Professional Ethics, Legal Duty to the Court and Clients, Dominus Litis and Correspondence with the Court

By the time the appeal was heard, on 2 February 2015, the respondent had, on 15 January 2015, filed a document headed “CONSENT TO JUDGMENT” wherein he indicated that he was consenting to the order sought in the appeal.

We allowed the appeal in terms of the consent and indicated that for the benefit of the trial magistrate, as well as other judicial officers who may be in the same predicament, we felt constrained to do a judgment write up.

This is it.

This is an appeal from a decision of the Magistrates Court sitting at Victoria Falls. The first appellant was a driver employed by the second appellant. The respondent is a former mayor of the resort town and also a former Member of Parliament.

On 2 October 2011, the first appellant was in Bulawayo driving the second appellant's IVECO vehicle registration number ABS 4838. The respondent averred, that, he telephonically contracted with the first appellant to pull his trailer with tins of paint and other hardware goods from Bulawayo to Victoria Falls for a fee to be paid at destination.

Along the way, so the argument went, the first appellant negligently caused an accident which resulted in damage to some of the respondent's consigned goods. Goods valued at US$2,411=90 were damaged.

In order to bring his claim within the monetary jurisdiction of the Magistrates Court, the respondent abandoned his claim to $411=90 and sued the appellants jointly and severally, one paying the other to be absolved for $2,000,00, interest at the prescribed rate effective from date of issue of summons, and costs of suit.

The second appellant was roped into the suit on the basis of alleged vicarious liability.

Both appellants strenuously denied liability.

The appellants denied, that, the first appellant was negligent and that his negligence caused the accident and that the second appellant was vicariously liable.

They also both denied that the respondent contracted with the first appellant for the carriage of the goods, let alone for a fee, since such was beyond the first appellant's mandate.

They averred, that, the respondent used his political muscle and forced the first appellant to pull his trailer at no cost thereby taking the risk; for the second appellant is not a licenced carrier, not insured, and not authorized to carry goods.

In her judgment, in which she found for the respondent, the trial magistrate, in a somewhat Wednesday decision, reasoned, in pertinent part, thus:

“Concerning the issue of negligence that was not expressly been (sic) proven however there are references to same (sic) type of negligence being there. In terms of how the accident occurred in addition to the realization of it (sic). However, to my mind, even if some negligence had been there. It doesn't then allow that the liability falls away.

Since vicarious liability covers even negligent actions. Mungofa v Muderede and Others 2003.

Defence counsel was dwelling on the fact, that, the contract was flawed. What has come out is that there was an agreement for delivery of goods after which payment would be made. So that was the verbal contract.

In this instance the first defendant started (sic) that as drivers they regularly carry goods for passengers on the agreement that the people would pay later. This was an arrangement he said the manager knew about. He added that after receiving payment he would take the money to the company office. So in saying this first defendant is saying he had a verbal contract with plaintiff.

A director at Chihwa tours testified saying he did not know goods were being carried without passengers.

Now, in coming up with a judgment. One has (sic) to look at the purpose of the doctrine of various (sic) liability Gwalinga v Jaredzo 2001 which includes that members of the public. Be protected from activities does (sic) by employees. Furthermore the employer is in a far better position to compensate the injured party than the employee. Looking at the purposes one has to apply it (sic) to this case. That Chihwa tours is better able to compensate customers for losses than the driver.

I now go into the operation of the doctrine in relation to this case which is 2 pronged. First that the employee is a servant not an independent contractor. In this instance the first defendant was a servant not an independent contract (sic). Since he is a driver who is subject to the employers control and direction. Secondly was he acting within the scope of his duties? His duties include driving the company vehicle to ferry passengers and their goods to their destination. Whether there was a deviation from duty Nott v ZANU PF 1983.

This is what he was doing on that day. When he carried passengers for Chihwa tours to Victoria Falls. Using the company's vehicle. So at his reason (sic) for travelling to Victoria Falls was for work. To further clarify if he was acting in the course of his employment. One has to ask if first defendant was on a frolic of his own. During proceedings no one alleged that this trip was of accused (sic) own making. It was agreed he was sent on a trip for work. So I find that he was within the course of his employment.

Whether he exercised his duties well or not as to the satisfaction of his employer is something else. But for the purposes of this case. The second part of the 2 fold doctrine of the operation of this doctrine has been satisfied. So I find that defendant carried goods for plaintiff. During his duty as an employee whilst acting in the course of his employment as envisaged in Bande v Boregone 2003.

Concerning the qualification (sic) of plaintiff's loss plaintiff is claiming for all drivers and plaintiff's employee (sic) as defence counsel rightly points out agree that some tins of paint that were recovered (sic). Which were at least 10 in number. So there is a need for plaintiff compensation to be lessened in that respect.

So I award judgment for the plaintiff less ten tins of paint of 5 litre (sic) which first defendant and plaintiff's witness approximated were recovered. Each party to bear its own costs.”

Before delving into the gist of the legal issues that emanate from the facts and the judgment, I must utter some strictures regarding the several grammatical and punctuation errors exitant in the portion of the judgment quoted above. This explains why I was constrained to quote it in extenso.

It is not known if these errors should be ascribed to the trial magistrate or the typist, or both, but, the bottom line is that the trial magistrate should shoulder the blame for obvious reasons - it is her judgment.

It is sad to remark, that, in fact, this is her style of judgment writing as gleaned from appeals and reviews emanating from her one-person station.

Pleadings re: Belated Pleadings, Matters Raised Mero Motu by the Court and the Doctrine of Notice iro Approach

By the time the appeal was heard, on 2 February 2015, the respondent had, on 15 January 2015, filed a document headed “CONSENT TO JUDGMENT” wherein he indicated that he was consenting to the order sought in the appeal.

We allowed the appeal in terms of the consent and indicated that for the benefit of the trial magistrate, as well as other judicial officers who may be in the same predicament, we felt constrained to do a judgment write up.

This is it.

This is an appeal from a decision of the Magistrates Court sitting at Victoria Falls. The first appellant was a driver employed by the second appellant. The respondent is a former mayor of the resort town and also a former Member of Parliament.

On 2 October 2011, the first appellant was in Bulawayo driving the second appellant's IVECO vehicle registration number ABS 4838. The respondent averred, that, he telephonically contracted with the first appellant to pull his trailer with tins of paint and other hardware goods from Bulawayo to Victoria Falls for a fee to be paid at destination.

Along the way, so the argument went, the first appellant negligently caused an accident which resulted in damage to some of the respondent's consigned goods. Goods valued at US$2,411=90 were damaged.

In order to bring his claim within the monetary jurisdiction of the Magistrates Court, the respondent abandoned his claim to $411=90 and sued the appellants jointly and severally, one paying the other to be absolved for $2,000,00, interest at the prescribed rate effective from date of issue of summons, and costs of suit.

The second appellant was roped into the suit on the basis of alleged vicarious liability.

Both appellants strenuously denied liability.

The appellants denied, that, the first appellant was negligent and that his negligence caused the accident and that the second appellant was vicariously liable.

They also both denied that the respondent contracted with the first appellant for the carriage of the goods, let alone for a fee, since such was beyond the first appellant's mandate.

They averred, that, the respondent used his political muscle and forced the first appellant to pull his trailer at no cost thereby taking the risk; for the second appellant is not a licenced carrier, not insured, and not authorized to carry goods.

In her judgment, in which she found for the respondent, the trial magistrate, in a somewhat Wednesday decision, reasoned, in pertinent part, thus:

“Concerning the issue of negligence that was not expressly been (sic) proven however there are references to same (sic) type of negligence being there. In terms of how the accident occurred in addition to the realization of it (sic). However, to my mind, even if some negligence had been there. It doesn't then allow that the liability falls away.

Since vicarious liability covers even negligent actions. Mungofa v Muderede and Others 2003.

Defence counsel was dwelling on the fact, that, the contract was flawed. What has come out is that there was an agreement for delivery of goods after which payment would be made. So that was the verbal contract.

In this instance the first defendant started (sic) that as drivers they regularly carry goods for passengers on the agreement that the people would pay later. This was an arrangement he said the manager knew about. He added that after receiving payment he would take the money to the company office. So in saying this first defendant is saying he had a verbal contract with plaintiff.

A director at Chihwa tours testified saying he did not know goods were being carried without passengers.

Now, in coming up with a judgment. One has (sic) to look at the purpose of the doctrine of various (sic) liability Gwalinga v Jaredzo 2001 which includes that members of the public. Be protected from activities does (sic) by employees. Furthermore the employer is in a far better position to compensate the injured party than the employee. Looking at the purposes one has to apply it (sic) to this case. That Chihwa tours is better able to compensate customers for losses than the driver.

I now go into the operation of the doctrine in relation to this case which is 2 pronged. First that the employee is a servant not an independent contractor. In this instance the first defendant was a servant not an independent contract (sic). Since he is a driver who is subject to the employers control and direction. Secondly was he acting within the scope of his duties? His duties include driving the company vehicle to ferry passengers and their goods to their destination. Whether there was a deviation from duty Nott v ZANU PF 1983.

This is what he was doing on that day. When he carried passengers for Chihwa tours to Victoria Falls. Using the company's vehicle. So at his reason (sic) for travelling to Victoria Falls was for work. To further clarify if he was acting in the course of his employment. One has to ask if first defendant was on a frolic of his own. During proceedings no one alleged that this trip was of accused (sic) own making. It was agreed he was sent on a trip for work. So I find that he was within the course of his employment.

Whether he exercised his duties well or not as to the satisfaction of his employer is something else. But for the purposes of this case. The second part of the 2 fold doctrine of the operation of this doctrine has been satisfied. So I find that defendant carried goods for plaintiff. During his duty as an employee whilst acting in the course of his employment as envisaged in Bande v Boregone 2003.

Concerning the qualification (sic) of plaintiff's loss plaintiff is claiming for all drivers and plaintiff's employee (sic) as defence counsel rightly points out agree that some tins of paint that were recovered (sic). Which were at least 10 in number. So there is a need for plaintiff compensation to be lessened in that respect.

So I award judgment for the plaintiff less ten tins of paint of 5 litre (sic) which first defendant and plaintiff's witness approximated were recovered. Each party to bear its own costs.”

Before delving into the gist of the legal issues that emanate from the facts and the judgment, I must utter some strictures regarding the several grammatical and punctuation errors exitant in the portion of the judgment quoted above. This explains why I was constrained to quote it in extenso.

It is not known if these errors should be ascribed to the trial magistrate or the typist, or both, but, the bottom line is that the trial magistrate should shoulder the blame for obvious reasons - it is her judgment.

It is sad to remark, that, in fact, this is her style of judgment writing as gleaned from appeals and reviews emanating from her one-person station.

Now, to the pith of the appeal and the law.

The following legal issues emanate from the court a quo's judgment:

1. Propriety of citing the second appellant.

2. Vicarious liability of the second appellant.

3. Claim founded on lex aquilia but liability founded on contract.

4. The relief that was awarded.

I would deal with the above issues seriatim.

1. PROPRIETY OF CITING THE SECOND APPELLANT

This issue is a point of law which a party is allowed to raise at any time, even on appeal, for the first time: Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S).

The appellants were correct to raise the point for the first time on appeal.

Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Grounds of Appeal iro Belated Pleadings & Judicial Mero Motu

By the time the appeal was heard, on 2 February 2015, the respondent had, on 15 January 2015, filed a document headed “CONSENT TO JUDGMENT” wherein he indicated that he was consenting to the order sought in the appeal.

We allowed the appeal in terms of the consent and indicated that for the benefit of the trial magistrate, as well as other judicial officers who may be in the same predicament, we felt constrained to do a judgment write up.

This is it.

This is an appeal from a decision of the Magistrates Court sitting at Victoria Falls. The first appellant was a driver employed by the second appellant. The respondent is a former mayor of the resort town and also a former Member of Parliament.

On 2 October 2011, the first appellant was in Bulawayo driving the second appellant's IVECO vehicle registration number ABS 4838. The respondent averred, that, he telephonically contracted with the first appellant to pull his trailer with tins of paint and other hardware goods from Bulawayo to Victoria Falls for a fee to be paid at destination.

Along the way, so the argument went, the first appellant negligently caused an accident which resulted in damage to some of the respondent's consigned goods. Goods valued at US$2,411=90 were damaged.

In order to bring his claim within the monetary jurisdiction of the Magistrates Court, the respondent abandoned his claim to $411=90 and sued the appellants jointly and severally, one paying the other to be absolved for $2,000,00, interest at the prescribed rate effective from date of issue of summons, and costs of suit.

The second appellant was roped into the suit on the basis of alleged vicarious liability.

Both appellants strenuously denied liability.

The appellants denied, that, the first appellant was negligent and that his negligence caused the accident and that the second appellant was vicariously liable.

They also both denied that the respondent contracted with the first appellant for the carriage of the goods, let alone for a fee, since such was beyond the first appellant's mandate.

They averred, that, the respondent used his political muscle and forced the first appellant to pull his trailer at no cost thereby taking the risk; for the second appellant is not a licenced carrier, not insured, and not authorized to carry goods.

In her judgment, in which she found for the respondent, the trial magistrate, in a somewhat Wednesday decision, reasoned, in pertinent part, thus:

“Concerning the issue of negligence that was not expressly been (sic) proven however there are references to same (sic) type of negligence being there. In terms of how the accident occurred in addition to the realization of it (sic). However, to my mind, even if some negligence had been there. It doesn't then allow that the liability falls away.

Since vicarious liability covers even negligent actions. Mungofa v Muderede and Others 2003.

Defence counsel was dwelling on the fact, that, the contract was flawed. What has come out is that there was an agreement for delivery of goods after which payment would be made. So that was the verbal contract.

In this instance the first defendant started (sic) that as drivers they regularly carry goods for passengers on the agreement that the people would pay later. This was an arrangement he said the manager knew about. He added that after receiving payment he would take the money to the company office. So in saying this first defendant is saying he had a verbal contract with plaintiff.

A director at Chihwa tours testified saying he did not know goods were being carried without passengers.

Now, in coming up with a judgment. One has (sic) to look at the purpose of the doctrine of various (sic) liability Gwalinga v Jaredzo 2001 which includes that members of the public. Be protected from activities does (sic) by employees. Furthermore the employer is in a far better position to compensate the injured party than the employee. Looking at the purposes one has to apply it (sic) to this case. That Chihwa tours is better able to compensate customers for losses than the driver.

I now go into the operation of the doctrine in relation to this case which is 2 pronged. First that the employee is a servant not an independent contractor. In this instance the first defendant was a servant not an independent contract (sic). Since he is a driver who is subject to the employers control and direction. Secondly was he acting within the scope of his duties? His duties include driving the company vehicle to ferry passengers and their goods to their destination. Whether there was a deviation from duty Nott v ZANU PF 1983.

This is what he was doing on that day. When he carried passengers for Chihwa tours to Victoria Falls. Using the company's vehicle. So at his reason (sic) for travelling to Victoria Falls was for work. To further clarify if he was acting in the course of his employment. One has to ask if first defendant was on a frolic of his own. During proceedings no one alleged that this trip was of accused (sic) own making. It was agreed he was sent on a trip for work. So I find that he was within the course of his employment.

Whether he exercised his duties well or not as to the satisfaction of his employer is something else. But for the purposes of this case. The second part of the 2 fold doctrine of the operation of this doctrine has been satisfied. So I find that defendant carried goods for plaintiff. During his duty as an employee whilst acting in the course of his employment as envisaged in Bande v Boregone 2003.

Concerning the qualification (sic) of plaintiff's loss plaintiff is claiming for all drivers and plaintiff's employee (sic) as defence counsel rightly points out agree that some tins of paint that were recovered (sic). Which were at least 10 in number. So there is a need for plaintiff compensation to be lessened in that respect.

So I award judgment for the plaintiff less ten tins of paint of 5 litre (sic) which first defendant and plaintiff's witness approximated were recovered. Each party to bear its own costs.”

Before delving into the gist of the legal issues that emanate from the facts and the judgment, I must utter some strictures regarding the several grammatical and punctuation errors exitant in the portion of the judgment quoted above. This explains why I was constrained to quote it in extenso.

It is not known if these errors should be ascribed to the trial magistrate or the typist, or both, but, the bottom line is that the trial magistrate should shoulder the blame for obvious reasons - it is her judgment.

It is sad to remark, that, in fact, this is her style of judgment writing as gleaned from appeals and reviews emanating from her one-person station.

Now, to the pith of the appeal and the law.

The following legal issues emanate from the court a quo's judgment:

1. Propriety of citing the second appellant.

2. Vicarious liability of the second appellant.

3. Claim founded on lex aquilia but liability founded on contract.

4. The relief that was awarded.

I would deal with the above issues seriatim.

1. PROPRIETY OF CITING THE SECOND APPELLANT

This issue is a point of law which a party is allowed to raise at any time, even on appeal, for the first time: Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S).

The appellants were correct to raise the point for the first time on appeal.

Citation and Joinder re: Approach, the Joinder of Necessity and Third Party Notices

By the time the appeal was heard, on 2 February 2015, the respondent had, on 15 January 2015, filed a document headed “CONSENT TO JUDGMENT” wherein he indicated that he was consenting to the order sought in the appeal.

We allowed the appeal in terms of the consent and indicated that for the benefit of the trial magistrate, as well as other judicial officers who may be in the same predicament, we felt constrained to do a judgment write up.

This is it.

This is an appeal from a decision of the Magistrates Court sitting at Victoria Falls. The first appellant was a driver employed by the second appellant. The respondent is a former mayor of the resort town and also a former Member of Parliament.

On 2 October 2011, the first appellant was in Bulawayo driving the second appellant's IVECO vehicle registration number ABS 4838. The respondent averred, that, he telephonically contracted with the first appellant to pull his trailer with tins of paint and other hardware goods from Bulawayo to Victoria Falls for a fee to be paid at destination.

Along the way, so the argument went, the first appellant negligently caused an accident which resulted in damage to some of the respondent's consigned goods. Goods valued at US$2,411=90 were damaged.

In order to bring his claim within the monetary jurisdiction of the Magistrates Court, the respondent abandoned his claim to $411=90 and sued the appellants jointly and severally, one paying the other to be absolved for $2,000,00, interest at the prescribed rate effective from date of issue of summons, and costs of suit.

The second appellant was roped into the suit on the basis of alleged vicarious liability.

Both appellants strenuously denied liability.

The appellants denied, that, the first appellant was negligent and that his negligence caused the accident and that the second appellant was vicariously liable.

They also both denied that the respondent contracted with the first appellant for the carriage of the goods, let alone for a fee, since such was beyond the first appellant's mandate.

They averred, that, the respondent used his political muscle and forced the first appellant to pull his trailer at no cost thereby taking the risk; for the second appellant is not a licenced carrier, not insured, and not authorized to carry goods.

In her judgment, in which she found for the respondent, the trial magistrate, in a somewhat Wednesday decision, reasoned, in pertinent part, thus:

“Concerning the issue of negligence that was not expressly been (sic) proven however there are references to same (sic) type of negligence being there. In terms of how the accident occurred in addition to the realization of it (sic). However, to my mind, even if some negligence had been there. It doesn't then allow that the liability falls away.

Since vicarious liability covers even negligent actions. Mungofa v Muderede and Others 2003.

Defence counsel was dwelling on the fact, that, the contract was flawed. What has come out is that there was an agreement for delivery of goods after which payment would be made. So that was the verbal contract.

In this instance the first defendant started (sic) that as drivers they regularly carry goods for passengers on the agreement that the people would pay later. This was an arrangement he said the manager knew about. He added that after receiving payment he would take the money to the company office. So in saying this first defendant is saying he had a verbal contract with plaintiff.

A director at Chihwa tours testified saying he did not know goods were being carried without passengers.

Now, in coming up with a judgment. One has (sic) to look at the purpose of the doctrine of various (sic) liability Gwalinga v Jaredzo 2001 which includes that members of the public. Be protected from activities does (sic) by employees. Furthermore the employer is in a far better position to compensate the injured party than the employee. Looking at the purposes one has to apply it (sic) to this case. That Chihwa tours is better able to compensate customers for losses than the driver.

I now go into the operation of the doctrine in relation to this case which is 2 pronged. First that the employee is a servant not an independent contractor. In this instance the first defendant was a servant not an independent contract (sic). Since he is a driver who is subject to the employers control and direction. Secondly was he acting within the scope of his duties? His duties include driving the company vehicle to ferry passengers and their goods to their destination. Whether there was a deviation from duty Nott v ZANU PF 1983.

This is what he was doing on that day. When he carried passengers for Chihwa tours to Victoria Falls. Using the company's vehicle. So at his reason (sic) for travelling to Victoria Falls was for work. To further clarify if he was acting in the course of his employment. One has to ask if first defendant was on a frolic of his own. During proceedings no one alleged that this trip was of accused (sic) own making. It was agreed he was sent on a trip for work. So I find that he was within the course of his employment.

Whether he exercised his duties well or not as to the satisfaction of his employer is something else. But for the purposes of this case. The second part of the 2 fold doctrine of the operation of this doctrine has been satisfied. So I find that defendant carried goods for plaintiff. During his duty as an employee whilst acting in the course of his employment as envisaged in Bande v Boregone 2003.

Concerning the qualification (sic) of plaintiff's loss plaintiff is claiming for all drivers and plaintiff's employee (sic) as defence counsel rightly points out agree that some tins of paint that were recovered (sic). Which were at least 10 in number. So there is a need for plaintiff compensation to be lessened in that respect.

So I award judgment for the plaintiff less ten tins of paint of 5 litre (sic) which first defendant and plaintiff's witness approximated were recovered. Each party to bear its own costs.”

Before delving into the gist of the legal issues that emanate from the facts and the judgment, I must utter some strictures regarding the several grammatical and punctuation errors exitant in the portion of the judgment quoted above. This explains why I was constrained to quote it in extenso.

It is not known if these errors should be ascribed to the trial magistrate or the typist, or both, but, the bottom line is that the trial magistrate should shoulder the blame for obvious reasons - it is her judgment.

It is sad to remark, that, in fact, this is her style of judgment writing as gleaned from appeals and reviews emanating from her one-person station.

Now, to the pith of the appeal and the law.

The following legal issues emanate from the court a quo's judgment:

1. Propriety of citing the second appellant.

2. Vicarious liability of the second appellant.

3. Claim founded on lex aquilia but liability founded on contract.

4. The relief that was awarded.

I would deal with the above issues seriatim.

1. PROPRIETY OF CITING THE SECOND APPELLANT

This issue is a point of law which a party is allowed to raise at any time, even on appeal, for the first time: Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S).

The appellants were correct to raise the point for the first time on appeal.

Second appellant was cited as Chihwa Tours.

The trial magistrate never bothered to strive to ascertain what entity this was but was content with the description in the particulars of claim that it was a “transport company” yet it is an un-incorporated entity operated by one Jackson Mukahanana.

Legally speaking, no company can have such a name.

The result of this vis-à-vis the second appellant is that the proceedings were instituted against a non-existing legal persona.

In The Zimbabwe Bata Shoe Company Limited v Bata Shoe Company Middle Management SC30-12 the following appears:

“The appellant has taken the point, that, although the Bata Shoe Company Middle Management is cited as the respondent, it is not a legal persona at law, with the capacity to sue or be sued. Therefore, there is no respondent before this court. Similarly there was no respondent before the Labour Court, or a claimant before the arbitrator….,.

