James Chamisa v City of Harare

On 4 October 2018, at approximately 14:00 hours along First Street, Harare, the plaintiff was assaulted by municipal police officers during an operation to rid Harare of vendors and touts. The plaintiff was wrongfully and unlawfully assaulted with baton sticks, clenched fists, booted feet, and open hands all over his body. The municipal police accused him of being an illegal vendor and insulted him publicly. The assault caused serious injuries including: two fractured ribs on the right side, a fractured right forearm, laceration of the lower lip, multiple abrasions and bruises on the torso and limbs, and split lacerations on both legs. The plaintiff also suffered psychological injuries including shock, insomnia, fatigue, difficulty concentrating, hallucinations, poor orientation, difficulty walking, and depression. He was hospitalized at Parirenyatwa Hospital from 4-10 October 2018 and at Westgate Medical Centre from 10-14 October 2018. The plaintiff sued the City of Harare for damages totaling USD$31,830.00 (medical expenses: USD$1,830.00; shock and suffering: USD$20,000.00; contumelia: USD$10,000.00). The defendant denied the assault occurred by its employees and denied vicarious liability.

• Whether the plaintiff was assaulted by the defendant's employees (municipal police)
• Whether the defendant is vicariously liable for the assault committed by its municipal police officers
• Whether the defendant is liable to pay damages and, if so, the quantum thereof
• Whether the assault was unlawful
• Assessment of damages for shock, pain and suffering
• Assessment of damages for contumelia (injured dignity)
• Assessment of damages for medical expenses

1. The defendant is ordered to pay the plaintiff damages in the sum of US$15,000.00 for shock and suffering. 2. The defendant is ordered to pay the plaintiff damages in the sum of US$5,000.00 for contumelia. 3. The defendant is ordered to pay the plaintiff damages for medical expenses in the sum of US$1,830.00. 4. Interest on the total amount of US$21,830.00 at the prescribed rate calculated from the date of judgment to the date of final payment. 5. The defendant to pay the costs of suit.

An employer (including a municipality) is vicariously liable for delicts committed by its employees where the employee is acting within the course and scope of employment duties. Conduct that constitutes an abuse or excess in the execution of the employer's business can still attract vicarious liability if it is so connected with authorized acts that it can be regarded as an improper or wrongful mode of performing those authorized acts. The conduct must not constitute such a complete abandonment or deviation from the path of duty as to dissociate it from the risk created by the employment. When municipal police officers assault a person while performing their authorized duties of managing illegal vendors, using council vehicles, uniforms and equipment, the municipality is vicariously liable even though the assault itself was unauthorized. Material facts upon which a party relies for its defense must be pleaded with sufficient particularity to enable the opposite party to reply. A defense not properly pleaded and raised only at trial or in amended pleadings filed on the day of trial may be rejected as an afterthought or recent fabrication. In assessing damages for unlawful assault causing physical and psychological injuries, the court must consider: the nature and seriousness of the assault, the injuries suffered, the duration and intensity of pain, lack of provocation, absence of apology, and the need for damages to serve both compensatory and, where appropriate, punitive/exemplary functions to underscore the repugnant nature of the conduct and incentivize employers to prevent such harm.

The court observed that assessment of damages in personal injury cases is "one of the most daunting tasks that can confront a judicial officer" and involves "equating the incommensurable" since money cannot replace a physical frame that has been permanently injured (citing Minister of Defence v Jackson 1990(2) ZLR 708 (SC)). The court noted that the fact that municipal police have no specific statutory power of arrest is inconsequential to the vicarious liability analysis when they are performing their duties of managing illegal vendors under the Urban Councils Act and Harare (Vendors) By-laws SI 159 of 2014. The court commented that the assault on the peaceful, law-abiding plaintiff who was minding his business was "improper, undesirable and unlawful" and that punitive and exemplary damages "will go some way towards underscoring the repugnance, outrageous, frightening and despicable nature of the assault." The court emphasized that damages should not be borne by employers in all circumstances, but only in those circumstances in which it is fair to require them to do so, and found this to be one of those cases. The court also observed that reference to awards made by English and South African courts may be inappropriate guides since conditions in those jurisdictions, both political and economic, are different from Zimbabwe.

This case is significant in Zimbabwean law (which shares common law principles with South African law) for several reasons: (1) It confirms the application of vicarious liability principles to municipal police forces, holding municipalities accountable for unlawful assaults by their officers even when not specifically authorized; (2) It establishes that conduct connected with authorized duties (managing illegal vendors) can create vicarious liability even when the specific acts (violent assault) constitute abuses and excesses; (3) It demonstrates the court's willingness to reject defenses that are not properly pleaded and appear to be afterthoughts or recent fabrications; (4) It provides guidance on the assessment of damages for physical and psychological injuries resulting from unlawful police conduct, including the appropriateness of punitive and exemplary damages; (5) It reinforces the principle that damages should be awarded to incentivize employers to prevent employees from harming members of the community; (6) It emphasizes the importance of pleadings in civil litigation and the requirement to state material facts with sufficient particularity; (7) It demonstrates the application of the "thin skull rule" in assessing subjective pain and suffering. The case serves as a precedent for holding municipal authorities accountable for police brutality and excessive force during law enforcement operations.