liability (Aquilian action) https://old.zimlii.org/taxonomy/term/10342/all en Creative Credit (Pvt) Limited v Tomu And 3 Others (HH 255-21, HC 1709/21) [2021]ZWHHC 255 (20 May 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/255 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HH 255-21</p> <p>HC 1709/21</p> <p> </p> <p>CREATIVE CREDIT (PRIVATE) LIMITED</p> <p>versus</p> <p>RICHARD TOMU</p> <p>and</p> <p>STEPHEN NESHAMBA                 </p> <p>and</p> <p>LAMECK NGOMA  </p> <p>and</p> <p>K AND K INVESTMENTS (PRIVATE) LIMITED</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUSITHU J</p> <p>HARARE, 29 April 2021 &amp; 3, 6 &amp; 20 May 2021</p> <p> </p> <p><strong>Urgent Chamber Application- Interdict  </strong></p> <p> </p> <p>Advocate <em>R. Mabwe, </em>for the applicant</p> <p>Mr <em>T. Chihuta</em>, for the respondents</p> <p> </p> <p><strong>MUSITHU J:</strong></p> <p><strong>INTRODUCTION </strong></p> <p>            The applicant is a company duly incorporated according to the laws of Zimbabwe. It specializes in electronics, solar and gas appliances. First, second and third respondents are ex-employees of the applicant. Upon leaving employment, first and second respondents founded the fourth respondent, whose line of business is more or less similar to that of the applicant. Fourth respondent was incorporated according to the laws of Zimbabwe. The applicant accuses respondents of certain business malpractices that it finds synonymous with unlawful competition and therefore a threat to its own business. For that reason, it approached this court seeking an interdict against the respondents. The relief sought reads as follows:</p> <p>“<strong>TERMS OF THE FINAL ORDER </strong></p> <p>That you show cause to this Honourable Court why a final order should not be made in the following terms:</p> <ol> <li>It is hereby declared that the first, second, third and fourth respondents engaged in unlawful competition against the applicant.</li> <li>By reason of the unlawful competition aforementioned, the applicant has sustained loss for which the respondents are liable – upon quantification of said loss by a competent court – to compensate the Applicant.</li> <li>The respondents be and are hereby ordered to pay costs of suit on a legal practitioner client scale jointly and severally the one paying the other to be absolved.</li> </ol> <p> </p> <p><strong>INTERIM RELIEF </strong></p> <p>Pending finalization of this matter an interim order is hereby granted in the following terms;</p> <p> </p> <p><strong>IT IS ORDERED THAT:</strong></p> <ol> <li>Pending finalisation of the case under HC 1688/21 the Respondents be and are hereby interdicted from: - <ol> <li>Passing off their business, goods and wares as those of the Plaintiff;</li> <li>Diverting the Plaintiff’s business and clients to the Fourth Respondent and or any other entity served promoted, controlled or otherwise advanced by the First, Second and Third Defendants;</li> <li>Plagarising the Plaintiff’s forms, systems and all intellectual property;</li> <li>Misleading the Plaintiff’s financial partners into providing funding to the Defendants’ business;</li> <li>Using the Plaintiff’s documents, branded apparel and branded motor vehicles to advance the Fourth Defendant’s business.</li> </ol> </li> </ol> <p> </p> <p><strong><em>SERVICE OF PROVISIONAL ORDER</em></strong></p> <p>This Order may be served on the Respondents by the Applicant, Applicant’s legal practitioners, or any attested member of the Zimbabwe Republic Police”</p> <p>            The matter was set down for hearing on 29 April 2021. Opposing affidavits were filed on behalf of all the respondents prior to the hearing. At the hearing, the applicant withdrew its application as against the third respondent, and sought a postponement of the matter to 3 May 2021 to enable its counsel to consider the remaining respondents’ notice of opposition. On 3 May 2021, Ms <em>Mabwe </em>appearing for the applicant informed the court that applicant was abandoning part of its claim which was based on allegations of unlawful competition or restraint of trade. That significantly reduced the disputable issues. A settlement was therefore within sight. The matter was postponed to 6 May 2021 to allow the parties to further engage, with an out of court settlement in mind.</p> <p>On 6 May 2021, the parties returned empty handed. They had failed to settle. Ms <em>Mabwe</em> submitted that applicant’s main complaint was that the respondents were unlawfully competing with the applicant. The applicant’s cause of action was grounded in delict. Paragraphs 1.2 and 1.4 of the interim relief sought spoke directly to that complaint. Mr <em>Chiwuta</em> submitted that the respondents had no problems if paragraphs 1.1, 1.3 and 1.5 of the interim order were granted in the interests of an amicable resolution of the matter. They had not acted in the manner complained of by the applicant. They did not intend to do so in future. The respondents were however opposed to paragraphs 1.2 and 1.4 of the interim relief sought. The arguments before the court were consequently confined to paragraphs 1.2 and 1.4 of the interim relief sought.  </p> <p><strong>FACTUAL BACKGROUND </strong></p> <p>Applicant claimed that civil servants constituted the bulky consumers of its products. It also engaged lenders and microfinance institutions to set up credit schemes for civil servants and other target groups that complied with its requirements. Over the years it developed a market that resonated well with its brand. First respondent was its sales representative for Mashonaland East. He was offered employment in July 2014. Second respondent was its country sales representative for Masvingo Province. He joined the applicant in January 2014. First and second respondents’ contracts of employment contained confidentiality clauses which obliged them to protect applicant’s trade secrets. They had access to confidential information which included applicant’s clientele and trade secrets. They had also received extensive training on applicant’s products, systems and marketing techniques.</p> <p>First respondent resigned from employment in April 2021. Second had resigned in December in 2020. Applicant claims that the manner of their resignation was suspicious.</p> <p><strong><em>Applicant’s Case </em></strong></p> <p>On 21 April 2021, applicant received a complaint from an aggrieved customer over some substandard goods purchased by that customer. From its investigations, applicant discovered that the goods had actually been supplied by the fourth respondent. That prompted applicant to investigate the fourth respondent. Its investigations revealed that fourth respondent was owned by first and second respondents. It was incorporated on 3 September 2020 when first and second respondents were still in the applicant’s employ. Fourth respondent allegedly started passing off to the applicant’s customers as far back as November 2020. It allegedly made sales in excess of ZWL12 658 061.63 to the applicant’s customers. Those sales were never disclosed to the applicant by first and second respondents.</p> <p>The applicant contended that first and second respondents violated their contractual obligations as employees of the applicant in that they: diverted applicant’s clients to their company; plagiarized and stole applicant’s stationary and used it in fourth respondent’s business; misled applicant’s financial partners into providing funding to fourth respondent; used applicant’s stationary, branded apparel and branded motor vehicles to pass off their business as that of the applicant. Text messages of the applicant’s customers that were allegedly deceived were attached to the applicant’s affidavit. </p> <p>Applicant further averred that the respondents were engaged in unlawful competitive practices which were hurtful to the applicant’s business. Such practices were manifested through: passing off of fourth respondent’s goods as those of the applicant; using applicant’s fruits and labour to their advantage; abusing and misusing applicant’s confidential information in a manner that unlawfully enriched the fourth respondent to the applicant’s detriment. There was a need for the court to intervene and stop the respondents’ unlawful conduct. The applicant had since instituted summons for an interdict and lost income against the respondents. The urgent chamber application had been filed to avert further damage to the applicant’s business.</p> <p>Applicant claimed that it had established a <em>prima facie</em> case. Its goodwill, business connections and huge clientele base were all under threat. There was the concomitant threat of irreparable harm. Applicant claimed to have lost income in excess of ZWL12 658 061.43. It continued to lose clients to the respondents. Respondents were also accused of overcharging applicant’s clients and delivering substandard products in the process. In so doing they were abusing the applicant’s name. Applicant contended that the balance of convenience favoured the granting of the relief sought. Respondents were operating in a manner prejudicial to the applicant’s business. Applicant claimed that the relief it sought would not drive respondents out of business. It simply wanted the illegal acts stopped. The matter was urgent. The applicant had moved with celerity soon after discovering these infringements.</p> <p><strong><em>Respondents’ Case</em></strong></p> <p>First respondent deposed to the main affidavit on his own behalf and on behalf of fourth respondent. Second respondent deposed to a supporting affidavit. He associated himself with first respondent’s opposing affidavit and averments made therein. The respondents’ case is as follows. Fourth respondent’s business was not dissimilar to that of the applicant. Fourth respondent was also involved in the business of credit facilitation for clients and customers. Its <em>modus operandi </em>was that when a customer showed interest in a particular product, fourth respondent would source the product. The products were sourced from different manufactures and were branded by the manufacturer or supplier concerned. The products were available on the open market and sold to anyone. No products were branded in the names of the applicant or fourth respondent.  Applicant’s customers were mostly civil servants. In the case of fourth respondent, any person in confirmed employment and able to arrange a stop order facility with their employer could be a customer. Once a sale was made, the stop order facility was activated until full payment was made.</p> <p>Fourth respondent further refined the payment system by roping in financiers who paid on behalf of the customer upfront, and thereafter recovered their money from the customer through an instalment arrangement. Respondents claimed that they identified a market opportunity which involved high risk customers, who ordinarily would not qualify under the applicant’s scheme. These constituted the bulk of the fourth respondent’s customers.