000 (1) ZLR 405 (H)
Musakwav Ruzario 1997 (2) ZLR 533 (H)
Mushonga v Zinhumwe 2015 (1) ZLR 846 (H)
Mushunje v Zimbabwe Newspapers HH-47-17
Music Room (Pvt) Ltd v ANZ Grindlays Bank Zimbabwe Ltd 1995 (2) ZLR 167 (H)
Musukutwa v Marova HH-20-94
Mutandiro v Mbulawa HH-354-84
Mutendi v Maramba & Anor 1994 (2) ZLR 41 (H)
MuyambovNgomaikarira & Ors2011 (2) ZLR 51 (H)
Muzeya NO v Marais & Anor HH-80-04
Muzonda v Ministry of Home Affairs 1993 (1) ZLR 92 (S)
Muzik v Canzone Del Mare 1980 (3) SA 470 (C)
Mwashita v Simango S-116-87
Mwete v Chimanzi & Ors HB-5-93

N v T 1994 (1) SA 862 (C)

Natal Witness Printing & Publishing Co (Pty) Ltd 1991 (4) SA 677 (N)
National Food Ltd v Midlands Milling Co (Pvt) 1996 (1) ZLR 159 (H)
National Media Ltd & Ors v Bogoshi 1998 (4) SA 1196 (SCA)
National Media Ltd & Anor v Jooste 1996 (3) SA 262 (A)
Naude NO v Transvaal Boot and Shoe Manufacturing Co 1938 AD 114
Ncube v Wankie Colliery Co. & Anor 2007 (1) ZLR 95 (H)
Ndava v Takaruwa & Anor 2013 (2) ZLR 692 (S)
Ndawana v Nasho & Ors 2000 (1) ZLR 23 (H)
Ndebele v Ncube 1998 (1) ZLR 377 (S)
Ndewere v Zimbabwe Newspapers (1980) Ltd & Anor 2001 (2) ZLR 508 (S)
Ndlovu v Debshan (Pvt) Ltd & Anor HH-362-12
Ndlovu v Debshan (Pty) Ltd & Anor HH-28-2013
Neethling v Du Preez & Ors; Neethling v The Weekly Mail & Ors 1994 (1) SA 708 (A)
NEHAWU v Tsatsi 2006 (6) SA 327 (SCA)
Nel & Anor v Minister of Defence 1978 RLR 455
Nettleship v Weston [1971] 3 All ER 581 (CA)
New Kleinfontein Co Ltd v Superintendent of Labourers 1906 TS 24
Newlands Farm (Pvt) Ltd v Matanda Bros S-100-91
Ngubane v SA Transport Services 1991 (1) SA 756 (A)
Ngubetole v Administrator, Cape & Anor 1975 (3) SA 1 (A)
Nherera v Shah HH-845-15
Njodzi v Matione HH-37-16
Nkala v Sebata & Anor 2009 (2) ZLR 203 (H)
Nkosi NO v Moyo HB-43-91
N M & Ors v Smith & Ors (Freedom of Expression Institute as Amicus Curae) 2007 (5) SA 250
(CC)
Norman v Highway Construction 1975 (2) RLR 108 (G)
Nott v ZANU (PF) 1983 (2) RLR 208 (S); 1984 (2) SA 115 (ZS)
NSSA v Dobropoulos & Sons (Pvt) Ltd 2002 (2) ZLR 617 (S)
Nu-life Batteries & Anor v Boddington & Anor 1974 (1) RLR 1; 1974 (2) SA 175 (R)
Nyaguse v Skinners Auto Body Specialists & Anor 2007 (1) ZLR 296 (H)
Nyakabambo v Minister of Justice & Ors 1989 (1) ZLR 96 (H)
Nyakudya v Washaya 2000 (1) ZLR 653 (H)
Nyamanhare v Minister of Defence S-49-94
Nyamwanza v Kambadza & Ors HH-104-87
Nyandoro v Minister of Home Affairs & Anor 2010 (2) ZLR 332 (H)
Nyandoro v Kamchira 1997 (1) ZLR 522 (H)
Nyandoro v Tizirai 2006 (1) ZLR 121 (H)
Nyangani v Maziweyi Bus Service HH-160-84
Nyatanga v Editor, The Herald & Anor 2001 (1) ZLR 63 (H)
Nyatanga v Mlambo & Ors HH-85-03
Nyathi v MEC for Health, Gauteng and Another 2008 (5) SA 94 (CC)
Nyathi v Tshalibe HB-158-88
Nyaumbav Murapa 1975 (2) RLR 138 (A)
Nyika & Anor v Minister of Home Affairs & Ors HH-181-16