In light of the recent decision of this court, in CT Bolts (Pvt) Ltd v Workers Committee SC16-12, this court is of the unanimous view that the respondent is not a legal persona. Consequently, there is no respondent before this court. Neither was there a respondent before the Labour Court nor a claimant before the arbitrator. Both proceedings before the arbitrator and the Labour Court were therefore a nullity at law.”

By citing a non-legal persona, there was no second appellant (defendant) in the Magistrates Court, and, since liability for the second appellant was being sought vicariously, the proceedings a quo, at least against the second appellant, were a nullity.

Citation and Joinder re: Legal Status of Litigants, Name Descriptions, Trade Names and the Principle of Legal Persona

By the time the appeal was heard, on 2 February 2015, the respondent had, on 15 January 2015, filed a document headed “CONSENT TO JUDGMENT” wherein he indicated that he was consenting to the order sought in the appeal.

We allowed the appeal in terms of the consent and indicated that for the benefit of the trial magistrate, as well as other judicial officers who may be in the same predicament, we felt constrained to do a judgment write up.

This is it.

This is an appeal from a decision of the Magistrates Court sitting at Victoria Falls. The first appellant was a driver employed by the second appellant. The respondent is a former mayor of the resort town and also a former Member of Parliament.

On 2 October 2011, the first appellant was in Bulawayo driving the second appellant's IVECO vehicle registration number ABS 4838. The respondent averred, that, he telephonically contracted with the first appellant to pull his trailer with tins of paint and other hardware goods from Bulawayo to Victoria Falls for a fee to be paid at destination.

Along the way, so the argument went, the first appellant negligently caused an accident which resulted in damage to some of the respondent's consigned goods. Goods valued at US$2,411=90 were damaged.

In order to bring his claim within the monetary jurisdiction of the Magistrates Court, the respondent abandoned his claim to $411=90 and sued the appellants jointly and severally, one paying the other to be absolved for $2,000,00, interest at the prescribed rate effective from date of issue of summons, and costs of suit.

The second appellant was roped into the suit on the basis of alleged vicarious liability.

Both appellants strenuously denied liability.

The appellants denied, that, the first appellant was negligent and that his negligence caused the accident and that the second appellant was vicariously liable.

They also both denied that the respondent contracted with the first appellant for the carriage of the goods, let alone for a fee, since such was beyond the first appellant's mandate.

They averred, that, the respondent used his political muscle and forced the first appellant to pull his trailer at no cost thereby taking the risk; for the second appellant is not a licenced carrier, not insured, and not authorized to carry goods.

In her judgment, in which she found for the respondent, the trial magistrate, in a somewhat Wednesday decision, reasoned, in pertinent part, thus:

“Concerning the issue of negligence that was not expressly been (sic) proven however there are references to same (sic) type of negligence being there. In terms of how the accident occurred in addition to the realization of it (sic). However, to my mind, even if some negligence had been there. It doesn't then allow that the liability falls away.

Since vicarious liability covers even negligent actions. Mungofa v Muderede and Others 2003.

Defence counsel was dwelling on the fact, that, the contract was flawed. What has come out is that there was an agreement for delivery of goods after which payment would be made. So that was the verbal contract.

In this instance the first defendant started (sic) that as drivers they regularly carry goods for passengers on the agreement that the people would pay later. This was an arrangement he said the manager knew about. He added that after receiving payment he would take the money to the company office. So in saying this first defendant is saying he had a verbal contract with plaintiff.

A director at Chihwa tours testified saying he did not know goods were being carried without passengers.

Now, in coming up with a judgment. One has (sic) to look at the purpose of the doctrine of various (sic) liability Gwalinga v Jaredzo 2001 which includes that members of the public. Be protected from activities does (sic) by employees. Furthermore the employer is in a far better position to compensate the injured party than the employee. Looking at the purposes one has to apply it (sic) to this case. That Chihwa tours is better able to compensate customers for losses than the driver.

I now go into the operation of the doctrine in relation to this case which is 2 pronged. First that the employee is a servant not an independent contractor. In this instance the first defendant was a servant not an independent contract (sic). Since he is a driver who is subject to the employers control and direction. Secondly was he acting within the scope of his duties? His duties include driving the company vehicle to ferry passengers and their goods to their destination. Whether there was a deviation from duty Nott v ZANU PF 1983.

This is what he was doing on that day. When he carried passengers for Chihwa tours to Victoria Falls. Using the company's vehicle. So at his reason (sic) for travelling to Victoria Falls was for work. To further clarify if he was acting in the course of his employment. One has to ask if first defendant was on a frolic of his own. During proceedings no one alleged that this trip was of accused (sic) own making. It was agreed he was sent on a trip for work. So I find that he was within the course of his employment.

Whether he exercised his duties well or not as to the satisfaction of his employer is something else. But for the purposes of this case. The second part of the 2 fold doctrine of the operation of this doctrine has been satisfied. So I find that defendant carried goods for plaintiff. During his duty as an employee whilst acting in the course of his employment as envisaged in Bande v Boregone 2003.

Concerning the qualification (sic) of plaintiff's loss plaintiff is claiming for all drivers and plaintiff's employee (sic) as defence counsel rightly points out agree that some tins of paint that were recovered (sic). Which were at least 10 in number. So there is a need for plaintiff compensation to be lessened in that respect.

So I award judgment for the plaintiff less ten tins of paint of 5 litre (sic) which first defendant and plaintiff's witness approximated were recovered. Each party to bear its own costs.”

Before delving into the gist of the legal issues that emanate from the facts and the judgment, I must utter some strictures regarding the several grammatical and punctuation errors exitant in the portion of the judgment quoted above. This explains why I was constrained to quote it in extenso.

It is not known if these errors should be ascribed to the trial magistrate or the typist, or both, but, the bottom line is that the trial magistrate should shoulder the blame for obvious reasons - it is her judgment.

It is sad to remark, that, in fact, this is her style of judgment writing as gleaned from appeals and reviews emanating from her one-person station.

Now, to the pith of the appeal and the law.

The following legal issues emanate from the court a quo's judgment:

1. Propriety of citing the second appellant.

2. Vicarious liability of the second appellant.

3. Claim founded on lex aquilia but liability founded on contract.

4. The relief that was awarded.

I would deal with the above issues seriatim.

1. PROPRIETY OF CITING THE SECOND APPELLANT

This issue is a point of law which a party is allowed to raise at any time, even on appeal, for the first time: Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S).

The appellants were correct to raise the point for the first time on appeal.

Second appellant was cited as Chihwa Tours.

The trial magistrate never bothered to strive to ascertain what entity this was but was content with the description in the particulars of claim that it was a “transport company” yet it is an un-incorporated entity operated by one Jackson Mukahanana.

Legally speaking, no company can have such a name.

The result of this vis-à-vis the second appellant is that the proceedings were instituted against a non-existing legal persona.

In The Zimbabwe Bata Shoe Company Limited v Bata Shoe Company Middle Management SC30-12 the following appears:

“The appellant has taken the point, that, although the Bata Shoe Company Middle Management is cited as the respondent, it is not a legal persona at law, with the capacity to sue or be sued. Therefore, there is no respondent before this court. Similarly there was no respondent before the Labour Court, or a claimant before the arbitrator….,.

In light of the recent decision of this court, in CT Bolts (Pvt) Ltd v Workers Committee SC16-12, this court is of the unanimous view that the respondent is not a legal persona. Consequently, there is no respondent before this court. Neither was there a respondent before the Labour Court nor a claimant before the arbitrator. Both proceedings before the arbitrator and the Labour Court were therefore a nullity at law.”

By citing a non-legal persona, there was no second appellant (defendant) in the Magistrates Court, and, since liability for the second appellant was being sought vicariously, the proceedings a quo, at least against the second appellant, were a nullity.

Locus Standi re: Legal Status of Litigants, Voluntary or Un-incorporated Associations & the Principle of Legal Persona

By the time the appeal was heard, on 2 February 2015, the respondent had, on 15 January 2015, filed a document headed “CONSENT TO JUDGMENT” wherein he indicated that he was consenting to the order sought in the appeal.

We allowed the appeal in terms of the consent and indicated that for the benefit of the trial magistrate, as well as other judicial officers who may be in the same predicament, we felt constrained to do a judgment write up.

This is it.

This is an appeal from a decision of the Magistrates Court sitting at Victoria Falls. The first appellant was a driver employed by the second appellant. The respondent is a former mayor of the resort town and also a former Member of Parliament.

On 2 October 2011, the first appellant was in Bulawayo driving the second appellant's IVECO vehicle registration number ABS 4838. The respondent averred, that, he telephonically contracted with the first appellant to pull his trailer with tins of paint and other hardware goods from Bulawayo to Victoria Falls for a fee to be paid at destination.

Along the way, so the argument went, the first appellant negligently caused an accident which resulted in damage to some of the respondent's consigned goods. Goods valued at US$2,411=90 were damaged.

In order to bring his claim within the monetary jurisdiction of the Magistrates Court, the respondent abandoned his claim to $411=90 and sued the appellants jointly and severally, one paying the other to be absolved for $2,000,00, interest at the prescribed rate effective from date of issue of summons, and costs of suit.

The second appellant was roped into the suit on the basis of alleged vicarious liability.

Both appellants strenuously denied liability.

The appellants denied, that, the first appellant was negligent and that his negligence caused the accident and that the second appellant was vicariously liable.

They also both denied that the respondent contracted with the first appellant for the carriage of the goods, let alone for a fee, since such was beyond the first appellant's mandate.

They averred, that, the respondent used his political muscle and forced the first appellant to pull his trailer at no cost thereby taking the risk; for the second appellant is not a licenced carrier, not insured, and not authorized to carry goods.

In her judgment, in which she found for the respondent, the trial magistrate, in a somewhat Wednesday decision, reasoned, in pertinent part, thus:

“Concerning the issue of negligence that was not expressly been (sic) proven however there are references to same (sic) type of negligence being there. In terms of how the accident occurred in addition to the realization of it (sic). However, to my mind, even if some negligence had been there. It doesn't then allow that the liability falls away.

Since vicarious liability covers even negligent actions. Mungofa v Muderede and Others 2003.

Defence counsel was dwelling on the fact, that, the contract was flawed. What has come out is that there was an agreement for delivery of goods after which payment would be made. So that was the verbal contract.

In this instance the first defendant started (sic) that as drivers they regularly carry goods for passengers on the agreement that the people would pay later. This was an arrangement he said the manager knew about. He added that after receiving payment he would take the money to the company office. So in saying this first defendant is saying he had a verbal contract with plaintiff.

A director at Chihwa tours testified saying he did not know goods were being carried without passengers.

Now, in coming up with a judgment. One has (sic) to look at the purpose of the doctrine of various (sic) liability Gwalinga v Jaredzo 2001 which includes that members of the public. Be protected from activities does (sic) by employees. Furthermore the employer is in a far better position to compensate the injured party than the employee. Looking at the purposes one has to apply it (sic) to this case. That Chihwa tours is better able to compensate customers for losses than the driver.

I now go into the operation of the doctrine in relation to this case which is 2 pronged. First that the employee is a servant not an independent contractor. In this instance the first defendant was a servant not an independent contract (sic). Since he is a driver who is subject to the employers control and direction. Secondly was he acting within the scope of his duties? His duties include driving the company vehicle to ferry passengers and their goods to their destination. Whether there was a deviation from duty Nott v ZANU PF 1983.

This is what he was doing on that day. When he carried passengers for Chihwa tours to Victoria Falls. Using the company's vehicle. So at his reason (sic) for travelling to Victoria Falls was for work. To further clarify if he was acting in the course of his employment. One has to ask if first defendant was on a frolic of his own. During proceedings no one alleged that this trip was of accused (sic) own making. It was agreed he was sent on a trip for work. So I find that he was within the course of his employment.

Whether he exercised his duties well or not as to the satisfaction of his employer is something else. But for the purposes of this case. The second part of the 2 fold doctrine of the operation of this doctrine has been satisfied. So I find that defendant carried goods for plaintiff. During his duty as an employee whilst acting in the course of his employment as envisaged in Bande v Boregone 2003.

Concerning the qualification (sic) of plaintiff's loss plaintiff is claiming for all drivers and plaintiff's employee (sic) as defence counsel rightly points out agree that some tins of paint that were recovered (sic). Which were at least 10 in number. So there is a need for plaintiff compensation to be lessened in that respect.

So I award judgment for the plaintiff less ten tins of paint of 5 litre (sic) which first defendant and plaintiff's witness approximated were recovered. Each party to bear its own costs.”

Before delving into the gist of the legal issues that emanate from the facts and the judgment, I must utter some strictures regarding the several grammatical and punctuation errors exitant in the portion of the judgment quoted above. This explains why I was constrained to quote it in extenso.

It is not known if these errors should be ascribed to the trial magistrate or the typist, or both, but, the bottom line is that the trial magistrate should shoulder the blame for obvious reasons - it is her judgment.

It is sad to remark, that, in fact, this is her style of judgment writing as gleaned from appeals and reviews emanating from her one-person station.

Now, to the pith of the appeal and the law.

The following legal issues emanate from the court a quo's judgment:

1. Propriety of citing the second appellant.

2. Vicarious liability of the second appellant.

3. Claim founded on lex aquilia but liability founded on contract.

4. The relief that was awarded.

I would deal with the above issues seriatim.

1. PROPRIETY OF CITING THE SECOND APPELLANT

This issue is a point of law which a party is allowed to raise at any time, even on appeal, for the first time: Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S).

The appellants were correct to raise the point for the first time on appeal.

Second appellant was cited as Chihwa Tours.

The trial magistrate never bothered to strive to ascertain what entity this was but was content with the description in the particulars of claim that it was a “transport company” yet it is an un-incorporated entity operated by one Jackson Mukahanana.

Legally speaking, no company can have such a name.

The result of this vis-à-vis the second appellant is that the proceedings were instituted against a non-existing legal persona.

In The Zimbabwe Bata Shoe Company Limited v Bata Shoe Company Middle Management SC30-12 the following appears:

“The appellant has taken the point, that, although the Bata Shoe Company Middle Management is cited as the respondent, it is not a legal persona at law, with the capacity to sue or be sued. Therefore, there is no respondent before this court. Similarly there was no respondent before the Labour Court, or a claimant before the arbitrator….,.

In light of the recent decision of this court, in CT Bolts (Pvt) Ltd v Workers Committee SC16-12, this court is of the unanimous view that the respondent is not a legal persona. Consequently, there is no respondent before this court. Neither was there a respondent before the Labour Court nor a claimant before the arbitrator. Both proceedings before the arbitrator and the Labour Court were therefore a nullity at law.”

By citing a non-legal persona, there was no second appellant (defendant) in the Magistrates Court, and, since liability for the second appellant was being sought vicariously, the proceedings a quo, at least against the second appellant, were a nullity.

Pleadings re: Nullity of Proceedings or Acts, Peremptory Provisions & the Doctrines of Strict and Substantial Compliance

By the time the appeal was heard, on 2 February 2015, the respondent had, on 15 January 2015, filed a document headed “CONSENT TO JUDGMENT” wherein he indicated that he was consenting to the order sought in the appeal.

We allowed the appeal in terms of the consent and indicated that for the benefit of the trial magistrate, as well as other judicial officers who may be in the same predicament, we felt constrained to do a judgment write up.

This is it.

This is an appeal from a decision of the Magistrates Court sitting at Victoria Falls. The first appellant was a driver employed by the second appellant. The respondent is a former mayor of the resort town and also a former Member of Parliament.

On 2 October 2011, the first appellant was in Bulawayo driving the second appellant's IVECO vehicle registration number ABS 4838. The respondent averred, that, he telephonically contracted with the first appellant to pull his trailer with tins of paint and other hardware goods from Bulawayo to Victoria Falls for a fee to be paid at destination.

Along the way, so the argument went, the first appellant negligently caused an accident which resulted in damage to some of the respondent's consigned goods. Goods valued at US$2,411=90 were damaged.

In order to bring his claim within the monetary jurisdiction of the Magistrates Court, the respondent abandoned his claim to $411=90 and sued the appellants jointly and severally, one paying the other to be absolved for $2,000,00, interest at the prescribed rate effective from date of issue of summons, and costs of suit.

The second appellant was roped into the suit on the basis of alleged vicarious liability.

Both appellants strenuously denied liability.

The appellants denied, that, the first appellant was negligent and that his negligence caused the accident and that the second appellant was vicariously liable.

They also both denied that the respondent contracted with the first appellant for the carriage of the goods, let alone for a fee, since such was beyond the first appellant's mandate.

They averred, that, the respondent used his political muscle and forced the first appellant to pull his trailer at no cost thereby taking the risk; for the second appellant is not a licenced carrier, not insured, and not authorized to carry goods.

In her judgment, in which she found for the respondent, the trial magistrate, in a somewhat Wednesday decision, reasoned, in pertinent part, thus:

“Concerning the issue of negligence that was not expressly been (sic) proven however there are references to same (sic) type of negligence being there. In terms of how the accident occurred in addition to the realization of it (sic). However, to my mind, even if some negligence had been there. It doesn't then allow that the liability falls away.

Since vicarious liability covers even negligent actions. Mungofa v Muderede and Others 2003.

Defence counsel was dwelling on the fact, that, the contract was flawed. What has come out is that there was an agreement for delivery of goods after which payment would be made. So that was the verbal contract.

In this instance the first defendant started (sic) that as drivers they regularly carry goods for passengers on the agreement that the people would pay later. This was an arrangement he said the manager knew about. He added that after receiving payment he would take the money to the company office. So in saying this first defendant is saying he had a verbal contract with plaintiff.

A director at Chihwa tours testified saying he did not know goods were being carried without passengers.

Now, in coming up with a judgment. One has (sic) to look at the purpose of the doctrine of various (sic) liability Gwalinga v Jaredzo 2001 which includes that members of the public. Be protected from activities does (sic) by employees. Furthermore the employer is in a far better position to compensate the injured party than the employee. Looking at the purposes one has to apply it (sic) to this case. That Chihwa tours is better able to compensate customers for losses than the driver.

I now go into the operation of the doctrine in relation to this case which is 2 pronged. First that the employee is a servant not an independent contractor. In this instance the first defendant was a servant not an independent contract (sic). Since he is a driver who is subject to the employers control and direction. Secondly was he acting within the scope of his duties? His duties include driving the company vehicle to ferry passengers and their goods to their destination. Whether there was a deviation from duty Nott v ZANU PF 1983.

This is what he was doing on that day. When he carried passengers for Chihwa tours to Victoria Falls. Using the company's vehicle. So at his reason (sic) for travelling to Victoria Falls was for work. To further clarify if he was acting in the course of his employment. One has to ask if first defendant was on a frolic of his own. During proceedings no one alleged that this trip was of accused (sic) own making. It was agreed he was sent on a trip for work. So I find that he was within the course of his employment.

Whether he exercised his duties well or not as to the satisfaction of his employer is something else. But for the purposes of this case. The second part of the 2 fold doctrine of the operation of this doctrine has been satisfied. So I find that defendant carried goods for plaintiff. During his duty as an employee whilst acting in the course of his employment as envisaged in Bande v Boregone 2003.

Concerning the qualification (sic) of plaintiff's loss plaintiff is claiming for all drivers and plaintiff's employee (sic) as defence counsel rightly points out agree that some tins of paint that were recovered (sic). Which were at least 10 in number. So there is a need for plaintiff compensation to be lessened in that respect.

So I award judgment for the plaintiff less ten tins of paint of 5 litre (sic) which first defendant and plaintiff's witness approximated were recovered. Each party to bear its own costs.”

Before delving into the gist of the legal issues that emanate from the facts and the judgment, I must utter some strictures regarding the several grammatical and punctuation errors exitant in the portion of the judgment quoted above. This explains why I was constrained to quote it in extenso.

It is not known if these errors should be ascribed to the trial magistrate or the typist, or both, but, the bottom line is that the trial magistrate should shoulder the blame for obvious reasons - it is her judgment.

It is sad to remark, that, in fact, this is her style of judgment writing as gleaned from appeals and reviews emanating from her one-person station.

Now, to the pith of the appeal and the law.

The following legal issues emanate from the court a quo's judgment:

1. Propriety of citing the second appellant.

2. Vicarious liability of the second appellant.

3. Claim founded on lex aquilia but liability founded on contract.

4. The relief that was awarded.

I would deal with the above issues seriatim.

1. PROPRIETY OF CITING THE SECOND APPELLANT

This issue is a point of law which a party is allowed to raise at any time, even on appeal, for the first time: Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S).

The appellants were correct to raise the point for the first time on appeal.

Second appellant was cited as Chihwa Tours.

The trial magistrate never bothered to strive to ascertain what entity this was but was content with the description in the particulars of claim that it was a “transport company” yet it is an un-incorporated entity operated by one Jackson Mukahanana.

Legally speaking, no company can have such a name.

The result of this vis-à-vis the second appellant is that the proceedings were instituted against a non-existing legal persona.

In The Zimbabwe Bata Shoe Company Limited v Bata Shoe Company Middle Management SC30-12 the following appears:

“The appellant has taken the point, that, although the Bata Shoe Company Middle Management is cited as the respondent, it is not a legal persona at law, with the capacity to sue or be sued. Therefore, there is no respondent before this court. Similarly there was no respondent before the Labour Court, or a claimant before the arbitrator….,.

In light of the recent decision of this court, in CT Bolts (Pvt) Ltd v Workers Committee SC16-12, this court is of the unanimous view that the respondent is not a legal persona. Consequently, there is no respondent before this court. Neither was there a respondent before the Labour Court nor a claimant before the arbitrator. Both proceedings before the arbitrator and the Labour Court were therefore a nullity at law.”

By citing a non-legal persona, there was no second appellant (defendant) in the Magistrates Court, and, since liability for the second appellant was being sought vicariously, the proceedings a quo, at least against the second appellant, were a nullity.

Negligence or Dolus re: Liability iro Vicarious Liability

By the time the appeal was heard, on 2 February 2015, the respondent had, on 15 January 2015, filed a document headed “CONSENT TO JUDGMENT” wherein he indicated that he was consenting to the order sought in the appeal.

We allowed the appeal in terms of the consent and indicated that for the benefit of the trial magistrate, as well as other judicial officers who may be in the same predicament, we felt constrained to do a judgment write up.

This is it.

This is an appeal from a decision of the Magistrates Court sitting at Victoria Falls. The first appellant was a driver employed by the second appellant. The respondent is a former mayor of the resort town and also a former Member of Parliament.

On 2 October 2011, the first appellant was in Bulawayo driving the second appellant's IVECO vehicle registration number ABS 4838. The respondent averred, that, he telephonically contracted with the first appellant to pull his trailer with tins of paint and other hardware goods from Bulawayo to Victoria Falls for a fee to be paid at destination.

Along the way, so the argument went, the first appellant negligently caused an accident which resulted in damage to some of the respondent's consigned goods. Goods valued at US$2,411=90 were damaged.

In order to bring his claim within the monetary jurisdiction of the Magistrates Court, the respondent abandoned his claim to $411=90 and sued the appellants jointly and severally, one paying the other to be absolved for $2,000,00, interest at the prescribed rate effective from date of issue of summons, and costs of suit.