</p> <p>Respondents averred that applicant had no intellectual property rights over its products. Applicant’s methodology was not peculiar to it alone. The methodology had been popularized by several other entities in the same line of business. If applicant’s claim was based on perceived violations of its intellectual property rights, then it ought to have protected those rights through registration. Without that, applicant could not claim monopoly over the civil service market or any other market for that matter. It was free for all. Customers were free to approach a supplier of their choice.</p> <p>First respondent admitted that he resigned from applicant’s employ in December 2020. He did so voluntarily. He had irreconcilable differences with the applicant. His exit was without drama. The required handover-takeover with his successor was smooth. He denied acting in any malicious manner towards the applicant. Applicant had actually tried to persuade him to stay on for another three months but he declined. First respondent admitted that he and second respondent received training from the applicant. However, at the time they joined the applicant they had already acquired considerable experience in their respective fields. He considered it absurd that they should not be allowed to use their knowledge and skill elsewhere. Whilst admitting that they registered the fourth respondent when they were still employees of the applicant, first and second respondents denied that fourth respondent was unlawfully competing with the applicant.  </p> <p>Respondents denied supplying any substandard material or passing off as applicant to any of the applicant’s customers. No evidence was placed before the court linking them to the alleged complaints. Respondents argued that it was not possible for them to conduct sales or receive payment in the applicant’s name since the banking details for the two entities were different. Respondents dismissed the sales schedule attached to the applicant’s affidavit showing an alleged financial prejudice of ZWL12 658 061.43. They averred that its source was unknown and could not be safely relied on. The schedule did not identify who applicant’s customers were and how they were diverted by the respondents. Also attached to the applicant’s founding affidavit was a template of an “Application form and invoice” that was allegedly plagiarized by respondents. Respondents denied plagiarizing the document. The document was in fourth respondent’s name. It was just a standard form which could not have been plagiarized as alleged.</p> <p>An agreement between fourth respondent and an entity called Red Sphere Finance (Private) Limited (Red Sphere) for the provision of credit facilities was also attached to the applicant’s affidavit. It was meant to show that respondents fraudulently obtained funding from the applicant’s financiers. The respondents denied the accusation. That agreement had nothing to do with the applicant. It was fourth respondent’s own financial arrangement with Red Sphere.</p> <p>Respondents also denied manipulating applicant’s branded documents, apparel and vehicles. To show that fourth respondent had created a brand of its own, second respondent attached to his affidavit pictures of fourth respondent’s vehicle and apparel that were branded in fourth respondent’s name. Respondents also dismissed the text messages that allegedly emanated from applicant’s aggrieved customers, who complained about having been deceived by the respondents. The text messages were not dated. They did not state when the sales complained of occurred or how the customers were deceived. Respondents denied allegations of unlawful competition and unjustified enrichment. They were simply competing in a free market just like any other player.</p> <p>First and second respondents contended that they could not be restrained from setting up their own business simply because they once worked for the applicant. They averred that applicant was seeking a lifelong restraint of trade against them. Such restraint was grossly unreasonable. Their profession was their only source of livehood. If the relief sought by applicant were to be granted, then the fourth respondent’s business would be ruined. The balance of convenience did not favour depriving respondents a legitimate source of livelihood. Respondents averred that applicant had failed to establish a <em>prima facie</em> right over goods sold by fourth respondent. Respondents also denied that applicant would suffer irreparable harm. It had already computed its alleged losses and caused summons to be issued against the respondents. The matter was not urgent at all. The court was urged to dismiss it with costs.</p> <p><strong><em>Applicant’s Reply</em></strong></p> <p>In reply, applicant averred that first and second respondents had not denied breaching the confidentiality clauses in their respective contracts of employment. They had established a business venture similar to that of the applicant. In the process they used the same methodology as that of the applicant to reach out to their market. They did not deny using the expertise they acquired during their tenure with the applicant. They had access to the applicant’s database of customers and were therefore familiar with applicant’s trade secrets. They were abusing that privileged information to engage in unlawful competition with the applicant.</p> <p>Applicant averred that the delict of passing off did not necessarily require the registration of intellectual property over an idea or business concept. All that an applicant was required to prove was that respondents were misleading the public by passing off their business as that of the applicant. Applicant averred that it was not seeking that respondents be barred from exploiting available market opportunities. Its gripe was that respondents were passing off their products as those of the applicant.</p> <p>Attached to the answering affidavit, was a police statement attributed to one Bere Rudlof who claimed to have been approached by second respondent on 30 April 2020. Second respondent was allegedly driving a vehicle branded with applicant’s colours, when he visited Bere’s school. He was offering solar, electronics products and gas tanks for sale. He is alleged to have introduced himself as applicant’s sales representative. The customer purchased a cellphone and a solar light. Second respondent is alleged to have completed the contract invoices which Bere countersigned. Second respondent however left with all the copies. The customer latter visited the applicant’s offices in Masvingo to collect his copy of the contract invoice, and to check whether his monthly instalment had been deducted. At applicant’s offices he was told that he was not in the applicant’s database and therefore not a customer.</p> <p>Investigations revealed that the products had in fact been supplied by fourth respondent. According to the applicant, that confirmed that respondents were hoodwinking members of the public. Also attached to the applicant’s answering affidavit was a warned and cautioned statement signed by the second respondent in which he allegedly admitted to a charge of concealing an interest in a transaction from his principal. The statement was recorded at Masvingo Central Police Station on 27 April 2021. The alleged admission was in respect of a complaint lodged by the applicant against the second respondent.</p> <p>Applicant further averred that the schedule attached to its founding affidavit showing the income that it lost was not challenged by the respondents. It confirmed that the respondents were poaching the applicant’s customers. Such conduct was unjustified more so considering that: applicant was incorporated first; fourth respondent started trading when the first and second respondents were still employees of the applicant; first and second respondents were still diverting applicant’s customers to the fourth respondent; and fourth respondent was passing off as the applicant. Applicant maintained that respondents had all but admitted that their conduct was unlawful. The relief sought was therefore unimpeachable.</p> <p><strong>THE ISSUES AND THE LAW </strong></p> <p>Two issues stand out for determination. These are whether the applicant grounds its cause of action in delict or contract, and whether the applicant has set out a <em>prima facie</em> case justifying the granting of the relief sought.</p> <p><strong>THE SUBMISSIONS </strong></p> <p>Ms <em>Mabwe</em> submitted that applicant’s cause of action was founded in delict under the <em>Aquilian</em> action. She submitted that respondents were engaged in unlawful competition against the applicant under three heads, namely: passing off; learning on; and the unfair use of the applicant’s fruits and labour. She further submitted that all that applicant was required to prove was that the first and second respondents were in possession of confidential information acquired during the course of their employment with applicant, and that they were abusing that information to advance fourth respondent’s business interests. Ms <em>Mabwe</em> cited the case of Waste Products Utilisation (Pty) Ltd v Wilkes and Ano<a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1"><em><strong>[1]</strong></em></a>.</p> <p>Ms Mabwe urged the court to note that first and second respondents did not deny that in the course of their employment with applicant; they acquired confidential information about applicant’s customers, its methodology, and database of clients and financiers; they had a contractual obligation to preserve such confidential information; that confidential information was unlawfully used as the springboard to set up the fourth respondent. Such conduct constituted unlawful competition, as it entailed the misuse of information acquired in the course of one’s employment. The court was further referred to the cases of <em>Faccenda Chicken Ltd v Fowler &amp; Ors<a href="#_ftn2" name="_ftnref2" title="" id="_ftnref2"><strong>[2]</strong></a>. </em>Counsel submitted that the applicant had managed to demonstrate its entitlement to the relief sought based on the evidence that first and second respondents were unlawfully approaching applicant’s customers and passing off fourth respondent’s wares as those of the applicant.