Liability (DELICT) https://old.zimlii.org/taxonomy/term/10346/all en Mapiye v Minister of Home Affairs & 2 Others (HH 146-18, HC 4632/11) [2018] ZWHHC 146 (21 March 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/146 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>PATRICK MAPIYE</p> <p>versus</p> <p>MINISTER OF HOME AFFAIRS</p> <p>and</p> <p>THE COMMISSIONER GENERAL OF POLICE</p> <p>and</p> <p>OFFICER MANYANE</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>DUBE J</p> <p>HARARE, 1 February 2018 and 21 March 2018</p> <p><em>N Matsvaire, </em>for the plaintiff</p> <p><em>K Warinda</em>, for the defendant</p> <p><strong>Civil Trial </strong>           </p> <p>            DUBE J: This is an action for damages for unlawful arrest, torture, assault and detention. The plaintiff’s claim is based on the following synopsis. On 3 February 2011, the plaintiff was arrested   by members of the Zimbabwe Republic Police and taken to Warren Park Police Station. The arresting details advised him and other MDC supporters who he had been arrested with that they had been arrested for assaulting a Zanu PF supporter, Andrew Shambo. Whilst at Warren Park Police Station, he was locked up in the cells for the night. He claims that he was assaulted by the police with logs and an iron bar whilst in detention. The next day, he was transferred to Harare Central Police Station Law and Order Section where he was detained and released on 5 February 2011.</p> <p>            The plaintiff avers that the police officers were at the material time acting within the course of their employment with the first and second defendants thereby making them vicariously liable for the actions of the third defendant and other officers involved.  He claims that he sustained serious injuries and his right to liberty unlawfully infringed upon. He was left with permanent scars all over the body, suffered <em>contumelia</em> as he was subjected to cruel, inhuman and degrading treatment by the third defendant and other officers. He claims damages in the sum of the US$6000-00 for unlawful arrest, shock, pain and suffering, disfigurement, unlawful arrest, unlawful detention and <em>contumelia.</em></p> <p>            The defendants do not deny that they arrested the plaintiff and other MDC supporters. They claim that the plaintiff and others were arrested after a person who had been guarding Zanu (PF) offices at Rugare Community Hall reported that he had been assaulted by MDC supporters. The defendants deny rounding up MDC supporters. The police arrested the plaintiff because they had reasonable suspicion that the plaintiff had committed an offence. They admit that the plaintiff spent the night in police cells but deny assaulting the plaintiff and or that the plaintiff’s right to liberty was unlawfully infringed upon, was subjected to inhuman or degrading treatment by member of the police force. The defendants refute that the plaintiff is entitled to any damages.</p> <p>            The issues referred for trial are as follows:</p> <p>            1.         whether plaintiff was unlawfully arrested and detained by the police.</p> <p>            2.         whether plaintiff was unlawfully assaulted by the police</p> <p>            3.         the quantum of damages if any sustained by the plaintiff. </p> <p>            The plaintiff testified in his own case. His evidence is as follows. He was arrested by the police whilst he was at his home and taken to Warren Park Police Station, [hereinafter referred to as Warren Park Police]. He slept in the cells with no blankets. He was arrested together with other MDC supporters who include Pemba Pemba, Kudakwashe Ngorima, and Irvine Salamba. During the night, they were called one by one into a room where they were assaulted. When he was being assaulted Tendai Sibanda, and Irwin Salami and others were present. He was assaulted under the feet, shoulders, buttocks and on the face above his brow. An iron bar and electric code was used to assault him under the feet and buttocks for about an hour.  One of the assailants was said to be present in court.</p> <p>            They were taken to Harare Central Police Station the following morning where they were further detained. The complainant in the assault case was brought and he indicated that they were not the ones who had assaulted him and they were released. The complainant implicated Wiseman and Mudinhwa as his assailants. After their release, they made reports that they had been assaulted by the police at Harare Central Police Station and were given forms for medical examination so that they could receive medical attention. They were examined and treated at Parerinyatwa Hospital and at a clinic in the Avenues. He did not pursue his report of assault. After about a year they were taken to court but he was not prosecuted. </p> <p>            The plaintiff called Pemba Pemba as his next witness. He was arrested together with Tendai Sibanda in Westwood and taken by car to Rugare where the plaintiff was picked up. Already in the car were Tarisai Zheke and Clemence Sibanda. They were taken to Warren Park Police. He did not know why the plaintiff was arrested. At Warren Park Police, they were told that there was a member of the Zanu PF party who had been assaulted in Rugare and that they were the suspects. They were detained in the cells and slept without blankets. At around 3 a.m. in the morning, they were instructed