MATHONSI J: When
the plaintiff drove his BMW 528i series motor vehicle, registration number AAG
6022 to Kuwadzana Police Station and parked it at the police car park on the
night of 14 November 2009 he did not know that he was driving the said vehicle
for the last time. He had been involved in an accident with a pedestrian
somewhere along Harare - Bulawayo road and as is the norm, the police
impounded the vehicle for further investigations and demanded that he drove it
to the police station.
What transpired thereafter, if it had
not been extremely serious and with far - reaching prejudicial consequences, it
would have been comic. At about 20:45 hours on the night of 18 November 2009,
Beat 1 leader Constable Tapiwa Matonhodze, the first defendant in this matter, received station
property on behalf of the Sergeant In Charge of his shift in a hand over
take-over process performed with the Officer In Charge of a shift which was
knocking off from duty. The first defendant
and his group were taking over the station as a shift coming on duty at that
time.
The station property the first
defendant took over and signed for included the keys of and the BMW motor
vehicle belonging to the plaintiff which was still detained at the police
station ostensibly for further investigations.
Later during that night, the first defendant drove the motor vehicle
while going on patrol with his Beat 1 crew, which had been depleted as one of
its members had gone home. While on patrol in the plaintiff's motor vehicle, the
first defendant met Constable Kachuta, the leader of Beat 2, who was in the
company of Constable Towindo on their way to the station.
Perched behind the wheel and in the
controls of the vehicle, the first defendant instructed Constable Kachuta and
his colleague to get into the vehicle and accompany him and his team on "a
grade A call". They complied but no sooner had the vehicle taken off than it
was involved in an accident. The driver lost control at an intersection, the
vehicle careered off the road and landed in a ditch. It was so extensively
damaged that it was declared beyond economic repair.
The plaintiff instituted proceedings
against the two defendants seeking damages in the sum of US$10 100-00 together
with interest and costs of suit. In his declaration, the plaintiff averred that
when he drove the BMW motor vehicle, the first defendant was acting within the
course and scope of his employment by the second defendant and as such the second
defendant was vicariously liable for the actions of his employee. As the first
defendant wrongfully, unlawfully and negligently drove the said vehicle, both
defendants are jointly and severally liable for the loss that he sustained.
The second defendant vehemently
contested the claim and in his plea he raised the defence that when the first
defendant drove the vehicle, he;-
"was on a
frolic of his own thus he should be sued in his personal capacity."
In saying this,
the second defendant relied on reports made by police officers based at
Kuwadzana Police Station which were attached to the plea.
According to the report of
Assistant Inspector Cahrin when he inspected the plaintiff's vehicle on 15
November 2009 before the first defendant drove it, he observed that it had a
broken right indicator and a shattered windscreen on top of the driver's side.
Seargeant Grasium Chidemo was the Officer In Charge of the evening shift which
had the first defendant on 18 November 2009. He reported that;-
" Constable Matonhodze stole the keys when he
took over the duty as he reported
earlier to work. While out to patrol, he stole this vehicle which was
parked in the outside car park ............While out on patrol with the
stolen vehicle, Constable Matonhodze was involved in an accident.....".
The plaintiff gave evidence. He was
involved in an accident along Harare - Bulawayo road on 14
November 2009 and directed to drive his BMW motor vehicle to Kuwadzana Police
Station as it had been impounded for further investigations. At the station, he surrendered the vehicle as
instructed. A few days later he was telephoned by the Officer In Charge who
informed him that his vehicle had been involved in an accident while being
driven by a certain Police Officer on duty.
The plaintiff stated that he was
invited to the Police Station and taken to the scene of the accident where he
beheld his motor vehicle in a ditch badly damaged. The police advised him that they had no
capacity to remove the vehicle and suggested that he made his own arrangements
to tow it from the scene which he did. He was then advised by the police that
the culprit was in police custody and that he should negotiate with him on the
damage caused to his vehicle. He refused
to do so as he saw no reason to as the culprit had been on duty when he
committed the delict and his employers were liable.
