Introduction
Most recently, public domain has been awash with news concerning awarding of damages and fines owing to negligence and wrongful actions leading to injury of individuals. Just a fortnight ago, ZESA was fined for negligently exposing electrical wires resulting to electric shock and burns inflicting a minor in Chitungwiza. In other news, this week Zimbabwe Lawyers for Human Rights (ZLHR) successfully assisted Lillian Chinyerere in suing the Zimbabwe Republic Police (ZRP) and the Ministry of Home Affairs for damages amounting to RTGS$175000 resulting from injuries sustained when police personnel injuriously harmed the old lady during the 2019 civil unrests. Courts in Zimbabwe have been generally reluctant to awarding damages arising from delict or tort law, but the turn of events signals a positive direction towards its implementation. It is in this light that this write-up begets relevance to the reader.
What is delict or tort law?
This is the legal avenue that governs civil wrongs with a view to awarding the wronged party for the harm they resultantly suffer owing to such wrongful conduct. As Professor Neethling et al (Delict law in South Africa,7th edition) postulate , a delict is the act of a person that in a wrongful and culpable way causes harm to another. Developing in the Roman society, the mischief of delict law was to foster respect for either individual’s rights through general exercise of caution and restraint. In analytical sense, tort law( as it developed in the House of Lords ,England) promotes civil rights through civil sanctioning of damages by the wrongdoer to the wronged party. Prominent scholar ,Prof. G Fetloe (A guide to the Zimbabwean law of delict) , emphasizes that ,this law imposes a general duty upon all persons not to harm others wrongfully.
To whom and where to claim damages?
Any wronged individual who suffers harm on their body, property or personality can claim damages in the Civil Court for compensation for such harm. The damages can be in form of a lumpsum, reparations or simple apology (in cases of defamation of character). The wronged party will obviously have to prove that they were wronged by another party (fault), and also that, there is a causal link between the actions of another party and the loss or injury there suffered. Where the wrongdoer harms a person during the scope of business or work for example ,a prison officer negligently beats up a prisoner resulting in the latter suffering a broken limp, the prisoner can sue the Ministry of Home Affairs for damages resultant. The rationale is that, the employer is usually financially footed to cover for those damages .Equally, they owe the citizens a corresponding duty to train their employees to be competent and professional.
Quantification of damages As highlighted above, the Courts generally loathe awarding damages arising from delictual claims. This partly owes to the state of the economy where , for example, suing for defamation seems luxurious. It is settled that; these claims are usually high_ the Courts are against orders brutum fulmen (a judgment which is not enforceable). More often than not, defamation claims fall before they even stand . Litigants often settle for an apology so as to regain their integrity . However, in an evolving globe that we live in, characterized by cyber bullying and malicious allegations reaching social media corridors, it is key for the Court to develop a strict stance towards this legal avenue. In more developed jurisdictions like the United States and England, these damages are categorized such that, a wrongful act already has attached, a corresponding compensatory fee. This saves time and the Courts will not have the burden of quantification of damages associated with this form of litigation.
Conclusion The recent developments at the Courts have been positive. They signal that, the Courts are bracing up to modernize and give full effect to claims under tort law. This is key in protecting individual rights while at the same time , inculcating law and order in our communities. A reasonable person would rather avoid stepping on either's toe than be served summons bearing say, USD$2500.00 being damages for a delict.
©Munashe O’brian Gutu is a Law student at the University of Zimbabwe. He blogs in his personal capacity.
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Very good read senior counsel. Its easy for the general populace to also appreciate what you are talking about. Onwards and upwards,!