The second appellant was roped into the suit on the basis of alleged vicarious liability.

Both appellants strenuously denied liability.

The appellants denied, that, the first appellant was negligent and that his negligence caused the accident and that the second appellant was vicariously liable.

They also both denied that the respondent contracted with the first appellant for the carriage of the goods, let alone for a fee, since such was beyond the first appellant's mandate.

They averred, that, the respondent used his political muscle and forced the first appellant to pull his trailer at no cost thereby taking the risk; for the second appellant is not a licenced carrier, not insured, and not authorized to carry goods.

In her judgment, in which she found for the respondent, the trial magistrate, in a somewhat Wednesday decision, reasoned, in pertinent part, thus:

“Concerning the issue of negligence that was not expressly been (sic) proven however there are references to same (sic) type of negligence being there. In terms of how the accident occurred in addition to the realization of it (sic). However, to my mind, even if some negligence had been there. It doesn't then allow that the liability falls away.

Since vicarious liability covers even negligent actions. Mungofa v Muderede and Others 2003.

Defence counsel was dwelling on the fact, that, the contract was flawed. What has come out is that there was an agreement for delivery of goods after which payment would be made. So that was the verbal contract.

In this instance the first defendant started (sic) that as drivers they regularly carry goods for passengers on the agreement that the people would pay later. This was an arrangement he said the manager knew about. He added that after receiving payment he would take the money to the company office. So in saying this first defendant is saying he had a verbal contract with plaintiff.

A director at Chihwa tours testified saying he did not know goods were being carried without passengers.

Now, in coming up with a judgment. One has (sic) to look at the purpose of the doctrine of various (sic) liability Gwalinga v Jaredzo 2001 which includes that members of the public. Be protected from activities does (sic) by employees. Furthermore the employer is in a far better position to compensate the injured party than the employee. Looking at the purposes one has to apply it (sic) to this case. That Chihwa tours is better able to compensate customers for losses than the driver.

I now go into the operation of the doctrine in relation to this case which is 2 pronged. First that the employee is a servant not an independent contractor. In this instance the first defendant was a servant not an independent contract (sic). Since he is a driver who is subject to the employers control and direction. Secondly was he acting within the scope of his duties? His duties include driving the company vehicle to ferry passengers and their goods to their destination. Whether there was a deviation from duty Nott v ZANU PF 1983.

This is what he was doing on that day. When he carried passengers for Chihwa tours to Victoria Falls. Using the company's vehicle. So at his reason (sic) for travelling to Victoria Falls was for work. To further clarify if he was acting in the course of his employment. One has to ask if first defendant was on a frolic of his own. During proceedings no one alleged that this trip was of accused (sic) own making. It was agreed he was sent on a trip for work. So I find that he was within the course of his employment.

Whether he exercised his duties well or not as to the satisfaction of his employer is something else. But for the purposes of this case. The second part of the 2 fold doctrine of the operation of this doctrine has been satisfied. So I find that defendant carried goods for plaintiff. During his duty as an employee whilst acting in the course of his employment as envisaged in Bande v Boregone 2003.

Concerning the qualification (sic) of plaintiff's loss plaintiff is claiming for all drivers and plaintiff's employee (sic) as defence counsel rightly points out agree that some tins of paint that were recovered (sic). Which were at least 10 in number. So there is a need for plaintiff compensation to be lessened in that respect.

So I award judgment for the plaintiff less ten tins of paint of 5 litre (sic) which first defendant and plaintiff's witness approximated were recovered. Each party to bear its own costs.”

Before delving into the gist of the legal issues that emanate from the facts and the judgment, I must utter some strictures regarding the several grammatical and punctuation errors exitant in the portion of the judgment quoted above. This explains why I was constrained to quote it in extenso.

It is not known if these errors should be ascribed to the trial magistrate or the typist, or both, but, the bottom line is that the trial magistrate should shoulder the blame for obvious reasons - it is her judgment.

It is sad to remark, that, in fact, this is her style of judgment writing as gleaned from appeals and reviews emanating from her one-person station.

Now, to the pith of the appeal and the law.

The following legal issues emanate from the court a quo's judgment:

1. Propriety of citing the second appellant.

2. Vicarious liability of the second appellant.

3. Claim founded on lex aquilia but liability founded on contract.

4. The relief that was awarded.

I would deal with the above issues seriatim.

1. PROPRIETY OF CITING THE SECOND APPELLANT

This issue is a point of law which a party is allowed to raise at any time, even on appeal, for the first time: Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S).

The appellants were correct to raise the point for the first time on appeal.

Second appellant was cited as Chihwa Tours.

The trial magistrate never bothered to strive to ascertain what entity this was but was content with the description in the particulars of claim that it was a “transport company” yet it is an un-incorporated entity operated by one Jackson Mukahanana.

Legally speaking, no company can have such a name.

The result of this vis-à-vis the second appellant is that the proceedings were instituted against a non-existing legal persona.

In The Zimbabwe Bata Shoe Company Limited v Bata Shoe Company Middle Management SC30-12 the following appears:

“The appellant has taken the point, that, although the Bata Shoe Company Middle Management is cited as the respondent, it is not a legal persona at law, with the capacity to sue or be sued. Therefore, there is no respondent before this court. Similarly there was no respondent before the Labour Court, or a claimant before the arbitrator….,.

In light of the recent decision of this court, in CT Bolts (Pvt) Ltd v Workers Committee SC16-12, this court is of the unanimous view that the respondent is not a legal persona. Consequently, there is no respondent before this court. Neither was there a respondent before the Labour Court nor a claimant before the arbitrator. Both proceedings before the arbitrator and the Labour Court were therefore a nullity at law.”

By citing a non-legal persona, there was no second appellant (defendant) in the Magistrates Court, and, since liability for the second appellant was being sought vicariously, the proceedings a quo, at least against the second appellant, were a nullity.

2. VICARIOUS LIABILITY OF SECOND APPELLANT

This issue is interwoven with the preceding issue in 1 above.

There could not have been vicarious liability against a non-existent party.

Vicarious liability is a doctrine of English Law, imported and accepted into the Roman-Dutch Law, which imposes liability on employers for the wrongdoings committed by their employees during the course and scope of their employment.

In casu, it is common cause, that, the first appellant was an employee, at the relevant time, of Jackson Mukahanana, and his employment brief was to drive tour passengers and their goods to stipulated places - and not pull trailers of non-passengers.

The court a quo correctly found, that, the first appellant was an employee, but, wrongly found who the employer was.

The second misdirection was the finding that the first appellant was acting within the course and scope of his employment when he pulled the respondent's trailer.

The trip from Bulawayo to Victoria Falls may well have been embarked upon in the course of his employ, but, the pulling of the respondent's trailer, laden with the goods, was certainly not within the scope of work of the first appellant's employment.

So, even if the respondent had succeeded in establishing that the second appellant was a legal persona and employer of the first appellant, and that the latter had been negligent, it was still going to be difficult, if not impossible, for the respondent to scale this insurmountable hurdle relating to non-scope of employment which can inferentially be equated to the first appellant going on a frolic of his own.

Air, Land, Sea Carriage and Commercial Storage

By the time the appeal was heard, on 2 February 2015, the respondent had, on 15 January 2015, filed a document headed “CONSENT TO JUDGMENT” wherein he indicated that he was consenting to the order sought in the appeal.

We allowed the appeal in terms of the consent and indicated that for the benefit of the trial magistrate, as well as other judicial officers who may be in the same predicament, we felt constrained to do a judgment write up.

This is it.

This is an appeal from a decision of the Magistrates Court sitting at Victoria Falls. The first appellant was a driver employed by the second appellant. The respondent is a former mayor of the resort town and also a former Member of Parliament.

On 2 October 2011, the first appellant was in Bulawayo driving the second appellant's IVECO vehicle registration number ABS 4838. The respondent averred, that, he telephonically contracted with the first appellant to pull his trailer with tins of paint and other hardware goods from Bulawayo to Victoria Falls for a fee to be paid at destination.

Along the way, so the argument went, the first appellant negligently caused an accident which resulted in damage to some of the respondent's consigned goods. Goods valued at US$2,411=90 were damaged.

In order to bring his claim within the monetary jurisdiction of the Magistrates Court, the respondent abandoned his claim to $411=90 and sued the appellants jointly and severally, one paying the other to be absolved for $2,000,00, interest at the prescribed rate effective from date of issue of summons, and costs of suit.

The second appellant was roped into the suit on the basis of alleged vicarious liability.

Both appellants strenuously denied liability.

The appellants denied, that, the first appellant was negligent and that his negligence caused the accident and that the second appellant was vicariously liable.

They also both denied that the respondent contracted with the first appellant for the carriage of the goods, let alone for a fee, since such was beyond the first appellant's mandate.

They averred, that, the respondent used his political muscle and forced the first appellant to pull his trailer at no cost thereby taking the risk; for the second appellant is not a licenced carrier, not insured, and not authorized to carry goods.

In her judgment, in which she found for the respondent, the trial magistrate, in a somewhat Wednesday decision, reasoned, in pertinent part, thus:

“Concerning the issue of negligence that was not expressly been (sic) proven however there are references to same (sic) type of negligence being there. In terms of how the accident occurred in addition to the realization of it (sic). However, to my mind, even if some negligence had been there. It doesn't then allow that the liability falls away.

Since vicarious liability covers even negligent actions. Mungofa v Muderede and Others 2003.

Defence counsel was dwelling on the fact, that, the contract was flawed. What has come out is that there was an agreement for delivery of goods after which payment would be made. So that was the verbal contract.

In this instance the first defendant started (sic) that as drivers they regularly carry goods for passengers on the agreement that the people would pay later. This was an arrangement he said the manager knew about. He added that after receiving payment he would take the money to the company office. So in saying this first defendant is saying he had a verbal contract with plaintiff.

A director at Chihwa tours testified saying he did not know goods were being carried without passengers.

Now, in coming up with a judgment. One has (sic) to look at the purpose of the doctrine of various (sic) liability Gwalinga v Jaredzo 2001 which includes that members of the public. Be protected from activities does (sic) by employees. Furthermore the employer is in a far better position to compensate the injured party than the employee. Looking at the purposes one has to apply it (sic) to this case. That Chihwa tours is better able to compensate customers for losses than the driver.

I now go into the operation of the doctrine in relation to this case which is 2 pronged. First that the employee is a servant not an independent contractor. In this instance the first defendant was a servant not an independent contract (sic). Since he is a driver who is subject to the employers control and direction. Secondly was he acting within the scope of his duties? His duties include driving the company vehicle to ferry passengers and their goods to their destination. Whether there was a deviation from duty Nott v ZANU PF 1983.

This is what he was doing on that day. When he carried passengers for Chihwa tours to Victoria Falls. Using the company's vehicle. So at his reason (sic) for travelling to Victoria Falls was for work. To further clarify if he was acting in the course of his employment. One has to ask if first defendant was on a frolic of his own. During proceedings no one alleged that this trip was of accused (sic) own making. It was agreed he was sent on a trip for work. So I find that he was within the course of his employment.

Whether he exercised his duties well or not as to the satisfaction of his employer is something else. But for the purposes of this case. The second part of the 2 fold doctrine of the operation of this doctrine has been satisfied. So I find that defendant carried goods for plaintiff. During his duty as an employee whilst acting in the course of his employment as envisaged in Bande v Boregone 2003.

Concerning the qualification (sic) of plaintiff's loss plaintiff is claiming for all drivers and plaintiff's employee (sic) as defence counsel rightly points out agree that some tins of paint that were recovered (sic). Which were at least 10 in number. So there is a need for plaintiff compensation to be lessened in that respect.

So I award judgment for the plaintiff less ten tins of paint of 5 litre (sic) which first defendant and plaintiff's witness approximated were recovered. Each party to bear its own costs.”

Before delving into the gist of the legal issues that emanate from the facts and the judgment, I must utter some strictures regarding the several grammatical and punctuation errors exitant in the portion of the judgment quoted above. This explains why I was constrained to quote it in extenso.

It is not known if these errors should be ascribed to the trial magistrate or the typist, or both, but, the bottom line is that the trial magistrate should shoulder the blame for obvious reasons - it is her judgment.

It is sad to remark, that, in fact, this is her style of judgment writing as gleaned from appeals and reviews emanating from her one-person station.

Now, to the pith of the appeal and the law.

The following legal issues emanate from the court a quo's judgment:

1. Propriety of citing the second appellant.

2. Vicarious liability of the second appellant.

3. Claim founded on lex aquilia but liability founded on contract.

4. The relief that was awarded.

I would deal with the above issues seriatim.

1. PROPRIETY OF CITING THE SECOND APPELLANT

This issue is a point of law which a party is allowed to raise at any time, even on appeal, for the first time: Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S).

The appellants were correct to raise the point for the first time on appeal.

Second appellant was cited as Chihwa Tours.

The trial magistrate never bothered to strive to ascertain what entity this was but was content with the description in the particulars of claim that it was a “transport company” yet it is an un-incorporated entity operated by one Jackson Mukahanana.

Legally speaking, no company can have such a name.

The result of this vis-à-vis the second appellant is that the proceedings were instituted against a non-existing legal persona.

In The Zimbabwe Bata Shoe Company Limited v Bata Shoe Company Middle Management SC30-12 the following appears:

“The appellant has taken the point, that, although the Bata Shoe Company Middle Management is cited as the respondent, it is not a legal persona at law, with the capacity to sue or be sued. Therefore, there is no respondent before this court. Similarly there was no respondent before the Labour Court, or a claimant before the arbitrator….,.

In light of the recent decision of this court, in CT Bolts (Pvt) Ltd v Workers Committee SC16-12, this court is of the unanimous view that the respondent is not a legal persona. Consequently, there is no respondent before this court. Neither was there a respondent before the Labour Court nor a claimant before the arbitrator. Both proceedings before the arbitrator and the Labour Court were therefore a nullity at law.”

By citing a non-legal persona, there was no second appellant (defendant) in the Magistrates Court, and, since liability for the second appellant was being sought vicariously, the proceedings a quo, at least against the second appellant, were a nullity.

2. VICARIOUS LIABILITY OF SECOND APPELLANT

This issue is interwoven with the preceding issue in 1 above.

There could not have been vicarious liability against a non-existent party.

Vicarious liability is a doctrine of English Law, imported and accepted into the Roman-Dutch Law, which imposes liability on employers for the wrongdoings committed by their employees during the course and scope of their employment.

In casu, it is common cause, that, the first appellant was an employee, at the relevant time, of Jackson Mukahanana, and his employment brief was to drive tour passengers and their goods to stipulated places - and not pull trailers of non-passengers.

The court a quo correctly found, that, the first appellant was an employee, but, wrongly found who the employer was.

The second misdirection was the finding that the first appellant was acting within the course and scope of his employment when he pulled the respondent's trailer.

The trip from Bulawayo to Victoria Falls may well have been embarked upon in the course of his employ, but, the pulling of the respondent's trailer, laden with the goods, was certainly not within the scope of work of the first appellant's employment.

So, even if the respondent had succeeded in establishing that the second appellant was a legal persona and employer of the first appellant, and that the latter had been negligent, it was still going to be difficult, if not impossible, for the respondent to scale this insurmountable hurdle relating to non-scope of employment which can inferentially be equated to the first appellant going on a frolic of his own.

Appeal re: Findings of Fact or Exercise of Discretion Made by Lower Court iro Terminated or Complete Proceedings

By the time the appeal was heard, on 2 February 2015, the respondent had, on 15 January 2015, filed a document headed “CONSENT TO JUDGMENT” wherein he indicated that he was consenting to the order sought in the appeal.

We allowed the appeal in terms of the consent and indicated that for the benefit of the trial magistrate, as well as other judicial officers who may be in the same predicament, we felt constrained to do a judgment write up.

This is it.

This is an appeal from a decision of the Magistrates Court sitting at Victoria Falls. The first appellant was a driver employed by the second appellant. The respondent is a former mayor of the resort town and also a former Member of Parliament.

On 2 October 2011, the first appellant was in Bulawayo driving the second appellant's IVECO vehicle registration number ABS 4838. The respondent averred, that, he telephonically contracted with the first appellant to pull his trailer with tins of paint and other hardware goods from Bulawayo to Victoria Falls for a fee to be paid at destination.

Along the way, so the argument went, the first appellant negligently caused an accident which resulted in damage to some of the respondent's consigned goods. Goods valued at US$2,411=90 were damaged.

In order to bring his claim within the monetary jurisdiction of the Magistrates Court, the respondent abandoned his claim to $411=90 and sued the appellants jointly and severally, one paying the other to be absolved for $2,000,00, interest at the prescribed rate effective from date of issue of summons, and costs of suit.

The second appellant was roped into the suit on the basis of alleged vicarious liability.

Both appellants strenuously denied liability.

The appellants denied, that, the first appellant was negligent and that his negligence caused the accident and that the second appellant was vicariously liable.

They also both denied that the respondent contracted with the first appellant for the carriage of the goods, let alone for a fee, since such was beyond the first appellant's mandate.

They averred, that, the respondent used his political muscle and forced the first appellant to pull his trailer at no cost thereby taking the risk; for the second appellant is not a licenced carrier, not insured, and not authorized to carry goods.

In her judgment, in which she found for the respondent, the trial magistrate, in a somewhat Wednesday decision, reasoned, in pertinent part, thus:

“Concerning the issue of negligence that was not expressly been (sic) proven however there are references to same (sic) type of negligence being there. In terms of how the accident occurred in addition to the realization of it (sic). However, to my mind, even if some negligence had been there. It doesn't then allow that the liability falls away.

Since vicarious liability covers even negligent actions. Mungofa v Muderede and Others 2003.

Defence counsel was dwelling on the fact, that, the contract was flawed. What has come out is that there was an agreement for delivery of goods after which payment would be made. So that was the verbal contract.

In this instance the first defendant started (sic) that as drivers they regularly carry goods for passengers on the agreement that the people would pay later. This was an arrangement he said the manager knew about. He added that after receiving payment he would take the money to the company office. So in saying this first defendant is saying he had a verbal contract with plaintiff.

A director at Chihwa tours testified saying he did not know goods were being carried without passengers.

Now, in coming up with a judgment. One has (sic) to look at the purpose of the doctrine of various (sic) liability Gwalinga v Jaredzo 2001 which includes that members of the public. Be protected from activities does (sic) by employees. Furthermore the employer is in a far better position to compensate the injured party than the employee. Looking at the purposes one has to apply it (sic) to this case. That Chihwa tours is better able to compensate customers for losses than the driver.

I now go into the operation of the doctrine in relation to this case which is 2 pronged. First that the employee is a servant not an independent contractor. In this instance the first defendant was a servant not an independent contract (sic). Since he is a driver who is subject to the employers control and direction. Secondly was he acting within the scope of his duties? His duties include driving the company vehicle to ferry passengers and their goods to their destination. Whether there was a deviation from duty Nott v ZANU PF 1983.

This is what he was doing on that day. When he carried passengers for Chihwa tours to Victoria Falls. Using the company's vehicle. So at his reason (sic) for travelling to Victoria Falls was for work. To further clarify if he was acting in the course of his employment. One has to ask if first defendant was on a frolic of his own. During proceedings no one alleged that this trip was of accused (sic) own making. It was agreed he was sent on a trip for work. So I find that he was within the course of his employment.

Whether he exercised his duties well or not as to the satisfaction of his employer is something else. But for the purposes of this case. The second part of the 2 fold doctrine of the operation of this doctrine has been satisfied. So I find that defendant carried goods for plaintiff. During his duty as an employee whilst acting in the course of his employment as envisaged in Bande v Boregone 2003.

Concerning the qualification (sic) of plaintiff's loss plaintiff is claiming for all drivers and plaintiff's employee (sic) as defence counsel rightly points out agree that some tins of paint that were recovered (sic). Which were at least 10 in number. So there is a need for plaintiff compensation to be lessened in that respect.

So I award judgment for the plaintiff less ten tins of paint of 5 litre (sic) which first defendant and plaintiff's witness approximated were recovered. Each party to bear its own costs.”

Before delving into the gist of the legal issues that emanate from the facts and the judgment, I must utter some strictures regarding the several grammatical and punctuation errors exitant in the portion of the judgment quoted above. This explains why I was constrained to quote it in extenso.

It is not known if these errors should be ascribed to the trial magistrate or the typist, or both, but, the bottom line is that the trial magistrate should shoulder the blame for obvious reasons - it is her judgment.

It is sad to remark, that, in fact, this is her style of judgment writing as gleaned from appeals and reviews emanating from her one-person station.

Now, to the pith of the appeal and the law.

The following legal issues emanate from the court a quo's judgment:

1. Propriety of citing the second appellant.

2. Vicarious liability of the second appellant.

3. Claim founded on lex aquilia but liability founded on contract.

4. The relief that was awarded.

I would deal with the above issues seriatim.

1. PROPRIETY OF CITING THE SECOND APPELLANT

This issue is a point of law which a party is allowed to raise at any time, even on appeal, for the first time: Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S).

The appellants were correct to raise the point for the first time on appeal.

Second appellant was cited as Chihwa Tours.

The trial magistrate never bothered to strive to ascertain what entity this was but was content with the description in the particulars of claim that it was a “transport company” yet it is an un-incorporated entity operated by one Jackson Mukahanana.

Legally speaking, no company can have such a name.

The result of this vis-à-vis the second appellant is that the proceedings were instituted against a non-existing legal persona.

In The Zimbabwe Bata Shoe Company Limited v Bata Shoe Company Middle Management SC30-12 the following appears:

“The appellant has taken the point, that, although the Bata Shoe Company Middle Management is cited as the respondent, it is not a legal persona at law, with the capacity to sue or be sued. Therefore, there is no respondent before this court. Similarly there was no respondent before the Labour Court, or a claimant before the arbitrator….,.

In light of the recent decision of this court, in CT Bolts (Pvt) Ltd v Workers Committee SC16-12, this court is of the unanimous view that the respondent is not a legal persona. Consequently, there is no respondent before this court. Neither was there a respondent before the Labour Court nor a claimant before the arbitrator. Both proceedings before the arbitrator and the Labour Court were therefore a nullity at law.”

By citing a non-legal persona, there was no second appellant (defendant) in the Magistrates Court, and, since liability for the second appellant was being sought vicariously, the proceedings a quo, at least against the second appellant, were a nullity.

2. VICARIOUS LIABILITY OF SECOND APPELLANT

This issue is interwoven with the preceding issue in 1 above.

There could not have been vicarious liability against a non-existent party.

Vicarious liability is a doctrine of English Law, imported and accepted into the Roman-Dutch Law, which imposes liability on employers for the wrongdoings committed by their employees during the course and scope of their employment.

In casu, it is common cause, that, the first appellant was an employee, at the relevant time, of Jackson Mukahanana, and his employment brief was to drive tour passengers and their goods to stipulated places - and not pull trailers of non-passengers.

The court a quo correctly found, that, the first appellant was an employee, but, wrongly found who the employer was.

The second misdirection was the finding that the first appellant was acting within the course and scope of his employment when he pulled the respondent's trailer.