to crawl one by one into an office. He found the plaintiff being assaulted whilst lying on the ground face down. He was also assaulted and later taken back to the cells. The following morning they were taken to Harare Central Police Station. The complainant was brought into a room in which they were and asked to identify the individuals who had assaulted him. He did not identify anyone in their group. They were then released together with the plaintiff. They were given medical forms so that they would get medical attention after they reported that they had been assaulted by the police at Warren Park Police. He went to Parerinyatwa with the plaintiff for treatment and saw a doctor who observed injuries they had sustained. They later went to another clinic in the Avenues for x-rays. They were treated and went home and Wiseman was arrested and stayed at Remand Prison for some time.</p> <p>            Kudakwashe Ngorima also testified in support of the plaintiff’s case. He supports MDC together with the plaintiff. He and the plaintiff were arrested and taken to Warren Park Police Station where they were detained.  He was told that the reason why he had been arrested is because they had held a meeting without authority. At around 3 am in the morning they were taken from the police cells and assaulted. They were released the following morning and taken to Harare Central where they were told that they had assaulted Andrew Shambo, a Zanu PF member. Shambo told the police that the witness had been present at the time of assault but that he had not participated in the assault. He did not implicate the plaintiff. He remained in the cells when the others were released. He was taken to court with others for trial and the state failed to prove that he had assaulted the complainant. He made a report of assault against the police.</p> <p> The plaintiff’s witnesses gave a clear and straight forward version of their arrest. They corroborated each other in every material respect. I believed their version of events.</p> <p>            Collen Manyame was called in support of the defence case. He was based at Warren Park Police. They received a report of an assault which was politically motivated which had been made by Andrew   Shambo at Rugare Police Post. The docket was transferred to Warren Park Police for investigations. He arrested the accused together with Sergeant Moto and Sergeant Muchangwe. The plaintiff was arrested after one of the suspects Tarisai Zheke admitted that she was part of the gang that assaulted the complainant. She implicated the plaintiff as one of the assailants. The plaintiff was arrested together with other MDC supporters. They had reasonable suspicion that the plaintiff had committed the crime of assault based on the complainant’s statement and the indications of a witness who was present when the complainant was assaulted.      The plaintiff and others were detained for verbal interrogations. The suspects   were referred to CID Law and Order Harare Central for further management. He denied that the plaintiff was assaulted whilst at Warren Park Police. The police are not permitted to assault suspects.  </p> <p>            Sergeant Moto also testified on behalf of the defendant’s case. His testimony is as follows. He arrested the plaintiff together with the last witness after he had been identified as one of the suspects who had assaulted implicated him as one of the assailants who was involved in the assault of   Andrew Shambo by Tarisai. When they arrested him they advised him that they had information that he had committed a politically motivated assault. They formed reasonable suspicion that the plaintiff and others had committed the offence when they were told that the plaintiff was one of the assailants. After the arrest they left the plaintiff and other suspects who were MDC supporters at the charge office for detention and further actioning. They went back to Rugare to look for other suspects since it had been indicated that there were close to 40 suspects but did not make further arrests. They went back to station around 4 pm for verbal interrogation of the suspects. The interrogation lasted about 30 minutes. He went off duty and does not know what happened that night in the cells when he was away. The witness maintained his version under cross examination. The court found the evidence of the police details to be too general, it lacked detail.</p> <p>            It is common cause that the plaintiff and other MDC supporters were arrested in connection with the assault of Andrew Shambo. They were detained at Warrant Park Police Station and later taken to Harare Central Police Station where the plaintiff was exonerated from any involvement in the assault and was subsequently released without appearing in court. The plaintiff challenges the arrest and subsequent detention on the basis that it was not lawful. The issue for consideration is whether the plaintiff was unlawfully arrested and detained and whether the plaintiff is entitled to any damages arising therefrom.       </p> <p>            The plaintiff testified that the arresting details had no legal basis for arresting him. The arresting details testified that they arrested the plaintiff and others after the complainant in an assault case had made a report to the police. The police witnesses testified that the plaintiff had been implicated by Tarisai Zheke who claimed that the plaintiff had been present during the assault and assaulted the complainant. They maintained that they had reasonable suspicion that the plaintiff was part of a group of people who had assaulted the complainant. The plaintiff did not dispute that what led the arresting details to arrest him was a report made by Shambo or that had the plaintiff been implicated in the assault. The defendants failed to call either Andrew Sambo or Tarisai to confirm that such a report had indeed been made. The contents of the statement of the complainant in the assault case are not known. It is not known if Shambo actually implicated the plaintiff. I find that the reason why the plaintiff was arrested is because he was implicated in an assault case by Tarisai. The plaintiff was released after he was exonerated of the crime by the complainant.</p> <p>            The plaintiff testified that after they were arrested they were detained in cells and slept without blankets. The defendants did not dispute this allegation. The plaintiff alleges that he was assaulted whilst in detention at Warren Park Police using an iron bar and an electrical code. He claims that he sustained some injuries and was given a medical report form and examined medically. The arresting details denied assaulting the plaintiff. The evidence of assault was corroborated by the other two witnesses called by the plaintiff. The witnesses gave a detailed account of the assault. They corroborated the plaintiff’s evidence that an iron bar and electric code had been used to assault the plaintiff by the police. The plaintiff’s witnesses all failed to identify any of their assailants. The plaintiff was content to say that one of the assailants was present in court but he did not pin point him nor did he identify him by name. The plaintiff’s witnesses all said that they subsequently made a report of assault against the police and were given forms to be medically examined. This averment was not denied by the defendants. Although the plaintiff did not identify his assailants by name, I find the evidence of the witnesses that they were assaulted at Warren Park Police by police officers convincing. The fact that the plaintiff made a report of assault at Harare Central is consistent with an assault. If they had not been assaulted and had no visible signs of assault, the police would not have accepted their reports and referred them for medical examination. It is probable that the plaintiff was assaulted whilst in police cells.</p> <p>            The plaintiff failed to outline in his evidence the nature of injuries he sustained if any. It is only in his closing submissions that he says that he sustained severe injuries to his face and body. The evidence of injuries was not tested. He submitted that these injuries are highlighted in his medical report and treatment records from Parirenyatwa Hospital. The medical report and treatment cards were not produced as evidence. Plaintiff’s legal practitioner led the plaintiff in evidence in chief and did not produce the report or medical cards. She attempted to produce the medical report when she was re-examining the plaintiff but ended up withdrawing the attempt.</p> <p>            It is unprocedural to produce an exhibit in one’s case at re-examination stage. The mischief behind this rule is that the witness has already given evidence in chief and has already been cross examined. The other side is deprived of an opportunity to test the exhibit or evidence contained in the document sought to be produced. Having failed to produce the medical report through the plaintiff the best course open to the plaintiff was to call the doctor who examined him to give evidence on his findings. This was not done. The plaintiff cannot rely on a medical report that was not produced.</p> <p>             The plaintiff submitted in his closing submissions that the medical report was part of the bundle which had been filed of record and became part of evidence. A lot of legal practitioners labour under the misapprehension that after they have filed a bundle of documents in the record of proceedings, its contents become part of evidence and there is no more need to produce it as an exhibit. The fact that a bundle of documents had been filed in the record of proceedings before the trial commences does not make its contents part of evidence. Where a party prepares a bundle of documents and files it for use at a subsequent trial, the documents therein only became part of evidence when the bundle has been produced in evidence as an exhibit either as a bundle or when individual documents have been produced separately. Some of the documents contained in the bundle may be challenged and hence the bundle has to be formally produced either through a witness or by consent of the parties.</p> <p>            The mere fact that the bundle had been filed in the record did not make its contents part of evidence until the bundle of documents is produced as an exhibit. The plaintiff was required to produce the medical report to be able to rely on it as evidence. There was no evidence of the actual injuries sustained by the plaintiff led in this court. Where a party omits to lead evidence on injuries sustained in an assault and in addition fails to produce a medical report showing the injuries sustained in a case, he ultimately fails to prove the extent of the injuries sustained. A medical report produced in support of injuries sustained in a damages case, has a bearing on the nature of the injuries sustained and the quantum of damages claimed.