Odendaal v Inn on the Ruparara 2006 (1) ZLR 1 (H)

O’Callaghan NO v Chaplin 1927 AD 310
O’Keeffe v Argus Printing & Publishing Co. Ltd & Anor 1954 (3) SA 244 (C)
286
OK Zimbabwe Ltd v Msundire 2015 (1) ZLR 741 (S)
Orne-Glieman v General Accident Insurance & Anor 1980 ZLR 454 (G)
Otto v Santam Insurance & Another 1992 (3) SA 615 (O)

P Hall & Co (Pvt) Ltd v Kennedy HB-79-84

Pachirera v Whartley HH-32-89
Page v First National Bank & Another 2009 (4) SA 484 (E)
Palsgraf v Long Island Railway Co (1928) 284 NY 339
Paris v Stepney Borough Council 1951 AC 367
Parry v Cleaver 1970 AC 1 (HL)
Parsonsv Cooney 1970 (2) RLR 75 (A); 1971 (1) SA 165 (RA)
Pasternack v Poulton [1973] 2 All ER 74 (QB)
Patz v Greene 1907 TS 427
Peattie & Ors NNO v Clan Syndicate 1984 (4) SA 829 (W)
Phida & Anor v East View High School 2015 (1) ZLR 991 (H)
Phillips Central Cellars (Pvt) Ltd v Director of Customs and Excise 2000 (1) ZLR 353 (H)
Pickard v Bindura Haulage HH-318-84
Pienaar & Anor v Argus Printing and Publishing Co. Ltd 1956 (4) SA 310 (W)
Pilkington Brothers (Pty) Ltd v Lillicrap, Wassenaar and Partners 1983 (2) SA 157 (W)
Pine v Boka Enterprises (Pvt) Ltd 1990 (2) ZLR 292 (H)
Pinshaw v Nexus Securities (Pty) Ltd & Anor 2002 (2) SA 510 (C)
Pogrund v Yutar 1967 (2) SA 564 (A)
Polaris Zimbabwe (Pvt) Ltd v Zapchem Detergent Mfrs CC 2004 (2) ZLR 351 (S)
Poovalingam v Bajbansi 1992 (1) SA 283 (A)
Portwood v Svamvur 1970 (1) RLR 225 (A); 1970 (4) SA 8 (RA)
Postal and Telecommunication Corporation v Modus Publications (Pvt) Ltd 1997 (2) ZLR 492
(S)
Post Newspapers (Pty) Ltd v World Printing and Publishing Co Ltd 1970 (1) SA 454 (W)
Potgieter v Smit 1982 (2) SA 690 (D)
Powell v Jonker 1959 (4) SA 443 (T)
Prakash v Wilson & Anor S-208-92
Pretorius en Andere v McCallum 2002 (2) SA 423 (C)
Prince & Anor v Minister of Law and Order 1987 (4) SA 231 (E)
Pringle v Administrator of Transvaal 1990 (2) SA 379 (W)
Purdy v Lever 1991 (3) SA 431 (T)

Quest Motor Corporation (Pvt) Ltd v Nyamakura 2000 (2) ZLR 84 (H)

R v John 1969 (2) RLR 23 (A); 1969 (2) SA 560 (RA)