The trip from Bulawayo to Victoria Falls may well have been embarked upon in the course of his employ, but, the pulling of the respondent's trailer, laden with the goods, was certainly not within the scope of work of the first appellant's employment.

So, even if the respondent had succeeded in establishing that the second appellant was a legal persona and employer of the first appellant, and that the latter had been negligent, it was still going to be difficult, if not impossible, for the respondent to scale this insurmountable hurdle relating to non-scope of employment which can inferentially be equated to the first appellant going on a frolic of his own.

Verbal or Oral Agreement, Undocumented Transactions and Unsigned Draft Agreements or Informal Contracts

By the time the appeal was heard, on 2 February 2015, the respondent had, on 15 January 2015, filed a document headed “CONSENT TO JUDGMENT” wherein he indicated that he was consenting to the order sought in the appeal.

We allowed the appeal in terms of the consent and indicated that for the benefit of the trial magistrate, as well as other judicial officers who may be in the same predicament, we felt constrained to do a judgment write up.

This is it.

This is an appeal from a decision of the Magistrates Court sitting at Victoria Falls. The first appellant was a driver employed by the second appellant. The respondent is a former mayor of the resort town and also a former Member of Parliament.

On 2 October 2011, the first appellant was in Bulawayo driving the second appellant's IVECO vehicle registration number ABS 4838. The respondent averred, that, he telephonically contracted with the first appellant to pull his trailer with tins of paint and other hardware goods from Bulawayo to Victoria Falls for a fee to be paid at destination.

Along the way, so the argument went, the first appellant negligently caused an accident which resulted in damage to some of the respondent's consigned goods. Goods valued at US$2,411=90 were damaged.

In order to bring his claim within the monetary jurisdiction of the Magistrates Court, the respondent abandoned his claim to $411=90 and sued the appellants jointly and severally, one paying the other to be absolved for $2,000,00, interest at the prescribed rate effective from date of issue of summons, and costs of suit.

The second appellant was roped into the suit on the basis of alleged vicarious liability.

Both appellants strenuously denied liability.

The appellants denied, that, the first appellant was negligent and that his negligence caused the accident and that the second appellant was vicariously liable.

They also both denied that the respondent contracted with the first appellant for the carriage of the goods, let alone for a fee, since such was beyond the first appellant's mandate.

They averred, that, the respondent used his political muscle and forced the first appellant to pull his trailer at no cost thereby taking the risk; for the second appellant is not a licenced carrier, not insured, and not authorized to carry goods.

In her judgment, in which she found for the respondent, the trial magistrate, in a somewhat Wednesday decision, reasoned, in pertinent part, thus:

“Concerning the issue of negligence that was not expressly been (sic) proven however there are references to same (sic) type of negligence being there. In terms of how the accident occurred in addition to the realization of it (sic). However, to my mind, even if some negligence had been there. It doesn't then allow that the liability falls away.

Since vicarious liability covers even negligent actions. Mungofa v Muderede and Others 2003.

Defence counsel was dwelling on the fact, that, the contract was flawed. What has come out is that there was an agreement for delivery of goods after which payment would be made. So that was the verbal contract.

In this instance the first defendant started (sic) that as drivers they regularly carry goods for passengers on the agreement that the people would pay later. This was an arrangement he said the manager knew about. He added that after receiving payment he would take the money to the company office. So in saying this first defendant is saying he had a verbal contract with plaintiff.

A director at Chihwa tours testified saying he did not know goods were being carried without passengers.

Now, in coming up with a judgment. One has (sic) to look at the purpose of the doctrine of various (sic) liability Gwalinga v Jaredzo 2001 which includes that members of the public. Be protected from activities does (sic) by employees. Furthermore the employer is in a far better position to compensate the injured party than the employee. Looking at the purposes one has to apply it (sic) to this case. That Chihwa tours is better able to compensate customers for losses than the driver.

I now go into the operation of the doctrine in relation to this case which is 2 pronged. First that the employee is a servant not an independent contractor. In this instance the first defendant was a servant not an independent contract (sic). Since he is a driver who is subject to the employers control and direction. Secondly was he acting within the scope of his duties? His duties include driving the company vehicle to ferry passengers and their goods to their destination. Whether there was a deviation from duty Nott v ZANU PF 1983.

This is what he was doing on that day. When he carried passengers for Chihwa tours to Victoria Falls. Using the company's vehicle. So at his reason (sic) for travelling to Victoria Falls was for work. To further clarify if he was acting in the course of his employment. One has to ask if first defendant was on a frolic of his own. During proceedings no one alleged that this trip was of accused (sic) own making. It was agreed he was sent on a trip for work. So I find that he was within the course of his employment.

Whether he exercised his duties well or not as to the satisfaction of his employer is something else. But for the purposes of this case. The second part of the 2 fold doctrine of the operation of this doctrine has been satisfied. So I find that defendant carried goods for plaintiff. During his duty as an employee whilst acting in the course of his employment as envisaged in Bande v Boregone 2003.

Concerning the qualification (sic) of plaintiff's loss plaintiff is claiming for all drivers and plaintiff's employee (sic) as defence counsel rightly points out agree that some tins of paint that were recovered (sic). Which were at least 10 in number. So there is a need for plaintiff compensation to be lessened in that respect.

So I award judgment for the plaintiff less ten tins of paint of 5 litre (sic) which first defendant and plaintiff's witness approximated were recovered. Each party to bear its own costs.”

Before delving into the gist of the legal issues that emanate from the facts and the judgment, I must utter some strictures regarding the several grammatical and punctuation errors exitant in the portion of the judgment quoted above. This explains why I was constrained to quote it in extenso.

It is not known if these errors should be ascribed to the trial magistrate or the typist, or both, but, the bottom line is that the trial magistrate should shoulder the blame for obvious reasons - it is her judgment.

It is sad to remark, that, in fact, this is her style of judgment writing as gleaned from appeals and reviews emanating from her one-person station.

Now, to the pith of the appeal and the law.

The following legal issues emanate from the court a quo's judgment:

1. Propriety of citing the second appellant.

2. Vicarious liability of the second appellant.

3. Claim founded on lex aquilia but liability founded on contract.

4. The relief that was awarded.

I would deal with the above issues seriatim.

1. PROPRIETY OF CITING THE SECOND APPELLANT

This issue is a point of law which a party is allowed to raise at any time, even on appeal, for the first time: Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S).

The appellants were correct to raise the point for the first time on appeal.

Second appellant was cited as Chihwa Tours.

The trial magistrate never bothered to strive to ascertain what entity this was but was content with the description in the particulars of claim that it was a “transport company” yet it is an un-incorporated entity operated by one Jackson Mukahanana.

Legally speaking, no company can have such a name.

The result of this vis-à-vis the second appellant is that the proceedings were instituted against a non-existing legal persona.

In The Zimbabwe Bata Shoe Company Limited v Bata Shoe Company Middle Management SC30-12 the following appears:

“The appellant has taken the point, that, although the Bata Shoe Company Middle Management is cited as the respondent, it is not a legal persona at law, with the capacity to sue or be sued. Therefore, there is no respondent before this court. Similarly there was no respondent before the Labour Court, or a claimant before the arbitrator….,.

In light of the recent decision of this court, in CT Bolts (Pvt) Ltd v Workers Committee SC16-12, this court is of the unanimous view that the respondent is not a legal persona. Consequently, there is no respondent before this court. Neither was there a respondent before the Labour Court nor a claimant before the arbitrator. Both proceedings before the arbitrator and the Labour Court were therefore a nullity at law.”

By citing a non-legal persona, there was no second appellant (defendant) in the Magistrates Court, and, since liability for the second appellant was being sought vicariously, the proceedings a quo, at least against the second appellant, were a nullity.

2. VICARIOUS LIABILITY OF SECOND APPELLANT

This issue is interwoven with the preceding issue in 1 above.

There could not have been vicarious liability against a non-existent party.

Vicarious liability is a doctrine of English Law, imported and accepted into the Roman-Dutch Law, which imposes liability on employers for the wrongdoings committed by their employees during the course and scope of their employment.

In casu, it is common cause, that, the first appellant was an employee, at the relevant time, of Jackson Mukahanana, and his employment brief was to drive tour passengers and their goods to stipulated places - and not pull trailers of non-passengers.

The court a quo correctly found, that, the first appellant was an employee, but, wrongly found who the employer was.

The second misdirection was the finding that the first appellant was acting within the course and scope of his employment when he pulled the respondent's trailer.

The trip from Bulawayo to Victoria Falls may well have been embarked upon in the course of his employ, but, the pulling of the respondent's trailer, laden with the goods, was certainly not within the scope of work of the first appellant's employment.

So, even if the respondent had succeeded in establishing that the second appellant was a legal persona and employer of the first appellant, and that the latter had been negligent, it was still going to be difficult, if not impossible, for the respondent to scale this insurmountable hurdle relating to non-scope of employment which can inferentially be equated to the first appellant going on a frolic of his own.

Consensus Ad Idem re: Approach iro Privity of Contract ito Inter-Related Contracts and Privity Inter Se or Tertia Pars

By the time the appeal was heard, on 2 February 2015, the respondent had, on 15 January 2015, filed a document headed “CONSENT TO JUDGMENT” wherein he indicated that he was consenting to the order sought in the appeal.

We allowed the appeal in terms of the consent and indicated that for the benefit of the trial magistrate, as well as other judicial officers who may be in the same predicament, we felt constrained to do a judgment write up.

This is it.

This is an appeal from a decision of the Magistrates Court sitting at Victoria Falls. The first appellant was a driver employed by the second appellant. The respondent is a former mayor of the resort town and also a former Member of Parliament.

On 2 October 2011, the first appellant was in Bulawayo driving the second appellant's IVECO vehicle registration number ABS 4838. The respondent averred, that, he telephonically contracted with the first appellant to pull his trailer with tins of paint and other hardware goods from Bulawayo to Victoria Falls for a fee to be paid at destination.

Along the way, so the argument went, the first appellant negligently caused an accident which resulted in damage to some of the respondent's consigned goods. Goods valued at US$2,411=90 were damaged.

In order to bring his claim within the monetary jurisdiction of the Magistrates Court, the respondent abandoned his claim to $411=90 and sued the appellants jointly and severally, one paying the other to be absolved for $2,000,00, interest at the prescribed rate effective from date of issue of summons, and costs of suit.

The second appellant was roped into the suit on the basis of alleged vicarious liability.

Both appellants strenuously denied liability.

The appellants denied, that, the first appellant was negligent and that his negligence caused the accident and that the second appellant was vicariously liable.

They also both denied that the respondent contracted with the first appellant for the carriage of the goods, let alone for a fee, since such was beyond the first appellant's mandate.

They averred, that, the respondent used his political muscle and forced the first appellant to pull his trailer at no cost thereby taking the risk; for the second appellant is not a licenced carrier, not insured, and not authorized to carry goods.

In her judgment, in which she found for the respondent, the trial magistrate, in a somewhat Wednesday decision, reasoned, in pertinent part, thus:

“Concerning the issue of negligence that was not expressly been (sic) proven however there are references to same (sic) type of negligence being there. In terms of how the accident occurred in addition to the realization of it (sic). However, to my mind, even if some negligence had been there. It doesn't then allow that the liability falls away.

Since vicarious liability covers even negligent actions. Mungofa v Muderede and Others 2003.

Defence counsel was dwelling on the fact, that, the contract was flawed. What has come out is that there was an agreement for delivery of goods after which payment would be made. So that was the verbal contract.

In this instance the first defendant started (sic) that as drivers they regularly carry goods for passengers on the agreement that the people would pay later. This was an arrangement he said the manager knew about. He added that after receiving payment he would take the money to the company office. So in saying this first defendant is saying he had a verbal contract with plaintiff.

A director at Chihwa tours testified saying he did not know goods were being carried without passengers.

Now, in coming up with a judgment. One has (sic) to look at the purpose of the doctrine of various (sic) liability Gwalinga v Jaredzo 2001 which includes that members of the public. Be protected from activities does (sic) by employees. Furthermore the employer is in a far better position to compensate the injured party than the employee. Looking at the purposes one has to apply it (sic) to this case. That Chihwa tours is better able to compensate customers for losses than the driver.

I now go into the operation of the doctrine in relation to this case which is 2 pronged. First that the employee is a servant not an independent contractor. In this instance the first defendant was a servant not an independent contract (sic). Since he is a driver who is subject to the employers control and direction. Secondly was he acting within the scope of his duties? His duties include driving the company vehicle to ferry passengers and their goods to their destination. Whether there was a deviation from duty Nott v ZANU PF 1983.

This is what he was doing on that day. When he carried passengers for Chihwa tours to Victoria Falls. Using the company's vehicle. So at his reason (sic) for travelling to Victoria Falls was for work. To further clarify if he was acting in the course of his employment. One has to ask if first defendant was on a frolic of his own. During proceedings no one alleged that this trip was of accused (sic) own making. It was agreed he was sent on a trip for work. So I find that he was within the course of his employment.

Whether he exercised his duties well or not as to the satisfaction of his employer is something else. But for the purposes of this case. The second part of the 2 fold doctrine of the operation of this doctrine has been satisfied. So I find that defendant carried goods for plaintiff. During his duty as an employee whilst acting in the course of his employment as envisaged in Bande v Boregone 2003.

Concerning the qualification (sic) of plaintiff's loss plaintiff is claiming for all drivers and plaintiff's employee (sic) as defence counsel rightly points out agree that some tins of paint that were recovered (sic). Which were at least 10 in number. So there is a need for plaintiff compensation to be lessened in that respect.

So I award judgment for the plaintiff less ten tins of paint of 5 litre (sic) which first defendant and plaintiff's witness approximated were recovered. Each party to bear its own costs.”

Before delving into the gist of the legal issues that emanate from the facts and the judgment, I must utter some strictures regarding the several grammatical and punctuation errors exitant in the portion of the judgment quoted above. This explains why I was constrained to quote it in extenso.

It is not known if these errors should be ascribed to the trial magistrate or the typist, or both, but, the bottom line is that the trial magistrate should shoulder the blame for obvious reasons - it is her judgment.

It is sad to remark, that, in fact, this is her style of judgment writing as gleaned from appeals and reviews emanating from her one-person station.

Now, to the pith of the appeal and the law.

The following legal issues emanate from the court a quo's judgment:

1. Propriety of citing the second appellant.

2. Vicarious liability of the second appellant.

3. Claim founded on lex aquilia but liability founded on contract.

4. The relief that was awarded.

I would deal with the above issues seriatim.

1. PROPRIETY OF CITING THE SECOND APPELLANT

This issue is a point of law which a party is allowed to raise at any time, even on appeal, for the first time: Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S).

The appellants were correct to raise the point for the first time on appeal.

Second appellant was cited as Chihwa Tours.

The trial magistrate never bothered to strive to ascertain what entity this was but was content with the description in the particulars of claim that it was a “transport company” yet it is an un-incorporated entity operated by one Jackson Mukahanana.

Legally speaking, no company can have such a name.

The result of this vis-à-vis the second appellant is that the proceedings were instituted against a non-existing legal persona.

In The Zimbabwe Bata Shoe Company Limited v Bata Shoe Company Middle Management SC30-12 the following appears:

“The appellant has taken the point, that, although the Bata Shoe Company Middle Management is cited as the respondent, it is not a legal persona at law, with the capacity to sue or be sued. Therefore, there is no respondent before this court. Similarly there was no respondent before the Labour Court, or a claimant before the arbitrator….,.

In light of the recent decision of this court, in CT Bolts (Pvt) Ltd v Workers Committee SC16-12, this court is of the unanimous view that the respondent is not a legal persona. Consequently, there is no respondent before this court. Neither was there a respondent before the Labour Court nor a claimant before the arbitrator. Both proceedings before the arbitrator and the Labour Court were therefore a nullity at law.”

By citing a non-legal persona, there was no second appellant (defendant) in the Magistrates Court, and, since liability for the second appellant was being sought vicariously, the proceedings a quo, at least against the second appellant, were a nullity.

2. VICARIOUS LIABILITY OF SECOND APPELLANT

This issue is interwoven with the preceding issue in 1 above.

There could not have been vicarious liability against a non-existent party.

Vicarious liability is a doctrine of English Law, imported and accepted into the Roman-Dutch Law, which imposes liability on employers for the wrongdoings committed by their employees during the course and scope of their employment.

In casu, it is common cause, that, the first appellant was an employee, at the relevant time, of Jackson Mukahanana, and his employment brief was to drive tour passengers and their goods to stipulated places - and not pull trailers of non-passengers.

The court a quo correctly found, that, the first appellant was an employee, but, wrongly found who the employer was.

The second misdirection was the finding that the first appellant was acting within the course and scope of his employment when he pulled the respondent's trailer.

The trip from Bulawayo to Victoria Falls may well have been embarked upon in the course of his employ, but, the pulling of the respondent's trailer, laden with the goods, was certainly not within the scope of work of the first appellant's employment.

So, even if the respondent had succeeded in establishing that the second appellant was a legal persona and employer of the first appellant, and that the latter had been negligent, it was still going to be difficult, if not impossible, for the respondent to scale this insurmountable hurdle relating to non-scope of employment which can inferentially be equated to the first appellant going on a frolic of his own.

Negligence or Dolus re: Liability iro Voluntary Assumption of Risk

By the time the appeal was heard, on 2 February 2015, the respondent had, on 15 January 2015, filed a document headed “CONSENT TO JUDGMENT” wherein he indicated that he was consenting to the order sought in the appeal.

We allowed the appeal in terms of the consent and indicated that for the benefit of the trial magistrate, as well as other judicial officers who may be in the same predicament, we felt constrained to do a judgment write up.

This is it.

This is an appeal from a decision of the Magistrates Court sitting at Victoria Falls. The first appellant was a driver employed by the second appellant. The respondent is a former mayor of the resort town and also a former Member of Parliament.

On 2 October 2011, the first appellant was in Bulawayo driving the second appellant's IVECO vehicle registration number ABS 4838. The respondent averred, that, he telephonically contracted with the first appellant to pull his trailer with tins of paint and other hardware goods from Bulawayo to Victoria Falls for a fee to be paid at destination.

Along the way, so the argument went, the first appellant negligently caused an accident which resulted in damage to some of the respondent's consigned goods. Goods valued at US$2,411=90 were damaged.

In order to bring his claim within the monetary jurisdiction of the Magistrates Court, the respondent abandoned his claim to $411=90 and sued the appellants jointly and severally, one paying the other to be absolved for $2,000,00, interest at the prescribed rate effective from date of issue of summons, and costs of suit.

The second appellant was roped into the suit on the basis of alleged vicarious liability.

Both appellants strenuously denied liability.

The appellants denied, that, the first appellant was negligent and that his negligence caused the accident and that the second appellant was vicariously liable.

They also both denied that the respondent contracted with the first appellant for the carriage of the goods, let alone for a fee, since such was beyond the first appellant's mandate.

They averred, that, the respondent used his political muscle and forced the first appellant to pull his trailer at no cost thereby taking the risk; for the second appellant is not a licenced carrier, not insured, and not authorized to carry goods.

In her judgment, in which she found for the respondent, the trial magistrate, in a somewhat Wednesday decision, reasoned, in pertinent part, thus:

“Concerning the issue of negligence that was not expressly been (sic) proven however there are references to same (sic) type of negligence being there. In terms of how the accident occurred in addition to the realization of it (sic). However, to my mind, even if some negligence had been there. It doesn't then allow that the liability falls away.

Since vicarious liability covers even negligent actions. Mungofa v Muderede and Others 2003.

Defence counsel was dwelling on the fact, that, the contract was flawed. What has come out is that there was an agreement for delivery of goods after which payment would be made. So that was the verbal contract.

In this instance the first defendant started (sic) that as drivers they regularly carry goods for passengers on the agreement that the people would pay later. This was an arrangement he said the manager knew about. He added that after receiving payment he would take the money to the company office. So in saying this first defendant is saying he had a verbal contract with plaintiff.

A director at Chihwa tours testified saying he did not know goods were being carried without passengers.

Now, in coming up with a judgment. One has (sic) to look at the purpose of the doctrine of various (sic) liability Gwalinga v Jaredzo 2001 which includes that members of the public. Be protected from activities does (sic) by employees. Furthermore the employer is in a far better position to compensate the injured party than the employee. Looking at the purposes one has to apply it (sic) to this case. That Chihwa tours is better able to compensate customers for losses than the driver.

I now go into the operation of the doctrine in relation to this case which is 2 pronged. First that the employee is a servant not an independent contractor. In this instance the first defendant was a servant not an independent contract (sic). Since he is a driver who is subject to the employers control and direction. Secondly was he acting within the scope of his duties? His duties include driving the company vehicle to ferry passengers and their goods to their destination. Whether there was a deviation from duty Nott v ZANU PF 1983.

This is what he was doing on that day. When he carried passengers for Chihwa tours to Victoria Falls. Using the company's vehicle. So at his reason (sic) for travelling to Victoria Falls was for work. To further clarify if he was acting in the course of his employment. One has to ask if first defendant was on a frolic of his own. During proceedings no one alleged that this trip was of accused (sic) own making. It was agreed he was sent on a trip for work. So I find that he was within the course of his employment.

Whether he exercised his duties well or not as to the satisfaction of his employer is something else. But for the purposes of this case. The second part of the 2 fold doctrine of the operation of this doctrine has been satisfied. So I find that defendant carried goods for plaintiff. During his duty as an employee whilst acting in the course of his employment as envisaged in Bande v Boregone 2003.

Concerning the qualification (sic) of plaintiff's loss plaintiff is claiming for all drivers and plaintiff's employee (sic) as defence counsel rightly points out agree that some tins of paint that were recovered (sic). Which were at least 10 in number. So there is a need for plaintiff compensation to be lessened in that respect.

So I award judgment for the plaintiff less ten tins of paint of 5 litre (sic) which first defendant and plaintiff's witness approximated were recovered. Each party to bear its own costs.”

Before delving into the gist of the legal issues that emanate from the facts and the judgment, I must utter some strictures regarding the several grammatical and punctuation errors exitant in the portion of the judgment quoted above. This explains why I was constrained to quote it in extenso.

It is not known if these errors should be ascribed to the trial magistrate or the typist, or both, but, the bottom line is that the trial magistrate should shoulder the blame for obvious reasons - it is her judgment.

It is sad to remark, that, in fact, this is her style of judgment writing as gleaned from appeals and reviews emanating from her one-person station.

Now, to the pith of the appeal and the law.

The following legal issues emanate from the court a quo's judgment:

1. Propriety of citing the second appellant.

2. Vicarious liability of the second appellant.

3. Claim founded on lex aquilia but liability founded on contract.

4. The relief that was awarded.

I would deal with the above issues seriatim.

1. PROPRIETY OF CITING THE SECOND APPELLANT

This issue is a point of law which a party is allowed to raise at any time, even on appeal, for the first time: Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S).

The appellants were correct to raise the point for the first time on appeal.

Second appellant was cited as Chihwa Tours.

The trial magistrate never bothered to strive to ascertain what entity this was but was content with the description in the particulars of claim that it was a “transport company” yet it is an un-incorporated entity operated by one Jackson Mukahanana.

Legally speaking, no company can have such a name.

The result of this vis-à-vis the second appellant is that the proceedings were instituted against a non-existing legal persona.