</p> <p>In response, Mr <em>Chiwuta </em>submitted that what was before the court was clearly an application for a restraint of trade, which had been metamorphosed into one based on the <em>Aquilian</em> action. He submitted that paragraphs 1.2 and 1.4 of the interim relief sought spoke to a restraint of trade. He argued that paragraph 1.2 had the effect of barring first and second respondents from seeking employment anywhere, while paragraph 1.4 was not clear on the identity of the alleged financial partners that had contractual relations with the applicant. No evidence had been placed before the court to show that the respondents interfered with applicant’s financing partners. The agreement between fourth respondent and Red Sphere had nothing to do with the applicant. It did not mention the applicant. Red Sphere did not say it was misled by the respondents in any manner. Mr <em>Chiwuta</em> argued that clause 1.4 sought to bar the respondents from approaching financiers.  Those financiers were not identified. The restraint was therefore unreasonable. Mr <em>Chiwuta</em> referred to the case of <em>Greendale Hardware &amp; Electrical v Goodfellow Bangaba<a href="#_ftn3" name="_ftnref3" title="" id="_ftnref3"><strong>[3]</strong></a></em>, to advance his argument.</p> <p>Mr <em>Chiwuta </em>further submitted that the oaths of confidentiality signed by first and second respondents also constituted an unreasonable restraint. He further submitted that the applicant’s complaint remained a contractual restraint as it had its origins in the employment contracts between applicant and the two respondents.</p> <p>As regards the statement attributed to Rudlof Bere, Mr <em>Chiwuta</em> urged the court to disregard it, as it was not properly before the court. It had no name. Respondents had not been given an opportunity to comment on it. A matter stood or fell on the founding affidavit. Counsel submitted that the application was devoid of merit and ought to be dismissed with costs.</p> <p><strong><em>Reply</em></strong></p> <p>            Ms <em>Mabwe</em> submitted that the second respondent did not deny signing the warned and cautioned statement in which he admitted to the criminal complaint made against him by the applicant. While conceding that there was no name on the statement, Ms <em>Mabwe </em>urged the court to exercise its discretion and request a record of those criminal proceedings. She further submitted that the documents attached to the answering affidavit were official court records which were relevant to the current proceedings. She further submitted that significance of the statement was buttressed by the averments made in paragraph 19.4 of the founding affidavit. The two spoke to each other.</p> <p><strong>THE ANALYSIS</strong></p> <p><strong><em>Whether the cause of action is grounded in delict or contract</em></strong></p> <p>It is necessary at the outset to determine whether the applicant’s cause of action is grounded on the delict of unlawful competition or on a restraint of trade as submitted by Mr <em>Chiwuta</em>. In the South African Constitutional Court case of <em>Phumelela Gaming and Leisure Limited v Gründlingh<a href="#_ftn4" name="_ftnref4" title="" id="_ftnref4"><strong>[4]</strong></a>, </em>LANGA CJ, described unlawful competition as follows:</p> <p>“[31] The delict of unlawful competition is based on the <em>Aquilian</em> action and, in order to succeed, an applicant must prove wrongfulness. This is always determined on a case by case basis and follows a process of weighing up relevant factors, in terms of the <em>boni mores</em> now to be understood in terms of the values of the Constitution.</p> <p>[32] Any form of competition will pose a threat to a rival business. However, not all competition or interference with property interests will constitute unlawful competition. It is accordingly accepted that it is only when the competition is wrongful that it becomes actionable. The role of the common law in the field of unlawful competition is therefore to determine the limits of lawful competition. This determination, which takes account of many factors, necessitates a process of weighing up interests that may in the circumstances be in conflict. Fundamental to a determination of whether competition is unlawful is the <em>boni mores</em> or reasonableness criterion. This is a test for wrongfulness which has evolved over the years.”</p> <p>In <em>Greendale Hardware &amp; Electrical v Goodfellow Bangaba<a href="#_ftn5" name="_ftnref5" title="" id="_ftnref5"><strong>[5]</strong></a></em> MALABA JA (as he then was), dealt with a restraint of trade scenario as follows:</p> <p>“A restraint of trade is an obligation voluntarily undertaken by the employee to refrain from the exercise of freedom of trade in favour of the employer in the exercise of freedom of contract. It is therefore <em>prima facie </em>valid and the <em>onus </em>is on the employee who seeks to resile from its burden to show that it is nonetheless against public interest and unenforceable. See <em>Magna Alloys and Research </em>(<em>SA</em>) (<em>Pty</em>) <em>Ltd v Ellis </em>1984 (4) SA 874(A); <em>Book v Davidson </em>1988(1) ZLR 365(S) at 385D.</p> <p>A restraint of trade which does no more than protect the employer against mere competition from a former employee by preventing him or her from carrying on business similar to that undertaken by him or entering the services of an undertaking carrying on business similar to that undertaken by him in fear that in doing so the employee would exercise the knowledge and skill acquired during employment with him is an unreasonable restraint. So is a restraint of trade which is too wide as to time or place or scope depending, of course, on the nature of the business carried on and the duties of the employee”</p> <p>The distinction between the two causes of action is not difficult to decipher. The <em>lex Aquilia</em> or the <em>Aquilian</em> action is a general delictual action used to claim for patrimonial or financial loss. The restraint of trade on the other hand arises <em>ex contractu</em>. It seeks to restrain an employee from performing similar work or accepting future employment in competition with that of his current employer, usually for a defined period of time after the termination of his employment contract. In <em>casu</em>, in as much as the applicant alleged that first and second respondents had confidentiality clauses in their contracts of employment, its cause of action though seemingly convoluted with certain aspects of restraint of trade, is premised on alleged incidences of unlawful competition attributed to the respondents.</p> <p>First respondent’s contract of employment with an entity called Creative Cellular contained a confidentiality clause that restrained him from divulging information about office matters that came to his attention in the course of employment. The clause did not restrain the first respondent from taking up employment with a competitor. It is not clear whether applicant and Creative Cellular are one and the same entity. The oath of confidentiality that second respondent signed with applicant required him to keep confidential any information that he obtained during the course of his employment and even thereafter. It did not restrain him from taking up employment that competed with the applicant. It was just about preservation of applicant’s information.  </p> <p>What remains of the interim relief that applicant seeks is also instructive. Paragraph 1.2 seeks to have respondents restrained from diverting applicant’s business and clients to fourth respondent. Paragraph 1.4 seeks to restrain respondents from misleading plaintiff’s financial partners into providing funding to fourth respondent. I do not read the relief sought as seeking to restrain first and second respondent from setting up a competing business of their own. From its founding papers, it seems the source of the applicant’s ire is the alleged abuse of its name by the respondents.  In my view, it would be stretching the interpretation a bit far to suggest that the relief sought is aimed at infringing respondents’ right to freedom of trade, occupation and profession. I accordingly find that the relief sought is grounded in the <em>lex Aquilian </em>delictual claim for unlawful competition.</p> <p><strong><em>Whether the applicant established a prima facie case of unlawful competition justifying the granting of the relief sought</em></strong></p> <p>Section 64 of the Constitution of Zimbabwe entrenches the right to freedom of profession, trade or occupation. It states as follows:</p> <p><strong>“64 Freedom of profession, trade or occupation </strong></p> <p>Every person has the right to choose and carry on any profession, trade or occupation, but the practice of a profession, trade or occupation may be regulated by law.”</p> <p> </p> <p>Commenting on the effect of a similar provision in the South African Constitution, SPILG J in the South African case of <em>Mullane &amp; Another v Smith &amp; Others<a href="#_ftn6" name="_ftnref6" title="" id="_ftnref6"><strong>[6]</strong></a></em> said:</p> <ol> <li> </li> </ol> <ol> <li>The starting point is that competition is as essential for the operation of an efficient free market economy as is the right to freedom of trade, occupation and profession in a constitutional democracy<a href="#_ftn7" name="_ftnref7" title="" id="_ftnref7">[7]</a>. Nonetheless each is limited; the former by the common law principles of unlawful competition as a form of delict under the <em>Aquilian</em> action and the latter by the correlating rights of others, which would include the rights to protection of property under section 25 of the Constitution.</li> <li>The right to protection from unlawful competition requires a wrongful interference with another’s rights as a trader. See <em>Schultz v Butt </em>1986(3) SA 667 (A) at 678G.</li> <li>While mentioning at 678G that as “<em>a general rule, every person is entitled freely to carry on his trade or business in competition with his rivals”</em> <em>Schultz </em>confirms at 678H to 679E that:</li> </ol> <p><em>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….”   </em></p> <p>In its supplementary heads of arguments, the applicants referred to two forms of unlawful competition applicable to this case as espoused in <em>Willie’s Principles of South African Law<a href="#_ftn8" name="_ftnref8" title="" id="_ftnref8"><strong>[8]</strong></a>. </em>These are passing off and leaning on. In her oral submissions, Ms <em>Mabwe</em> alluded to a third form of unlawful competition, which is the unfair use of the applicant’s fruits and labour by the respondents. I now turn to deal with these three forms of unlawful competition as pleaded by the applicant.