KAMOCHA J: On
23 July 2007 Nkosikhona Ncube who was driving a commuter omnibus knocked down
the plaintiff who was standing by the road side fracturing his right tibia and
fibula resulting in a 25% disability.
The cause of action therefore arose on 23 July 2007.
The first defendant who was served
with summons on 2 August 2010 was served when prescription had already begun to
run. The claim against him had been
prescribed.
However, when service was effected
on the second defendant on 23 July 2010 prescription had not begun to run. The service was accordingly valid.
But was he vicariously liable for
the accident caused by the negligence of the first defendant? The second defendant was employed by Martin
Senda. He was an employee just like the
first defendant albeit at higher level of manager. One employee cannot be vicariously liable for
the delicts of another employee. It is
only an employer who is vicariously liable for the delicts of his employee
committed during the scope of his employment.
The second defendant was, in the result wrongly cited.
The exception and special plea in
bar succeeds. There is, however, no
basis for awarding the defendants costs on the punitive scale.
It is accordingly ordered that the applicant claim be and is
hereby dismissed with costs on the ordinary scale.
Messrs Calderwood, Bryce Hendrie and Partners, plaintiff's legal practitioners
Bulawayo Legal Project Centre, 1st
and 2nd defendant's legal practitioners