R v Msongelwa 1960 (4) SA 699 (SR)
Rabie v Kimberley Municipality 1991 (4) SA 243 (NC)
Ramakulukusha v Commander, Venda National Force 1989 (2) SA 813 (VSC)
Rampal Ltd v Brett, Wills & Partners 1981 (4) SA 360 (D)
Ramsay v Minister of Police & Ors 1981 (4) SA 802 (A)
Randaree & Ors v W H Dixon & Associates & Anor 1983 (2) SA 1 (A)
Rautenbach v Republikeinse Publikasies (Edms) Bpk 1971 (1) SA 446 (W)
Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A)
Reid-Dalyv Hickman & Ors (2) 1980 ZLR 540 (A); 1981 (2) SA 315 (ZA)
Remba v Sanyangara HB-12-94
Retief v Van der Westhuizen 1959 (2) SA 166 (C)
R H Johnson Crane Hire (Pty) Ltd v Grotto Steel Construction (Pty) Ltd 1992 (3) SA 907 (C)
Rhodes Fruit Farms v Cape Town City Council 1968 (3) SA 514 (C)
Rhodesia Printing & Publishing Co Ltd v Duggan & Anor 1975 (2) RLR 281; 1975 (1) SA 590
(RA)
Rhostar (Pvt) Ltd v Netherlands Bank of Rhodesia 1972 (1) RLR 56; 1972 (2) SA 703 (R)
Ritenote Printers (Pvt) Ltd v A Adam & Co (Pvt) Ltd 2014 (2) ZLR 314 (H)
Ritenote Printers (Pvt) Ltd & Anor v A Adam & Co (Pvt) Ltd S-26-16
Rixi Taxi Co-op v Matigi & Ors HH-451-88
Rixi Taxis Owners’ Association v Machidza HH-203-86
Robertson v Eriksen HH-256-93
Robinsonv Fitzgerald 1980 ZLR 508 (GS)
Rocky Lodge (Pvt) Ltd v Livie 1977 (1) RLR 218; 1977 (3) SA 231 (RA)
Roe v Minister of Health & Ors [1954] 2 All ER 131 (CA)
Roeloffze v M Ranchod & Sons (Pvt) Ltd 1972 (1) RLR 353
Rofdo (Pty) Ltd t/a Castle Crane Hire v B & E Quarries (Pty) Ltd 1999 (3) SA 941 (SE)
Romansrivier Koöperatiewe Wynkelder Bpk v Chemserve Manufacturing (Pty) Ltd 1993 (2) SA
358 (C)
Rondelv Worsley [1969] 1 AC 191 (HL)
Rookesv Barnard [1964] AC 1129
Rose NO v Fawcett Security Ops (Pvt) Ltd 1998 (2) ZLR 114 (H)
Ross v Caunters [1979] 3 All ER 580
Royal-Beech-Nut Ltd t/a Manhattan Confectioners v United Tobacco Co Ltd t/a Willards Foods
1992 (4) SA 118 (A)
RP & P Co & Ors v Howman NO 1967 RLR 318 (GD); 1967 (4) SA 1
Rusere v Jesuit Fathers 1970 (4) SA 537 (R)
Rusike v Tenda Transport (Pvt) Ltd & Anor HH-89-97
Ruth Sai v Avenues Clinic HH-26-17
Ruvinga v ZEDTC (2) 2012 (2) ZLR 276 (H)
Ryan v Petrus 2010 (1) SA 169 (ECG)
Rylands v Fletcher (1868) LR 330 (HL)

S v A Juvenile 1989 (2) ZLR 61 (S)

