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.

 

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 Masiya & 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 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 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 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 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.

 

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 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.

 

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 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 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 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 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.