He sought redress from the office of
the Commissioner General of police and although he was assured the matter would
receive attention, nothing came out of that. Meanwhile, he sought and obtained
quotations. The plaintiff produced the 4 quotations
from Savo's
Panel Beaters ( Pvt) Ltd, Vals Panel Beaters ( Pvt) Ltd; Quest Motor
Corporation and Ontime Assessors. The general view from these experts was that
the vehicle was beyond economic repair. The plaintiff also produced an
assessment report compiled by Ontime Assessors to the effect that the pre
accident value of the vehicle was US$12 000-00.
He testified that in order to
mitigate his loss, he was forced to auction the salvage and realised only US$1 900-00. For that reason he claims the
difference of US$10 100 from the defendants.
Constable Elliot Paradzai Kashuta
gave evidence on behalf of the second defendant. He is an attested member of
ZRP based at Kuwadzana Police Station. On 18 November 2009 he witnessed the 1st
defendant conduct a hand over take over of station property with the Sergeant
In Charge of an outgoing shift at about 8:45 pm as they were reporting for duty.
The Sergeant In Charge of their PM shift was then not available although he was
the one supposed to perform that exercise.
The station property which the first
defendant took over included the keys to the BMW motor vehicle which was parked
at the car park. These keys were kept
together with other valuables of detained persons in a safe kept at the charge
office. He did not witness the first defendant handing over to the Sergeant in
charge the station property.
The first defendant and himself held
the same rank with the former being the leader of his team known as Beat 1,
comprising of 3 members while the witness was the leader of his team known as
Beat 2 which also had 3 members. He had seen the first defendant driving a
number of motor vehicles in the past but not a BMW motor vehicle. Much later
that night, the witness and Constable Towindo were coming from Kuwadzana 2
shopping centre heading towards the station, when they met the first defendant
driving the BMW motor vehicle. He had Constable Kupara seated on the front
passenger seat.
Constable Kachuta stated that the
first defendant instructed them to get into the vehicle and accompany them to
attend a grade A call which he described as a scene where there is either a
danger to life or where violence is being used or threatened or where there has
been a accident and vehicles are blocking other motorists. Once inside the
vehicle, the first defendant drove for about a minute before failing to
negotiate a bend. He lost control of the vehicle and it plunged into a ditch
sustaining serious damage.
In Kachuta's view, the first
defendant had lied to them that there was a grade A call as he just wanted them
to accompany him on a patrol in order to beef up manpower. According to this witness the first defendant
had taken custody of station property by signing for it and there was nothing
amiss with that as a constable can take over station property if he is the most
senior person available at the time. He added that on the particular day, the
sergeant in charge of the shift had not been " careful" in the discharge of his
duties which allowed the first defendant to retain the keys and drive the
vehicle going on patrol.
That the plaintiff suffered loss in
the amount claimed has been established by evidence. The uncontroverted
evidence is that the vehicle had a pre-accident value of US$12 000-00. It
sustained minor damages in the form of a shattered windscreen and a broken
indicator light as a result of hitting a pedestrian while being driven by the
plaintiff. In my view that damage was negligible and could not materially alter
its value as assessed by the assessors in the sum of US$12 000-00 which
assessment has not been contested.
Having regard to the amount of
US$1900-00 realised from the sale of the salvage, I am satisfied that the
quantum of damages suffered by the plaintiff is US$10100-00. The second
defendant did not, either in his plea or in the evidence led in court, bother
to question that part of the plaintiff's claim. It is trite that what is not
disputed is admitted.
That the first defendant acted
unlawfully, wrongfully and indeed negligently when he drove the plaintiff's
motor vehicle has not been disputed either. Clearly the plaintiff did not
authorize him to drive his vehicle and there is no way a police officer can
lawfully drive a motor vehicle held at a police station either as an exhibit or
pending further investigations while on patrol duties. Such vehicle is not a
patrol vehicle and
should be kept
in custody only for the purpose for which it was impounded.