288
S v Chimimba S-62-86
S v Chipinge Rural Council 1988 (2) ZLR 275 (S); 1989 (2) SA 342 (ZS)
S v Claasen 1979 RLR 323 (A)
S v Ferreira 1992 (1) ZLR 93 (S); 1992 (2) SACR 425 (ZS)
S v Israel & Anor 1975 (2) RLR 191; 1976 (1) SA 781
S v Kramer 1987 (1) SA 887 (W)
S v Mangwarira S-194-88
S v McGown 1995 (1) ZLR 4 (H)
S v Mkwetshana 1965 (2) SA 493 (N)
S v Mtizwa 1984 (1) ZLR 23 (H)
S v Ncube GB-47-80
Sv Ndlovu HB-31-84
S v Notje HB-23-03
S v van der Merwe S-211-88
S v van Rensburg 1987 (3) SA 35 (T)
SA Railways and Harbours v Edwards 1930 AD 3
Sadomba v Unity Insurance HS-131-78
Sage Holdings Ltd & Anor v Financial Mail (Pty) Ltd & Ors1991 (2) SA 117 (W)
Salisbury Bottling Ltd & Ors v Central African Bottling Ltd 1958 R & N 17; 1958 (1) SA 750
(FS) at 759
Samakange & Anor v The Master S-174-93
Santam Insurance Co (Ltd) v Paget 1981 ZLR 73 (A); 1981 (2) SA 621 (ZA)
Santam Insurancev Nkosi 1978 (2) SA 784 (A)
Santam Insurance Co v Vorster 1973 (4) SA 764 (A)
Sarif Ali v Sydney Mitchell & Co & Ors [1978] 3 All ER 1033 (HL)
Savoy House Ltd v City of Salisbury 1959 (1) R & N 145 (H)
Saybrook (Pvt) Ltd & Anor v Girdlestone 1986 (2) ZLR 185 (S)
Sayed v Editor, Cape Times, & Anor2004 (1) SA 58 (C)
Schultz v Butt 1986 (3) SA 667 (A)
SCM Ltd v W J Whittal [1970] 3 WLR 694 (CA); [1970] 3 All ER 245
Schweppes (Central Africa) Ltd v Zimbabwe Newspapers (1980) Ltd 1987 (1) ZLR 114 (H)
Sea Harvest Corporation v Irvin and Johnson 1985 (2) SA 351 (C)
Sea Harvest (Pty) Ltd v Duncan Cold Storage (Pty) Ltd 2000 (1) SA 827
Selemela & Ors v Independent Newspaper Group Ltd & Ors 2001 (4) SA 987 (NC)
Serfontein v Irvine; De Villiers v Irvine 1980 (2) SA 63 (ZRA)
Serfontein & Anor v Irvine 1979 RLR 510 (A)
Serymela v SA Eagle Insurance 1981 (1) SA 391 (T)
Shamuyarira v Zimbabwe Newspapers (1980) Ltd 1994 (1) ZLR 445 (H).
Shell & BP (Pvt) Ltd v Osborne Panama 1980 (3) SA 653 (D)
Shepherd v Zimnat Insurance HH-467-84
Shongwe v Shongwe & Anor HH-414-86
Sibanda v Sibanda & Anor 2002 (1) ZLR 622 (H)
Silatsha v Santam Insurance 1982 (2) SA 387 (A)
Simbanegavi v Jachi HH-40-13
Slomowitzv Kok 1983 (1) SA 130 (A)
Smit v Minister van Polisie 1997 (4) SA 893 (T)
Smit v SA Vervoerdienste 1984 (1) SA 246 (C)
Smith & Youngson (Pvt) Ltd v Dubie Bros 1959 (1) R & N 351 (FS)
Smith NO and Lardner-Burke NO v Wonesayi 1971 (2) RLR 62 (G)
Smith NO and Lardner-Burke NO v Wonesayi 1972 (1) RLR 262 (A); 1972 (3) SA 289 (RA)
Smithv Leech, Brain and Co [1961] 3 All ER 1159 (QB)
Snyman v Snyman 1984 (4) SA 262 (W)
Socrat Ltd v Electra Rubber Products Ltd HH-77-83
Solomon v Du Preez 1920 CPD 401
South African Post Office v De Lacy & Anor 2009 (5) SA 255 (SCA)
South African Revenue Services & Anor v TFN Diamond Cutting Works (Pty) Ltd 2005 (5) SA
113 (SCA)
South British Insurance v Du Toit 1952 SR 239; 1952 (2) SA 13 (SR)
Spartan Steel Ltd v Martin & Co Ltd [1972] 3 All ER 557 (CA); [1973] QB 27; [1972] 3 WLR
502
Spencer v Barclays Bank 1942 (2) SA 230
Squire v Sasol Mynbou (Edms) Bpk en Andere 1993 (3) SA 298 (T)
Stanbic Bank Zimbabwe Ltd 2007 (1) ZLR 398 (H)
Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747 (A)
Standard Chartered Finance Ltd v Georgias & Anor 1998 (2) ZLR 547 (H)
Standard Chartered Finance Ltd v Georgias & Anor 1998 (2) ZLR 488 (S)
Star Motors v Swart 1968 (3) SA 60 (T)
Steenkemp NO v Provincial Tender Board, Eastern Cape 2006 (3) SA 151 (SCA)
Stegman Bros Ltd v Nassan Ranch (Pvt) Ltd GS-32-79
Stellenbosch Wine Trust Ltd & Anor v Oude Meester Group Ltd 1972 (3) SA 152 (C)
Stoffberg v Elliott 1923 CPD 148
Straw v Porter & Anor GB-1-81
Strydom v Fenner-Solomon 1953 (1) SA 519 (E)