</p> <p>          In the case of <em>David Muyambo </em>v<em> John Ngomaikarira and Ors</em> and HH 138 /11 the court stated that the delict of unlawful arrest and detention is committed when a person, without lawful justification, restrains the liberty of another by arresting or imprisoning him. In <em>Bull </em>v <em>Attorney General </em>1986 (1) ZLR 117 (S) the court made it succinctly clear that reasonable grounds for suspicion of commission of an offence  is essential for all arrests.</p> <p>Section 13 (2) (e) of the Constitution permits deprivation of a person’s liberty on the grounds of commission of an offence only if there exists reasonable suspicion of commission of an offence charged by the accused. Section 25 (b) the Criminal Procedure and Evidence Act, [<em>Chapter 9: 07</em>] empowers a peace office to arrest a person where he has reasonable suspicion that the person has committed an offence and reads as follows,</p> <p>“25 Arrest without warrant by peace officer or other officer</p> <ol> <li>Any peace officer and any other officer empowered by law to execute criminal warrants is hereby authorized, subject to the general or specific directions of a superior officer or person placed in authority over him, to arrest without warrant—</li> </ol> <p>(a)        any person who commits any offence in his presence;</p> <p>(b)        any person whom he or she has reasonable grounds to suspect of having committed any of the offences mentioned in the First Schedule or the Ninth Schedule:”</p> <p>           An arrest without reasonable suspicion is rendered unlawful. See <em>Duncan </em>v<em> Ministry of Law and Order 1986</em> (2) ALL SA 241 (A) also <em>Attorney General </em>v<em> Blumears &amp; Anor</em> 1991 (1) ZLR 118 (S). It is not necessary to establish the guilt of the accused beyond a reasonable doubt or even on a balance of probabilities, see <em>Smithe </em>v<em> Ushewokunze and Anor</em> 1997 (2) ZLR 544 (S). In this case, the court remarked that there had to be sufficient information to warrant a prudent person to suspect that the accused had committed the alleged offence.</p> <p>          The requirement for reasonable suspicion of commission of an offence has its genesis in the Constitution of the country. Section 25 of the CP&amp; E Act requires a police officer who effects an arrest to be satisfied that a suspect has committed an offence. The test for reasonable suspicion of an offence is objective. All that is required of the arresting detail is that he has suspicion and not certainty that an offence has been committed. The requirement being that the suspicion must be based on solid grounds. Thus, the reasonable suspicion must be founded on reasonable grounds. A police officer who arrests a suspect must only arrest him where he has reasonable suspicion that the suspect is about to or has in fact committed an offence. He need not show that there is overwhelming evidence against the suspect nor must he prove suspicion beyond a reasonable doubt. What a defendant needs show is that the information given to the police was adequate to trigger in the mind of a reasonable person suspicion that an offence had been committed. An arrest becomes wrongful where a person is arrested and arrested without proper legal sanction and where he is arrested without just cause. The fact that a suspect was subsequently not charged with any crime or acquitted is not on its own proof that there was no reasonable suspicion of an offence at the time of arrest.</p> <p>          There are cases where a suspect is arrested and later released because of the emergence of new evidence after an investigation. Such an arrest is lawful for as long as the arresting detail can show that he had reasonable suspicion of commission of an offence at the time of arrest. Where an arrest does not result in a conviction, the enquiry is still whether the arresting detail had reasonable suspicion of commission of an offence at the time of arrest. If not, the arrest may not constitute a lawful arrest and is invalid.  If a suspect can show that the police had no reasonable suspicion of an offence, he is entitled to claim damages for malicious prosecution and unlawful arrest and detention.</p> <p>           Unlawful detention occurs when a police officer detains a suspect for an unreasonable amount of time and   without good cause. Any assault perpetrated of a suspect is perpetrated without lawful authority. Such an assaulted person is entitled to damages even though the injuries he sustained may be slight.</p> <p>            In <em>Masawi </em>v<em> Chatata &amp; Anor</em>, 1991 (1) ZLR 148 (HC), the court said the following of damages:</p> <p>“As regards quantum, it must be borne in mind that the primary object of the action <em>injuriarum</em> is to punish the defendant by the infliction of a pecuniary penalty, payable to plaintiff as a <em>solatium</em> for the injury to his feelings. The court has to relate the moral blameworthiness of the wrongdoer to the inconvenience, physical discomfort and mental anguish suffered by the victim. Because of the various subjective aspects involved, which must necessarily be peculiar to the case, precedents can only be of general assistance.”