In The Zimbabwe Bata Shoe Company Limited v Bata Shoe Company Middle Management SC30-12 the following appears:

“The appellant has taken the point, that, although the Bata Shoe Company Middle Management is cited as the respondent, it is not a legal persona at law, with the capacity to sue or be sued. Therefore, there is no respondent before this court. Similarly there was no respondent before the Labour Court, or a claimant before the arbitrator….,.

In light of the recent decision of this court, in CT Bolts (Pvt) Ltd v Workers Committee SC16-12, this court is of the unanimous view that the respondent is not a legal persona. Consequently, there is no respondent before this court. Neither was there a respondent before the Labour Court nor a claimant before the arbitrator. Both proceedings before the arbitrator and the Labour Court were therefore a nullity at law.”

By citing a non-legal persona, there was no second appellant (defendant) in the Magistrates Court, and, since liability for the second appellant was being sought vicariously, the proceedings a quo, at least against the second appellant, were a nullity.

2. VICARIOUS LIABILITY OF SECOND APPELLANT

This issue is interwoven with the preceding issue in 1 above.

There could not have been vicarious liability against a non-existent party.

Vicarious liability is a doctrine of English Law, imported and accepted into the Roman-Dutch Law, which imposes liability on employers for the wrongdoings committed by their employees during the course and scope of their employment.

In casu, it is common cause, that, the first appellant was an employee, at the relevant time, of Jackson Mukahanana, and his employment brief was to drive tour passengers and their goods to stipulated places - and not pull trailers of non-passengers.

The court a quo correctly found, that, the first appellant was an employee, but, wrongly found who the employer was.

The second misdirection was the finding that the first appellant was acting within the course and scope of his employment when he pulled the respondent's trailer.

The trip from Bulawayo to Victoria Falls may well have been embarked upon in the course of his employ, but, the pulling of the respondent's trailer, laden with the goods, was certainly not within the scope of work of the first appellant's employment.

So, even if the respondent had succeeded in establishing that the second appellant was a legal persona and employer of the first appellant, and that the latter had been negligent, it was still going to be difficult, if not impossible, for the respondent to scale this insurmountable hurdle relating to non-scope of employment which can inferentially be equated to the first appellant going on a frolic of his own.

Negligence or Dolus re: Approach and the Lex Aquilia or Aquilian Actions

By the time the appeal was heard, on 2 February 2015, the respondent had, on 15 January 2015, filed a document headed “CONSENT TO JUDGMENT” wherein he indicated that he was consenting to the order sought in the appeal.

We allowed the appeal in terms of the consent and indicated that for the benefit of the trial magistrate, as well as other judicial officers who may be in the same predicament, we felt constrained to do a judgment write up.

This is it.

This is an appeal from a decision of the Magistrates Court sitting at Victoria Falls. The first appellant was a driver employed by the second appellant. The respondent is a former mayor of the resort town and also a former Member of Parliament.

On 2 October 2011, the first appellant was in Bulawayo driving the second appellant's IVECO vehicle registration number ABS 4838. The respondent averred, that, he telephonically contracted with the first appellant to pull his trailer with tins of paint and other hardware goods from Bulawayo to Victoria Falls for a fee to be paid at destination.

Along the way, so the argument went, the first appellant negligently caused an accident which resulted in damage to some of the respondent's consigned goods. Goods valued at US$2,411=90 were damaged.

In order to bring his claim within the monetary jurisdiction of the Magistrates Court, the respondent abandoned his claim to $411=90 and sued the appellants jointly and severally, one paying the other to be absolved for $2,000,00, interest at the prescribed rate effective from date of issue of summons, and costs of suit.

The second appellant was roped into the suit on the basis of alleged vicarious liability.

Both appellants strenuously denied liability.

The appellants denied, that, the first appellant was negligent and that his negligence caused the accident and that the second appellant was vicariously liable.

They also both denied that the respondent contracted with the first appellant for the carriage of the goods, let alone for a fee, since such was beyond the first appellant's mandate.

They averred, that, the respondent used his political muscle and forced the first appellant to pull his trailer at no cost thereby taking the risk; for the second appellant is not a licenced carrier, not insured, and not authorized to carry goods.

In her judgment, in which she found for the respondent, the trial magistrate, in a somewhat Wednesday decision, reasoned, in pertinent part, thus:

“Concerning the issue of negligence that was not expressly been (sic) proven however there are references to same (sic) type of negligence being there. In terms of how the accident occurred in addition to the realization of it (sic). However, to my mind, even if some negligence had been there. It doesn't then allow that the liability falls away.

Since vicarious liability covers even negligent actions. Mungofa v Muderede and Others 2003.

Defence counsel was dwelling on the fact, that, the contract was flawed. What has come out is that there was an agreement for delivery of goods after which payment would be made. So that was the verbal contract.

In this instance the first defendant started (sic) that as drivers they regularly carry goods for passengers on the agreement that the people would pay later. This was an arrangement he said the manager knew about. He added that after receiving payment he would take the money to the company office. So in saying this first defendant is saying he had a verbal contract with plaintiff.

A director at Chihwa tours testified saying he did not know goods were being carried without passengers.

Now, in coming up with a judgment. One has (sic) to look at the purpose of the doctrine of various (sic) liability Gwalinga v Jaredzo 2001 which includes that members of the public. Be protected from activities does (sic) by employees. Furthermore the employer is in a far better position to compensate the injured party than the employee. Looking at the purposes one has to apply it (sic) to this case. That Chihwa tours is better able to compensate customers for losses than the driver.

I now go into the operation of the doctrine in relation to this case which is 2 pronged. First that the employee is a servant not an independent contractor. In this instance the first defendant was a servant not an independent contract (sic). Since he is a driver who is subject to the employers control and direction. Secondly was he acting within the scope of his duties? His duties include driving the company vehicle to ferry passengers and their goods to their destination. Whether there was a deviation from duty Nott v ZANU PF 1983.

This is what he was doing on that day. When he carried passengers for Chihwa tours to Victoria Falls. Using the company's vehicle. So at his reason (sic) for travelling to Victoria Falls was for work. To further clarify if he was acting in the course of his employment. One has to ask if first defendant was on a frolic of his own. During proceedings no one alleged that this trip was of accused (sic) own making. It was agreed he was sent on a trip for work. So I find that he was within the course of his employment.

Whether he exercised his duties well or not as to the satisfaction of his employer is something else. But for the purposes of this case. The second part of the 2 fold doctrine of the operation of this doctrine has been satisfied. So I find that defendant carried goods for plaintiff. During his duty as an employee whilst acting in the course of his employment as envisaged in Bande v Boregone 2003.

Concerning the qualification (sic) of plaintiff's loss plaintiff is claiming for all drivers and plaintiff's employee (sic) as defence counsel rightly points out agree that some tins of paint that were recovered (sic). Which were at least 10 in number. So there is a need for plaintiff compensation to be lessened in that respect.

So I award judgment for the plaintiff less ten tins of paint of 5 litre (sic) which first defendant and plaintiff's witness approximated were recovered. Each party to bear its own costs.”

Before delving into the gist of the legal issues that emanate from the facts and the judgment, I must utter some strictures regarding the several grammatical and punctuation errors exitant in the portion of the judgment quoted above. This explains why I was constrained to quote it in extenso.

It is not known if these errors should be ascribed to the trial magistrate or the typist, or both, but, the bottom line is that the trial magistrate should shoulder the blame for obvious reasons - it is her judgment.

It is sad to remark, that, in fact, this is her style of judgment writing as gleaned from appeals and reviews emanating from her one-person station.

Now, to the pith of the appeal and the law.

The following legal issues emanate from the court a quo's judgment:

1. Propriety of citing the second appellant.

2. Vicarious liability of the second appellant.

3. Claim founded on lex aquilia but liability founded on contract.

4. The relief that was awarded.

I would deal with the above issues seriatim....,.

3. CLAIM FOUNDED ON LEX AQUILIA BUT LIABILITY FOUNDED ON CONTRACT

The respondent sued the appellants in delict based on alleged negligence.

The court a quo correctly found, on the facts, that negligence was not proven.

Instead of simply dismissing the claim on that score, the trial magistrate, from some incomprehensible remote source, replete with Wednesday reasoning, found that the respondent's claim must succeed on the basis of contract.

Who then were the contracting parties?

The respondent could not sue both appellants. He had to choose one, and, if that one were the first appellant, the respondent could not impute duty of care upon the second appellant. If the respondent chose the second appellant, he could not sue the first appellant on account of the maxim qui facit per alium facit per se (he who acts through another does the act himself).

This is a fundamental maxim of the Law of Agency.

There is no evidence that the first appellant (who would be the agent) was authorized by the second appellant (the principal) to contract with the respondent so as to ground invocation of the above maxim.

This legal principle escaped the trial magistrate's mind.

It is difficult to comprehend how a claim purportedly based on negligence by an employee, which negligence was found not proven, would legally metamorphose itself from delictual to contractual and still have the same vicarious liability attaching to a party who neither contracted with the respondent nor authorized the contract.

Jurisdiction re: Monetary, Cause of Action and Domestic Territorial Jurisdiction

By the time the appeal was heard, on 2 February 2015, the respondent had, on 15 January 2015, filed a document headed “CONSENT TO JUDGMENT” wherein he indicated that he was consenting to the order sought in the appeal.

We allowed the appeal in terms of the consent and indicated that for the benefit of the trial magistrate, as well as other judicial officers who may be in the same predicament, we felt constrained to do a judgment write up.

This is it.

This is an appeal from a decision of the Magistrates Court sitting at Victoria Falls. The first appellant was a driver employed by the second appellant. The respondent is a former mayor of the resort town and also a former Member of Parliament.

On 2 October 2011, the first appellant was in Bulawayo driving the second appellant's IVECO vehicle registration number ABS 4838. The respondent averred, that, he telephonically contracted with the first appellant to pull his trailer with tins of paint and other hardware goods from Bulawayo to Victoria Falls for a fee to be paid at destination.

Along the way, so the argument went, the first appellant negligently caused an accident which resulted in damage to some of the respondent's consigned goods. Goods valued at US$2,411=90 were damaged.

In order to bring his claim within the monetary jurisdiction of the Magistrates Court, the respondent abandoned his claim to $411=90 and sued the appellants jointly and severally, one paying the other to be absolved for $2,000,00, interest at the prescribed rate effective from date of issue of summons, and costs of suit.

The second appellant was roped into the suit on the basis of alleged vicarious liability.

Both appellants strenuously denied liability.

The appellants denied, that, the first appellant was negligent and that his negligence caused the accident and that the second appellant was vicariously liable.

They also both denied that the respondent contracted with the first appellant for the carriage of the goods, let alone for a fee, since such was beyond the first appellant's mandate.

They averred, that, the respondent used his political muscle and forced the first appellant to pull his trailer at no cost thereby taking the risk; for the second appellant is not a licenced carrier, not insured, and not authorized to carry goods.

In her judgment, in which she found for the respondent, the trial magistrate, in a somewhat Wednesday decision, reasoned, in pertinent part, thus:

“Concerning the issue of negligence that was not expressly been (sic) proven however there are references to same (sic) type of negligence being there. In terms of how the accident occurred in addition to the realization of it (sic). However, to my mind, even if some negligence had been there. It doesn't then allow that the liability falls away.

Since vicarious liability covers even negligent actions. Mungofa v Muderede and Others 2003.

Defence counsel was dwelling on the fact, that, the contract was flawed. What has come out is that there was an agreement for delivery of goods after which payment would be made. So that was the verbal contract.

In this instance the first defendant started (sic) that as drivers they regularly carry goods for passengers on the agreement that the people would pay later. This was an arrangement he said the manager knew about. He added that after receiving payment he would take the money to the company office. So in saying this first defendant is saying he had a verbal contract with plaintiff.

A director at Chihwa tours testified saying he did not know goods were being carried without passengers.

Now, in coming up with a judgment. One has (sic) to look at the purpose of the doctrine of various (sic) liability Gwalinga v Jaredzo 2001 which includes that members of the public. Be protected from activities does (sic) by employees. Furthermore the employer is in a far better position to compensate the injured party than the employee. Looking at the purposes one has to apply it (sic) to this case. That Chihwa tours is better able to compensate customers for losses than the driver.

I now go into the operation of the doctrine in relation to this case which is 2 pronged. First that the employee is a servant not an independent contractor. In this instance the first defendant was a servant not an independent contract (sic). Since he is a driver who is subject to the employers control and direction. Secondly was he acting within the scope of his duties? His duties include driving the company vehicle to ferry passengers and their goods to their destination. Whether there was a deviation from duty Nott v ZANU PF 1983.

This is what he was doing on that day. When he carried passengers for Chihwa tours to Victoria Falls. Using the company's vehicle. So at his reason (sic) for travelling to Victoria Falls was for work. To further clarify if he was acting in the course of his employment. One has to ask if first defendant was on a frolic of his own. During proceedings no one alleged that this trip was of accused (sic) own making. It was agreed he was sent on a trip for work. So I find that he was within the course of his employment.

Whether he exercised his duties well or not as to the satisfaction of his employer is something else. But for the purposes of this case. The second part of the 2 fold doctrine of the operation of this doctrine has been satisfied. So I find that defendant carried goods for plaintiff. During his duty as an employee whilst acting in the course of his employment as envisaged in Bande v Boregone 2003.

Concerning the qualification (sic) of plaintiff's loss plaintiff is claiming for all drivers and plaintiff's employee (sic) as defence counsel rightly points out agree that some tins of paint that were recovered (sic). Which were at least 10 in number. So there is a need for plaintiff compensation to be lessened in that respect.

So I award judgment for the plaintiff less ten tins of paint of 5 litre (sic) which first defendant and plaintiff's witness approximated were recovered. Each party to bear its own costs.”

Before delving into the gist of the legal issues that emanate from the facts and the judgment, I must utter some strictures regarding the several grammatical and punctuation errors exitant in the portion of the judgment quoted above. This explains why I was constrained to quote it in extenso.

It is not known if these errors should be ascribed to the trial magistrate or the typist, or both, but, the bottom line is that the trial magistrate should shoulder the blame for obvious reasons - it is her judgment.

It is sad to remark, that, in fact, this is her style of judgment writing as gleaned from appeals and reviews emanating from her one-person station.

Now, to the pith of the appeal and the law.

The following legal issues emanate from the court a quo's judgment:

1. Propriety of citing the second appellant.

2. Vicarious liability of the second appellant.

3. Claim founded on lex aquilia but liability founded on contract.

4. The relief that was awarded.

I would deal with the above issues seriatim....,.

3. CLAIM FOUNDED ON LEX AQUILIA BUT LIABILITY FOUNDED ON CONTRACT

The respondent sued the appellants in delict based on alleged negligence.

The court a quo correctly found, on the facts, that negligence was not proven.

Instead of simply dismissing the claim on that score, the trial magistrate, from some incomprehensible remote source, replete with Wednesday reasoning, found that the respondent's claim must succeed on the basis of contract.

Who then were the contracting parties?

The respondent could not sue both appellants. He had to choose one, and, if that one were the first appellant, the respondent could not impute duty of care upon the second appellant. If the respondent chose the second appellant, he could not sue the first appellant on account of the maxim qui facit per alium facit per se (he who acts through another does the act himself).

This is a fundamental maxim of the Law of Agency.

There is no evidence that the first appellant (who would be the agent) was authorized by the second appellant (the principal) to contract with the respondent so as to ground invocation of the above maxim.

This legal principle escaped the trial magistrate's mind.

It is difficult to comprehend how a claim purportedly based on negligence by an employee, which negligence was found not proven, would legally metamorphose itself from delictual to contractual and still have the same vicarious liability attaching to a party who neither contracted with the respondent nor authorized the contract.

Debt re: Contractual and Judgment Debt iro Approach, Proof of Claim, Execution, Revalorization and Civil Imprisonment

By the time the appeal was heard, on 2 February 2015, the respondent had, on 15 January 2015, filed a document headed “CONSENT TO JUDGMENT” wherein he indicated that he was consenting to the order sought in the appeal.

We allowed the appeal in terms of the consent and indicated that for the benefit of the trial magistrate, as well as other judicial officers who may be in the same predicament, we felt constrained to do a judgment write up.

This is it.

This is an appeal from a decision of the Magistrates Court sitting at Victoria Falls. The first appellant was a driver employed by the second appellant. The respondent is a former mayor of the resort town and also a former Member of Parliament.

On 2 October 2011, the first appellant was in Bulawayo driving the second appellant's IVECO vehicle registration number ABS 4838. The respondent averred, that, he telephonically contracted with the first appellant to pull his trailer with tins of paint and other hardware goods from Bulawayo to Victoria Falls for a fee to be paid at destination.

Along the way, so the argument went, the first appellant negligently caused an accident which resulted in damage to some of the respondent's consigned goods. Goods valued at US$2,411=90 were damaged.

In order to bring his claim within the monetary jurisdiction of the Magistrates Court, the respondent abandoned his claim to $411=90 and sued the appellants jointly and severally, one paying the other to be absolved for $2,000,00, interest at the prescribed rate effective from date of issue of summons, and costs of suit.

The second appellant was roped into the suit on the basis of alleged vicarious liability.

Both appellants strenuously denied liability.

The appellants denied, that, the first appellant was negligent and that his negligence caused the accident and that the second appellant was vicariously liable.

They also both denied that the respondent contracted with the first appellant for the carriage of the goods, let alone for a fee, since such was beyond the first appellant's mandate.

They averred, that, the respondent used his political muscle and forced the first appellant to pull his trailer at no cost thereby taking the risk; for the second appellant is not a licenced carrier, not insured, and not authorized to carry goods.

In her judgment, in which she found for the respondent, the trial magistrate, in a somewhat Wednesday decision, reasoned, in pertinent part, thus:

“Concerning the issue of negligence that was not expressly been (sic) proven however there are references to same (sic) type of negligence being there. In terms of how the accident occurred in addition to the realization of it (sic). However, to my mind, even if some negligence had been there. It doesn't then allow that the liability falls away.

Since vicarious liability covers even negligent actions. Mungofa v Muderede and Others 2003.

Defence counsel was dwelling on the fact, that, the contract was flawed. What has come out is that there was an agreement for delivery of goods after which payment would be made. So that was the verbal contract.

In this instance the first defendant started (sic) that as drivers they regularly carry goods for passengers on the agreement that the people would pay later. This was an arrangement he said the manager knew about. He added that after receiving payment he would take the money to the company office. So in saying this first defendant is saying he had a verbal contract with plaintiff.

A director at Chihwa tours testified saying he did not know goods were being carried without passengers.

Now, in coming up with a judgment. One has (sic) to look at the purpose of the doctrine of various (sic) liability Gwalinga v Jaredzo 2001 which includes that members of the public. Be protected from activities does (sic) by employees. Furthermore the employer is in a far better position to compensate the injured party than the employee. Looking at the purposes one has to apply it (sic) to this case. That Chihwa tours is better able to compensate customers for losses than the driver.

I now go into the operation of the doctrine in relation to this case which is 2 pronged. First that the employee is a servant not an independent contractor. In this instance the first defendant was a servant not an independent contract (sic). Since he is a driver who is subject to the employers control and direction. Secondly was he acting within the scope of his duties? His duties include driving the company vehicle to ferry passengers and their goods to their destination. Whether there was a deviation from duty Nott v ZANU PF 1983.

This is what he was doing on that day. When he carried passengers for Chihwa tours to Victoria Falls. Using the company's vehicle. So at his reason (sic) for travelling to Victoria Falls was for work. To further clarify if he was acting in the course of his employment. One has to ask if first defendant was on a frolic of his own. During proceedings no one alleged that this trip was of accused (sic) own making. It was agreed he was sent on a trip for work. So I find that he was within the course of his employment.

Whether he exercised his duties well or not as to the satisfaction of his employer is something else. But for the purposes of this case. The second part of the 2 fold doctrine of the operation of this doctrine has been satisfied. So I find that defendant carried goods for plaintiff. During his duty as an employee whilst acting in the course of his employment as envisaged in Bande v Boregone 2003.

Concerning the qualification (sic) of plaintiff's loss plaintiff is claiming for all drivers and plaintiff's employee (sic) as defence counsel rightly points out agree that some tins of paint that were recovered (sic). Which were at least 10 in number. So there is a need for plaintiff compensation to be lessened in that respect.

So I award judgment for the plaintiff less ten tins of paint of 5 litre (sic) which first defendant and plaintiff's witness approximated were recovered. Each party to bear its own costs.”

Before delving into the gist of the legal issues that emanate from the facts and the judgment, I must utter some strictures regarding the several grammatical and punctuation errors exitant in the portion of the judgment quoted above. This explains why I was constrained to quote it in extenso.

It is not known if these errors should be ascribed to the trial magistrate or the typist, or both, but, the bottom line is that the trial magistrate should shoulder the blame for obvious reasons - it is her judgment.

It is sad to remark, that, in fact, this is her style of judgment writing as gleaned from appeals and reviews emanating from her one-person station.

Now, to the pith of the appeal and the law.

The following legal issues emanate from the court a quo's judgment:

1. Propriety of citing the second appellant.

2. Vicarious liability of the second appellant.

3. Claim founded on lex aquilia but liability founded on contract.

4. The relief that was awarded.

I would deal with the above issues seriatim....,.

3. CLAIM FOUNDED ON LEX AQUILIA BUT LIABILITY FOUNDED ON CONTRACT

The respondent sued the appellants in delict based on alleged negligence.

The court a quo correctly found, on the facts, that negligence was not proven.

Instead of simply dismissing the claim on that score, the trial magistrate, from some incomprehensible remote source, replete with Wednesday reasoning, found that the respondent's claim must succeed on the basis of contract.

Who then were the contracting parties?

The respondent could not sue both appellants. He had to choose one, and, if that one were the first appellant, the respondent could not impute duty of care upon the second appellant. If the respondent chose the second appellant, he could not sue the first appellant on account of the maxim qui facit per alium facit per se (he who acts through another does the act himself).

This is a fundamental maxim of the Law of Agency.

There is no evidence that the first appellant (who would be the agent) was authorized by the second appellant (the principal) to contract with the respondent so as to ground invocation of the above maxim.

This legal principle escaped the trial magistrate's mind.

It is difficult to comprehend how a claim purportedly based on negligence by an employee, which negligence was found not proven, would legally metamorphose itself from delictual to contractual and still have the same vicarious liability attaching to a party who neither contracted with the respondent nor authorized the contract.

Debt re: Joint and Several Liability

By the time the appeal was heard, on 2 February 2015, the respondent had, on 15 January 2015, filed a document headed “CONSENT TO JUDGMENT” wherein he indicated that he was consenting to the order sought in the appeal.

We allowed the appeal in terms of the consent and indicated that for the benefit of the trial magistrate, as well as other judicial officers who may be in the same predicament, we felt constrained to do a judgment write up.

This is it.

This is an appeal from a decision of the Magistrates Court sitting at Victoria Falls. The first appellant was a driver employed by the second appellant. The respondent is a former mayor of the resort town and also a former Member of Parliament.

On 2 October 2011, the first appellant was in Bulawayo driving the second appellant's IVECO vehicle registration number ABS 4838. The respondent averred, that, he telephonically contracted with the first appellant to pull his trailer with tins of paint and other hardware goods from Bulawayo to Victoria Falls for a fee to be paid at destination.