Tabanie v Chimanzi HB-75-90

Tanyanyiwa v Huchu 2014 (2) ZLR 758 (H)
Taunton Enterprises (Pvt) Ltd & Anor v Marais 1996 (1) ZLR 527 (H)
Taunton Enterprise v Ministry of Defence S-73-85
Tekere v Zimbabwe Newspapers & Anor 1986 (1) ZLR 275 (H)
Tena v UANC & Anor HS-367-81
Tendere v Harare City Council 2004 (1) ZLR 495 (S)
Thatcher & Another v Katz & Anor 2006 (6) SA 407 (C)
290
The Citizen 1978 (Pty) Ltd & Ors v McBride 2010 (4) SA 148 (SCA)
The Oil Rig Southseas Driller: Sheriff of Cape Town v Pride Foramer SA and Ors 2001 (3) SA
841 (C)
Thebe v Mbewe t/a Checkpoint Laboratory Services 2000 (1) ZLR 578 (S)
Thembi-Mahayele v Mail and Guardian & Anor 2004 (6) SA 329 (SCA)
Thomas v Murimba 2000 (1) ZLR 209 (H)
Thompson & Anor v Minister of Police & Anor 1971 (1) SA 371 (E)
Thoroughbred Breeders’ Association v Price Waterhouse 2000 (4) SA 551 (SCA)
Tinarwo v Hove & Ors 2003 (2) ZLR 148 (H)
Tobacco Finance (Pvt) Ltd v Zimnat Insurance 1982 (1) ZLR 47 (H); 1982 (3) SA 55 (ZH)
Tothill v Gordon & Ors 1930 WLD 99
Transport & Crane Hire v Hubert Davis & Co (Pvt) Ltd 1991 (1) ZLR 190 (ZS); 1991 (4) SA
150 (ZS)
Transtobac (Pvt) Ltd & Anor v Jongwe Printing and Publishing Co (Pvt) Ltd HH-67-94
Trojan Nickel Mine v RBZ 2013 (1) ZLR 444 (H)
Trustees, Two Oceans Aquarian Trust v Kentey and Templer (Pty) Ltd 2006 (3) SA 138 (SCA)
Tsara v Mutongawafa S-17-82
Tshabalala v Lekoa City Council 1992 (3) SA 21 (A)
Tuch &Ors NNO v Myerson & Ors NNO 2010 (2) SA 462 (SCA)
Turner v Health Professions Council 2000 (1) ZLR 722 (H)

Udwin v May 1978 (4) SA 967 (C)

Union Government v Ocean Accident & Guarantee Corp 1956 (1) SA 577 (A)
Union Insurance v Vitoria 1982 (1) SA 444 (A)
Unilever plc & Anor v Vimco Pvt) Ltd & Anor 2004 (2) ZLR 253 (H)
United Bottlers (Pvt) Ltd v Shambawamedza 2002 (1) ZLR 341 (S)
Universal Merchant Bank Zimbabwe Ltd v The Zimbabwe Independent & Anor2000 (1) ZLR 234
(H)
Urev Jordan GS-144-78

van den Bergh v Parity Insurance 1966 (2) SA 621 (W)

van Buuren v Minister of Transport2000 (1) ZLR 292 (H)
van der Berg v Coopers & Lybrand Trust (Pty) Ltd &Ors 2001 (2) SA 242 (SCA)
van der Merwe Burger v Warenton Municipality 1987 (1) SA 899 (NC)
van der Merwe v Zak River Estates 1913 CPD 1053
van der Spuy v Minister of Correctional Services 2004 (2) SA 463 (SE)
van Eeden v Minister of Safety and Security 2003 (1) SA 389 (SCA)
van Nuil v King HH-90-83
van Wyk v Lewis1924 AD 438
van Zyl v van Biljon 1987 (2) SA 372 (O)
van Zyl and Anor v Jonathan Ball Publishers (Pty) Ltd & Ors1999 (4) SA 571 (W)
Velempini v Engineering Services Dept of Works 1988 (2) ZLR 173 (H)
Vellah v Moyo & Anor HB-101-10
Victor NO v Constantia Insurance 1985 (1) SA 118 (C) 122G
Viljoen v Smith 1997 (1) SA 309 (A)
Viriri v Wellesley Estate 1982 (1) ZLR 200 (S); 1982 (4) SA 308 (ZS)
Vorster v AA Mutual 1982 (1) SA 145 (A)
Vorster v Strydpers Bpk en Andere 1972 (2) SA 928 (T)