</p> <p>          The damages claimed must be shown to be a direct consequence of the conduct complained against. A party who claims compensation for damages is required to plead and prove his damages by leading satisfactory evidence that assists the court in assessing the damages. Once proved they may be assessed by the court, </p> <p>           A peace officer who arrests a suspect on the basis that he was implicated in the commission of an offence is required to verify and find corroboration of the informant’s statement before he arrests and detains a suspect.  Looking at the circumstances of this case, the police were justified in securing the attendance of the plaintiff at station.  Having brought him to station, they were entitled to interrogate the plaintiff and evaluate the information that they had. All they knew at the time of arrest was that the complainant had been assaulted and that the plaintiff had been implicated by Tarisai. The court was not told what Andrew Shambo had said in his report about the plaintiff. It appears that the report had been received by another station. The police needed to verify the involvement of the plaintiff with the complainant before they had formally arrested and detained the plaintiff. The police did not verify the authenticity of report made by Tarisai. The statement of Tarisai was not tested .The police needed to verify the involvement of the plaintiff with the complainant. If the arresting details had carried out an identification parade soon enough, they could have established that the plaintiff was not known to the plaintiff and released him without the need to detain him. The police needed to have interviewed the complainant before formally arresting the plaintiff and asked him to identify his assailants and hence sought corroboration of Tarisai’s statement. It was wrong to arrest and detain the plaintiff solely on the basis of Tarisai’s statement. Instead, they put the plaintiff in detention and unnecessarily so. The fact that the complainant exonerated the plaintiff well after the arrest and detention means that the police did not do their job properly. The arresting details had no reasonable grounds to suspect that the plaintiff was a suspect in the case at the time that they effected the arrest of the plaintiff. I am satisfied that the arrest was wrongful and unlawful and that the plaintiff was unreasonably denied his liberty. The police failed to exercise their discretion properly.</p> <p>          In any case where it is shown that a police officer had no reasonable suspicion to cause the arrest of a person, the arrest and detention that follows becomes unlawful. The acts of the police officers render the state liable for damages for unlawful arrest and detention to the plaintiff. The plaintiff was denied blankets whilst in detention. A police officer who detains a suspect for whatever offence is not entitled to ill- treat him. I am satisfied that the act of denying the plaintiff blankets was humiliating to the plaintiff. The assault upon the plaintiff was perpetrated without lawful authority making the defendants liable for damages for the assault.</p> <p>            The plaintiff has not been able to show that he suffered any disfigurement because he did not lead evidence on the actual injuries he may have sustained. The extent of his injuries is not known and it is difficult to quantify the damages sustained in the absence of the medical report showing the extent of his injuries. The court accepts only that he was assaulted by the police. It is accepted that the plaintiff suffered pain and suffering and some degree of shock emanating from the assault itself. The damages sought went uncontested by the defendants who did not make any submissions concerning same.</p> <p>            In the result, it is ordered as follows:</p> <ol> <li>The defendantsare jointly and severally the one paying the other to be absolvedto pay the sums of</li> <li> </li> <li>US $1000 .00 for contumelia.</li> </ol> <p>      US 1000.00 for unlawful detention</p> <ol> <li>US 1000.00 for unlawful arrest</li> <li>Costs of suit.</li> </ol> <p><em>Zimbabwe Human Rights NGO Forum (Public Interest Unit)</em>, plaintiff’s legal practitioners</p> <p><em>Civil Division of the Attorney General’s Office</em>, defendants’ legal practitioners       </p> <p> </p> <p> </p> <p> </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/2018/146/2018-zwhhc-146.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=35143">2018-zwhhc-146.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/2018/146/2018-zwhhc-146.pdf" type="application/pdf; length=212201">2018-zwhhc-146.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/delictual-damages">Delictual (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/actio-injuriarum">Actio injuriarum</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/liability-delict">Liability (DELICT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employer%E2%80%99s-liability-delict">employer’s liability (DELICT)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/vicarious-liability-delict">vicarious liability (DELICT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/vicarious-liability-employer-delictual-acts-employee">Vicarious liability of employer for delictual acts of employee</a></li></ul></span><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 class="field-item odd"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Fri, 27 Apr 2018 08:09:47 +0000 admin 8768 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