</p> <p><strong><em>Passing off</em></strong></p> <p>In <em>Brian Boswell Circus (Pty) Ltd and Another v Boswell Wilkie Circus (Pty) Ltd<a href="#_ftn9" name="_ftnref9" title="" id="_ftnref9"><strong>[9]</strong></a>, </em>it was held that:</p> <p>“Passing-off is a form of wrongful competition. It is unlawful because it results, or at any rate is calculated to result, in the improper filching of another’s trade and an improper infringement of his goodwill and/or because it may cause injury to the other’s reputation”</p> <p>In its supplementary heads of argument, applicant alluded to passing off in the context of the alleged depiction of the fourth respondent’s products as those of the applicant. Section 6 of the Trade Marks Act<a href="#_ftn10" name="_ftnref10" title="" id="_ftnref10">[10]</a> states as follows:</p> <p>            “<strong>6 No action for infringement of unregistered trade mark</strong></p> <p>No person shall be entitled to institute any proceedings to prevent, or to recover damages for, the infringement of an unregistered trade mark:</p> <p>Provided that nothing in this Act shall affect the right of any person, at common law, to bring an action against any other person for unlawful competition or for passing off goods or services as the goods or services of another person.” (Underlining for emphasis).</p> <p> </p> <p>The common law recognizes the right of a party to bring a claim based on unlawful competition or passing of. The submission by Mr <em>Chiwuta</em> that the applicant’s claim was incompetent because it had no registered trademark for its goods is therefore untenable. It is common cause that applicant’s claim is not based on the infringement of a registered trademark. It is based on the common law.</p> <p>For one to succeed in a claim for passing off at common law, they must establish the following elements; misrepresentation, damage and goodwill<a href="#_ftn11" name="_ftnref11" title="" id="_ftnref11">[11]</a>. In its heads of argument applicant submitted that the respondents’ conduct was demonstrably wrongful and tantamount to passing off for reasons that: fourth respondent commenced trading whilst first and second respondents were still in the applicant’s employ. In so doing they diverted some of the applicant’s customers to fourth respondent; they misrepresented their wares as those of the applicants; respondents plagiarized and stole applicant’s forms and used them to advance fourth respondent’s business; they misled applicant’s financial partners into providing funding to fourth respondent; they used applicant’s documents, branded apparel and motor vehicles to create the impression that they were representing the applicant.</p> <p>Has the applicant made a <em>prima facie</em> case justifying the granting of the relief sought based on passing off? Mr <em>Chiwuta</em> submitted that no evidence was placed before the court to show that the respondents were culpable of the alleged transgressions. I agree with that submission. While it was admitted that fourth respondent was incorporated when first and second respondents were still in the applicant’s employ, there is no evidence that they diverted applicant’s customers to fourth respondent. The schedule attached to the applicant’s founding affidavit showing the sales allegedly made to the applicant’s customers by the respondents is not helpful. It is not labelled. It has 12 columns. They do not have any headings. What one can easily decode are the names of persons, their dates of birth, and mobile numbers. It is not clear where the schedule came from or who prepared it. How the court is supposed to accept that it represents a list of applicant’s customers diverted to fourth respondent is beyond comprehension. The deponent to the applicant’s affidavit did not bother to explain the columns and how the sales amounting to ZWL 12 658 061.43 were arrived at. Not a single supporting affidavit was attached to the application just to explain how those customers were diverted. The schedule is meaningless. It cannot be relied upon.</p> <p>Also attached to support the applicant’s cause is a copy of the applicant’s “Application Form &amp; Invoice”, and an almost similar form allegedly plagiarized by the fourth respondent. The applicant claims that its form was plagiarized by the respondents since the two forms are similar. First and second respondents denied plagiarizing the applicant’s stationery. Fourth respondent had its own form bearing its name. The respondents’ submission is persuasive. The form which was allegedly plagiarized appears to me to be a standard document which can be downloaded from the internet. It would have been a different proposition if respondents had used the applicant’s form when approaching their customers. That is not the position. In the absence of evidence linking the respondents to the abuse of the applicant’s forms, I find the applicant’s argument rather hollow and without merit.</p> <p>The allegation that respondents mislead applicant’s financial partners into providing funding to fourth respondent is equally devoid of merit. The agreement attached to back up this claim is between fourth respondent and Red Sphere Finance. It has nothing to do with the applicant. If indeed fourth respondent misled Red Sphere into providing it with finance under the guise that it was connected to the applicant, then a supporting affidavit ought to have been procured from this financier. As it stands, the agreement confirms some financial arrangement between fourth respondent and Red Sphere.  It does not suggest any passing off. The attached text messages of customers who were allegedly deceived by the respondents can only suffer the same fate. The evidence is not on oath. The customers’ mobile phone numbers are not stated. The court is left wondering whether such text messages actually emanated from applicant’s aggrieved customers. Why the applicant failed to obtain supporting affidavits from these customers is also bewildering.</p> <p>In its answering affidavit, the applicant attempted to make reference to second respondent’s warned and cautioned statement in which he allegedly admitted to the offence of corruptly concealing a transaction from a principal. The principal is not identified in that statement. It is not clear whether that statement was connected to the applicant. Also attached to the answering affidavit is a statement which is attributed to one Bere Rudlof, in which he claims that second respondent came to his school passing off as a representative of the applicant.</p> <p>Although the applicant’s answering affidavit claims that the statement was made by Bere Rudlof, the statement does not suggest so. It is handwritten and what was attached to the answering affidavit is a photocopy or scanned copy. The name of the writer missing. The signature is not legible for one to clearly identify the signatory. Mr <em>Chiwuta</em> urged the court to disregard the statement, more importantly because it was being submitted at this late stage thus denying the respondents an opportunity to comment on it. I agree with Mr <em>Chiwuta’s</em> contention in this regard. I can do no more than refer to the sentiments by SANDURA JA in SANDURA JA in <em>Mangwiza </em>v <em>Ziumbe<a href="#_ftn12" name="_ftnref12" title="" id="_ftnref12"><strong>[12]</strong></a>, </em>where he said:</p> <p>“It is well-established that in application proceedings the cause of action should be fully set out in the founding affidavit, and that new matters should not be raised in an answering affidavit. That principle was laid down many years ago in cases such as <em>Coffee, Tea and Chokolate Co Ltd </em>v<em> Cape Trading Company</em> 1930 CPD 81. At p82. GARDNER JP said:</p> <p>“A very bad practice and one by no means uncommon is that of keeping evidence on affidavit until the replying stage, instead of putting it in support of the affidavit filed upon the notice of motion, the result of this practice is either that a fourth set of affidavits has to be allowed or that the respondent has not an opportunity of replying. Now these affidavits of Barnes, Turnbull, Lee Gardner and Lang should in my opinion properly have been put in support of the notice of motion. They are not a reply to what has been said by the respondent, and I am not prepared to allow them to be put in at this stage”</p> <p>Ms <em>Mabwe</em> urged the court to take judicial notice of its own record and request the record pertaining to the criminal proceedings involving second respondent. I find that submission a bit fanciful. Firstly, it is not clear at what stage the criminal proceedings involving the second respondent are, and whether they involve the applicant. This is what the applicant ought to have established and place such evidence before the court. For this court to do so would be interfering with a matter which is probably yet to be placed before the Magistrates Court. Secondly, this matter was postponed to allow the parties an opportunity to settle. If the applicant needed more time to secure that evidence through an affidavit, then it could have simply sought a postponement of the matter. For that reason, I am persuaded by Mr <em>Chiwuta’s</em> submission that applicant’s case must stand or fall on its founding papers. The applicant failed to prove that respondents passed off the fourth respondent’s business as that of the applicant.</p> <p><strong><em>Leaning on </em></strong></p> <p>In the supplementary heads of argument, applicant submitted that the complaint based on leaning on pertained to the inappropriate use of the applicant’s efforts by the respondents in order to promote the fourth respondent’s products at the expense of the applicant. Leaning on occurs where an entity relies on the reputation or goodwill of another entity for its own financial gain. It also involves the dilution of the advertising value of a symbol in relation to the repute of an entity, goods or services associated with such a symbol.<a href="#_ftn13" name="_ftnref13" title="" id="_ftnref13">[13]</a>  In order to advertise its products, and in the process promoting and expanding its own business, an entity may choose to abuse the advertising trademark of another entity. In its heads of arguments, the applicant claims that respondents inappropriately used the applicant’s efforts to promote fourth respondent’s business. The argument was not advanced further in the oral submissions.</p> <p>However, as was the case in respect of the complaint based on passing off, the applicant, did not place evidence before the court to demonstrate in what way first and second respondents inappropriately used applicant’s efforts to promote fourth respondent’s products. The court cannot rely on unsubstantiated allegations. It was the easiest thing for the applicant to procure supporting affidavits from its customers and financiers in order to illustrate the existence of the alleged infringements. The submission is without merit.</p> <p><strong><em>Unfair use of applicant’s fruits and labour.</em></strong></p> <p>In the American case of <em>American Safety Table Co Inc v. Schreiber</em><a href="#_ftn14" name="_ftnref14" title="" id="_ftnref14">[14]</a>, it was held as follows:</p> <p>“...