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Vicarious Liability of an Employer for the Delictual Acts of his Servant under Zimbabwean Law
Published online by Cambridge University Press: 28 July 2009
Extract
The doctrine of vicarious liability is easy to define but difficult to apply. In the recent Zimbabwean case of Fawcett Security Operations (Pot) Lid. v. Omar Enterprises (Pvt) Ltd., the Supreme Court held that a security company (the employer) who provided a security guard (the servant) to detect and prevent theft from the respondent's supermarket was not vicariously liable for the servant's subsequent theft of the very goods he was meant to guard. It is difficult to support this decision and its indirect effect is to call for a re-examination of this part of the law. Accordingly this article seeks to revisit the doctrine of vicarious liability under the Zimbabwean law of delict and to argue that (i) the decision in Fawcett Security was based on a wrong reading of the authorities; (ii) that the decision is inconsistent with the classical Roman-Dutch Law (as distinct from South African authorities); and (iii) that the decision fails to give effect to the real basis of vicarious liability under Zimbabwean law.
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References
1 1991 (1) Zimbabwe Law Reports (Z.L.R.) 291 (S.C.).
2 But there are important differences in respect of the structure of liability. Delictual liability under Zimbabwe's Roman-Dutch system proceeds on the basis of general principles of liability under the Lex Aqmilia and the Actio Ityuriarum, whereas in the law of torts the approach is casuistic with the plaintiff having to prove a named tort. This difference, however, is not material in this article.
3 See s. 89 of the Constitution of Zimbabwe.
4 See below.
5 Mkize v. Mortens 1914 A.D. 382.
6 Nott v. ZANU(PF) 1983 (2) Z.L.R. 208, 1984 (2) S.A. 115.
7 Mckerron, R. G., The Law of Delict (7th ed.), Juta & Co., 89Google Scholar; see also Zimmerman, R., The Law of Obligations: Roman Foundations of the Civilian Tradition, Juta & Co., 1990, 1118.Google Scholar
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10 Hirsh Appliance Specialists v. Shield Security Natal (Pty) Ltd 1992 (3) S.A. 643 at 647 G-H.
11 (1894) 1 O.R. 1, at 20.
12 1914 A.D. 382.
13 See Mckerron, op. cit., at 90; Zimmerman, op. cit., at 1123.
14 See, for instance, P.Q.R., , Boberg, The Law of Delict (Vol. 1), Juta & Co., 1984, 27Google Scholar where he defends the approach of the courts and notes “… the merit of a rule depends on its functional effects rather than the purity of its ancestry”.
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18 1952 S.R. 239, 1952 (4) S.A. 313 (S.R.).
19 1983 (2) Z.L.R. 208, 1984 (2) S.A. 115 (25).
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21 Ibid.
22 Ibid.
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24 (1894) 1 O.R. 1, at 20.
25 1945 A.D. 733 at 741.
26 1931 A.D. 412.
27 Canadian Pactfic Railway Co. v. Lockhart, above; Nott v. ZANU(PF), above.
28 Canadian Pacific Railway Co. v. Lockhart at 599.
29 (1984) (2) S.A. 115 at 120.
30 1927 A.D. 141 at 151.
31 See South African Railways v. Marais 1950 (4) S.A. 610 (A.D.).
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34 At 298A.
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37 Keppel Bus Co. Ltd. v. Saiad [1974] 1 W.L.R. 1082.Google Scholar
38 See s. 89 of the Constitution of Zimbabwe.
39 For a discussion of the Roman-Dutch Law, see Zimmerman, op. cit., at 1123, particularly his submission that the Roman-Dutch law approach was ignored because South African Courts followed English law at a very early stage without bothering to dig into the Roman-Dutch authorities.
40 Hirsh Appliance Specialists v. Shield Security Natal (Pty) Ltd at 651.
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42 At 300.