Kennedy C. Ndlovu v Thandanani Sibanda and Others

On 11 May 2007, the plaintiff boarded a kombi vehicle belonging to the 2nd and 3rd defendants at a terminus for passengers going to Tsholotsho. At the 38km peg from Bulawayo, the vehicle, driven by the 1st defendant (an employee of the 2nd and 3rd defendants), was involved in an accident. The plaintiff suffered injuries including loss of cervical lordosis, resulting in 11% permanent disability. He was hospitalized and claimed he could no longer work as a welder or farmer. The 2nd defendant owned Gampu Tours (Pvt) Ltd, which owned the vehicle. The defendants alleged that the 1st defendant had stolen the unregistered and unroadworthy vehicle and was on a frolic of his own. Evidence showed that the 2nd defendant's wife had visited hospitals and an insurance company with the plaintiff, and there were discussions about compensation, including an offer of cattle. The 1st defendant was not served and the plaintiff proceeded only against the 2nd and 3rd defendants.

• Whether the 2nd and 3rd defendants were vicariously liable for the negligent driving of the 1st defendant
• Whether the 1st defendant was acting within the scope of his employment at the time of the accident
• Whether the defence that the 1st defendant had stolen the vehicle and was on a frolic of his own was credible
• Quantum of damages for injuries sustained in the motor vehicle accident

Judgment was granted in favor of the plaintiff. The 2nd and 3rd defendants were ordered, one paying and the other absolved, to pay damages to the plaintiff in the sum of US$16,000.00. The 2nd and 3rd defendants were ordered to pay the costs of suit.

An employer may be held vicariously liable for the negligent acts of an employee where the evidence demonstrates that the employee was acting within the scope of employment at the time of the incident. The defence that an employee was on a frolic of his own or had stolen the employer's vehicle will be rejected where: (1) the employee operated the vehicle on the employer's regular route and from the employer's regular terminus; (2) the employer failed to report the alleged theft to police despite a serious accident; (3) the employer and his representatives engaged in post-accident conduct consistent with acknowledging liability, such as accompanying the injured party to medical appointments and insurance assessments and discussing compensation; and (4) the employer failed to take action against the employee when opportunities arose. The credibility of witnesses and the probabilities of the case are decisive factors in determining whether an employee was acting within the scope of employment.

The court made observations about witness credibility, noting that the 2nd defendant was 'very evasive under cross examination' and that it was necessary to ask him 'to listen to and reply to the questions put to him'. The court also observed that the 2nd defendant's wife 'was also not a reliable witness' who 'could not be certain about certain aspects of her testimony'. The court commented that if the 1st defendant was admitting liability and promising to pay, there was no reason why the defendants did not call him as a witness at trial. The court also noted that the issue preventing immediate compensation was 'how much to pay' rather than liability itself, which is why the parties approached an insurance company for guidance on compensation levels.

This case illustrates the application of vicarious liability principles in Zimbabwean law, particularly in motor vehicle accident claims. It demonstrates the importance of credibility assessments in cases where the central issue is whether an employee was acting within the scope of employment or on a frolic of his own. The case emphasizes that conduct after an accident (such as failure to report alleged theft, participation in compensation discussions, and accompanying the injured party to medical and insurance appointments) can be highly probative in determining liability. It also shows the court's willingness to reject defences that are inherently improbable when viewed against the totality of the evidence and the parties' post-accident conduct.