(At) first glance it might seem intolerable that one manufacturer should be allowed to sponge on another by pirating the product of years of invention and development without licence or recompense and reap the fruits sown by another. Morally and ethically such practices strike a discordant note. It cuts across the grain of justice to permit an intruder to profit not only by the efforts of another but at his expense as well.”</p> <p>Applicant claims that first and second respondents abused its fruits and labour acquired during their time in applicant’s employ to advance fourth respondent’s business. The two allegedly abused confidential information that they acquired from the applicant’s database. Unfortunately, the applicant’s complaint is afflicted by the same infirmities as the earlier ones. The alleged abuses are generalized as no evidence was placed before the court to back them up.</p> <p>It is common cause that first and second respondents came into contact with applicant’s trade secrets during the course of their employment. What the applicant has failed to demonstrate is how the respondents abused those trade secrets and used them as a springboard to set up the fourth respondent. The use of knowledge and skill acquired during the course of employment to set up a legitimate business can hardly be construed as unlawful competition, unless it can be shown that the setting up of the business amounted to a wrongful interference with the applicant’s rights as a trader. This court is also alive to the need to create a balance between the respondents’ constitutional rights to freedom of profession, trade and occupation<a href="#_ftn15" name="_ftnref15" title="" id="_ftnref15">[15]</a> and the applicant’s right to protection against unlawful competition. In the <em>American Safety Table Co Inc v Schreider</em> case<a href="#_ftn16" name="_ftnref16" title="" id="_ftnref16">[16]</a>, the court went on to say:</p> <p>“For imitation is the life blood of competition. It is the unimpeded availability of substantially equivalent units that permits the normal operation of supply and demand to yield the fair price society must pay for a given commodity. Unless such duplication is permitted, competition may be unduly curtailed with the possible resultant develop­ment of undesirable monopolistic conditions”</p> <p>Lamentably for the applicant, no evidence was submitted to persuade this court to find that respondents unfairly used the applicant’s fruits and labour. The submission lacks merit.</p> <p><strong>CONCLUSION  </strong></p> <p>Broadly speaking, the applicant’s cause of action was based on unlawful competition. Amler<a href="#_ftn17" name="_ftnref17" title="" id="_ftnref17">[17]</a> opines that there is no <em>numerous clausus</em> of acts that constitute unlawful competition. The relief sought by the applicant had far reaching consequences. It made serious inroads into the respondents’ constitutional rights of freedom of profession, trade or occupation. The paucity of evidence to support the applicant’s claims was its Achilles heel in this case. There was no evidence to support applicant’s claims of the alleged infringements of those variants of unlawful competition that it chose to advance as a basis for the relief sought.</p> <p>The court also finds that there is no evidence of unlawful competition even in respect of paragraphs 1.1, 1.3 and 1.5 of the interim relief sought. Those were the paragraphs in regards to which Mr <em>Chiwuta </em>was agreeable to them being granted for the sake of a settlement. Mr <em>Chiwuta’s</em> position was not based on an admission that respondents were guilty of the alleged transgressions. They were made with a view to motivate a settlement since according to him, respondents had never committed the alleged acts, and did not intend to commit such violations even in the future. It therefore did not make any difference whether or not the interim relief was granted in respect of those uncontested items. The circumstances under which the compromise was made by Mr <em>Chiwuta</em> do not merit that this court should then grant interim relief in respect of the uncontested items. The court must be satisfied that a <em>prima facie</em> case has been established<a href="#_ftn18" name="_ftnref18" title="" id="_ftnref18">[18]</a>. Applicants failed to establish a <em>prima facie</em> case of unlawful competition to justify the granting of the entire interim relief sought. The remedy sought is not just free for the taking. The application is meritless and it must fall for the reasons stated.</p> <p><strong>COSTS</strong></p> <p>The general rule is that costs follow the event. I see no reason for departing from this general rule. The applicant ought to have put its house in order before approaching the court for the relief it sought. </p> <p><strong>DISPOSITION </strong></p> <p><strong>Resultantly it is ordered that:  </strong></p> <ol> <li>The application is dismissed.</li> <li>Applicant shall pay the 1st, 2nd and 4th respondents’ costs of suit.</li> </ol> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>Tamuka Moyo Attorneys</em>, applicant’s legal practitioners</p> <p><em>Ziumbe &amp; Partners, </em>1st, 2nd &amp; 4th respondents’ legal practitioners</p> <p> </p> <p> </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> 2003 (2) SA 515 (WLD) at 570 G - 571 C and 571 G - H</p> <p><a href="#_ftnref2" name="_ftn2" title="" id="_ftn2">[2]</a> 1986 (1) AER 617 @ 625</p> <p><a href="#_ftnref3" name="_ftn3" title="" id="_ftn3">[3]</a> SC 15/07</p> <p><a href="#_ftnref4" name="_ftn4" title="" id="_ftn4">[4]</a> [2006] ZACC 6; 2007 SA (6) 350 (CC); 2006 (8) BCLR 883 (CC) at paragraph 31 of the judgment</p> <p><a href="#_ftnref5" name="_ftn5" title="" id="_ftn5"><em><strong>[5]</strong></em></a> <em>Supra </em>at pages 8-9</p> <p><a href="#_ftnref6" name="_ftn6" title="" id="_ftn6">[6]</a> [2015] 3 All SA 230 (GJ)</p> <p><a href="#_ftnref7" name="_ftn7" title="" id="_ftn7">[7]</a> See section 22 of the Constitution of South Africa</p> <p><a href="#_ftnref8" name="_ftn8" title="" id="_ftn8">[8]</a> 9th Edition, Juta at page 1110</p> <p><a href="#_ftnref9" name="_ftn9" title="" id="_ftn9">[9]</a> 1985 (4) SA 466 (A) at 487I</p> <p><a href="#_ftnref10" name="_ftn10" title="" id="_ftn10">[10]</a> [<em>Chapter 26:04</em>]</p> <p><a href="#_ftnref11" name="_ftn11" title="" id="_ftn11"><em><strong>[11]</strong></em></a> See<em> Zimbabwe Gelatine (Pvt) Ltd </em>v <em>Cairns Foods Pvt Ltd</em> 2003 (1) ZLR 352 (S)</p> <p><a href="#_ftnref12" name="_ftn12" title="" id="_ftn12">[12]</a> 2000 (2) ZLR 489 (SC)</p> <p> </p> <p><a href="#_ftnref13" name="_ftn13" title="" id="_ftn13">[13]</a> Klopper H, Pistorius T, Tong L et al, Law of Intellectual Property in South Africa 2ed (2017)</p> <p><a href="#_ftnref14" name="_ftn14" title="" id="_ftn14">[14]</a> (1959) 269 F 2nd 255, at 271-272</p> <p><a href="#_ftnref15" name="_ftn15" title="" id="_ftn15">[15]</a> See section 64 of the Constitution.</p> <p><a href="#_ftnref16" name="_ftn16" title="" id="_ftn16">[16]</a> <em>supra </em></p> <p><a href="#_ftnref17" name="_ftn17" title="" id="_ftn17">[17]</a> Amler’s Precedents of Pleadings, Eighth Edition page 373.</p> <p><a href="#_ftnref18" name="_ftn18" title="" id="_ftn18">[18]</a> Rule 246 (2) of the High Court Rules</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/255/2021zwhhc-255.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=60423">2021zwhhc-255.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/255/2021zwhhc-255.pdf" type="application/pdf; length=756483">2021zwhhc-255.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/d">D</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/delict-see-also-damages-negligence">DELICT See also DAMAGES; NEGLIGENCE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/aquilian-action">Aquilian action</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/essentials-aquilian-action">essentials of Aquilian action</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/liability-aquilian-action">liability (Aquilian action)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/interdict">INTERDICT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-interdict">Application (INTERDICT)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/passing-0">PASSING OFF</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/goodwill-passing">Goodwill (PASSING OFF)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/requirements-establish-claim-passing">Requirements to establish claim (PASSING OFF)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/use-distinctive-word-and-packaging-passing">Use of distinctive word and packaging (PASSING OFF)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/t">T</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/trade">TRADE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/competition">Competition</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2007/15">Greendale Hardware &amp; Electrical (Pvt) Ltd v Bangaba (03/06) ((Pvt)) [2007] ZWSC 15 (09 July 2007);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Mon, 07 Jun 2021 08:05:27 +0000 Sandra 10020 at https://old.zimlii.org Kanengoni v Minister of Justice, Legal & Parliamentary Affairs & 2 Others (HH 156-18, HC 544/15) [2018] ZWHHC 156 (21 March 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/156 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p> </p> <p>PRECIOUS MAZVITA KANENGONI</p> <p>versus</p> <p>MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS</p> <p>and</p> <p>THE COMMISSIONER GENERAL PRISONS AND CORRECTIONAL</p> <p>SERVICES</p> <p>and</p> <p>OFFICER IN CHARGE RUSAPE PRISON</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUNANGATI-MANONGWA J</p> <p>HARARE, 27 and 28 February &amp; 21 March 2018</p> <p> </p> <p> </p> <p><strong>Trial</strong></p> <p> </p> <p> </p> <p><em>A</em> <em>Masango</em>, for the plaintiff</p> <p><em>L T Muradzikwa,</em> for the respondents</p> <p> </p> <p> </p> <p>            MUNANGATI-MANONGWA J: On 28 January 2014, Rusape Remand Prison woke up to a sombre atmosphere after the death whilst in custody of one Andrew Kamba a fairly young man 23 years of age. A known asthmatic patient, he had only been in prison for about 3 days when he succumbed to an asthmatic attack. His cellmates had raised “distress calls” throughout the night and his passing on affected them hence the sombre atmosphere. The plaintiff, deceased’s surviving spouse has approached this court seeking damages as against the defendants arising out of their failure to  act leading to her husband’s death and consequently loss of support.</p> <p>            On 21 January 2015 the plaintiff issued summons claiming delictual damages as against the three defendants on the basis of vicarious liability. She seeks</p> <ul> <li>US$5000.00 for funeral expenses.</li> <li>US$295 000.00 for loss of support and</li> <li>Costs of suit.