Along the way, so the argument went, the first appellant negligently caused an accident which resulted in damage to some of the respondent's consigned goods. Goods valued at US$2,411=90 were damaged.

In order to bring his claim within the monetary jurisdiction of the Magistrates Court, the respondent abandoned his claim to $411=90 and sued the appellants jointly and severally, one paying the other to be absolved for $2,000,00, interest at the prescribed rate effective from date of issue of summons, and costs of suit.

The second appellant was roped into the suit on the basis of alleged vicarious liability.

Both appellants strenuously denied liability.

The appellants denied, that, the first appellant was negligent and that his negligence caused the accident and that the second appellant was vicariously liable.

They also both denied that the respondent contracted with the first appellant for the carriage of the goods, let alone for a fee, since such was beyond the first appellant's mandate.

They averred, that, the respondent used his political muscle and forced the first appellant to pull his trailer at no cost thereby taking the risk; for the second appellant is not a licenced carrier, not insured, and not authorized to carry goods.

In her judgment, in which she found for the respondent, the trial magistrate, in a somewhat Wednesday decision, reasoned, in pertinent part, thus:

“Concerning the issue of negligence that was not expressly been (sic) proven however there are references to same (sic) type of negligence being there. In terms of how the accident occurred in addition to the realization of it (sic). However, to my mind, even if some negligence had been there. It doesn't then allow that the liability falls away.

Since vicarious liability covers even negligent actions. Mungofa v Muderede and Others 2003.

Defence counsel was dwelling on the fact, that, the contract was flawed. What has come out is that there was an agreement for delivery of goods after which payment would be made. So that was the verbal contract.

In this instance the first defendant started (sic) that as drivers they regularly carry goods for passengers on the agreement that the people would pay later. This was an arrangement he said the manager knew about. He added that after receiving payment he would take the money to the company office. So in saying this first defendant is saying he had a verbal contract with plaintiff.

A director at Chihwa tours testified saying he did not know goods were being carried without passengers.

Now, in coming up with a judgment. One has (sic) to look at the purpose of the doctrine of various (sic) liability Gwalinga v Jaredzo 2001 which includes that members of the public. Be protected from activities does (sic) by employees. Furthermore the employer is in a far better position to compensate the injured party than the employee. Looking at the purposes one has to apply it (sic) to this case. That Chihwa tours is better able to compensate customers for losses than the driver.

I now go into the operation of the doctrine in relation to this case which is 2 pronged. First that the employee is a servant not an independent contractor. In this instance the first defendant was a servant not an independent contract (sic). Since he is a driver who is subject to the employers control and direction. Secondly was he acting within the scope of his duties? His duties include driving the company vehicle to ferry passengers and their goods to their destination. Whether there was a deviation from duty Nott v ZANU PF 1983.

This is what he was doing on that day. When he carried passengers for Chihwa tours to Victoria Falls. Using the company's vehicle. So at his reason (sic) for travelling to Victoria Falls was for work. To further clarify if he was acting in the course of his employment. One has to ask if first defendant was on a frolic of his own. During proceedings no one alleged that this trip was of accused (sic) own making. It was agreed he was sent on a trip for work. So I find that he was within the course of his employment.

Whether he exercised his duties well or not as to the satisfaction of his employer is something else. But for the purposes of this case. The second part of the 2 fold doctrine of the operation of this doctrine has been satisfied. So I find that defendant carried goods for plaintiff. During his duty as an employee whilst acting in the course of his employment as envisaged in Bande v Boregone 2003.

Concerning the qualification (sic) of plaintiff's loss plaintiff is claiming for all drivers and plaintiff's employee (sic) as defence counsel rightly points out agree that some tins of paint that were recovered (sic). Which were at least 10 in number. So there is a need for plaintiff compensation to be lessened in that respect.

So I award judgment for the plaintiff less ten tins of paint of 5 litre (sic) which first defendant and plaintiff's witness approximated were recovered. Each party to bear its own costs.”

Before delving into the gist of the legal issues that emanate from the facts and the judgment, I must utter some strictures regarding the several grammatical and punctuation errors exitant in the portion of the judgment quoted above. This explains why I was constrained to quote it in extenso.

It is not known if these errors should be ascribed to the trial magistrate or the typist, or both, but, the bottom line is that the trial magistrate should shoulder the blame for obvious reasons - it is her judgment.

It is sad to remark, that, in fact, this is her style of judgment writing as gleaned from appeals and reviews emanating from her one-person station.

Now, to the pith of the appeal and the law.

The following legal issues emanate from the court a quo's judgment:

1. Propriety of citing the second appellant.

2. Vicarious liability of the second appellant.

3. Claim founded on lex aquilia but liability founded on contract.

4. The relief that was awarded.

I would deal with the above issues seriatim....,.

3. CLAIM FOUNDED ON LEX AQUILIA BUT LIABILITY FOUNDED ON CONTRACT

The respondent sued the appellants in delict based on alleged negligence.

The court a quo correctly found, on the facts, that negligence was not proven.

Instead of simply dismissing the claim on that score, the trial magistrate, from some incomprehensible remote source, replete with Wednesday reasoning, found that the respondent's claim must succeed on the basis of contract.

Who then were the contracting parties?

The respondent could not sue both appellants. He had to choose one, and, if that one were the first appellant, the respondent could not impute duty of care upon the second appellant. If the respondent chose the second appellant, he could not sue the first appellant on account of the maxim qui facit per alium facit per se (he who acts through another does the act himself).

This is a fundamental maxim of the Law of Agency.

There is no evidence that the first appellant (who would be the agent) was authorized by the second appellant (the principal) to contract with the respondent so as to ground invocation of the above maxim.

This legal principle escaped the trial magistrate's mind.

It is difficult to comprehend how a claim purportedly based on negligence by an employee, which negligence was found not proven, would legally metamorphose itself from delictual to contractual and still have the same vicarious liability attaching to a party who neither contracted with the respondent nor authorized the contract.

Agency Law re: Acting on Behalf of Another iro Agency Relationship, Independent Contractor & Quasi-Mutual Assent Doctrine

By the time the appeal was heard, on 2 February 2015, the respondent had, on 15 January 2015, filed a document headed “CONSENT TO JUDGMENT” wherein he indicated that he was consenting to the order sought in the appeal.

We allowed the appeal in terms of the consent and indicated that for the benefit of the trial magistrate, as well as other judicial officers who may be in the same predicament, we felt constrained to do a judgment write up.

This is it.

This is an appeal from a decision of the Magistrates Court sitting at Victoria Falls. The first appellant was a driver employed by the second appellant. The respondent is a former mayor of the resort town and also a former Member of Parliament.

On 2 October 2011, the first appellant was in Bulawayo driving the second appellant's IVECO vehicle registration number ABS 4838. The respondent averred, that, he telephonically contracted with the first appellant to pull his trailer with tins of paint and other hardware goods from Bulawayo to Victoria Falls for a fee to be paid at destination.

Along the way, so the argument went, the first appellant negligently caused an accident which resulted in damage to some of the respondent's consigned goods. Goods valued at US$2,411=90 were damaged.

In order to bring his claim within the monetary jurisdiction of the Magistrates Court, the respondent abandoned his claim to $411=90 and sued the appellants jointly and severally, one paying the other to be absolved for $2,000,00, interest at the prescribed rate effective from date of issue of summons, and costs of suit.

The second appellant was roped into the suit on the basis of alleged vicarious liability.

Both appellants strenuously denied liability.

The appellants denied, that, the first appellant was negligent and that his negligence caused the accident and that the second appellant was vicariously liable.

They also both denied that the respondent contracted with the first appellant for the carriage of the goods, let alone for a fee, since such was beyond the first appellant's mandate.

They averred, that, the respondent used his political muscle and forced the first appellant to pull his trailer at no cost thereby taking the risk; for the second appellant is not a licenced carrier, not insured, and not authorized to carry goods.

In her judgment, in which she found for the respondent, the trial magistrate, in a somewhat Wednesday decision, reasoned, in pertinent part, thus:

“Concerning the issue of negligence that was not expressly been (sic) proven however there are references to same (sic) type of negligence being there. In terms of how the accident occurred in addition to the realization of it (sic). However, to my mind, even if some negligence had been there. It doesn't then allow that the liability falls away.

Since vicarious liability covers even negligent actions. Mungofa v Muderede and Others 2003.

Defence counsel was dwelling on the fact, that, the contract was flawed. What has come out is that there was an agreement for delivery of goods after which payment would be made. So that was the verbal contract.

In this instance the first defendant started (sic) that as drivers they regularly carry goods for passengers on the agreement that the people would pay later. This was an arrangement he said the manager knew about. He added that after receiving payment he would take the money to the company office. So in saying this first defendant is saying he had a verbal contract with plaintiff.

A director at Chihwa tours testified saying he did not know goods were being carried without passengers.

Now, in coming up with a judgment. One has (sic) to look at the purpose of the doctrine of various (sic) liability Gwalinga v Jaredzo 2001 which includes that members of the public. Be protected from activities does (sic) by employees. Furthermore the employer is in a far better position to compensate the injured party than the employee. Looking at the purposes one has to apply it (sic) to this case. That Chihwa tours is better able to compensate customers for losses than the driver.

I now go into the operation of the doctrine in relation to this case which is 2 pronged. First that the employee is a servant not an independent contractor. In this instance the first defendant was a servant not an independent contract (sic). Since he is a driver who is subject to the employers control and direction. Secondly was he acting within the scope of his duties? His duties include driving the company vehicle to ferry passengers and their goods to their destination. Whether there was a deviation from duty Nott v ZANU PF 1983.

This is what he was doing on that day. When he carried passengers for Chihwa tours to Victoria Falls. Using the company's vehicle. So at his reason (sic) for travelling to Victoria Falls was for work. To further clarify if he was acting in the course of his employment. One has to ask if first defendant was on a frolic of his own. During proceedings no one alleged that this trip was of accused (sic) own making. It was agreed he was sent on a trip for work. So I find that he was within the course of his employment.

Whether he exercised his duties well or not as to the satisfaction of his employer is something else. But for the purposes of this case. The second part of the 2 fold doctrine of the operation of this doctrine has been satisfied. So I find that defendant carried goods for plaintiff. During his duty as an employee whilst acting in the course of his employment as envisaged in Bande v Boregone 2003.

Concerning the qualification (sic) of plaintiff's loss plaintiff is claiming for all drivers and plaintiff's employee (sic) as defence counsel rightly points out agree that some tins of paint that were recovered (sic). Which were at least 10 in number. So there is a need for plaintiff compensation to be lessened in that respect.

So I award judgment for the plaintiff less ten tins of paint of 5 litre (sic) which first defendant and plaintiff's witness approximated were recovered. Each party to bear its own costs.”

Before delving into the gist of the legal issues that emanate from the facts and the judgment, I must utter some strictures regarding the several grammatical and punctuation errors exitant in the portion of the judgment quoted above. This explains why I was constrained to quote it in extenso.

It is not known if these errors should be ascribed to the trial magistrate or the typist, or both, but, the bottom line is that the trial magistrate should shoulder the blame for obvious reasons - it is her judgment.

It is sad to remark, that, in fact, this is her style of judgment writing as gleaned from appeals and reviews emanating from her one-person station.

Now, to the pith of the appeal and the law.

The following legal issues emanate from the court a quo's judgment:

1. Propriety of citing the second appellant.

2. Vicarious liability of the second appellant.

3. Claim founded on lex aquilia but liability founded on contract.

4. The relief that was awarded.

I would deal with the above issues seriatim....,.

3. CLAIM FOUNDED ON LEX AQUILIA BUT LIABILITY FOUNDED ON CONTRACT

The respondent sued the appellants in delict based on alleged negligence.

The court a quo correctly found, on the facts, that negligence was not proven.

Instead of simply dismissing the claim on that score, the trial magistrate, from some incomprehensible remote source, replete with Wednesday reasoning, found that the respondent's claim must succeed on the basis of contract.

Who then were the contracting parties?

The respondent could not sue both appellants. He had to choose one, and, if that one were the first appellant, the respondent could not impute duty of care upon the second appellant. If the respondent chose the second appellant, he could not sue the first appellant on account of the maxim qui facit per alium facit per se (he who acts through another does the act himself).

This is a fundamental maxim of the Law of Agency.

There is no evidence that the first appellant (who would be the agent) was authorized by the second appellant (the principal) to contract with the respondent so as to ground invocation of the above maxim.

This legal principle escaped the trial magistrate's mind.

It is difficult to comprehend how a claim purportedly based on negligence by an employee, which negligence was found not proven, would legally metamorphose itself from delictual to contractual and still have the same vicarious liability attaching to a party who neither contracted with the respondent nor authorized the contract.

Cause of Action and Draft Orders re: Approach, Timing, Framing and Legal Basis for Invoking Jurisdiction of the Court

By the time the appeal was heard, on 2 February 2015, the respondent had, on 15 January 2015, filed a document headed “CONSENT TO JUDGMENT” wherein he indicated that he was consenting to the order sought in the appeal.

We allowed the appeal in terms of the consent and indicated that for the benefit of the trial magistrate, as well as other judicial officers who may be in the same predicament, we felt constrained to do a judgment write up.

This is it.

This is an appeal from a decision of the Magistrates Court sitting at Victoria Falls. The first appellant was a driver employed by the second appellant. The respondent is a former mayor of the resort town and also a former Member of Parliament.

On 2 October 2011, the first appellant was in Bulawayo driving the second appellant's IVECO vehicle registration number ABS 4838. The respondent averred, that, he telephonically contracted with the first appellant to pull his trailer with tins of paint and other hardware goods from Bulawayo to Victoria Falls for a fee to be paid at destination.

Along the way, so the argument went, the first appellant negligently caused an accident which resulted in damage to some of the respondent's consigned goods. Goods valued at US$2,411=90 were damaged.

In order to bring his claim within the monetary jurisdiction of the Magistrates Court, the respondent abandoned his claim to $411=90 and sued the appellants jointly and severally, one paying the other to be absolved for $2,000,00, interest at the prescribed rate effective from date of issue of summons, and costs of suit.

The second appellant was roped into the suit on the basis of alleged vicarious liability.

Both appellants strenuously denied liability.

The appellants denied, that, the first appellant was negligent and that his negligence caused the accident and that the second appellant was vicariously liable.

They also both denied that the respondent contracted with the first appellant for the carriage of the goods, let alone for a fee, since such was beyond the first appellant's mandate.

They averred, that, the respondent used his political muscle and forced the first appellant to pull his trailer at no cost thereby taking the risk; for the second appellant is not a licenced carrier, not insured, and not authorized to carry goods.

In her judgment, in which she found for the respondent, the trial magistrate, in a somewhat Wednesday decision, reasoned, in pertinent part, thus:

“Concerning the issue of negligence that was not expressly been (sic) proven however there are references to same (sic) type of negligence being there. In terms of how the accident occurred in addition to the realization of it (sic). However, to my mind, even if some negligence had been there. It doesn't then allow that the liability falls away.

Since vicarious liability covers even negligent actions. Mungofa v Muderede and Others 2003.

Defence counsel was dwelling on the fact, that, the contract was flawed. What has come out is that there was an agreement for delivery of goods after which payment would be made. So that was the verbal contract.

In this instance the first defendant started (sic) that as drivers they regularly carry goods for passengers on the agreement that the people would pay later. This was an arrangement he said the manager knew about. He added that after receiving payment he would take the money to the company office. So in saying this first defendant is saying he had a verbal contract with plaintiff.

A director at Chihwa tours testified saying he did not know goods were being carried without passengers.

Now, in coming up with a judgment. One has (sic) to look at the purpose of the doctrine of various (sic) liability Gwalinga v Jaredzo 2001 which includes that members of the public. Be protected from activities does (sic) by employees. Furthermore the employer is in a far better position to compensate the injured party than the employee. Looking at the purposes one has to apply it (sic) to this case. That Chihwa tours is better able to compensate customers for losses than the driver.

I now go into the operation of the doctrine in relation to this case which is 2 pronged. First that the employee is a servant not an independent contractor. In this instance the first defendant was a servant not an independent contract (sic). Since he is a driver who is subject to the employers control and direction. Secondly was he acting within the scope of his duties? His duties include driving the company vehicle to ferry passengers and their goods to their destination. Whether there was a deviation from duty Nott v ZANU PF 1983.

This is what he was doing on that day. When he carried passengers for Chihwa tours to Victoria Falls. Using the company's vehicle. So at his reason (sic) for travelling to Victoria Falls was for work. To further clarify if he was acting in the course of his employment. One has to ask if first defendant was on a frolic of his own. During proceedings no one alleged that this trip was of accused (sic) own making. It was agreed he was sent on a trip for work. So I find that he was within the course of his employment.

Whether he exercised his duties well or not as to the satisfaction of his employer is something else. But for the purposes of this case. The second part of the 2 fold doctrine of the operation of this doctrine has been satisfied. So I find that defendant carried goods for plaintiff. During his duty as an employee whilst acting in the course of his employment as envisaged in Bande v Boregone 2003.

Concerning the qualification (sic) of plaintiff's loss plaintiff is claiming for all drivers and plaintiff's employee (sic) as defence counsel rightly points out agree that some tins of paint that were recovered (sic). Which were at least 10 in number. So there is a need for plaintiff compensation to be lessened in that respect.

So I award judgment for the plaintiff less ten tins of paint of 5 litre (sic) which first defendant and plaintiff's witness approximated were recovered. Each party to bear its own costs.”

Before delving into the gist of the legal issues that emanate from the facts and the judgment, I must utter some strictures regarding the several grammatical and punctuation errors exitant in the portion of the judgment quoted above. This explains why I was constrained to quote it in extenso.

It is not known if these errors should be ascribed to the trial magistrate or the typist, or both, but, the bottom line is that the trial magistrate should shoulder the blame for obvious reasons - it is her judgment.

It is sad to remark, that, in fact, this is her style of judgment writing as gleaned from appeals and reviews emanating from her one-person station.

Now, to the pith of the appeal and the law.

The following legal issues emanate from the court a quo's judgment:

1. Propriety of citing the second appellant.

2. Vicarious liability of the second appellant.

3. Claim founded on lex aquilia but liability founded on contract.

4. The relief that was awarded.

I would deal with the above issues seriatim....,.

3. CLAIM FOUNDED ON LEX AQUILIA BUT LIABILITY FOUNDED ON CONTRACT

The respondent sued the appellants in delict based on alleged negligence.

The court a quo correctly found, on the facts, that negligence was not proven.

Instead of simply dismissing the claim on that score, the trial magistrate, from some incomprehensible remote source, replete with Wednesday reasoning, found that the respondent's claim must succeed on the basis of contract.

Who then were the contracting parties?

The respondent could not sue both appellants. He had to choose one, and, if that one were the first appellant, the respondent could not impute duty of care upon the second appellant. If the respondent chose the second appellant, he could not sue the first appellant on account of the maxim qui facit per alium facit per se (he who acts through another does the act himself).

This is a fundamental maxim of the Law of Agency.

There is no evidence that the first appellant (who would be the agent) was authorized by the second appellant (the principal) to contract with the respondent so as to ground invocation of the above maxim.

This legal principle escaped the trial magistrate's mind.

It is difficult to comprehend how a claim purportedly based on negligence by an employee, which negligence was found not proven, would legally metamorphose itself from delictual to contractual and still have the same vicarious liability attaching to a party who neither contracted with the respondent nor authorized the contract.

Damages re: Assessment and Evidence of Damages iro Approach and the Once and For All Rule

By the time the appeal was heard, on 2 February 2015, the respondent had, on 15 January 2015, filed a document headed “CONSENT TO JUDGMENT” wherein he indicated that he was consenting to the order sought in the appeal.

We allowed the appeal in terms of the consent and indicated that for the benefit of the trial magistrate, as well as other judicial officers who may be in the same predicament, we felt constrained to do a judgment write up.

This is it.

This is an appeal from a decision of the Magistrates Court sitting at Victoria Falls. The first appellant was a driver employed by the second appellant. The respondent is a former mayor of the resort town and also a former Member of Parliament.

On 2 October 2011, the first appellant was in Bulawayo driving the second appellant's IVECO vehicle registration number ABS 4838. The respondent averred, that, he telephonically contracted with the first appellant to pull his trailer with tins of paint and other hardware goods from Bulawayo to Victoria Falls for a fee to be paid at destination.

Along the way, so the argument went, the first appellant negligently caused an accident which resulted in damage to some of the respondent's consigned goods. Goods valued at US$2,411=90 were damaged.

In order to bring his claim within the monetary jurisdiction of the Magistrates Court, the respondent abandoned his claim to $411=90 and sued the appellants jointly and severally, one paying the other to be absolved for $2,000,00, interest at the prescribed rate effective from date of issue of summons, and costs of suit.

The second appellant was roped into the suit on the basis of alleged vicarious liability.

Both appellants strenuously denied liability.

The appellants denied, that, the first appellant was negligent and that his negligence caused the accident and that the second appellant was vicariously liable.

They also both denied that the respondent contracted with the first appellant for the carriage of the goods, let alone for a fee, since such was beyond the first appellant's mandate.

They averred, that, the respondent used his political muscle and forced the first appellant to pull his trailer at no cost thereby taking the risk; for the second appellant is not a licenced carrier, not insured, and not authorized to carry goods.

In her judgment, in which she found for the respondent, the trial magistrate, in a somewhat Wednesday decision, reasoned, in pertinent part, thus:

“Concerning the issue of negligence that was not expressly been (sic) proven however there are references to same (sic) type of negligence being there. In terms of how the accident occurred in addition to the realization of it (sic). However, to my mind, even if some negligence had been there. It doesn't then allow that the liability falls away.

Since vicarious liability covers even negligent actions. Mungofa v Muderede and Others 2003.

Defence counsel was dwelling on the fact, that, the contract was flawed. What has come out is that there was an agreement for delivery of goods after which payment would be made. So that was the verbal contract.

In this instance the first defendant started (sic) that as drivers they regularly carry goods for passengers on the agreement that the people would pay later. This was an arrangement he said the manager knew about. He added that after receiving payment he would take the money to the company office. So in saying this first defendant is saying he had a verbal contract with plaintiff.

A director at Chihwa tours testified saying he did not know goods were being carried without passengers.

Now, in coming up with a judgment. One has (sic) to look at the purpose of the doctrine of various (sic) liability Gwalinga v Jaredzo 2001 which includes that members of the public. Be protected from activities does (sic) by employees. Furthermore the employer is in a far better position to compensate the injured party than the employee. Looking at the purposes one has to apply it (sic) to this case. That Chihwa tours is better able to compensate customers for losses than the driver.

I now go into the operation of the doctrine in relation to this case which is 2 pronged. First that the employee is a servant not an independent contractor. In this instance the first defendant was a servant not an independent contract (sic). Since he is a driver who is subject to the employers control and direction. Secondly was he acting within the scope of his duties? His duties include driving the company vehicle to ferry passengers and their goods to their destination. Whether there was a deviation from duty Nott v ZANU PF 1983.

