HERBERT CHITEPO SCHOOL OF LAW

BACHELOR OF LAWS (HONOURS) DEGREE

REG NUMBER : M198069

STUDET’S NAME : Brian Mazetese

MODULE TITLE : Law of Delict

MODULE CODE : LLB 204

YEAR : 2020 PART 2, SEMSTER 1.

PROGRAMME : BACHELOR OF LAWS DEGREE (LLB)

ASSIGNMENT : ONE [1].
QUESTION : One [1].
DUE DATE : 7 January 2021.
MARK………………………………………………………………………………………….
COMMENTS…………………………………………….................................................................
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In order to advise Joyce on the prospects of her claim there is need answer the following
questions. There questions whether or not the company is vicariously liable for the Managing
Director’s actions and whether or not Lizzy is liable to pay damages for the child’s brain
damages have to be answered. There is also need to bring out what the doctrine of vicarious
liability entails diving into advising Joyce. According to Feltoe the doctrine of vicarious liability
lays down that an employer is vicariously liable for all delicts committed by his or her employees
(he/she mustn’t be a contractor) when they are acting in the course and within the scope of their
employment at the time the delicts were committed.1

Firstly, since Joyce is intending to sue the Intwenjani Consultants (Pvt) Ltd as the second
responded there is need to determine whether or not the company is vicariously liable for Lizzy’s
conduct. As stated above in the introduction it must be noted that Lizzy as the Managing
Director of the company she is noted an independent contractor and according to Feltoe’s
definition of the doctrine of vicarious liability if she commits a Delict in the scope of her
employment the company will be vicarious liable. The above is supported by the case of Banda v
Gamegone (Pvt) Ltd & Anor where the court said that the vicarious liability of employers for the
delicts of employees does not extend to contractors and the test as to whether a person is an
employee or an independent contractor is the existence of a right of control over the person in
respect of the manner in which his work is to be done.2 It must be noted that the company had
control on how she carried her duties therefore she wasn’t an independent contractor. There is
however one more requirement for vicarious liability which have to be proved, was she acting
within the scope of her employment?

There question as to whether or not she was acting within the scope of her employment is
important. According to Feltoe the two requirements for vicarious liability are the employee is a
“servant” and not an independent contractor; and the employee is acting in the course of his
employment.3 The first requirement have been ascertained but without the other requirement
there is no vicarious liability. In the Standard Chartered Finance Ltd v Georgias & Anor case the
High court said that an act done by an employee solely for his own interests and purposes, and

1
Feltoe (2018) A Guide to Zimbabwean Law of Delict, p182
2
Banda v Gamegone (Pvt) Ltd & Anor HH-133-03
3
Feltoe (2018) A Guide to Zimbabwean Law of Delict, p184
outside his authority is not done in the course of employment, even though it may have been
done during his employment.4 It must be noted that the in the case at hand the Managing
Director, Lizzy fought with Joyce and this was not within the scope of her duties as the
company’s Managing Director therefore the company is not vicariously liable. It must be noted
that the fact that fought broke out in Lizzy’s office (within the company’s premises) doesn’t
make the company vicariously liable since it is stated in the above case that if the employee acts
outside the scope of his/her duties even during his/her employment the company will not be
liable.

In advising Joyce there is need to note that the Intwenjani Consultants (Pvt) Ltd is not
vicariously liable for Lizzy’s delict. Therefore it is important to note that the prospects of her
suing the company vicariously as the second defended in this case will not sustain as Lizzy’s
conduct was not within the scope of her employment or her duties as the Managing director.

There is now need to advise Joyce on whether or not she can sue Lizzy for the child’s brain
injuries. There is need to establish whether or not the courts can grant delictual action to a
mother of a child who is born with defects resulting from pre- natal injuries.

It must be noted that there is need to establish the causal link between Lizzy’s act if stomping
Joyce’s stomach while she was lying on her back and the baby’s brain injuries. According to
Feltoe for there to be liability there must be a causal link between the defendant’s conduct and
the loss (in this case the child’s brain injury.5 In the Murimba case it was held that the one who
alleges must prove the casual link between the negligent act and the damages suffered, it was
also held that the damages must not be too remote.6 It is therefore Joyce’s duty to prove that
Lizzy’s action was the cause of the baby’s brain injuries. It must be noted that to prove this on a
balance of probabilities there is need to get professional advice from a Doctor to be able to prove
the fact that Lizzy’s action caused the baby’s brain injuries. It must be noted that without the
advice of a Doctor the prospects of her proving on a balance of probabilities the causal link
between Lizzy’s action and the baby’s brain injury are very slim.

If the causal link is proved there is now need to know if a mother can sue for damages for a baby
who is born with defects which are a result of prenatal injuries. Here there is need to know if at
4
Standard Chartered Finance Ltd v Georgias & Anor 1998 (2) ZLR 547 (H)
5
Feltoe (2018) A Guide to Zimbabwean Law of Delict, p48
6
Murimba & Anor v Law Organization (Pvt) Ltd & Ors HH-265
the time the act (of stomping Joyce’s stomach by Lizzy during the fight) was the baby a juristic
person whose rights could be infringed. In the Law of Delict Textbook the Pinchin case where
there defendad’s negligence had caused the accident which allegedly led to the birth of the
plaintiff’s baby with brain damage which is is of persuasive value in this case was cited. It was
held that that the defendand’s action only be classified as wrong when the consequence occur
and here it occurred when the baby was born with a defect.7 It must be noted that the fact that at
the time the act occurred the baby was not a juristic person does not take away the mother’s right
to sue for damages in such a case since the consequence finally showed at birth when the baby
was born with brain injuries and the baby was now a juristic person. It must therefore be noted
that the Joyce can seek damages for her child’s brain injuries from Lizzy.

It must therefore be noted that Joyce can claim damages from Lizzy for causing the child’s brain
injuries if she can prove the causal link between the act and the consequence. It must also be
noted that as shown above she can’t sue the company as the company is not vicariously liable
because Lizzy (the Managing Director acted outside the scope of her duties).

The present case is distinguished from the facts of the applicable case law in this scenario
because in the case of Pinchin it was an accident not a fight, the Murimba case was about a
breach of duty of care, in the case of Standard Chartered Finance Ltd v Georgias & Anor it must
be noted that the employee told another company that P company was in financial trouble as a
result of which company had withdrawn from a contract with P causing P financial loss unlike in
the current case employee assaulted another employee.

7
Neethling (2015) Law of Delict 7th Ed LexisNexis SA, p45
REFERENCES
BOOKS
 Feltoe G (2018) A Guide to Zimbabwean Law of Delict, p182, p184 & p48
 Neethling J Law of Delict 7th Ed LexisNexis SA, p45

CASES
 Standard Chartered Finance Ltd v Georgias & Anor 1998 (2) ZLR 547 (H)
 Murimba & Anor v Law Organization (Pvt) Ltd & Ors HH-265
 Banda v Gamegone (Pvt) Ltd & Anor HH-133-03
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