</li> </ul> <p>The claim is defended. The defendants are denying liability. The issues referred for</p> <p>trial by the pre-trial conference judge are as follows:</p> <ul> <li>Whether or not the death of the deceased was attributable to the negligence of the defendants, if yes,</li> <li>Whether or not the defendants are liable to the plaintiff in damages as claimed by the plaintiff.</li> </ul> <p>The following facts are common cause: On 24 January 2014 the now deceased Andrew</p> <p>Kamba was admitted into Rusape remand prison seemingly on trespassing charges. It is not in dispute that prison authorities were informed that he was an asthmatic patient and his Salbutamol inhaler was availed to the authorities. It is also on record that on the 25 January 2014 he sought treatment whilst in prison and was attended, this is borne by the outpatients prison record produced in court. It is also common cause that on the night of 27 January 2014 he had an asthma attack and three (3) distress calls were raised by fellow cellmates and prison authorities attended. It is how these distress calls were handled which is in dispute. Andrew Kamba died in the hands of a fellow prisoner at around 5.00 am on the 28 January 2018 and the cause of death is indicated on the death Certificate as</p> <p>“- acute respiratory distress”</p> <p>             - pneumonia.</p> <p>            He left a pregnant wife who has since given birth to a girl child, who at the time of the hearing is 3 ½ years old having been born on 22 August 2014. It is not an issue that the deceased had a duty to support his wife and child. Neither is it contended that the defendants would be vicariously liable should the court find that the correction officers on duty on the day in question acted negligently when faced with the sick inmate, now deceased.</p> <p>            The plaintiff led evidence from three witnesses herself included. The first witness Robert Zonke gave evidence that he was imprisoned at Rusape Prison and shared Cell 3 with the now deceased, Andrew Kamba (hereinafter referred to as “deceased” or “Andrew” interchangeably) from 24 January 2014. There were over 40 prisoners in this cell. This evidence was corroborated by a co-witness and the duty officer one Mr Damu as shall be seen later. At around 7.00pm on 27 January 2014, the now deceased suffered an asthmatic attack. He took Salbutamol tablets which were in his possession in the cell but he did not improve. He was having breathing problems. The witness knocked on the prison door and called out to the duty officer one Mr Damu. Shungudzemoyo Mafetuka a fellow prisoner joined him in raising the distress call. Ultimately the duty officer responded.</p> <p>            It was his evidence that an inhaler was brought but it did not assist. The now deceased was wheezing and getting worse. Another distress call was raised at 10.00pm and another inhaler was brought by the nurse but the condition of the sick man did not improve. At around mid-night the witness knocked on the door again, once again officer Damu called the nurse and the nurse was informed that the now deceased was getting worse, he asked for his inhaler which was brought from home which was kept at the reception but was informed he could not get it. His call to be taken to hospital was ignored. The hospital as <em>per</em> this witness’ evidence is within 500m from the prison.</p> <p>            Further calls for help after midnight were not responded to. The deceased passed on around 5.00 am. It was his evidence that all the prisoners were disillusioned and the Officer in Charge addressed them asking for forgiveness as all prisoners were concerned for their safety after this incident. He challenged the officer in charge as to how there was failure to take this particular prisoner to hospital when two days earlier a sick inmate had been taken to hospital during the night. In two days’ time he was transferred to Mutare.</p> <p>            This witness gave his evidence well and insisted he was next to the now deceased. He was up all night till the time deceased took his last breath, he even felt his cold body. He thus had first-hand information on what transpired on the night and how the correctional officers responded.</p> <p>The second witness for the plaintiff was Shungudzemoyo Mafetuka. His evidence corroborated that of Robert Zonke in all material respects. He mentioned the three distress calls and how they were responded to. It was his evidence that it was him and Robert Zonke who communicated with the prison officials about the request for Andrew’s inhaler and that he was asking to be taken to hospital. He personally received the inhaler from the nurse through the spyhole and gave it to the sick man. Andrew had asked him to check the expiry date as the inhaler supplied was not assisting. He checked it and discovered that it had expired as it had a 2012 date.</p> <p>            He chronicled how after the last visit by the nurse after midnight, further distress calls were not answered. People prayed and Andrew died whilst he held him in his arms. He closed his mouth and eyes. He chronicled how the prisoners were frustrated and ultimately he was immediately transferred to Mutare.</p> <p>            This witness knew Andrew as he had given his generator to him for repairs. He was unshaken during cross-examination and insisted the prison officers should have done more as the deceased’s condition was clearly deteriorating with their knowledge.</p> <p>            The plaintiff gave evidence to the effect that she was customarily married to Andrew and  she was pregnant when he died, with the child Tinotenda Lorita Kamba being born thereafter on 22 August 2014. She is unemployed and survives on intermittent support from relatives. Her child should be in pre-school but is unable to go due to lack of funds. Whilst her husband Andrew was asthmatic, he was on salbutamol tablets and inhalers and when the medication failed to stabilise him, he would always be taken to hospital where he would stabilise and recover. Upon his arrest she had ensured that he had his medication on him. She produced a salbutamol inhaler inscribed with the deceased’s name as an exhibit, and stated that this was the inhaler which had been left with the prison authorities and it was handed over to her by prison officials after her husband passed on. She believes her husband died due to failure to quickly get the required assistance and holds the defendants liable.</p> <p>            The plaintiff stated that she relied on her husband for sustenance prior to his death. The couple lived at Andrew’s parent’s home whilst his father stayed in Botswana. Her husband had a business and ran a workshop specialising in repairs for generators, chainsaws, motor bikes and even motor vehicles. His income was around US$1500.00 <em>per</em> month. To support this evidence invoices from Supreme Bike Centre (Pvt) Ltd were produced and stand as exh 3 (a) to 3 (e). They are all for work done in January 2014 and total US$1637.00. The plaintiff indicated that Andrew had employees he worked with in his business. The evidence on monthly earnings was not challenged.</p> <p>            The plaintiff claimed US$5000-00 for funeral expenses but indicated that she had lost some of the receipts. However she produced a schedule of expenses to the tune of US$1395.00 detailing some of the expenses incurred at the funeral. The defendants did not challenge the schedule. A look at the schedule of expenses reveals that they are the ordinary expenses like purchase of grave site, cement, bricks, food and transport for mourners. A further amount of US$764.75 was presented to court being the bill for Moonlight Funeral Assurances and apart from enquiring about the person who paid the amount the figure was not challenged.</p> <p>            As for the claim for US$295 000 the plaintiff indicated she relies on estimates. The plaintiff indicated that she would require US$50.00<em> per</em> month rentals for her accommodation and that of the child. An amount of between US$150– US$200 would be required as fees for pre-school <em>per </em>term. When the child starts primary education, between US$200– US$250 <em>per</em> term would be required. The amount would rise to between US$450– US$500 when the child goes to secondary school. If the child is doing well she would require between US$800– US$1000 <em>per</em> semester for tertiary education. It was her evidence that her husband was spending between US$250– US$300 on her for food, clothing and hairdressing. The plaintiff closed her case. She gave here evidence well and withstood cross examination. Suffice that the figures she provided where not interrogated.</p> <p>            The defendant called its first witness Decision Damu a correction officer. He was the “in charge” duty officer on the day Andrew fell ill. His evidence was that on the 27 January 2014 after 6:00 pm he went to cell 3 to attend to inmates after inmates raised alarm. He was informed of Andrew’s illness and he inquired of him whether he wanted to be attended to by a nurse. Andrew indicated that he wanted his inhaler which was with another inmate in Cell 2. He duly went to take the inhaler and gave it to Andrew. Another distress call came at around 10.00pm and Andrew requested to see the nurse as his medication had ran out. He called the nurse who arrived in about 20 minutes time and the nurse conversed with Andrew. The nurse went to get an inhaler from the dispensary, handed it to the sick inmate and went away. The inhaler was passed on through the spy hole. He confirmed receiving another distress call at mid-night, the nurse was called again and attended to Andrew. He only learnt of Andrew’s death the following morning at 5:15 am. This witness confirmed that neither he nor the nurse had physical contact with Andrew as they spoke to him through the spy hole. He indicated that it was the nurse’s duty to recommend that the ill inmate be taken to hospital. He had no knowledge that Andrew had medication by the reception and as far as he was concerned he had done his best. At around 2 am when he did rounds Andrew appeared sleeping. He denied that there were further distress calls raised on behalf of Andrew after midnight.</p> <p>            This witness was not entirely truthful as he could not have seen Andrew sleeping through a spy hole in a cell with over 40 inmates. In any case the other inmates gave evidence that they had a sleepless night calling for the attention of prison officers after the last visit by the nurse at midnight and this was to no avail. This witness is likely to have ignored further distress calls after midnight and if he had done rounds at 2.00am as he claims, he must have heard the calls from Cell 3 inmates.