This is what he was doing on that day. When he carried passengers for Chihwa tours to Victoria Falls. Using the company's vehicle. So at his reason (sic) for travelling to Victoria Falls was for work. To further clarify if he was acting in the course of his employment. One has to ask if first defendant was on a frolic of his own. During proceedings no one alleged that this trip was of accused (sic) own making. It was agreed he was sent on a trip for work. So I find that he was within the course of his employment.

Whether he exercised his duties well or not as to the satisfaction of his employer is something else. But for the purposes of this case. The second part of the 2 fold doctrine of the operation of this doctrine has been satisfied. So I find that defendant carried goods for plaintiff. During his duty as an employee whilst acting in the course of his employment as envisaged in Bande v Boregone 2003.

Concerning the qualification (sic) of plaintiff's loss plaintiff is claiming for all drivers and plaintiff's employee (sic) as defence counsel rightly points out agree that some tins of paint that were recovered (sic). Which were at least 10 in number. So there is a need for plaintiff compensation to be lessened in that respect.

So I award judgment for the plaintiff less ten tins of paint of 5 litre (sic) which first defendant and plaintiff's witness approximated were recovered. Each party to bear its own costs.”

Before delving into the gist of the legal issues that emanate from the facts and the judgment, I must utter some strictures regarding the several grammatical and punctuation errors exitant in the portion of the judgment quoted above. This explains why I was constrained to quote it in extenso.

It is not known if these errors should be ascribed to the trial magistrate or the typist, or both, but, the bottom line is that the trial magistrate should shoulder the blame for obvious reasons - it is her judgment.

It is sad to remark, that, in fact, this is her style of judgment writing as gleaned from appeals and reviews emanating from her one-person station.

Now, to the pith of the appeal and the law.

The following legal issues emanate from the court a quo's judgment:

1. Propriety of citing the second appellant.

2. Vicarious liability of the second appellant.

3. Claim founded on lex aquilia but liability founded on contract.

4. The relief that was awarded.

I would deal with the above issues seriatim....,.

4. THE RELIEF THAT WAS AWARDED

This was the most bizarre misdirection on the part of the trial magistrate.

The respondent brought a claim sounding in money in the sum of US$2,000. From whatever legal distance, it could not be missed. Having claimed US$2,000 and being awarded judgment “less 10 tins of paint of 5 liters (sic) which the first defendant and plaintiff's witnesses approximate were recovered” is a meaningless award to say the least.

How should the supposedly successful party execute such a judgment?

If the losing party wishes to satisfy the judgement, how does he/she compute what has to be paid?

The claim was premised on vicarious liability and both employee and employer were found liable. On the wording of the judgment, is liability joint or several or pro rata?

In view of the aforegoing numerous legal flaws, it is little wonder that the appellant appealed against the entire judgment; that the respondent filed a “consent to judgment” a few days prior to the day of reckoning; that we allowed the appeal as per the consent but indicated that a judgment was necessary and would follow for the benefit of the trial magistrate and other judicial officers in the same predicament which apparently cries out loud as a training need.

Damages re: Assessment and Evidence of Damages iro Proof of Claim and Quantification

By the time the appeal was heard, on 2 February 2015, the respondent had, on 15 January 2015, filed a document headed “CONSENT TO JUDGMENT” wherein he indicated that he was consenting to the order sought in the appeal.

We allowed the appeal in terms of the consent and indicated that for the benefit of the trial magistrate, as well as other judicial officers who may be in the same predicament, we felt constrained to do a judgment write up.

This is it.

This is an appeal from a decision of the Magistrates Court sitting at Victoria Falls. The first appellant was a driver employed by the second appellant. The respondent is a former mayor of the resort town and also a former Member of Parliament.

On 2 October 2011, the first appellant was in Bulawayo driving the second appellant's IVECO vehicle registration number ABS 4838. The respondent averred, that, he telephonically contracted with the first appellant to pull his trailer with tins of paint and other hardware goods from Bulawayo to Victoria Falls for a fee to be paid at destination.

Along the way, so the argument went, the first appellant negligently caused an accident which resulted in damage to some of the respondent's consigned goods. Goods valued at US$2,411=90 were damaged.

In order to bring his claim within the monetary jurisdiction of the Magistrates Court, the respondent abandoned his claim to $411=90 and sued the appellants jointly and severally, one paying the other to be absolved for $2,000,00, interest at the prescribed rate effective from date of issue of summons, and costs of suit.

The second appellant was roped into the suit on the basis of alleged vicarious liability.

Both appellants strenuously denied liability.

The appellants denied, that, the first appellant was negligent and that his negligence caused the accident and that the second appellant was vicariously liable.

They also both denied that the respondent contracted with the first appellant for the carriage of the goods, let alone for a fee, since such was beyond the first appellant's mandate.

They averred, that, the respondent used his political muscle and forced the first appellant to pull his trailer at no cost thereby taking the risk; for the second appellant is not a licenced carrier, not insured, and not authorized to carry goods.

In her judgment, in which she found for the respondent, the trial magistrate, in a somewhat Wednesday decision, reasoned, in pertinent part, thus:

“Concerning the issue of negligence that was not expressly been (sic) proven however there are references to same (sic) type of negligence being there. In terms of how the accident occurred in addition to the realization of it (sic). However, to my mind, even if some negligence had been there. It doesn't then allow that the liability falls away.

Since vicarious liability covers even negligent actions. Mungofa v Muderede and Others 2003.

Defence counsel was dwelling on the fact, that, the contract was flawed. What has come out is that there was an agreement for delivery of goods after which payment would be made. So that was the verbal contract.

In this instance the first defendant started (sic) that as drivers they regularly carry goods for passengers on the agreement that the people would pay later. This was an arrangement he said the manager knew about. He added that after receiving payment he would take the money to the company office. So in saying this first defendant is saying he had a verbal contract with plaintiff.

A director at Chihwa tours testified saying he did not know goods were being carried without passengers.

Now, in coming up with a judgment. One has (sic) to look at the purpose of the doctrine of various (sic) liability Gwalinga v Jaredzo 2001 which includes that members of the public. Be protected from activities does (sic) by employees. Furthermore the employer is in a far better position to compensate the injured party than the employee. Looking at the purposes one has to apply it (sic) to this case. That Chihwa tours is better able to compensate customers for losses than the driver.

I now go into the operation of the doctrine in relation to this case which is 2 pronged. First that the employee is a servant not an independent contractor. In this instance the first defendant was a servant not an independent contract (sic). Since he is a driver who is subject to the employers control and direction. Secondly was he acting within the scope of his duties? His duties include driving the company vehicle to ferry passengers and their goods to their destination. Whether there was a deviation from duty Nott v ZANU PF 1983.

This is what he was doing on that day. When he carried passengers for Chihwa tours to Victoria Falls. Using the company's vehicle. So at his reason (sic) for travelling to Victoria Falls was for work. To further clarify if he was acting in the course of his employment. One has to ask if first defendant was on a frolic of his own. During proceedings no one alleged that this trip was of accused (sic) own making. It was agreed he was sent on a trip for work. So I find that he was within the course of his employment.

Whether he exercised his duties well or not as to the satisfaction of his employer is something else. But for the purposes of this case. The second part of the 2 fold doctrine of the operation of this doctrine has been satisfied. So I find that defendant carried goods for plaintiff. During his duty as an employee whilst acting in the course of his employment as envisaged in Bande v Boregone 2003.

Concerning the qualification (sic) of plaintiff's loss plaintiff is claiming for all drivers and plaintiff's employee (sic) as defence counsel rightly points out agree that some tins of paint that were recovered (sic). Which were at least 10 in number. So there is a need for plaintiff compensation to be lessened in that respect.

So I award judgment for the plaintiff less ten tins of paint of 5 litre (sic) which first defendant and plaintiff's witness approximated were recovered. Each party to bear its own costs.”

Before delving into the gist of the legal issues that emanate from the facts and the judgment, I must utter some strictures regarding the several grammatical and punctuation errors exitant in the portion of the judgment quoted above. This explains why I was constrained to quote it in extenso.

It is not known if these errors should be ascribed to the trial magistrate or the typist, or both, but, the bottom line is that the trial magistrate should shoulder the blame for obvious reasons - it is her judgment.

It is sad to remark, that, in fact, this is her style of judgment writing as gleaned from appeals and reviews emanating from her one-person station.

Now, to the pith of the appeal and the law.

The following legal issues emanate from the court a quo's judgment:

1. Propriety of citing the second appellant.

2. Vicarious liability of the second appellant.

3. Claim founded on lex aquilia but liability founded on contract.

4. The relief that was awarded.

I would deal with the above issues seriatim....,.

4. THE RELIEF THAT WAS AWARDED

This was the most bizarre misdirection on the part of the trial magistrate.

The respondent brought a claim sounding in money in the sum of US$2,000. From whatever legal distance, it could not be missed. Having claimed US$2,000 and being awarded judgment “less 10 tins of paint of 5 liters (sic) which the first defendant and plaintiff's witnesses approximate were recovered” is a meaningless award to say the least.

How should the supposedly successful party execute such a judgment?

If the losing party wishes to satisfy the judgement, how does he/she compute what has to be paid?

The claim was premised on vicarious liability and both employee and employer were found liable. On the wording of the judgment, is liability joint or several or pro rata?

In view of the aforegoing numerous legal flaws, it is little wonder that the appellant appealed against the entire judgment; that the respondent filed a “consent to judgment” a few days prior to the day of reckoning; that we allowed the appeal as per the consent but indicated that a judgment was necessary and would follow for the benefit of the trial magistrate and other judicial officers in the same predicament which apparently cries out loud as a training need.

Delictual Damages re: Economic or Monetary Loss iro Property Loss or Damage

By the time the appeal was heard, on 2 February 2015, the respondent had, on 15 January 2015, filed a document headed “CONSENT TO JUDGMENT” wherein he indicated that he was consenting to the order sought in the appeal.

We allowed the appeal in terms of the consent and indicated that for the benefit of the trial magistrate, as well as other judicial officers who may be in the same predicament, we felt constrained to do a judgment write up.

This is it.

This is an appeal from a decision of the Magistrates Court sitting at Victoria Falls. The first appellant was a driver employed by the second appellant. The respondent is a former mayor of the resort town and also a former Member of Parliament.

On 2 October 2011, the first appellant was in Bulawayo driving the second appellant's IVECO vehicle registration number ABS 4838. The respondent averred, that, he telephonically contracted with the first appellant to pull his trailer with tins of paint and other hardware goods from Bulawayo to Victoria Falls for a fee to be paid at destination.

Along the way, so the argument went, the first appellant negligently caused an accident which resulted in damage to some of the respondent's consigned goods. Goods valued at US$2,411=90 were damaged.

In order to bring his claim within the monetary jurisdiction of the Magistrates Court, the respondent abandoned his claim to $411=90 and sued the appellants jointly and severally, one paying the other to be absolved for $2,000,00, interest at the prescribed rate effective from date of issue of summons, and costs of suit.

The second appellant was roped into the suit on the basis of alleged vicarious liability.

Both appellants strenuously denied liability.

The appellants denied, that, the first appellant was negligent and that his negligence caused the accident and that the second appellant was vicariously liable.

They also both denied that the respondent contracted with the first appellant for the carriage of the goods, let alone for a fee, since such was beyond the first appellant's mandate.

They averred, that, the respondent used his political muscle and forced the first appellant to pull his trailer at no cost thereby taking the risk; for the second appellant is not a licenced carrier, not insured, and not authorized to carry goods.

In her judgment, in which she found for the respondent, the trial magistrate, in a somewhat Wednesday decision, reasoned, in pertinent part, thus:

“Concerning the issue of negligence that was not expressly been (sic) proven however there are references to same (sic) type of negligence being there. In terms of how the accident occurred in addition to the realization of it (sic). However, to my mind, even if some negligence had been there. It doesn't then allow that the liability falls away.

Since vicarious liability covers even negligent actions. Mungofa v Muderede and Others 2003.

Defence counsel was dwelling on the fact, that, the contract was flawed. What has come out is that there was an agreement for delivery of goods after which payment would be made. So that was the verbal contract.

In this instance the first defendant started (sic) that as drivers they regularly carry goods for passengers on the agreement that the people would pay later. This was an arrangement he said the manager knew about. He added that after receiving payment he would take the money to the company office. So in saying this first defendant is saying he had a verbal contract with plaintiff.

A director at Chihwa tours testified saying he did not know goods were being carried without passengers.

Now, in coming up with a judgment. One has (sic) to look at the purpose of the doctrine of various (sic) liability Gwalinga v Jaredzo 2001 which includes that members of the public. Be protected from activities does (sic) by employees. Furthermore the employer is in a far better position to compensate the injured party than the employee. Looking at the purposes one has to apply it (sic) to this case. That Chihwa tours is better able to compensate customers for losses than the driver.

I now go into the operation of the doctrine in relation to this case which is 2 pronged. First that the employee is a servant not an independent contractor. In this instance the first defendant was a servant not an independent contract (sic). Since he is a driver who is subject to the employers control and direction. Secondly was he acting within the scope of his duties? His duties include driving the company vehicle to ferry passengers and their goods to their destination. Whether there was a deviation from duty Nott v ZANU PF 1983.

This is what he was doing on that day. When he carried passengers for Chihwa tours to Victoria Falls. Using the company's vehicle. So at his reason (sic) for travelling to Victoria Falls was for work. To further clarify if he was acting in the course of his employment. One has to ask if first defendant was on a frolic of his own. During proceedings no one alleged that this trip was of accused (sic) own making. It was agreed he was sent on a trip for work. So I find that he was within the course of his employment.

Whether he exercised his duties well or not as to the satisfaction of his employer is something else. But for the purposes of this case. The second part of the 2 fold doctrine of the operation of this doctrine has been satisfied. So I find that defendant carried goods for plaintiff. During his duty as an employee whilst acting in the course of his employment as envisaged in Bande v Boregone 2003.

Concerning the qualification (sic) of plaintiff's loss plaintiff is claiming for all drivers and plaintiff's employee (sic) as defence counsel rightly points out agree that some tins of paint that were recovered (sic). Which were at least 10 in number. So there is a need for plaintiff compensation to be lessened in that respect.

So I award judgment for the plaintiff less ten tins of paint of 5 litre (sic) which first defendant and plaintiff's witness approximated were recovered. Each party to bear its own costs.”

Before delving into the gist of the legal issues that emanate from the facts and the judgment, I must utter some strictures regarding the several grammatical and punctuation errors exitant in the portion of the judgment quoted above. This explains why I was constrained to quote it in extenso.

It is not known if these errors should be ascribed to the trial magistrate or the typist, or both, but, the bottom line is that the trial magistrate should shoulder the blame for obvious reasons - it is her judgment.

It is sad to remark, that, in fact, this is her style of judgment writing as gleaned from appeals and reviews emanating from her one-person station.

Now, to the pith of the appeal and the law.

The following legal issues emanate from the court a quo's judgment:

1. Propriety of citing the second appellant.

2. Vicarious liability of the second appellant.

3. Claim founded on lex aquilia but liability founded on contract.

4. The relief that was awarded.

I would deal with the above issues seriatim....,.

4. THE RELIEF THAT WAS AWARDED

This was the most bizarre misdirection on the part of the trial magistrate.

The respondent brought a claim sounding in money in the sum of US$2,000. From whatever legal distance, it could not be missed. Having claimed US$2,000 and being awarded judgment “less 10 tins of paint of 5 liters (sic) which the first defendant and plaintiff's witnesses approximate were recovered” is a meaningless award to say the least.

How should the supposedly successful party execute such a judgment?

If the losing party wishes to satisfy the judgement, how does he/she compute what has to be paid?

The claim was premised on vicarious liability and both employee and employer were found liable. On the wording of the judgment, is liability joint or several or pro rata?

In view of the aforegoing numerous legal flaws, it is little wonder that the appellant appealed against the entire judgment; that the respondent filed a “consent to judgment” a few days prior to the day of reckoning; that we allowed the appeal as per the consent but indicated that a judgment was necessary and would follow for the benefit of the trial magistrate and other judicial officers in the same predicament which apparently cries out loud as a training need.

Final Orders re: Approach iro Functions, Powers, Obligations, Judicial Misdirections and Effect of Court Orders

By the time the appeal was heard, on 2 February 2015, the respondent had, on 15 January 2015, filed a document headed “CONSENT TO JUDGMENT” wherein he indicated that he was consenting to the order sought in the appeal.

We allowed the appeal in terms of the consent and indicated that for the benefit of the trial magistrate, as well as other judicial officers who may be in the same predicament, we felt constrained to do a judgment write up.

This is it.

This is an appeal from a decision of the Magistrates Court sitting at Victoria Falls. The first appellant was a driver employed by the second appellant. The respondent is a former mayor of the resort town and also a former Member of Parliament.

On 2 October 2011, the first appellant was in Bulawayo driving the second appellant's IVECO vehicle registration number ABS 4838. The respondent averred, that, he telephonically contracted with the first appellant to pull his trailer with tins of paint and other hardware goods from Bulawayo to Victoria Falls for a fee to be paid at destination.

Along the way, so the argument went, the first appellant negligently caused an accident which resulted in damage to some of the respondent's consigned goods. Goods valued at US$2,411=90 were damaged.

In order to bring his claim within the monetary jurisdiction of the Magistrates Court, the respondent abandoned his claim to $411=90 and sued the appellants jointly and severally, one paying the other to be absolved for $2,000,00, interest at the prescribed rate effective from date of issue of summons, and costs of suit.

The second appellant was roped into the suit on the basis of alleged vicarious liability.

Both appellants strenuously denied liability.

The appellants denied, that, the first appellant was negligent and that his negligence caused the accident and that the second appellant was vicariously liable.

They also both denied that the respondent contracted with the first appellant for the carriage of the goods, let alone for a fee, since such was beyond the first appellant's mandate.

They averred, that, the respondent used his political muscle and forced the first appellant to pull his trailer at no cost thereby taking the risk; for the second appellant is not a licenced carrier, not insured, and not authorized to carry goods.

In her judgment, in which she found for the respondent, the trial magistrate, in a somewhat Wednesday decision, reasoned, in pertinent part, thus:

“Concerning the issue of negligence that was not expressly been (sic) proven however there are references to same (sic) type of negligence being there. In terms of how the accident occurred in addition to the realization of it (sic). However, to my mind, even if some negligence had been there. It doesn't then allow that the liability falls away.

Since vicarious liability covers even negligent actions. Mungofa v Muderede and Others 2003.

Defence counsel was dwelling on the fact, that, the contract was flawed. What has come out is that there was an agreement for delivery of goods after which payment would be made. So that was the verbal contract.

In this instance the first defendant started (sic) that as drivers they regularly carry goods for passengers on the agreement that the people would pay later. This was an arrangement he said the manager knew about. He added that after receiving payment he would take the money to the company office. So in saying this first defendant is saying he had a verbal contract with plaintiff.

A director at Chihwa tours testified saying he did not know goods were being carried without passengers.

Now, in coming up with a judgment. One has (sic) to look at the purpose of the doctrine of various (sic) liability Gwalinga v Jaredzo 2001 which includes that members of the public. Be protected from activities does (sic) by employees. Furthermore the employer is in a far better position to compensate the injured party than the employee. Looking at the purposes one has to apply it (sic) to this case. That Chihwa tours is better able to compensate customers for losses than the driver.

I now go into the operation of the doctrine in relation to this case which is 2 pronged. First that the employee is a servant not an independent contractor. In this instance the first defendant was a servant not an independent contract (sic). Since he is a driver who is subject to the employers control and direction. Secondly was he acting within the scope of his duties? His duties include driving the company vehicle to ferry passengers and their goods to their destination. Whether there was a deviation from duty Nott v ZANU PF 1983.

This is what he was doing on that day. When he carried passengers for Chihwa tours to Victoria Falls. Using the company's vehicle. So at his reason (sic) for travelling to Victoria Falls was for work. To further clarify if he was acting in the course of his employment. One has to ask if first defendant was on a frolic of his own. During proceedings no one alleged that this trip was of accused (sic) own making. It was agreed he was sent on a trip for work. So I find that he was within the course of his employment.

Whether he exercised his duties well or not as to the satisfaction of his employer is something else. But for the purposes of this case. The second part of the 2 fold doctrine of the operation of this doctrine has been satisfied. So I find that defendant carried goods for plaintiff. During his duty as an employee whilst acting in the course of his employment as envisaged in Bande v Boregone 2003.

Concerning the qualification (sic) of plaintiff's loss plaintiff is claiming for all drivers and plaintiff's employee (sic) as defence counsel rightly points out agree that some tins of paint that were recovered (sic). Which were at least 10 in number. So there is a need for plaintiff compensation to be lessened in that respect.

So I award judgment for the plaintiff less ten tins of paint of 5 litre (sic) which first defendant and plaintiff's witness approximated were recovered. Each party to bear its own costs.”

Before delving into the gist of the legal issues that emanate from the facts and the judgment, I must utter some strictures regarding the several grammatical and punctuation errors exitant in the portion of the judgment quoted above. This explains why I was constrained to quote it in extenso.

It is not known if these errors should be ascribed to the trial magistrate or the typist, or both, but, the bottom line is that the trial magistrate should shoulder the blame for obvious reasons - it is her judgment.

It is sad to remark, that, in fact, this is her style of judgment writing as gleaned from appeals and reviews emanating from her one-person station.

Now, to the pith of the appeal and the law.

The following legal issues emanate from the court a quo's judgment:

1. Propriety of citing the second appellant.

2. Vicarious liability of the second appellant.

3. Claim founded on lex aquilia but liability founded on contract.

4. The relief that was awarded.

I would deal with the above issues seriatim....,.

3. CLAIM FOUNDED ON LEX AQUILIA BUT LIABILITY FOUNDED ON CONTRACT

The respondent sued the appellants in delict based on alleged negligence.

The court a quo correctly found, on the facts, that negligence was not proven.

Instead of simply dismissing the claim on that score, the trial magistrate, from some incomprehensible remote source, replete with Wednesday reasoning, found that the respondent's claim must succeed on the basis of contract.

Who then were the contracting parties?

The respondent could not sue both appellants. He had to choose one, and, if that one were the first appellant, the respondent could not impute duty of care upon the second appellant. If the respondent chose the second appellant, he could not sue the first appellant on account of the maxim qui facit per alium facit per se (he who acts through another does the act himself).

This is a fundamental maxim of the Law of Agency.

There is no evidence that the first appellant (who would be the agent) was authorized by the second appellant (the principal) to contract with the respondent so as to ground invocation of the above maxim.

This legal principle escaped the trial magistrate's mind.

It is difficult to comprehend how a claim purportedly based on negligence by an employee, which negligence was found not proven, would legally metamorphose itself from delictual to contractual and still have the same vicarious liability attaching to a party who neither contracted with the respondent nor authorized the contract.

4. THE RELIEF THAT WAS AWARDED

This was the most bizarre misdirection on the part of the trial magistrate.

The respondent brought a claim sounding in money in the sum of US$2,000. From whatever legal distance, it could not be missed. Having claimed US$2,000 and being awarded judgment “less 10 tins of paint of 5 liters (sic) which the first defendant and plaintiff's witnesses approximate were recovered” is a meaningless award to say the least.

How should the supposedly successful party execute such a judgment?

If the losing party wishes to satisfy the judgement, how does he/she compute what has to be paid?

The claim was premised on vicarious liability and both employee and employer were found liable. On the wording of the judgment, is liability joint or several or pro rata?