The requirements for a claim under
the lex Aquilia were aptly captured by PATEL J in Nyaguse v Skinners Auto Body
Specialists & Anor 2007 (1) ZLR 296 (H) at 298 E-G where the learned
Judge said:-
" It is now well-established in our
law that the plaintiff in an Aquilian
action for patrimonial loss must
establish that:-
(i)
the defendant committed a wrongful act;
(ii)
the plaintiff suffered patrimonial loss, viz,
actual loss capable of pecuniary assessment;
(iii)
the defendant's act caused the loss suffered by the
plaintiff and that the harm occasioned was not too remote from the act
complained of;
(iv)
responsibility for the plaintiff's loss is imputable to
the fault of the defendant; either in the form of dolus (intention) or culpa
(negligence)"
I am satisfied that the plaintiff has
established all the requirements set out above in the present case. As already pointed
out, the first defendant committed a wrongful act by driving the plaintiff's
vehicle without authority and negligently causing an accident. As a result of
that wrongful act, the plaintiff sustained loss in the sum of US$10 100-00
which loss does not suffer from remoteness of damages and indeed the
responsibility for the plaintiff's loss is imputed to the fault of the first
defendant. Indeed the first defendant's conduct was unbelievably unreasonable,
irresponsible, childish and reprehensible in the extreme.
The question which remains is whether
the first defendant was acting within the course and scope of his employment as
a police officer which he damaged the plaintiff's
motor vehicle as
to make the second defendant vicariously liable for his actions. The position
of our law is that an employer is liable for the delicts of his employee
committed in the course of their duty or service unless if the employee, in
committing the delict, was pursuing his or her own interests.
As stated by the learned author
P.Q.R. BOBCRG; The lawful Delict, Vol
1,Juta & Company Limited at P327, quoting Mkhize v Martins 1914
AD 382 at 390;
"We may, for practical purposes, adopt
the principle that a master is
answerable for the torts of his
servant committed in the course of his
employment, bearing in mind that an
act done by a servant solely for his
own interest and purposes, and
outside his authority, is not done in the
course of his employment, even though
it may have been done during his
employment."
The learned
author went on at p328 quoting Feldman (Pty) Ltd v Mall 1945 AD 733 at
736 to state:-
"
Provided the servant is doing his master's work or pursuing his master's
ends he is acting within the scope of his
employment even if he disobeys his
master's instructions as to the manner
of doing the work or as to the means
by which the end is to be attained."
In casu, it cannot be denied that
the first defendant was doing his masters work when he received the station
property on the night of 18 November 2009 which included the keys and the motor
vehicle belonging to the plaintiff. He was still about his master's business
when he went on patrol that night. However he clearly had no authority of the
master to use the plaintiff's motor vehicle when going on patrol. It can be
said that he disobeyed his master's instructions as to how he was to perform
his duties.
The above authorities suggest that he was
still acting within the scope of his employment even though the manner in which
he went about his work was perverted.
To hold that a Police Officer who is on
patrol and therefore pursuing his employer's ends is not acting within the
course of his employment merely because he used a vehicle he was not supposed
to use would lead to an absurdity. This is a classic case in which the officer
used the wrong means to attain his employer's ends leaving him firmly within
the scope of his employment.
I therefore come to the conclusion
that the second defendant is vicariously liable for the wrongs of the first defendant
because such wrongs were committed while he was in the scope of his employment
as a Police Officer.
Accordingly it is ordered as
follows;-
1.
The first and second defendants should, jointly and
severally, the one
paying the other to be absolved, pay to
the plaintiff damages in the
sum of US$10 100-00 together with
interest thereon at the prescribed
rate of 5% per annum from 18 November
2009 to date of payment.
2.
The first and
second defendants should, jointly and severally the one
paying the other to be absolved, pay the costs
of suit.
Muzangaza Mandaza & Tomana legal practitioners for the
plaintiff
Civil Division of The Attorney General's Office 2nd
defendant's legal practitioners