</p> <p>            The defence’s last witness was Misheck Zongoro. He stated that he is a nurse by profession and has been with prisons for 5 years. He confirmed Andrew was a known asthmatic patient as he had attended to him on the 25th January 2014 as indicated by the outpatients record produced in court. He confirmed being awakened at around 10.00pm on the 27th January 2014, the day in question to attend to a sick inmate. He spoke to Andrew through the spy hole and he told him he was having breathing problems. He could hear that he was wheezing but it was not serious. He supplied Andrew with a Salbutamol inhaler from the dispensary and the patient calmed down after 10 minutes. A call was raised around midnight and he examined him and noted that Andrew had difficulty in breathing. It was the nurse’s evidence that Andrew indicated that the inhaler was not working, he asked him to shake it and educated him on its use. He stabilized and the nurse went home. He denied the allegation that the inhaler had expired and referred to a stock card with information on drugs kept in stock which stands as exh 6.</p> <p>            He confirmed that Andrew’s death was due to acute respiratory distress (a condition which is a sign of asthma) and relates to difficulties in breathing, and pneumonia.</p> <p>            Under cross examination the nurse admitted that he had not done any physical examination of the patient. He had listened to the patient’s wheezing sound and breathing through the spy hole. He confirmed that the hospital was less than one (1) km away from prison. He stated that as per his assessment, Andrew’s condition was not serious. He had not checked on the patient thereafter as he awaits to be woken up whenever required to attend to a patient. He admitted that asthma is a life threatening disease and he had not checked on the vitals e.g. blood pressure, heart beat, pulse etc. He admitted that acute respiratory distress is consistent with the evidence that Andrew could not breathe properly.</p> <p>            This is a delictual claim. The issue for determination is whether the death of Andrew Kamba was a result of negligence on the part of the defendants’ employees. If indeed the defendants’ employees were negligent, the defendants become liable vicariously for damages arising out of or as a result of the negligent execution of duty by their employees during the course and scope of their employment.</p> <p>            In the case of <em>Midlred Mapingure </em>v <em>Minister of Home Affairs and Others </em>SC 22/14 PATEL JA restated the test for professional negligence as expounded in <em>Mukheiber</em> <em>v Raath</em> <em>&amp; Another</em> 1999 (3), SA 1065 (SCA) as follows:</p> <p>            “For the purpose of liability culpa arises if-</p> <ul> <li>a reasonable person in the position of defendant</li> </ul> <ul> <li>would have foreseen harm of the general kind that actually occurred;</li> <li>would have foreseen the general kind of causal consequence by which that harm occurred</li> <li>would have taken steps to guard against it; and</li> </ul> <ul> <li>the defendant failed to take those steps</li> </ul> <p>Jonathan Burchell in <em>The Principles of Delict</em> (Juta Publication) p 31 simply put the test</p> <p>as follows:</p> <p>“Negligence, unlike intention is assessed objectively, the test being whether the defendant complied with the standard of the reasonable person. If a reasonable person, in the same external circumstances as defendant, would have foreseen harm to the plaintiff then defendant ought to have foreseen such harm. If a reasonable person would have taken steps to guard against such harm to the plaintiff occurring, then the defendant is negligent if he or she did not take the requisite reasonable steps to guard against this eventuality.”</p> <p> </p> <p>When considering the issue of a reasonable man, PATEL JA indicated in the <em>Mapingure </em></p> <p>case cited <em>supra</em> that, when dealing with an expert, the standard is higher than that of an ordinary lay person. The court must consider the general level of skill and diligence possessed and exercised at the time by members of the branch of the profession to which the practitioner belongs.</p> <p>            Thus when considering how a reasonable man would react and or handle the situation in <em>casu, </em>the court must consider the general level of skill and diligence possessed and exercised by a nurse not an ordinary lay person. Certainly a lay person may not handle or manage an asthmatic patient in the same manner as a nurse would do because the latter is a professional possessed of the relevant knowledge. Mr Zongoro the prison nurse, knew that Andrew was an asthmatic patient having treated him two days before his death. Twice he had been called upon to attend to Andrew who was experiencing an asthmatic attack. From his own evidence the now deceased was having difficulty in breathing, he was wheezing. The patient also told him that the provided inhaler was not working. Applying the test above any reasonable nurse should have foreseen that the asthmatic attack could result in loss of life as asthma is a life threatening condition more so, with the difficulty in breathing that Andrew was experiencing. A reasonable person in Zongoro’s circumstances should have taken reasonable steps to guard against the loss of life occurring and this the nurse failed to do.</p> <p>            Suffice to say the nurse did not do a physical examination of the ill patient nor take readings of the vital indications preferring to communicate through the spy hole. A hospital was about 600m from prison and the patient could have been taken to hospital for further management. There can be no abrogation of duty of care that surpasses that displayed by the nurse. More so, when the nurse never made an effort to then check on the patient until he passed on.</p> <p>            No doubt prison officers owe a duty of care to the prisoners in their custody. It is a legal duty that arise from the creation of the entity.  In terms of Section 227 of the Constitution of Zimbabwe (No. 20) 2013  Prisons are obliged to take and keep in custody those remanded in custody and those serving their sentences. The nature of the defendants’ duties is such that they also see to the welfare of the prisoners. When sick a prisoner looks up to the prison authorities to attend to him or make arrangements for medical attention. Being in custody means a person’s right to freedom of movement is curtailed, and crucial decisions are made on his behalf as he is incapacitated by being under the control of prison officials. Section 208(2)(d) of the Constitution calls upon Prisons as part of the security services, not to violate the fundamental rights and freedoms of any person in the exercise of their functions.</p> <p>            Section 3 of the Constitution  states that Zimbabwe is founded on respect for values and principles which include among others, fundamental rights and freedoms. Section 50 (1) (c) of the constitution requires that detained persons must be treated humanely and with respect for their inherent dignity. Article 5 of The African Charter on Human and Peoples Rights equally provides for the right to dignity and freedom from cruel, inhumane or degrading treatment. This is part of universal civil rights which are found in nearly all constitutions of modern day.   The right to dignity pertains to the worthiness of a person, in my view, it being given that a human being deserves to be treated in a humane way that does not strip him the very sense of being human irrespective of incarceration. In <em>Goldberg </em>v <em>Minister of Prisons</em> 1979 (1) SA 14 at 39C-F Corbett JA stated as follows:</p> <p>“It seems to me that fundamentally a convicted and sentenced prisoner retains all the basic rights and liberties (using the word in its Hohfeldian sense) of an ordinary citizen except those taken away from him by law, expressly or by implication, or those necessarily inconsistent with the circumstances in which he, as a prisoner, is placed. Of course, the inroads which incarceration necessarily makes upon a prisoner's personal rights and liberties (for sake of brevity I shall henceforth speak merely of "rights") are very considerable. He no longer has freedom of movement and has no choice in the place of his imprisonment. His contact with the outside world is limited and regulated. He must submit to the discipline of prison life and the rules and regulations which prescribe how he must conduct himself and how he is to be treated while in prison. Nevertheless, there is a substantial residuum of basic rights which he cannot be denied; and, if he is denied them, then he is entitled, in my view, to legal redress.</p> <p>            I subscribe to these sentiments, a prisoner still retains certain basic rights despite incarceration and the Zimbabwean Constitution guarantees that in Section 50 (1)(c) mentioned earlier, and Section 50(5)(d) which reads:</p> <p>            (5) Any person who is detained, including a sentenced prisoner, has the right—</p> <p>            (<em>a</em>)..</p> <p>            (b)…</p> <p>            (c)….</p> <p> </p> <p>            (<em>d</em>)  to conditions of detention that are consistent with human dignity, including the opportunity for      physical exercise and the provision, at State expense, of adequate accommodation, ablution facilities,   personal hygiene, nutrition, appropriate reading material and medical treatment.</p> <p> </p> <p>            This section more or less reads the same as Section 35(2)(e) of the South African Constitution  which provides for these rights. Humane treatment is consistent with respect for inherent dignity because certain forms of treatment erodes’ a person’s dignity, their value as a person, their esteem and worthiness. No doubt incarceration by its nature has an effect on one’s enjoyment of rights, however the constitution still demands that there be standards to be observed vis respect for a prisoner’s rights hence specific provisions in Sections 50 of our constitution.  </p> <p>            The right to dignity entails the right of an incarcerated person to be treated in a humane way and, to receive  medical treatment as constitutionally provided in Section 50 (5)(d) and to die in a dignified way.</p> <p>Section 44 of the Constitution imposes a duty on the state inclusive of every institution and agency of the government at every level to respect, protect, promote and fulfil the rights and freedoms set out in the declaration of rights. Any act therefore by a state institution that infringes upon a person’s right to human dignity contravenes the supreme law of the land. In the absence of a death sentence every person has a right to life. Prisons being a state institution are thus mandated to observe and promote the values, and the rights so provided by the constitution. That includes access of prisoners to proper medical care to prevent unwarranted deaths.