Wagener v Pharmacare Ltd; Cuttings v Pharmacare Ltd 2003 (4) SA 285 (SCA)
Wagon Mound (2) [1966] 2 All ER 709 (PC); 1967 AC 617
Wallace v Goncalves S-35-93
Walker v Redhouse 2007 (3) SA 514 (SCA
Wallmanv Leathes 1969 (2) RLR 80(GD)
Washaya v Washaya 1989 (2) ZLR 195 (H); 1990 (4) SA 40 (ZH)
Weber v Santam Insurance 1983 (1) SA 381 (A)
Webster v Chivhiya HH-209-85
Weller & Cov Foot & Mouth Disease Institute [1966] 1 QB 569; [1965] 3 WLR 1082; [1965] 3
All ER 560
Wentworth-Wear v Zvipundu 2000 (1) ZLR 281 (S)
Wessels v Pretorius, NO en ‘n Ander 1974 (3) SA 299 (NC)
Wessels & Another v Pickles 1985 (4) SA 153 (C)
White Line Trucks v Cilliers A-175-72
Whitev Jones [1993] 3 All ER 481
Whitehouse v Jordan & Anor [1981] 1 All ER 267 (HL)
Wilsher v Essex Area Health Board [1986] 3 All ER 801
Wilson v Birt (Pty) Ltd 1963 (2) SA 508 (D)
Windmill v Minister of Justice & Anor HH-635-87
Withamv Minister of Home Affairs 1987 (2) ZLR 143 (H); 1989 (1) SA 116 (ZH)
Withers v Perry Chain Co [1961] 3 All ER 676 (CA)
Wolfenden v Jackson S-122-85
Wood v Northwood Service Station 1974 (1) RLR 49; 1974 (1) SA 133 (R)
Workers Compensation Commissioner v Minister of Construction HH-403-86
Workmen’s Compensation Commissioner v De Villiers 1949 (1) SA 474 (C)
Wright v Pomona Stone Quarries 1988 (2) ZLR 144 (S)
Wynnev Jones GS-202-79

Young v Nortje 1979 (4) SA 97 (C)

Yusaf v Bailey & Ors 1964 (4) SA 117
Yazbek v Seymour 2001 (3) SA 695 (E)

292
Zambezi Conference of Seventh Day Adventists Church v Seventh Day Adventists Association of
Southern Africa 2000 (1) ZLR 179 (H)
Zapchem Detergent Manufacturers CC v Polaris Zimbabwe (Pvt) Ltd 2003 (1) ZLR 481 (H)
Zillie v Johnson & Anor 1984 (2) SA 186 (W)
Zimbabwe Banking Corporation v Pyramid Motor Corporation 1985 (1) ZLR 358 (S); 1985 (4)
SA 553 (ZS)
Zimbabwe Gelatine (Pvt) Ltd v Cairns Foods (Pvt) Ltd 2003 (1) ZLR 352 (S)
Zimbabwe Newspapers (1980) Ltd & Anor v Bloch 1997 (1) ZLR 473 (S)
Zimnat Insurance v Chawanda 1990 (2) ZLR 143 (S); 1991 (2) SA 825 (ZS)
Zimunya v Zimbabwe Newspapers (1980) Ltd 1994 (1) ZLR 35 (H)
Ziyeresa v Fleming HH-92-84
Zuvarimwe & Anor v Naran & Anor 2014 (1) ZLR 449 (H)
Zvobgo v Kingstons Ltd 1986 (2) ZLR 310 (H)
Zvobgo v Mutjuwadi & Ors 1985 (1) ZLR 33 (H); 1985 (3) SA 1055 (H)
Zwiegelaar v Botha 1989 (3) SA 351 (C)