In view of the aforegoing numerous legal flaws, it is little wonder that the appellant appealed against the entire judgment; that the respondent filed a “consent to judgment” a few days prior to the day of reckoning; that we allowed the appeal as per the consent but indicated that a judgment was necessary and would follow for the benefit of the trial magistrate and other judicial officers in the same predicament which apparently cries out loud as a training need.

Negligence or Dolus re: Liability iro Loss Arising from Road Traffic Accident

By the time the appeal was heard, on 2 February 2015, the respondent had, on 15 January 2015, filed a document headed “CONSENT TO JUDGMENT” wherein he indicated that he was consenting to the order sought in the appeal.

We allowed the appeal in terms of the consent and indicated that for the benefit of the trial magistrate, as well as other judicial officers who may be in the same predicament, we felt constrained to do a judgment write up.

This is it.

This is an appeal from a decision of the Magistrates Court sitting at Victoria Falls. The first appellant was a driver employed by the second appellant. The respondent is a former mayor of the resort town and also a former Member of Parliament.

On 2 October 2011, the first appellant was in Bulawayo driving the second appellant's IVECO vehicle registration number ABS 4838. The respondent averred, that, he telephonically contracted with the first appellant to pull his trailer with tins of paint and other hardware goods from Bulawayo to Victoria Falls for a fee to be paid at destination.

Along the way, so the argument went, the first appellant negligently caused an accident which resulted in damage to some of the respondent's consigned goods. Goods valued at US$2,411=90 were damaged.

In order to bring his claim within the monetary jurisdiction of the Magistrates Court, the respondent abandoned his claim to $411=90 and sued the appellants jointly and severally, one paying the other to be absolved for $2,000,00, interest at the prescribed rate effective from date of issue of summons, and costs of suit.

The second appellant was roped into the suit on the basis of alleged vicarious liability.

Both appellants strenuously denied liability.

The appellants denied, that, the first appellant was negligent and that his negligence caused the accident and that the second appellant was vicariously liable.

They also both denied that the respondent contracted with the first appellant for the carriage of the goods, let alone for a fee, since such was beyond the first appellant's mandate.

They averred, that, the respondent used his political muscle and forced the first appellant to pull his trailer at no cost thereby taking the risk; for the second appellant is not a licenced carrier, not insured, and not authorized to carry goods.

In her judgment, in which she found for the respondent, the trial magistrate, in a somewhat Wednesday decision, reasoned, in pertinent part, thus:

“Concerning the issue of negligence that was not expressly been (sic) proven however there are references to same (sic) type of negligence being there. In terms of how the accident occurred in addition to the realization of it (sic). However, to my mind, even if some negligence had been there. It doesn't then allow that the liability falls away.

Since vicarious liability covers even negligent actions. Mungofa v Muderede and Others 2003.

Defence counsel was dwelling on the fact, that, the contract was flawed. What has come out is that there was an agreement for delivery of goods after which payment would be made. So that was the verbal contract.

In this instance the first defendant started (sic) that as drivers they regularly carry goods for passengers on the agreement that the people would pay later. This was an arrangement he said the manager knew about. He added that after receiving payment he would take the money to the company office. So in saying this first defendant is saying he had a verbal contract with plaintiff.

A director at Chihwa tours testified saying he did not know goods were being carried without passengers.

Now, in coming up with a judgment. One has (sic) to look at the purpose of the doctrine of various (sic) liability Gwalinga v Jaredzo 2001 which includes that members of the public. Be protected from activities does (sic) by employees. Furthermore the employer is in a far better position to compensate the injured party than the employee. Looking at the purposes one has to apply it (sic) to this case. That Chihwa tours is better able to compensate customers for losses than the driver.

I now go into the operation of the doctrine in relation to this case which is 2 pronged. First that the employee is a servant not an independent contractor. In this instance the first defendant was a servant not an independent contract (sic). Since he is a driver who is subject to the employers control and direction. Secondly was he acting within the scope of his duties? His duties include driving the company vehicle to ferry passengers and their goods to their destination. Whether there was a deviation from duty Nott v ZANU PF 1983.

This is what he was doing on that day. When he carried passengers for Chihwa tours to Victoria Falls. Using the company's vehicle. So at his reason (sic) for travelling to Victoria Falls was for work. To further clarify if he was acting in the course of his employment. One has to ask if first defendant was on a frolic of his own. During proceedings no one alleged that this trip was of accused (sic) own making. It was agreed he was sent on a trip for work. So I find that he was within the course of his employment.

Whether he exercised his duties well or not as to the satisfaction of his employer is something else. But for the purposes of this case. The second part of the 2 fold doctrine of the operation of this doctrine has been satisfied. So I find that defendant carried goods for plaintiff. During his duty as an employee whilst acting in the course of his employment as envisaged in Bande v Boregone 2003.

Concerning the qualification (sic) of plaintiff's loss plaintiff is claiming for all drivers and plaintiff's employee (sic) as defence counsel rightly points out agree that some tins of paint that were recovered (sic). Which were at least 10 in number. So there is a need for plaintiff compensation to be lessened in that respect.

So I award judgment for the plaintiff less ten tins of paint of 5 litre (sic) which first defendant and plaintiff's witness approximated were recovered. Each party to bear its own costs.”

Before delving into the gist of the legal issues that emanate from the facts and the judgment, I must utter some strictures regarding the several grammatical and punctuation errors exitant in the portion of the judgment quoted above. This explains why I was constrained to quote it in extenso.

It is not known if these errors should be ascribed to the trial magistrate or the typist, or both, but, the bottom line is that the trial magistrate should shoulder the blame for obvious reasons - it is her judgment.

It is sad to remark, that, in fact, this is her style of judgment writing as gleaned from appeals and reviews emanating from her one-person station.

Now, to the pith of the appeal and the law.

The following legal issues emanate from the court a quo's judgment:

1. Propriety of citing the second appellant.

2. Vicarious liability of the second appellant.

3. Claim founded on lex aquilia but liability founded on contract.

4. The relief that was awarded.

I would deal with the above issues seriatim.

1. PROPRIETY OF CITING THE SECOND APPELLANT

This issue is a point of law which a party is allowed to raise at any time, even on appeal, for the first time: Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S).

The appellants were correct to raise the point for the first time on appeal.

Second appellant was cited as Chihwa Tours.

The trial magistrate never bothered to strive to ascertain what entity this was but was content with the description in the particulars of claim that it was a “transport company” yet it is an un-incorporated entity operated by one Jackson Mukahanana.

Legally speaking, no company can have such a name.

The result of this vis-à-vis the second appellant is that the proceedings were instituted against a non-existing legal persona.

In The Zimbabwe Bata Shoe Company Limited v Bata Shoe Company Middle Management SC30-12 the following appears:

“The appellant has taken the point, that, although the Bata Shoe Company Middle Management is cited as the respondent, it is not a legal persona at law, with the capacity to sue or be sued. Therefore, there is no respondent before this court. Similarly there was no respondent before the Labour Court, or a claimant before the arbitrator….,.

In light of the recent decision of this court, in CT Bolts (Pvt) Ltd v Workers Committee SC16-12, this court is of the unanimous view that the respondent is not a legal persona. Consequently, there is no respondent before this court. Neither was there a respondent before the Labour Court nor a claimant before the arbitrator. Both proceedings before the arbitrator and the Labour Court were therefore a nullity at law.”

By citing a non-legal persona, there was no second appellant (defendant) in the Magistrates Court, and, since liability for the second appellant was being sought vicariously, the proceedings a quo, at least against the second appellant, were a nullity.

2. VICARIOUS LIABILITY OF SECOND APPELLANT

This issue is interwoven with the preceding issue in 1 above.

There could not have been vicarious liability against a non-existent party.

Vicarious liability is a doctrine of English Law, imported and accepted into the Roman-Dutch Law, which imposes liability on employers for the wrongdoings committed by their employees during the course and scope of their employment.

In casu, it is common cause, that, the first appellant was an employee, at the relevant time, of Jackson Mukahanana, and his employment brief was to drive tour passengers and their goods to stipulated places - and not pull trailers of non-passengers.

The court a quo correctly found, that, the first appellant was an employee, but, wrongly found who the employer was.

The second misdirection was the finding that the first appellant was acting within the course and scope of his employment when he pulled the respondent's trailer.

The trip from Bulawayo to Victoria Falls may well have been embarked upon in the course of his employ, but, the pulling of the respondent's trailer, laden with the goods, was certainly not within the scope of work of the first appellant's employment.

So, even if the respondent had succeeded in establishing that the second appellant was a legal persona and employer of the first appellant, and that the latter had been negligent, it was still going to be difficult, if not impossible, for the respondent to scale this insurmountable hurdle relating to non-scope of employment which can inferentially be equated to the first appellant going on a frolic of his own.

3. CLAIM FOUNDED ON LEX AQUILIA BUT LIABILITY FOUNDED ON CONTRACT

The respondent sued the appellants in delict based on alleged negligence.

The court a quo correctly found, on the facts, that negligence was not proven.

Instead of simply dismissing the claim on that score, the trial magistrate, from some incomprehensible remote source, replete with Wednesday reasoning, found that the respondent's claim must succeed on the basis of contract.

Who then were the contracting parties?

The respondent could not sue both appellants. He had to choose one, and, if that one were the first appellant, the respondent could not impute duty of care upon the second appellant. If the respondent chose the second appellant, he could not sue the first appellant on account of the maxim qui facit per alium facit per se (he who acts through another does the act himself).

This is a fundamental maxim of the Law of Agency.

There is no evidence that the first appellant (who would be the agent) was authorized by the second appellant (the principal) to contract with the respondent so as to ground invocation of the above maxim.

This legal principle escaped the trial magistrate's mind.

It is difficult to comprehend how a claim purportedly based on negligence by an employee, which negligence was found not proven, would legally metamorphose itself from delictual to contractual and still have the same vicarious liability attaching to a party who neither contracted with the respondent nor authorized the contract.

4. THE RELIEF THAT WAS AWARDED

This was the most bizarre misdirection on the part of the trial magistrate.

The respondent brought a claim sounding in money in the sum of US$2,000. From whatever legal distance, it could not be missed. Having claimed US$2,000 and being awarded judgment “less 10 tins of paint of 5 liters (sic) which the first defendant and plaintiff's witnesses approximate were recovered” is a meaningless award to say the least.

How should the supposedly successful party execute such a judgment?

If the losing party wishes to satisfy the judgement, how does he/she compute what has to be paid?

The claim was premised on vicarious liability and both employee and employer were found liable. On the wording of the judgment, is liability joint or several or pro rata?

In view of the aforegoing numerous legal flaws, it is little wonder that the appellant appealed against the entire judgment; that the respondent filed a “consent to judgment” a few days prior to the day of reckoning; that we allowed the appeal as per the consent but indicated that a judgment was necessary and would follow for the benefit of the trial magistrate and other judicial officers in the same predicament which apparently cries out loud as a training need.

Final Orders re: Nature, Amendment, Variation, Rescission iro Consent Papers, Consent Orders and Consent to Judgment

By the time the appeal was heard, on 2 February 2015, the respondent had, on 15 January 2015, filed a document headed “CONSENT TO JUDGMENT” wherein he indicated that he was consenting to the order sought in the appeal.

We allowed the appeal in terms of the consent and indicated that for the benefit of the trial magistrate, as well as other judicial officers who may be in the same predicament, we felt constrained to do a judgment write up.

This is it.

This is an appeal from a decision of the Magistrates Court sitting at Victoria Falls. The first appellant was a driver employed by the second appellant. The respondent is a former mayor of the resort town and also a former Member of Parliament.

On 2 October 2011, the first appellant was in Bulawayo driving the second appellant's IVECO vehicle registration number ABS 4838. The respondent averred, that, he telephonically contracted with the first appellant to pull his trailer with tins of paint and other hardware goods from Bulawayo to Victoria Falls for a fee to be paid at destination.

Along the way, so the argument went, the first appellant negligently caused an accident which resulted in damage to some of the respondent's consigned goods. Goods valued at US$2,411=90 were damaged.

In order to bring his claim within the monetary jurisdiction of the Magistrates Court, the respondent abandoned his claim to $411=90 and sued the appellants jointly and severally, one paying the other to be absolved for $2,000,00, interest at the prescribed rate effective from date of issue of summons, and costs of suit.

The second appellant was roped into the suit on the basis of alleged vicarious liability.

Both appellants strenuously denied liability.

The appellants denied, that, the first appellant was negligent and that his negligence caused the accident and that the second appellant was vicariously liable.

They also both denied that the respondent contracted with the first appellant for the carriage of the goods, let alone for a fee, since such was beyond the first appellant's mandate.

They averred, that, the respondent used his political muscle and forced the first appellant to pull his trailer at no cost thereby taking the risk; for the second appellant is not a licenced carrier, not insured, and not authorized to carry goods.

In her judgment, in which she found for the respondent, the trial magistrate, in a somewhat Wednesday decision, reasoned, in pertinent part, thus:

“Concerning the issue of negligence that was not expressly been (sic) proven however there are references to same (sic) type of negligence being there. In terms of how the accident occurred in addition to the realization of it (sic). However, to my mind, even if some negligence had been there. It doesn't then allow that the liability falls away.

Since vicarious liability covers even negligent actions. Mungofa v Muderede and Others 2003.

Defence counsel was dwelling on the fact, that, the contract was flawed. What has come out is that there was an agreement for delivery of goods after which payment would be made. So that was the verbal contract.

In this instance the first defendant started (sic) that as drivers they regularly carry goods for passengers on the agreement that the people would pay later. This was an arrangement he said the manager knew about. He added that after receiving payment he would take the money to the company office. So in saying this first defendant is saying he had a verbal contract with plaintiff.

A director at Chihwa tours testified saying he did not know goods were being carried without passengers.

Now, in coming up with a judgment. One has (sic) to look at the purpose of the doctrine of various (sic) liability Gwalinga v Jaredzo 2001 which includes that members of the public. Be protected from activities does (sic) by employees. Furthermore the employer is in a far better position to compensate the injured party than the employee. Looking at the purposes one has to apply it (sic) to this case. That Chihwa tours is better able to compensate customers for losses than the driver.

I now go into the operation of the doctrine in relation to this case which is 2 pronged. First that the employee is a servant not an independent contractor. In this instance the first defendant was a servant not an independent contract (sic). Since he is a driver who is subject to the employers control and direction. Secondly was he acting within the scope of his duties? His duties include driving the company vehicle to ferry passengers and their goods to their destination. Whether there was a deviation from duty Nott v ZANU PF 1983.

This is what he was doing on that day. When he carried passengers for Chihwa tours to Victoria Falls. Using the company's vehicle. So at his reason (sic) for travelling to Victoria Falls was for work. To further clarify if he was acting in the course of his employment. One has to ask if first defendant was on a frolic of his own. During proceedings no one alleged that this trip was of accused (sic) own making. It was agreed he was sent on a trip for work. So I find that he was within the course of his employment.

Whether he exercised his duties well or not as to the satisfaction of his employer is something else. But for the purposes of this case. The second part of the 2 fold doctrine of the operation of this doctrine has been satisfied. So I find that defendant carried goods for plaintiff. During his duty as an employee whilst acting in the course of his employment as envisaged in Bande v Boregone 2003.

Concerning the qualification (sic) of plaintiff's loss plaintiff is claiming for all drivers and plaintiff's employee (sic) as defence counsel rightly points out agree that some tins of paint that were recovered (sic). Which were at least 10 in number. So there is a need for plaintiff compensation to be lessened in that respect.

So I award judgment for the plaintiff less ten tins of paint of 5 litre (sic) which first defendant and plaintiff's witness approximated were recovered. Each party to bear its own costs.”

Before delving into the gist of the legal issues that emanate from the facts and the judgment, I must utter some strictures regarding the several grammatical and punctuation errors exitant in the portion of the judgment quoted above. This explains why I was constrained to quote it in extenso.

It is not known if these errors should be ascribed to the trial magistrate or the typist, or both, but, the bottom line is that the trial magistrate should shoulder the blame for obvious reasons - it is her judgment.

It is sad to remark, that, in fact, this is her style of judgment writing as gleaned from appeals and reviews emanating from her one-person station.

Now, to the pith of the appeal and the law.

The following legal issues emanate from the court a quo's judgment:

1. Propriety of citing the second appellant.

2. Vicarious liability of the second appellant.

3. Claim founded on lex aquilia but liability founded on contract.

4. The relief that was awarded.

I would deal with the above issues seriatim.

1. PROPRIETY OF CITING THE SECOND APPELLANT

This issue is a point of law which a party is allowed to raise at any time, even on appeal, for the first time: Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S).

The appellants were correct to raise the point for the first time on appeal.

Second appellant was cited as Chihwa Tours.

The trial magistrate never bothered to strive to ascertain what entity this was but was content with the description in the particulars of claim that it was a “transport company” yet it is an un-incorporated entity operated by one Jackson Mukahanana.

Legally speaking, no company can have such a name.

The result of this vis-à-vis the second appellant is that the proceedings were instituted against a non-existing legal persona.

In The Zimbabwe Bata Shoe Company Limited v Bata Shoe Company Middle Management SC30-12 the following appears:

“The appellant has taken the point, that, although the Bata Shoe Company Middle Management is cited as the respondent, it is not a legal persona at law, with the capacity to sue or be sued. Therefore, there is no respondent before this court. Similarly there was no respondent before the Labour Court, or a claimant before the arbitrator….,.

In light of the recent decision of this court, in CT Bolts (Pvt) Ltd v Workers Committee SC16-12, this court is of the unanimous view that the respondent is not a legal persona. Consequently, there is no respondent before this court. Neither was there a respondent before the Labour Court nor a claimant before the arbitrator. Both proceedings before the arbitrator and the Labour Court were therefore a nullity at law.”

By citing a non-legal persona, there was no second appellant (defendant) in the Magistrates Court, and, since liability for the second appellant was being sought vicariously, the proceedings a quo, at least against the second appellant, were a nullity.

2. VICARIOUS LIABILITY OF SECOND APPELLANT

This issue is interwoven with the preceding issue in 1 above.

There could not have been vicarious liability against a non-existent party.

Vicarious liability is a doctrine of English Law, imported and accepted into the Roman-Dutch Law, which imposes liability on employers for the wrongdoings committed by their employees during the course and scope of their employment.

In casu, it is common cause, that, the first appellant was an employee, at the relevant time, of Jackson Mukahanana, and his employment brief was to drive tour passengers and their goods to stipulated places - and not pull trailers of non-passengers.

The court a quo correctly found, that, the first appellant was an employee, but, wrongly found who the employer was.

The second misdirection was the finding that the first appellant was acting within the course and scope of his employment when he pulled the respondent's trailer.

The trip from Bulawayo to Victoria Falls may well have been embarked upon in the course of his employ, but, the pulling of the respondent's trailer, laden with the goods, was certainly not within the scope of work of the first appellant's employment.

So, even if the respondent had succeeded in establishing that the second appellant was a legal persona and employer of the first appellant, and that the latter had been negligent, it was still going to be difficult, if not impossible, for the respondent to scale this insurmountable hurdle relating to non-scope of employment which can inferentially be equated to the first appellant going on a frolic of his own.

3. CLAIM FOUNDED ON LEX AQUILIA BUT LIABILITY FOUNDED ON CONTRACT

The respondent sued the appellants in delict based on alleged negligence.

The court a quo correctly found, on the facts, that negligence was not proven.

Instead of simply dismissing the claim on that score, the trial magistrate, from some incomprehensible remote source, replete with Wednesday reasoning, found that the respondent's claim must succeed on the basis of contract.

Who then were the contracting parties?

The respondent could not sue both appellants. He had to choose one, and, if that one were the first appellant, the respondent could not impute duty of care upon the second appellant. If the respondent chose the second appellant, he could not sue the first appellant on account of the maxim qui facit per alium facit per se (he who acts through another does the act himself).

This is a fundamental maxim of the Law of Agency.

There is no evidence that the first appellant (who would be the agent) was authorized by the second appellant (the principal) to contract with the respondent so as to ground invocation of the above maxim.

This legal principle escaped the trial magistrate's mind.

It is difficult to comprehend how a claim purportedly based on negligence by an employee, which negligence was found not proven, would legally metamorphose itself from delictual to contractual and still have the same vicarious liability attaching to a party who neither contracted with the respondent nor authorized the contract.

4. THE RELIEF THAT WAS AWARDED

This was the most bizarre misdirection on the part of the trial magistrate.

The respondent brought a claim sounding in money in the sum of US$2,000. From whatever legal distance, it could not be missed. Having claimed US$2,000 and being awarded judgment “less 10 tins of paint of 5 liters (sic) which the first defendant and plaintiff's witnesses approximate were recovered” is a meaningless award to say the least.

How should the supposedly successful party execute such a judgment?

If the losing party wishes to satisfy the judgement, how does he/she compute what has to be paid?

The claim was premised on vicarious liability and both employee and employer were found liable. On the wording of the judgment, is liability joint or several or pro rata?

In view of the aforegoing numerous legal flaws, it is little wonder that the appellant appealed against the entire judgment; that the respondent filed a “consent to judgment” a few days prior to the day of reckoning; that we allowed the appeal as per the consent but indicated that a judgment was necessary and would follow for the benefit of the trial magistrate and other judicial officers in the same predicament which apparently cries out loud as a training need.

Law Portal
Zimbabwe

HB32-15 - ANDREW NDLOVU and CHIHWA TOURS vs THEMBINKOSI SIBINDI

Professional Ethics, Legal Duty to the Court and Clients, Dominus Litis and Correspondence with the Court

Pleadings re: Belated Pleadings, Matters Raised Mero Motu by the Court and the Doctrine of Notice iro Approach

Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Grounds of Appeal iro Belated Pleadings & Judicial Mero Motu

Citation and Joinder re: Approach, the Joinder of Necessity and Third Party Notices

Citation and Joinder re: Legal Status of Litigants, Name Descriptions, Trade Names and the Principle of Legal Persona

Locus Standi re: Legal Status of Litigants, Voluntary or Un-incorporated Associations & the Principle of Legal Persona

Pleadings re: Nullity of Proceedings or Acts, Peremptory Provisions & the Doctrines of Strict and Substantial Compliance

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Air, Land, Sea Carriage and Commercial Storage

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Verbal or Oral Agreement, Undocumented Transactions and Unsigned Draft Agreements or Informal Contracts

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Agency Law re: Acting on Behalf of Another iro Agency Relationship, Independent Contractor & Quasi-Mutual Assent Doctrine

Cause of Action and Draft Orders re: Approach, Timing, Framing and Legal Basis for Invoking Jurisdiction of the Court

Damages re: Assessment and Evidence of Damages iro Approach and the Once and For All Rule

Damages re: Assessment and Evidence of Damages iro Proof of Claim and Quantification

Delictual Damages re: Economic or Monetary Loss iro Property Loss or Damage

Final Orders re: Approach iro Functions, Powers, Obligations, Judicial Misdirections and Effect of Court Orders

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Final Orders re: Nature, Amendment, Variation, Rescission iro Consent Papers, Consent Orders and Consent to Judgment

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HB32-15 - ANDREW NDLOVU and CHIHWA TOURS vs THEMBINKOSI SIBINDI

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