</p> <p>In the case of <em>Moses</em> v <em>Minister of Safety and Security</em> 2000(3) SA 106(C) a person detained by the Police died after being assaulted by cellmates. Although the court found that the police were not liable due to certain circumstances prevailing, the following pertinent sentiments emerge from the judgment. That once a person is arrested, the detaining authorities employees are under an obligation to such a person to perform their functions and duties in a reasonable manner regard being made to the detained person’s fundamental rights. That a person is in detention and deprived of freedom of movement and ability to decide and carry out their own decisions <em>heightens the duty</em> on the part of the detaining authority’s employees of safeguarding a detained person’s interests (my emphasis). The detained person’s situation becomes a relevant fact in the overall consideration of circumstances relevant to the enquiry of wrongfulness. I thus find that, given the aforegoing, when an inmate falls ill it is incumbent upon prison authorities that his right to medical care, his dignity and right to life are protected. It is a legal duty and where it is foreseeable that the illness can result in death if no action is taken, and no measures are taken to prevent the occurrence, the authorities cannot escape liability for inaction</p> <p>In casu there was abrogation of the constitutionally imposed duty to protect the deceased’s fundamental rights, such inaction results in delictual liability on the part of the state.      </p> <p>The court is convinced that the prison officials particularly nurse Zongoro was negligent in the manner in which he handled or managed a patient, Andrew Kamba in custody, resulting in his death. It was clear that Andrew was experiencing breathing difficulties and the nurse appreciated that an asthmatic attack  is life threatening yet the authorities failed to act to prevent such eventuality. Timeous intervention by way of referral to hospital may have saved his life. To call for help and be denied full medical attention until one dies in the hands of an inmate is a gross omission on the part of prison officials and an affront of one’s dignity. Medical treatment for prisoners being constitutionally guaranteed has to be meaningful, adequate and effective. In casu Andrew’s condition was deteriorating and certainly called for further management by a professional above a nurse’s level and the failure to so arrange  breached his right to medical treatment. Moreso when it is not in dispute that the hospital is just next to Rusape Prison, about 500m away. Apart from failing the institution he represents, the nurse fell short of respecting the Nurse’ pledge which every trained nurse should uphold. Consequently, the defendants are vicariously liable for loss of support by the plaintiff and her child arising from the death of their breadwinner as a result of negligence on the part of their officials.</p> <p>As regards the quantum of damages, the figures provided as funeral expenses totaling    US $2 159-75 were not contested hence the plaintiff is entitled thereto.</p> <p>            It is not denied that the deceased had his own business and was an income earner and earned income of about US$1500-00 <em>per</em> month. The plaintiff is not employed and was financially sustained by the husband. Counsel for the plaintiff and the defendant agreed that should liability be established the plaintiff needs to be catered for until the minor child attains 18 years old. In her declaration the plaintiff stated as follows in para 14</p> <p>            “The damages are calculated as follows:</p> <ul> <li> </li> <li>The plaintiff’s maintenance together with the child until the wife remarries and the child reaches 18 or becomes self-sustaining will cost an average of US$295 000-00.”</li> </ul> <p> </p> <p>The court will thus proceed to consider the child’s support requirements until she turns 18 years old and this means the period to be looked at is 14 years. Consequently this period is applicable to the mother as per the parties agreement. It is unfortunate that there is no actuarial report provided which would have given scientifically calculated projections of loss of support taking into consideration the circumstances of the parties including the age factor of the deceased and the claimants.</p> <p>It is a reality that the child needs to attend pre-school and go up to high school. Whilst tertiary education is a possibility, the claims refer to the age of 18 years. Considering the figures provided (using the minimum of the figures provided) the child’s requirements would be as follows</p> <ul> <li>US$900</li> </ul> <p>Primary Education $200 <em>per</em> term x 3 terms x 7 years US$4200-00</p> <p>Secondary Education $450 <em>per</em> term x 3 terms x 6 years =US$8100-00</p> <p>Food and clothing for the child @ $150 <em>per</em> month x 12 months x 14 years US$25 200-00</p> <ul> <li>US $38 400-00</li> </ul> <p>     </p> <p>For plaintiff</p> <p>Whilst she indicated that her husband used to spend between US$250– US$300 for food, clothing and hairdressing the court will work with US$250.00 being the lower figure of the two.</p> <p>Food, Clothing and incidentals                              US$250 x 12 months x 14 years US$42 000-00</p> <p>Rentals                                                            US$50 x 12 months x 14 years             US$8 400-00</p> <p>SUB-TOTAL                                                                                                              US$50 400-00</p> <p> </p> <p>Thus between the two loss of support would come to:                                              US$38 400-00</p> <p>                                                                                                                                 + US$50 400-00</p> <p>TOTAL                                                                                                                       US$88 800-00</p> <p> </p> <p>The resultant global figure comes to US$88 800-00</p> <p>This is a case where inflation has to be factored in as the calculations are based on current figures. Due to absence of an actuarial report, the figures provided are static yet the practicalities of every economy are such that prices cannot remain static for 14 years. Without any guidance from any expert report the best way to handle this issue would be to simply be guided by the minimum operative interest of 5% to minimize loss given the aforegoing expressed sentiments. The court will thus make a provision for an additional 5% to the global amount to cater for inflation.</p> <p>It is within the court’s discretion to factor in contingencies. The percentage to be knocked off takes cognisance of the fact that the plaintiff did not claim past loss of support and has been relying on support from relatives much to her loss and disadvantage. Without empirical data providing projections on the likely earnings of the now deceased over a period of time and the active employment life span, it becomes very difficult for the court to factor in all variables without a scientifically calculated report. It is incumbent upon legal practitioners when faced with such claim to go all out in seeking expert evidence especially where actuarial reports are required. Whilst the court appreciates that Zimbabwe has a very small number of actuaries and plaintiff being a simple unemployed woman may not afford such services a report by a chartered accountant consisting of some formula and substantiated figures could assist a court.</p> <p>As a result, all factors considered the plaintiff’s award would be calculated as follows:</p> <p>Amount brought down (initial award)US$88 800-00</p> <p>            Less 10% Contingency                                                                           US$8 880-00</p> <p>                                   </p> <p>            Sub-total                                                                                                     US$79 920-00</p> <p> </p> <p>Add 5% inflation provision                                                                                     +  US$3 996-00</p> <p>GRAND TOTAL                                                                                                     US $83 916-00</p> <p> </p> <p> </p> <p>Accordingly the following order is granted.</p> <ol> <li>The defendants shall jointly and severally the one paying the others to be absolved pay plaintiff the sum of US$2 159.75 as funeral expenses.</li> <li>The defendants shall jointly and severally the one paying the others to be absolved pay the plaintiff a total sum of US$83 916.00 for loss of support for herself and the minor child Tinotenda Lorita Kamba (born 22 August 2014).</li> <li>Interest at the rate of 5% <em>per</em> annum to accrue on amounts stated in clause 1 and 2 calculated from date of judgment to date of full and final settlement.</li> <li>The defendants to pay costs of suit.</li> </ol> <p> </p> <p> </p> <p> </p> <p><em>Muronda Malinga Legal Practitioners</em>, plaintiff’s legal practitioners</p> <p><em>Civil Division of the Attorney General</em>, respondents’ legal practitioners</p> <p>                  </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/156/2018-zwhhc-156.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=37934">2018-zwhhc-156.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/156/2018-zwhhc-156.pdf" type="application/pdf; length=175211">2018-zwhhc-156.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/damages">DAMAGES</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/assessment-damages">Assessment of Damages</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/delict-see-also-damages-negligence">DELICT See also DAMAGES; NEGLIGENCE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/aquilian-action">Aquilian action</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/liability-aquilian-action">liability (Aquilian action)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/liability-delict">Liability (DELICT)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/employer%E2%80%99s-liability-delict">employer’s liability (DELICT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/vicarious-liability-delict">vicarious liability (DELICT)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/negligence">Negligence</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/duty-care-negligence">Duty of care (NEGLIGENCE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/liability-negligence">Liability for negligence</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2014/22">Mapingure v Minister of Home Affairs &amp; Others (SC 406/12) [2014] ZWSC 22 (24 March 2014);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Mon, 23 Apr 2018 07:53:24 +0000 admin 8746 at https://old.zimlii.org