Kerina Gweshe v Minister of Defence

On 3 June 2003, in the early hours of the morning, the plaintiff and her husband were at their residence in Glen View, Harare, when three vehicles (including an army lorry) arrived. Armed soldiers in army uniform and red berets forcibly entered the property by jumping over the fence and breaking door latches. The soldiers disconnected the telephone line and proceeded to assault the plaintiff and her husband using baton sticks, booted feet, and firearms. During the assault, a soldier attempted to strike the plaintiff with a chair, which she blocked with her arm, resulting in a fracture to her right ulna. The plaintiff was assaulted inside the house, while lying prone, and at the gate. She was subsequently taken to hospital where her broken arm was set in plaster of Paris for 3 weeks and she was hospitalized at Dandaro Clinic for 11 days. This incident occurred during a period when the Zimbabwe National Army had been seconded to assist the police during political unrest prior to a planned demonstration called "Final Push" scheduled for 6 June 2003. The plaintiff issued summons claiming $50 million in damages for the assault.

• Whether the plaintiff was assaulted by members of the Zimbabwe National Army
• Whether the defendant (Minister of Defence) is vicariously liable for the assault perpetrated by soldiers
• Whether the secondment of soldiers to the police under section 37 of the Public Order and Security Act (POSA) transfers vicarious liability from the Minister of Defence to the Ministry of Home Affairs
• What quantum of damages is appropriate for the injuries sustained

1. The defendant shall pay the plaintiff the sum of $10 million. 2. The defendant shall pay the plaintiff's costs.

The binding legal principle established is that when members of the Defence Forces are seconded to assist the police under section 37 of the Public Order and Security Act, the Minister of Defence remains vicariously liable for delicts committed by those soldiers. The secondment does not transfer vicarious liability to the requesting authority (Ministry of Home Affairs) unless Parliament expressly provides for such transfer in clear statutory language. Section 37(2)(b) of POSA equips soldiers with the same powers, functions, authority, responsibilities, discipline and penalties as police officers, but does not expressly impose vicarious liability on the requesting authority. Soldiers on secondment retain their employment status with the Defence Forces and remain under the ultimate responsibility of their military superiors, even while operating under police command for operational purposes. The employer of the Defence Forces therefore remains vicariously liable for delicts committed by members of the forces during such secondment.

The court made several important non-binding observations: (1) On assessment of damages in inflationary periods, Makarau J noted that judicial officers must exercise discretion in awarding general damages without necessarily relying heavily on awards in comparable cases, as direct reference to previous awards adjusted for inflation may result in awards that are out of step with economic realities. The court observed that while money has lost buying power due to inflation, it has also become increasingly difficult to come by due to rising poverty levels, creating a "double challenge" in assessment. (2) The court noted that the plaintiff exaggerated the severity of the assault, as the medical evidence did not substantiate claims of "severe" or "brutal" assault beyond the fractured ulna, with no evidence of extensive bruises or cuts typical of the level of assault described. (3) The court observed that soldiers seconded to police operations retained their identity and uniforms deliberately to show "strength of force" and to ensure "the populace to feel and know of their presence."

This case is significant in Zimbabwean jurisprudence for establishing important principles regarding vicarious liability of the state for actions of military personnel seconded to police under emergency powers legislation. It clarifies that secondment under section 37 of the Public Order and Security Act does not automatically transfer vicarious liability from the employing ministry (Defence) to the requesting authority (Home Affairs/Police). The judgment emphasizes that unless Parliament expressly provides for transfer of liability through clear statutory language, the common law principle of employer vicarious liability remains with the original employer. The case also addresses the challenge of assessing damages in periods of high inflation and economic decline, with the court emphasizing the need for judicial discretion rather than mechanical inflation adjustments to previous awards. Additionally, it reinforces constitutional protections against unlawful assault by state security forces.